People v. Gilliam

• Decision Date: 16 May 2013
• Docket Number: No. 570113/08.,570113/08.
• Citation: 972 N.Y.S.2d 145,39 Misc.3d 143,2013 N.Y. Slip Op. 50784
• Parties: The PEOPLE of the State of New York, Respondent, v. Chavarr GILLIAM, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

39 Misc.3d 143

972 N.Y.S.2d 145

2013 N.Y. Slip Op. 50784

The PEOPLE of the State of New York, Respondent,

v.Chavarr GILLIAM, Defendant–Appellant.

No. 570113/08.

Supreme Court, Appellate Term, New York, First Department.

May 16, 2013.

OPINION TEXT STARTS HEREDefendant appeals from a judgment of the Criminal Court of the City of New York, New York County (ShawnDya L. Simpson, J.), rendered October 19, 2007, convicting him, upon a plea of guilty, of possession of an imitation pistol (Administrative Code of City of N.Y. § 10–131[g], and imposing sentence.

PRESENT: LOWE, III, P.J., SHULMAN, HUNTER JR., JJ.

PER CURIAM.

Judgment of conviction (ShawnDya L. Simpson, J.), rendered October 19, 2007, affirmed.

The accusatory instrument was not jurisdictionally defective. The information alleged, inter alia, that police recovered from defendant a “black imitation pistol, which appears to look like an actual gun and has an open barrel,” and that the arresting officer “was able to identify said item as an imitation pistol based upon his training and experience.” Giving the information “a fair and not overly restrictive or technical reading” (People v. Casey, 95 N.Y.2d 354, 360 [2000] ), we find “as a matter of common sense and reasonable pleading” (People v. Davis, 13 NY3d 17, 31 [2009] ) that it established reasonable cause to believe and a prima facie case that defendant possessed an imitation pistol within the meaning of Administrative Code of the City of New York § 10–131(g) ( see generally People v. Judiz, 38 N.Y.2d 529, 532 [1976] ). The statements set forth in the information, including allegations that the imitation firearm was black in color and featured an open barrel, were sufficient, for pleading purposes, to establish that the item in question “substantially duplicate[d] or [could] reasonably [have been] perceived to be an actual firearm” (Administrative Code § 10–131[g][1]; see Matter of Timothy L., 29 AD3d 492, 493 [2006] ). Further, even assuming, as defendant argues, that the qualifying language of the ordinance exempting from its reach imitation firearms which are “constructed entirely of transparent or translucent materials” created a true “exception” that the People were required to plead ( compare People v. Davis, 13 NY3d at 31–32 [2009] ), the sworn police allegation that the imitation pistol found in defendant's possession was black effectively negated any such exception.