The People, Respondent,v.Steven Berrezueta, Appellant.BriefN.Y.Jun 5, 2018 DISTRICT ATTORNEY OF THE COUNTY OF NEW YORK ONE HOGAN PLACE New York, N. Y. 10013 (212) 335-9000 CYRUS R. VANCE, JR. DISTRICT ATTORNEY January 18, 2018 Hon. John P. Asiello Clerk of the Court New York Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Re: People v. Steven Berrezueta N.Y. Co. Docket No. 2015NY030812 APL-2017-00224 Dear Mr. Asiello: The People submit this letter in opposition to defendant’s Rule 500.11 letter, dated December 13, 2017. Defendant asks this Court to reverse a May 12, 2017 order of the Appellate Term, First Department, affirming a February 11, 2016 judgment of the Criminal Court of the City of New York, New York County (Melissa A. Crane, J.). By that judgment, defendant was convicted, after a bench trial, of Attempted Criminal Possession of a Weapon in the Fourth Degree (Penal Law §§ 110/265.01), and Possession of a Weapon or Other Dangerous Instrument Within the Transit Authority (21 NYCRR § 1050.8[a]). Defendant was sentenced to time served. INTRODUCTION On April 22, 2015, Officer Michael Leone was on patrol in the Union Square subway station in Manhattan when he observed a knife protruding from defendant’s pants pocket. Upon seeing the knife, Officer Leone approached defendant and, after confirming that defendant was not a law enforcement officer, removed the knife from defendant’s pocket. Officer Leone tested the knife several times by pressing a button on the right side of the handle of the knife. Each time, the knife opened automatically and locked into place. Officer Leone thus determined that the knife was a switchblade, and he placed defendant under arrest. mi m D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 2 January 18, 2018 By a misdemeanor complaint dated May 6, 2015, defendant was charged, under New York County Docket Number 2015NY030812, with fourth-degree criminal possession of a weapon. On February 8, 2016, the prosecutor withdrew the original complaint and filed a superseding information, charging defendant with Attempted Criminal Possession of a Weapon in the Fourth Degree (Penal Law §§ 110/265.01), Possession of a Knife Worn Outside of Clothing (NYC Admin. Code § 10.133[c]), and Possession of a Weapon or Other Dangerous Instrument Within the Transit Authority (21 NYCRR § 1050.8[a]). On February 11, 2016, defendant proceeded to a bench trial before Judge Crane. That same day, Judge Crane found defendant guilty of attempted fourth-degree criminal possession of a weapon and possession of a weapon or other dangerous instrument within the transit authority, and sentenced him to time served.1 Defendant appealed his conviction. Pertinent here, defendant argued that the accusatory instrument was jurisdictionally defective and that the trial evidence was legally insufficient.2 On May 12, 2016, a unanimous panel of the Appellate Term, First Department affirmed defendant’s conviction. People v. Berrezueta, 55 Misc. 3d 143(A) (App. Term 1st Dept. 2017). On October 25, 2017, Chief Judge DiFiore granted defendant leave to appeal to this Court. On appeal to this Court, defendant reasserts two of the claims that he made before the Appellate Term, arguing that the accusatory instrument was jurisdictionally defective and that the evidence of his guilt was legally insufficient. A. The Relevant Record 1. The Accusatory Instrument The prosecutor’s superseding information charged defendant with attempted fourth-degree criminal possession of a weapon (Penal Law §§ 110/265.01), alleging that on April 22, 2015, in the County of New York, “defendant attempted to possess a switchblade knife.” In addition, the information charged defendant with possession of a weapon or other dangerous instrument within the transit authority (21 NYCRR § 1050.8[a]), for carrying “in and on a facility and conveyance a weapon or dangerous 1 The remaining count was dismissed on the People’s motion. 2 Defendant also challenged the lower court’s denial of his motion to suppress evidence and statements. He does not reassert that challenge on appeal to this Court. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 3 January 18, 2018 instrument,” without being a member of “law enforcement” or having a “license” to carry the “weapon concealed from view” (Information). A supporting affidavit from Officer Michael Leone stated that: On or about April 22, 2015 at about 10:50 a.m., in the subway station at East 14th Street and Union Square East in the County and State of New York, the defendant possessed a switchblade knife; . . . the defendant carried in and on a facility and conveyance a dangerous instrument and another item intended for use as a weapon, and the defendant was not law enforcement personnel and defendant was not a person who carried the weapon concealed from view, to whom a license for such weapon had been duly issued and was in force. I observed a knife clipped to the defendant’s rear right pants pocket so that I could see the entire clip and the head of the knife protruding from his pocket while the defendant was standing in the mezzanine area in the transit facility at the above location, a public place. I took a switchblade knife from the defendant’s rear right pants pocket. The defendant is not law enforcement personnel and could not produce a valid license or permit to carry such knife. I know that the knife is in fact a switchblade knife based on my training and experience as a police officer and because, when I applied hand pressure to a spring-loaded portion of the blade of the knife protruding from the handle of the knife, the blade swung open automatically (Supporting Affidavit, dated July 21, 2015). 2. The Trial Evidence a. The People’s Case On the morning of April 22, 2015, at approximately 10:55 a.m., police officer Michael Leone was on patrol in the Union Square subway station in Manhattan, when D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 4 January 18, 2018 he saw a knife protruding from the right-rear pocket of defendant’s pants (Leone: 8- 9).3 Upon seeing the knife, Officer Leone approached defendant, initiated conversation, and removed the knife from defendant’s pocket (Leone: 34, 36). Officer Leone tested the knife by pressing a button on the handle on the side of the knife (Leone: 35). He determined that the knife was a “switchblade knife,” because there was a button on the handle that, when pressed with “no force,” triggered the “spring,” which “opened the knife and lock[ed] the blade into place” (Leone: 34-35, 41-44). When the knife opened, the button moved with the blade to the opposite side of the knife, above the handle (Leone: 43-44). Officer Leone had made numerous arrests for the possession of switchblade knives, and he had seen many switchblade and non-switchblade knives (Leone: 35). The knife in this case was a “grenade-shaped” “switchblade,” and once opened, the knife had a “finger hole” that “you can hold onto  so you don’t lose grip of the knife” (Leone: 41, 45). If the knife had been a “regular pocket knife,” and not a switchblade, pressing a “button [on] the side” of the knife would not have caused it to open (Leone: 44). After determining that defendant’s knife was a switchblade, Officer Leone placed defendant under arrest (Leone: 36). At trial, Officer Leone demonstrated, in open court, how the knife opened (Leone: 41-45). b. The Defense Case Defendant testified that he had purchased the knife on Groupon one or two years earlier (Defendant: 59-61). He bought that particular knife because it was a “U.S. Army knife” that resembled a “grenade,” and his brother was in the army (Defendant: 60, 63). Defendant, however, was not in the military or law enforcement (Defendant: 63). At the time of his arrest, defendant worked in the mailroom of an investment firm, where he had worked for nearly five years (Defendant: 57-58). He claimed that he used his knife to open mail and boxes (Defendant: 58-59, 63). Defendant admitted that he used his knife only at work, and that he could have left it at work (Defendant: 64). Defendant had also used other knives, such as a box cutter, to open boxes in his previous jobs (Defendant: 59, 60, 63-64). A box cutter was 3 Parenthetical references are to the trial transcript unless otherwise noted. References to “DL” are to Defendant’s Rule 500.11 letter. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 5 January 18, 2018 different from his current knife because it popped open with the control of his thumb (Defendant: 63-64). Defendant’s knife was also different from a Swiss Army knife in that it had “a knob, not a groove,” and it did not have “tools” on it, like a “screwdriver” (Defendant: 65). Defendant knew that he could open the knife the way that Officer Leone had demonstrated (Defendant: 67-68). However, defendant testified that he opened the knife a different way: by pushing a knob with his thumb, using one hand, until the blade locked into place (Defendant: 64-65). 3. The Appellate Term’s Decision Following his conviction, defendant appealed to the Appellate Term, First Department, which unanimously affirmed. People v. Berrezueta, 55 Misc. 3d 143(A) (App. Term 1st Dept. 2017). Pertinent here, the Appellate Term found the information jurisdictionally sufficient because it explained the basis for the arresting officer’s conclusion that, based upon his “training and experience,” the knife he recovered from defendant was a switchblade. Id. In particular, as the Appellate Term noted, the information alleged that “when [the officer] applied hand pressure to a spring-loaded portion of the blade of the knife protruding from the handle of the knife, the blade swung open automatically.” Id. The court determined that, although the officer did not specifically state that the button, spring, or other device was “in the handle of the knife,” the allegations nonetheless described a “weapon [that] possessed general features common to a switchblade.” Id. For that reason, the Appellate Term found that defendant was provided with “sufficient notice of the charged crime[s] to satisfy the demands of due process and double jeopardy.” Id. (quoting People v. Sans, 26 N.Y.3d 13, 17 (2015)). In addition, the Appellate Term held that the verdict was supported by legally sufficient evidence and was not against the weight of the evidence. Id. The court noted that the trial evidence “established the operability of the switchblade at issue,” and that an experienced police officer who had tested the knife “described the manner in which it operated, and also demonstrated its operability in court.” Id. On October 25, 2017, Chief Judge DiFiore granted defendant leave to appeal. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 6 January 18, 2018 B. The Trial Evidence Sufficiently Proved Defendant’s Guilt (Answering Defendant’s Rule 500.11 Letter, Point II). To begin, defendant claims that the trial evidence was insufficient to prove that the knife he possessed was a switchblade knife (DL: 14). In particular, defendant argues that the “device used to open the knife was not in the handle of the knife,” as required by Penal Law § 265.00(4) (DL: 14). Defendant’s argument is meritless. Of course, the evidence is legally sufficient to support a conviction if “there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the [fact-finder] on the basis of the evidence at trial.” People v. Bleakley, 69 N.Y.2d 490, 495 (1987); see also People v. Ramos, 19 N.Y.3d 133, 136 (2012). A reviewing court should view the evidence in the light most favorable to the People, and give the People the benefit of every reasonable inference to be drawn from the evidence. See People v. Delamota, 18 N.Y.3d 107, 113 (2011); People v. Cintron, 95 N.Y.2d 329, 332 (2000). Thus, a reviewing court should not conduct a “fact-finding reassessment of the overall persuasiveness of the evidence.” People v. Taylor, 94 N.Y.2d 910, 911-12 (2000). Rather, the appellate court should assess whether inferences of guilt could have been drawn from the facts proven below. Id. Applying these standards, this Court should not disturb the verdict, since it was supported by plainly sufficient evidence. Of course, a defendant is guilty of attempted criminal possession of a weapon in the fourth degree when, “with the intent to commit a crime, he engages in conduct which tends to effect the commission of” the possession of “any switchblade knife.” Penal Law §§ 110/265.01(1). Penal Law § 265.00(4) defines a switchblade as “any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife.” Here, the People established at trial that the knife defendant possessed was a switchblade. In fact, at trial, Officer Leone opened the knife, demonstrating how it operated as a switchblade. Specifically, the officer pressed a button on the side of the handle, triggering a spring-loaded mechanism that opened the knife automatically and locked the blade in place (Leone: 35). Of course, that description tracked the statutory definition of a switchblade. By contrast, Officer Leone testified that if the knife were “a regular pocket knife,” he would not have been able to open it by merely pressing a button (Leone: 44). Thus, the court not only heard Officer Leone’s description of how the knife operated, but saw how the knife operated first-hand. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 7 January 18, 2018 Under these circumstances, this Court should not disturb the trial court’s finding that the knife was a switchblade as defined in Penal Law § 265.00(4). See People v. Parrilla, 112 A.D.3d 517, 517 (1st Dept. 2013) (evidence established operability of gravity knife where officer who tested knife described the manner in which it operated and demonstrated its operability in court); People v. Birth, 49 A.D.3d 290, 290 (1st Dept. 2008) (evidence legally sufficient where officer who tested knife after defendant’s arrest described the manner in which knife operated and demonstrated its operability in open court); People v. Smith, 309 A.D.2d 608, 608 (1st Dept. 2003) (legally sufficient evidence where detective twice demonstrated operability of gravity knife in open court). Notably, too, Officer Leone had extensive experience in identifying switchblade knives. In that regard, Officer Leone had made numerous arrests for the possession of switchblade knives, and he had seen numerous switchblade and non- switchblade knives (Leone: 35). Thus, he was clearly familiar with the manner in which a switchblade knife operates, and in distinguishing switchblade knives from other knives. Indeed, while defendant claimed at trial that he used the knife for work, the trial court had good reason to conclude that the knife was in fact a weapon. The knife was shaped like a grenade and bore a U.S. Army emblem, resembling a military tactical knife. And, as discussed, the knife opened automatically, with the use of only one hand, by applying a small amount of pressure to a button protruding from the handle. Notably, too, the knife had a hole in between the blade and the handle that, as Officer Leone testified, enabled the user to grip the knife more tightly. This was, therefore, a military knife intended for tactical use. As the evidence unequivocally established, defendant’s knife was not a mere box cutter, a regular pocket knife (see Leone: 44), or a Swiss Army knife, and it was a far cry from the steak knife at issue in Matter of Jamie D., 59 N.Y.2d 589, 592-93 (1983), which, of course, was intended for household use. Rather, defendant’s knife possessed the characteristics of a switchblade, and it was clearly designed as a weapon. In response, defendant raises a hypertechnical challenge to the trial court’s factual findings. He argues that the knife was not a switchblade, contending that the button that opened it was attached to the blade, not to the handle (DL: 14). But viewing the knife in full—as opposed to deconstructing each of its individual parts— defendant is splitting hairs. As discussed, Officer Leone testified that he pressed a button on the handle to open the knife (Leone: 35). Thus, the officer believed that the button was part of the handle when he opened it from the closed position. And, D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 8 January 18, 2018 the court had every reason to credit that description. As an examination of the knife revealed, the button consisted of a piece of metal that protruded from the right side of the handle when the knife was closed. Stated differently, when the knife was in the closed position, the button was on the part of the knife that could “be grasped by the hand” (DL: 15): that is, the handle. Nor was there any doubt that the knife was opened by pushing that button, which caused the locking mechanism to release the blade and the blade to automatically swing open with the help of a spring. Indeed, defendant himself admitted that the knife could be opened by pressing the spring- loaded button (Defendant: 67-68)—a telltale feature of a switchblade knife under Penal Law § 265.00(4). To be sure, the button was attached to the metal portion of the knife, and it moved with the blade, away from the handle, when the knife opened (see DL: 15-16). But as the trial court recognized, this fact was immaterial. As explained, Penal Law § 265.00(4) focuses on the manner in which the knife opens—not on what happens after it opens. See People v. Aragon, 28 N.Y.3d 125, 130 (2016) (noting that a gravity knife is identified “based on the way a user opens the device”). And here, as Officer Leone demonstrated in open court, the knife opened by the use of a spring-loaded mechanism triggered by a button that was part of the handle when the knife was closed. The knife, therefore, was precisely the type of instrument that the Legislature intended to define as a switchblade. And, of course, the plain meaning of the statute must be viewed in light of the legislative intent. See People v. Pabon, 28 N.Y.3d 147, 152 (2016); People v. Santi, 3 N.Y.3d 234, 242-43 (2004); People v. Allen, 92 N.Y.2d 378, 383 (1998).4 Finally, as defendant does not dispute, whether he knew that the knife was a switchblade was irrelevant to his guilt under Penal Law § 265.01(1). All that mattered 4 Defendant’s contention that the People failed to preserve their argument that the button was in the handle of the knife (DL: 16) misses the mark. Simply put, this Court must affirm defendant’s conviction as long as it was supported by any rational view of the evidence. Bleakley, 69 N.Y.2d at 495. And, as discussed, Officer Leone explicitly testified that he opened the knife using a button in the handle, and the court saw how he opened the knife in open court. The case upon which defendant relies, People v. Ladson, 85 N.Y.2d 926, 928 (1995) (DL: 16), is wholly inapposite, as it involved the failure of the defendant to preserve a speedy trial argument. And, in any event, the People cited the legislative intent below and consistently maintained that the knife constituted a switchblade as defined in Penal Law § 265.00(4). In fact, the prosecutor specifically argued that the button was part of the handle of the knife (see Trial Transcript: 52-53, 90-91). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 9 January 18, 2018 was that he knowingly possessed the knife, and that the knife qualified as a switchblade. See People v. Parrilla, 27 N.Y.3d 400, 404 (2016). Further, although, at one time, the Legislature had carved out an exemption for the use of switchblades for the “purposes of business, trade, or profession,” L. 1954, ch. 268 § 1, it eliminated that exception just two years later, L. 1956, ch 586 § 1. Thus, as defendant does not deny, it made no difference whether he used the knife for work. In short, the trial court properly found, based on its own viewing of the knife, along with Officer Leone’s testimony and demonstration in open court, that the knife operated as a switchblade within the meaning of Penal Law § 265.00(4). This Court should not disturb that factual finding. Furthermore, defendant does not challenge the legal sufficiency of the evidence proving that he possessed a “weapon” or “other dangerous instrument” in the subway station in violation of 21 NYCRR § 1050.8(a). Thus, defendant’s conviction of the separate count under 21 NYCRR § 1050.8(a) must be affirmed as well.5 C. The Information Was Jurisdictionally Sufficient (Answering Defendant’s Rule 500.11 Letter, Point I). Next, defendant contends that the allegations in the accusatory instrument were facially insufficient to charge him with attempted fourth-degree criminal possession of a weapon. Once again focusing on the hypertechnical question of whether the button that opened the knife was “in the handle,” defendant argues that the accusatory instrument “did not describe” a switchblade knife as defined in Penal Law § 265.00(4) (DL: 8). Defendant’s argument should be rejected, since the information amply put defendant on notice of the charge. To be facially sufficient, an information’s factual allegations must provide “reasonable cause” to believe that defendant committed the charged offense, and must satisfy the “prima facie case requirement,” meaning that the allegations, “if true, establish every element of the offense charged and the defendant’s commission thereof.” People v. Kalin, 12 N.Y.3d 225, 228-29 (2009); CPL 100.40(1)(a)–(c); 100.15(2), (3). “Reasonable cause” exists when there are “facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of 5 The NYCRR count is discussed in detail on pages 11, 14, and 15 of the People’s Appellate Term brief. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 10 January 18, 2018 ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.” CPL 70.10(2). Critically, the prima facie requirement “is not the same as the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial.” People v. Smalls, 26 N.Y.3d 1064, 1066 (2015) (internal quotation marks omitted); see also People v. Henderson, 92 N.Y.2d 677, 680 (1999). Rather, “[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense,” it will be deemed facially sufficient. Smalls, 26 N.Y.3d at 1066-67 (citations omitted); see also People v. Dreyden, 15 N.Y.3d 100, 103 (2010). Likewise, if the information “establishes the elements of the charged crime,” then it is “facially sufficient.” Smalls, 26 N.Y.3d at 1067. In assessing the adequacy of the accusatory instrument, this Court gives the information “a fair and not overly restrictive or technical reading.” Smalls, 26 N.Y.3d at 1066-67. In that regard, this Court should consider not only the facts expressly alleged, but also the inferences a trier of fact could draw from those allegations. See People v. Inserra, 4 N.Y.3d 30, 33 (2004); Henderson, 92 N.Y.2d at 680. At the pleading stage, even “bare boned” factual allegations may be sufficient to support criminal charges. Allen, 92 N.Y.2d at 386. Here, applying these settled principles, the information was plainly sufficient to put defendant on notice that he was charged with possessing a switchblade knife. As discussed in Part B, above, a switchblade knife is defined in Penal Law § 265.00(4) as “any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife.” Here, in support of the charge of attempted fourth-degree criminal possession of a weapon, see Penal Law §§ 110/265.01(1), the accusatory instrument alleged that Officer Leone recovered a “switchblade knife from defendant’s rear right pants pocket.” In his supporting affidavit, Officer Leone averred that, based upon his “training and experience,” he identified the knife as a switchblade because when he “applied hand pressure to a spring-loaded portion of the blade of the knife protruding from the handle of the knife, the blade swung open automatically.” Initially, by citing Penal Law § 265.01(1), the information put defendant on notice that he was charged with possessing a switchblade knife as defined by the statutory scheme. Further, Officer Leone’s supporting affidavit provided reasonable D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 11 January 18, 2018 cause to believe that defendant possessed that type of knife. After all, Officer Leone explained that when he “applied hand pressure to a spring-loaded portion of the blade of the knife protruding from the handle of the knife, the blade swung open automatically.” By alleging that the knife opened “automatically” by “hand pressure” applied to a “spring-loaded” mechanism that was protruding from the “handle,” the accusatory instrument sufficiently described a knife that operated as a switchblade under Penal Law § 265.00(4). Indeed, these allegations were sufficient for pleading purposes, since Officer Leone explained how, in his experience, the knife’s characteristics matched those of a switchblade. See Sans, 26 N.Y.3d at 17 (arresting officer must “explain the basis of his or her conclusion that the defendant’s knife was a gravity knife”); Dreyden, 15 N.Y.3d at 104 (“arresting officer should, at the very least, explain briefly, with reference to his training and experience, how he or she formed the belief that the object observed in defendant’s possession was a gravity knife”). Moreover, the allegations in the information served the key function of an accusatory instrument. As this Court has repeatedly held, at the pleading stage, the purpose of an accusatory instrument is to “give an accused notice sufficient to prepare a defense,” and to provide adequate detail “to prevent a defendant from being tried twice for the same offense.” Smalls, 26 N.Y.3d at 1066. The inquiry is not, therefore, whether the description of the knife in the accusatory instrument was sufficient to prove defendant’s guilt at trial beyond a reasonable doubt, but “simply” whether the accusatory instrument supplied the defendant with sufficient notice of the charged crimes. See Dreyden, 15 N.Y.3d at 103; Aragon, 28 N.Y.3d at 128. Here, there can be no question that defendant was provided with sufficient notice, as the accusatory instrument charged him with possessing a “switchblade” knife, and provided a detailed description of Officer Leone’s basis for determining that the knife was a switchblade. Nevertheless, defendant contends that the information did not track the precise language of the statutory definition of a switchblade, because Officer Leone averred that the spring-loaded mechanism was on a portion of the “blade of the knife protruding from the handle of the knife,” and not “in the handle of the knife” (see DL: 8, 13) (emphasis added). But once again, defendant is splitting hairs. Indeed, this sort of hypertechnical challenge to the phrasing of an accusatory instrument should not be countenanced. After all, giving Officer Leone’s affidavit a fair reading, the spring- loaded mechanism was clearly in an area of the knife that was safe to touch when the knife was closed: that is, the handle. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 12 January 18, 2018 This Court’s decision in People v. Sans, supra, is instructive. There, the defendant argued that the accusatory instrument was insufficient because the description of the knife did not match the precise wording of the statutory definition of a gravity knife. Sans, 26 N.Y.3d at 16.6 This Court rejected the defendant’s argument, holding that there was no requirement that “an accusatory instrument alleging possession of a gravity knife  expressly state that the knife locks by means of a device,” as provided in the statutory definition. Id. Rather, this Court found that the allegations in the complaint were sufficient to convey to the defendant that he was charged with possession of a gravity knife, as opposed to a different type of knife. Id. at 16-17. Further, this Court noted, the accusatory instrument alleged that a police officer tested the knife and determined that it opened and locked in the manner described by the gravity knife statute. Id. at 18. In contrast, in Dreyden, 15 N.Y.3d at 103, this Court determined that the accusatory instrument charging the defendant with possession of a gravity knife was insufficient, because it was utterly devoid of “any support or explanation whatsoever” for the arresting officer’s conclusion that the knife the defendant possessed was a gravity knife. The relevant part of the accusatory instrument stated only that the arresting officer had seen the defendant in possession of a gravity knife, and that the officer had recovered the gravity knife from the defendant’s person. Id. This Court held, therefore, that the defendant was denied adequate notice of the charged crime. Id. Notably, however, this Court made clear that an accusatory instrument is not to be construed “narrowly,” and, instead, the inquiry is “simply whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy.” Id. Here, as in Sans, the accusatory instrument explained the basis for the arresting officer’s conclusion that, based on his expertise, the knife opened in a manner described by the statutory definition of a switchblade. Given these allegations, there was simply no doubt that a “reasonable defendant would have understood” that he was charged with possession of a switchblade knife, and that the prosecution would be required to prove that the knife was a switchblade at trial. Sans, 26 N.Y.3d at 17. Contrary to defendant’s suggestion, he had no reason to believe that he was charged with possessing some other type of “spring-assisted knife” (DL: 12 n.4). Thus, the 6 Specifically, the defendant in Sans argued that the accusatory instrument contained no allegation that the blade of the knife, once released, was “locked in place by means of a button, spring, lever, or other device,” as required by the statutory definition of a gravity knife. Id. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. John P. Asiello 13 January 18, 2018 accusatory instrument amply satisfied the pleading requirements, and there is no reason to disturb the Appellate Term’s determination on that score. Simply put, defendant’s argument boils down to the hypertechnical assertion that there is a critical difference between a spring-loaded mechanism “in the handle” and one “protruding from the handle” (DL: 8, 11-12). But as explained, this is too minor a difference to rise to the level of a jurisdictional defect. See People v. Konieczny, 2 N.Y.3d 569, 575 (2004) (not every “irregularity” in an accusatory instrument implicates the jurisdiction of the court). Instead, defendant’s contention that, because of the precise location of the spring-loaded button, the knife did not qualify as a switchblade, “was a matter to be raised as a defense” at trial, “not by insistence that this information was jurisdictionally defective.” Id. at 577 (citation omitted). Indeed, to insist on perfect and airtight allegations at the pleading stage, as defendant does here, would force reviewing courts to engage in an “overly restrictive” and “technical reading” of the accusatory instrument, which this Court has warned against. See Kalin, 12 N.Y.3d at 230; People v. Casey, 95 N.Y.2d 354, 360 (2000); see also Aragon, 28 N.Y.3d at 129 (accusatory instruments are afforded a “reasonable, not overly technical reading”).7 In sum, the accusatory instrument sufficiently alleged that defendant’s knife was a switchblade. Further, as defendant does not dispute on appeal to this Court, the allegations in the information were amply sufficient to charge him with the separate offense of possessing a weapon or dangerous instrument inside a subway station in violation of 21 NYCRR § 1050.8(a) (see People’s Appellate Term Brief at 23). Thus, his convictions should not be disturbed. 7 Finally, defendant’s apparent reliance on People v. Ocasio, 28 N.Y.3d 178 (2016) (DL: 13), is misplaced. In that case, the defendant argued that the accusatory instrument was facially insufficient because the object it described did not constitute a “billy” under Penal Law § 265.01(1). Id. at 181. More specifically, the defendant argued that the accusatory instrument described the object as being “metal” and “extendable,” whereas in his view, a billy referred “only to short, wooden clubs of a fixed length.” Id. The Penal Law did not define a “billy,” and thus, this Court interpreted the term in accordance with its “ordinary” and “commonly understood meaning.” Id. at 180-81. Ultimately, this Court rejected the defendant’s narrow interpretation and found that the term “billy” also encompassed metal batons. Id. at 184. Nothing in that opinion even remotely “suggests” (DL: 13) that an accusatory instrument is facially insufficient simply because it varies slightly from the statutory definition. DISTRICT ATTORNEY COUNTY OF NEW YORK Hon.John P. Asiello January 18, 201814 * ** For the reasons discussed above, as well as those set forth in the People’s Appellate Term Brief, this Court should affirm the order of the Appellate Term. Respectfully submitted, CYRUS R. VANCE,JR. District Attorney New York County BY: Katherine Kulkarni Assistant District Attorney (212) 335-9707 David M. Cohn Katherine Kulkarni Assistant District Attorneys Of Counsel Siobhan Atkins, Esq. Center for Appellate Litigation 120 Wall Street-28th Floor New York, New York 10005 cc: I DISTRICT ATTORNEY OF THE COUNTY OF NEW YORK ONE HOGAN PLACE New York, N. Y. 10013 (212) 335-9000 CYRUS R. VANCE, JR. DISTRICT ATTORNEY PRINTING SPECIFICATIONS STATEMENT The word count for this letter is 5311. The word processing system used to prepare this letter and to calculate the word count was Microsoft Word 2016. The letter is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes. mi m STATE OF NEW YORK ) ) ss.: People v. Berrezueta COUNTY OF NEW YORK ) Gerardo A. Bambu A., being duly sworn, deposes and says that I am not a party to the within action, and I am over 18 years of age. On January 18, 2018, 1 served 1 copy/copies of this Rule of 500.11 letter on the parties and persons below at the address(es) below designated by him/her/them for that purpose: [ ] by delivering the copy/copies to said persons listed personally. by delivering the copy/copies to the offices of said persons and leaving it with a suitable person in each office or in a conspicuous place therein. [ J by mailing the copy/copies to the said person at the address designated for that purpose by depositing the same with the United States Postal Service in a first-class, properly- addressed, postage-paid wrapper. [X] by dispatching the copy/copies to said person at the address designated for that purpose by depositing the copy, enclosed in a properly-addressed wrapper, in the custody of an overnight delivery service for overnight delivery, prior to the latest time designated by said service for overnight delivery. by transmitting the copy/copies to said person by electronic means, at the telephone number designated for that purpose, and having received a signal from the equipment of said person indicating that the transmission was received; and by mailing _ copy/copies to said person at the address designated for that purpose through the United States Postal Service in a first-class, properly-addressed, postage-paid wrapper. [ 1 SIOBHAN ATKINS, ESQ. Center for Appellate Litigation 120 Wall Street - 28th Floor New York, NY 10005 Sworn to before me this 7S' day of Tft-rji/A-z-t , 20 Notary Public DANA POOLE Notary Public - State of New YorkNO. 02P06223464 Qualified in New York CountyMy Commission Expires 0>Ji& JrC'