[*1]
People v Johnson
2013 NY Slip Op 50242(U) [38 Misc 3d 1223(A)]
Decided on February 19, 2013
Criminal Court Of The City Of New York, Bronx County
Wilson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on February 19, 2013
Criminal Court of the City of New York, Bronx County


The People of the State of New York,

against

Ronald Johnson, Defendant.




2012BX068528



For the People, Robert T. Johnson, District Attorney, Bronx County, by Katherine Gregory, Esq., Assistant District Attorney.

For the Defendant, Sarah Lustbader, Esq., Bronx Defenders.

John H. Wilson, J.



Defendant is charged with Unlawful Sale, Possession or Use of an Imitation Pistol (AC Sec. 10.131(g)(1)), a Class A Misdemeanor.

By omnibus motion dated January 18, 2013, Defendant seeks dismissal of the sole charge on the docket, asserting that the People's complaint is facially insufficient and suppression of all physical evidence recovered, as well as evidence of any prior bad acts.

The Court has reviewed the Court file, Defendant's motion, and the People's Response dated January 25, 2013. For the reasons stated below, the motion to dismiss is denied.

The motion for a pre-trial hearing is granted, to the extent of ordering a hearing to determine whether or not physical evidence was seized in violation of Defendant's rights under the United States and New York Constitutions. The question of whether or not the People can use any evidence of any prior bad acts or immoral conduct against the Defendant is referred to the trial court. [*2]

FACTUAL STATEMENT

Pursuant to the Criminal Court complaint, on or about August 23, 2012, at approximately 6:10 PM, in front of 2702 Heath Avenue, Bronx, New York, the Defendant was observed by Police Officer Neftali Medina (deponent) to be in possession of a "black power drill" "tucked into his waistband."

The deponent further asserts that "said power drill resembled a real .9mm semi-automatic pistol, in that, it was all black in color, and the barrel was not closed with any material." See, Criminal Court complaint dated October 23, 2012.

LEGAL ANALYSIS RE: FACIAL SUFFICIENCY

Defendant asserts that "the complaint fails to sufficiently allege the possession of a toy or imitation firearm." since the officer "observed the defendant to have a black power drill' on his person, not a toy or imitation firearm." See, Defendant's motion dated January 18, 2013, p 6 para 3.

CPL Sec. 100.15 provides that every accusatory instrument must contain two elements; 1) an accusatory portion designatingthe offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986).

Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987).

On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court information are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 NY2d 103, 115, 512 NYS2d 652 (1986).

Applying these principles to the instant matter, the factual allegations contained in the superceding information before this Court are facially sufficient.

Under AC 10.131(g)(1), a defendant is guilty of the unlawful sale, possession, or use of an imitation pistol when he "sell(s) or offers to sell, possess or use or attempt to use or give away, any toy or imitation firearm which substantially duplicates or can reasonably be perceived [*3]to be an actual firearm."

The key language from the statute quoted above applicable to this matter is whether or not the "imitation pistol can "reasonably be perceived to be an actual firearm." This issue is a matter of fact, best left to the trier of fact, regarding whether "the item in question substantially duplicate(d) or (could) reasonably (have been) perceived to be an actual firearm' especially from the point of view of an observer with no opportunity to examine it more closely." See, In re Timothy L., 29 AD3d 492, 493, 815 NYS2d 550 (1st Dept, 2006) (citation omitted).

The Criminal Court complaint asserts that the Defendant was observed by Officer Medina to be in possession of a "black power drill" "tucked into his waistband." Further, the Officer asserts that "said power drill resembled a real .9mm semi-automatic pistol, in that, it was all black in color, and the barrel was not closed with any material." See, Criminal Court complaint dated October 23, 2012.

These facts establish an evidentiary basis for the Officer to conclude that the item recovered resembled an actual firearm. On a facial sufficiency application, the reasonableness of the Officer's observations is an issue for the trier of fact. It would not be appropriate for this Court to substitute its perception of reasonableness for that of the trier of fact. See, People v. Barrow, 2013 WL 518570 (2d Dept, 2013), p 1 ("we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor") (citations omitted).

Therefore, Defendant's motion to dismiss is denied in its entirety.

OTHER RELIEF REQUESTED

Defendant has moved for suppression of any physical evidence seized at the time of his arrest. This motion is granted to the extent of ordering a pre-trial hearing at which the issue of whether or not the physical evidence seized was recovered in violation of the Defendant's rights under the federal and New York State Constitutions.

Defendant also seeks suppression of any prior bad acts or immoral conduct. A hearing to determine whether or not any evidence of prior bad acts or immoral conduct by the Defendant will be conducted by the trial judge, prior to any trial of this matter.

All other arguments and requests for any additional hearings and relief that have been advanced by Defendant have been reviewed and rejected by this Court as being not applicable, or without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Bronx, New YorkFebruary 19, 2013 [*4]

_______________________________Hon. John H. Wilson, JCC