People v. Aquart
| Decision Date | 02 January 1997 |
| Citation | 171 Misc.2d 114,653 N.Y.S.2d 796 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Vaughan AQUART, Defendant. |
| Court | New York City Court |
Legal Aid Society, New York City (Robert M. Baum and Andrew Freifeld, of counsel), for defendant.
Robert T. Johnson, District Attorney of Bronx County (Jonathan V. Newton, of counsel), for plaintiff.
In a case of apparent first impression, this court is presented with the issue of whether an accusatory instrument charging criminal possession of a crossbow must be supported by allegations that the crossbow is operational. The defendant stands charged with Penal Law § 265.01(2) () and moves for dismissal on the grounds that the People have failed to allege operability of the crossbow and an intent to use the crossbow against another.
The factual portion of the accusatory instrument states merely that "the defendant had on his person a crossbow...." The defense makes two arguments for dismissal. First, they contend that the accusatory instrument is facially insufficient because it fails to allege that the defendant intended to use the crossbow against another. Second, they argue for dismissal on the grounds that the accusatory instrument does not contain allegations that the crossbow is operational. They contend that if operability is an essential element of PL 265.01(2), then the failure to plead this renders the accusatory instrument jurisdictionally defective on its face. Moreover, if operability is an essential element, then the failure to plead this within 90 days of the filing of the accusatory instrument means that the accusatory instrument was never converted into an information and must be dismissed on CPL 30.30 speedy trial grounds. People v. Colon, 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548 (1983). The accusatory instrument in this case was filed on June 6, 1996.
Pursuant to CPL 100.15, a criminal court accusatory instrument must contain an accusatory portion that designates the crimes charged and a factual portion that alleges facts of an evidentiary character supporting the charges. An accusatory instrument is facially sufficient if it contains facts of an evidentiary nature that support or tend to support the crimes charged (CPL 100.15[3]; People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ) and contains non-hearsay allegations that establish, if true, every element of the crimes charged. See, CPL 100.40(1)(b), (c). Mere conclusory statements will not suffice. People v. Dumas, supra. An accusatory instrument that fails to satisfy these requirements is fatally defective. People v. Alejandro, 70 N.Y.2d 133, 139, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987).
An essential element of PL 265.01(2), is that the defendant possess the weapon with intent to use it unlawfully against another. The statute provides:
"A person is guilty of criminal possession of a weapon in the fourth degree when" "[h]e possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another.
In the current case, the accusatory instrument fails to allege an intent to use the crossbow unlawfully against another. However, a presumption of intent is found in PL 265.15(4). That statute provides, in pertinent part:
The possession by any person of any dagger, dirk, stiletto, dangerous knife or any other weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another.
The defense argues that this presumption does not apply here because, by the very language of the statute, the presumption applies only where the alleged instrument is "designed, made or adapted for use primarily as a weapon." (PL 265.15[4] ) Thus, the presumption has been held not to apply where the weapon possessed was a baseball bat (People v. Santiago, 61 A.D.2d 801, 401 N.Y.S.2d 987 [2d Dept. 1978] ), where it was a steak knife at the defendant's home (People v. Bell, 158 A.D.2d 697, 552 N.Y.S.2d 148 [2d Dept. 1990] ), and where it was a straight razor (People ex rel. Pena v. N.Y.S. Division of Parole, 83 A.D.2d 887, 442 N.Y.S.2d 99 [2d Dept. 1981]; People v. Boykin, 135 Misc.2d 341, 515 N.Y.S.2d 181 [Crim.Ct. Queens County, 1987] ). The defense argues that a crossbow is not a "weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon" (PL. 265.15[4] ) and that the presumption of unlawful intent therefore does not apply. However, this court disagrees.
Although "crossbow" is not listed under PL 265.15(4) as a weapon the possession of which is presumptive evidence of intent to use the same unlawfully against another, it would be impossible for the legislature to list all objects made or adapted for use primarily as a weapon. Thus, courts have focused their inquiries not on the exact measurement or physical characteristics of the particular object, "but the purpose for which it is designed." People v. Schoonmaker, 40 A.D.2d 1066, 339 N.Y.S.2d 338 (3rd Dept.1972); People v. Ford, 122 Misc.2d 716, 471 N.Y.S.2d 813 (Crim.Ct. N.Y. County, 1984).
A crossbow--unlike a baseball bat, a steak knife, or a razor--is made for use primarily as a weapon. The presumption of intent found in PL 265.15(4) therefore applies. In fact, "a weapon" are the first two words of Webster's Dictionary definition of a crossbow, which reads: "[a] weapon having a short bow mounted crosswise near the end of a wooden stock that resembles the stock of a modern rifle and that is often provided with a mechanical device by which the string is drawn back and fixed and being usu[ually] shot from the shoulder by means of a trigger that releases the string and discharges a quarrel lying in a groove in the stock[.]" Webster's Third New International Dictionary 541 [unabridged 1986].
Proof of operability is most commonly, and conveniently, established through the introduction of a ballistics report (CPL 190.30), although any element of a crime may be established circumstantially. (See, People v. Borrero, 26 N.Y.2d 430, 311 N.Y.S.2d 475, 259 N.E.2d 902 [1970]; People v. Wright, 68 A.D.2d 930, 414 N.Y.S.2d 571 [2d Dept.1979] ). The defense argues that because the accusatory instrument does not establish the operability of the crossbow, it is facially insufficient. In support of this argument, the defense cites cases where courts have ruled that the operability of certain firearm-like weapons must be attested to by an expert. (People v. Laureno, 163 Misc.2d 873, 622 N.Y.S.2d 668 [Crim.Ct. Kings County, 1995]; People v. Lynch, 145 Misc.2d 354, 546 N.Y.S.2d 538 [Crim.Ct. Kings County, 1989]; People v. Carter, NYLJ 6/25/93, p. 22, col. 2 [Crim.Ct. N.Y. County] ). The defense contends that the prosecution in the current case must similarly establish the operability of the crossbow.
The People respond that operability must be established only in cases where the weapon possessed is one that has its operational characteristics defined by statute. They contend that because crossbows are not statutorily defined weapons, expert attestation is not required in this case.
The Penal Law definition of firearm does not mention the element of operability. (PL 265.00[3] ). However, an operability element has become well established through case law: When proof of operability is an essential element of the crime of possession of a firearm, operability must be pleaded with non-hearsay allegations. Matter of Rodney J., 83 N.Y.2d 503, at 507, 611 N.Y.S.2d 485, 633 N.E.2d 1089 (1994); People v. Shaffer, 66 N.Y.2d 663, 495 N.Y.S.2d 965, 486 N.E.2d 823 (1985); People v. Harvin, 126 Misc.2d 775, 483 N.Y.S.2d 913 (1984); People v. Grillo, 15 A.D.2d 502, 222 N.Y.S.2d 630 (2d Dept.1961), aff'd 11 N.Y.2d 841, 227 N.Y.S.2d 668, 182 N.E.2d 278 (1962). However, it is less established whether this rule applies where the weapon possessed is not a firearm but is another kind of projectile-firing weapon.
In People v. Adorno, 128 Misc.2d 389, 489 N.Y.S.2d 441 (Crim.Ct. Bronx County, 1984), the defendant allegedly possessed a pellet gun. The defense moved to dismiss under CPL 30.30(1)(b) in that the People had failed to submit a ballistics report within 90 days from the commencement of the action and therefore did not timely convert the complaint into an information. The court rejected the defense argument for proof of operability at...
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...stun gun (People v Lynch, 145 Misc 2d 354 [Crim Ct, Kings County 1989]), or crossbow, in violation of Penal Law § 265.01 (2) (People v Aquart, 171 Misc 2d 114 [Crim Ct, Bronx County However, operability, like any other element of a crime, may be established by circumstantial evidence. (Peo......
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...the subject case, the words of the statute are not ambiguous. It is true that a crossbow can be a dangerous weapon ( People v. Aquart, 171 Misc. 2d 114, 653 N.Y.S.2d 796 ). However, the Legislature chose to use the term "firearm" and not the word "weapon" as well as "shotguns and rifles", a......
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