The People, Respondent,v.Steven Berrezueta, Appellant.BriefN.Y.June 5, 2018To be argued by KATHERINE KULKARNI COVER New York Supreme Court Appellate Term - First Department THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - STEVEN BERREZUETA, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 (212) 335-9000 danyappeals@dany.nyc.gov DAVID M. COHN KATHERINE KULKARNI ASSISTANT DISTRICT ATTORNEYS Of Counsel -ii- TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iii INTRODUCTION................................................................................................................ 1 THE EVIDENCE AT THE SUPPRESSION HEARING ............................................ 3 The People’s Case......................................................................................................... 3 The Defense Case ......................................................................................................... 5 The Hearing Court’s Decision .................................................................................... 5 THE EVIDENCE AT TRIAL ............................................................................................ 6 The People’s Case......................................................................................................... 6 The Defense Case ......................................................................................................... 7 POINT I DEFENDANT’S GUILT WAS COMPELLINGLY PROVEN. ........................................................................................................ 9 POINT II THE INFORMATION WAS JURISDICTIONALLY SUFFICIENT ................................................................................................ 16 POINT III THE COURT PROPERLY DENIED DEFENDANT’S MOTION TO SUPPRESS HIS STATEMENTS AND THE SWITCHBLADE KNIFE RECOVERED FROM HIS POCKET. .............................................................................................. 24 CONCLUSION ................................................................................................................... 31 -iii- TABLE OF AUTHORITIES FEDERAL CASES Pennsylvania v. Mimms, 434 U.S. 106 (1977) ........................................................................ 24 Terry v. Ohio, 392 U.S. 1 (1968) ...................................................................................... 24, 26 STATE CASES Kalin. People v. Fiumara, 116 A.D.3d 421 (1st Dept. 2014) ............................................... 22 Matter of Jamie D., 59 N.Y.2d 589 (1983) ............................................................................ 15 People v. Alexander, 218 A.D.2d 284 (1st Dept. 1996) ................................................. 25, 30 People v. Allen, 92 N.Y.2d 378 (1998) .................................................................................. 19 People v. Bartley, 219 A.D.2d 566 (1st Dept. 1995)............................................................. 10 People v. Batista, 88 N.Y.2d 650 (1996) ................................................................................ 26 People v. Benjamin, 51 N.Y.2d 267 (1980) ...................................................................... 24, 26 People v. Bennett, 70 N.Y.2d 891 (1987) ............................................................................... 28 People v. Birth, 49 A.D.3d 290 (1st Dept. 2008) ................................................................. 12 People v. Blackwood, 108 A.D.3d 163 (1st Dept. 2013) ......................................................... 9 People v. Bleakley, 69 N.Y.2d 490 (1987) ........................................................................... 9-10 People v. Brannon, 16 N.Y.3d 596 (2011).................................................................. 26-27, 29 People v. Breaziel, 246 A.D.2d 310 (1st Dept. 1998) ........................................................... 26 People v. Cantor, 36 N.Y.2d 106 (1975) ................................................................................ 25 People v. Carrasquillo, 54 N.Y.2d 248 (1981) ........................................................................ 30 People v. Casey, 95 N.Y.2d 354 (2000) .................................................................................. 22 People v. Chestnut, 51 N.Y.2d 14 (1980), cert. denied, 449 U.S. 1018 (1980) .......... 24, 26-27 People v. Cintron, 95 N.Y.2d 329 (2000) ................................................................................. 9 -iv- People v. Corporan, 169 A.D.2d 643 (1st Dept. 1991) ......................................................... 10 People v. DeBour, 40 N.Y.2d 210 (1976) ................................................................... 24-25, 30 People v. Delamota, 18 N.Y.3d 107 (2011) .............................................................................. 9 People v. Deveaux, 50 Misc.3d 133(A) (2d Dept. App. Term 2016) .................................. 22 People v. Dreyden, 15 N.Y.3d 100 (2010) .................................................................. 18, 20, 23 People v. Finlayson, 76 A.D.2d 670 (2d Dept. 1980) ........................................................... 26 People v. Giles, 223 A.D.2d 39 (1st Dept. 1996) ................................................................. 24 People v. Gonzalez, 184 Misc.2d 262 (App. Term 1st Dept. 2000) ................................... 19 People v. Henderson, 92 N.Y.2d 677 (1999) ........................................................................... 18 People v. Herrera, 76 A.D.3d 891 (1st Dept. 2010) ............................................................. 27 People v. Hollman, 79 N.Y.2d 181 (1992) ............................................................................. 25 People v. Inserra, 4 N.Y.3d 30 (2004) .................................................................................... 18 People v. Kalin, 12 N.Y.3d 225 (2009) .................................................................................. 18 People v. Konieczny, 2 N.Y.3d 569 (2004) .............................................................................. 21 People v. Lane, 7 N.Y.3d 888 (2006) ..................................................................................... 10 People v. Lang, 81 A.D.3d 538 (1st Dept. 2011) ................................................................. 19 People v. Mendez, 68 A.D.3d 662 (1st Dept. 2009) ............................................................. 27 People v. Mercado, 68 N.Y.2d 874 (1986) .............................................................................. 25 People v. Parrilla, 112 A.D.3d 517 (1st Dept. 2013) ........................................................... 12 People v. Prochilo, 41 N.Y.2d 759 (1977) ............................................................................... 24 People v. Ramos, 19 N.Y.3d 133 (2012) .................................................................................. 9 People v. Robinson, 97 N.Y.2d 341 (2001) ............................................................................. 28 People v. Romero, 7 N.Y.3d 633 (2006) ................................................................................. 10 -v- People v. Sans, 26 N.Y.3d 13 (2015) ......................................................................... 20, 22-23 People v. Smalls, 26 N.Y.3d 1064 (2015) ........................................................................ 18, 21 People v. Smith, 309 A.D.2d 608 (1st Dept. 2003) .............................................................. 12 People v. Spencer, 188 A.D.2d 408 (1st Dept. 1992) ............................................................ 25 People v. Sylla, 7 Misc.3d 8 (App. Term. 2d Dept. 2005)................................................... 22 People v. Taylor, 94 N.Y.2d 910 (2000) ................................................................................. 10 People v. Vargas, 89 A.D.3d 582 (1st Dept. 2011) .............................................................. 27 People v. Wheeler, 2 N.Y.3d 370 (2004)................................................................................. 24 STATE STATUTES 21 NYCRR § 1050.1(b) ........................................................................................................ 29 21 NYCRR § 1050.8 ............................................................................................................. 29 21 NYCRR § 1050.8(a) ................................................................ 1-3, 5, 9, 11, 14-16, 23, 29 CPL 70.10(2) ......................................................................................................................... 18 CPL 100.40(1)(a)–(c) ............................................................................................................ 18 CPL 140.10(1) ....................................................................................................................... 30 CPL 140.10(3) ....................................................................................................................... 30 CPL 140.50(1) ....................................................................................................................... 26 CPL 140.50(3) ....................................................................................................................... 26 NYC Admin. Code § 10.133(c) ...................................................................................... 2, 16 Penal Law § 110.00 ....................................................................................... 1-2, 9, 16, 19, 23 Penal Law § 265.01(1) .................................................................................. 1-2, 9, 16, 19, 23 Penal Law § 265.00(4) ................................................................................... 11-12, 16, 19-20 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- STEVEN BERREZUETA, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION Defendant Steven Berrezueta appeals from a February 11, 2016 judgment of the Criminal Court of the City of New York, New York County (Melissa Crane, J.) convicting him, after a bench trial, of Attempted Criminal Possession of a Weapon in the Fourth Degree (Penal Law §§ 110/265.01[1]) and Possession of a Weapon or Other Dangerous Instrument Within the Transit Authority (21 NYCRR § 1050.8[a]), and sentencing him to time served. On April 22, 2015, at approximately 10:55 a.m., transit police 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. Officer Leone approached defendant and asked what he did for “a living,” to which defendant replied that he worked “in an office.” Officer Leone then removed the knife from -2- defendant’s pocket and asked why he had a knife. Defendant replied that he “bought” the knife “on Groupon.” Officer Leone tested the knife several times by pressing a button on the side of the blade that was protruding from 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. By a misdemeanor complaint dated May 6, 2015, defendant was charged, under New York County Docket Number 2015NY030812, with Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01[1]). 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[1]), 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]). That same day, following a hearing, the Honorable Melissa Crane denied defendant’s motion to suppress the knife and the statements he made to Officer Leone. Later that day, defendant proceeded to a bench trial before Judge Crane. On February 11, 2016, Judge Crane found defendant guilty of Attempted Criminal Possession of a Weapon in the Fourth Degree (Penal Law §§ 110/265.01[1]), and Possession of a -3- Weapon or Other Dangerous Instrument Within the Transit Authority (21 NYCRR § 1050.8[a]).1 The court sentenced defendant to time served. On appeal, defendant contends that the trial evidence was insufficient to prove his guilt, and that the guilty verdict was not supported by the weight of the evidence. In addition, defendant argues that the accusatory instrument was jurisdictionally defective. Finally, defendant argues that the hearing court erred in denying his motion to suppress the knife and the statements he made to Officer Leone. THE EVIDENCE AT THE SUPPRESSION HEARING The People’s Case On the morning of April 22, 2015, at approximately 10:55 a.m., Officer MICHAEL J. LEONE of the Transit District of the New York Police Department was on patrol in the subway station at Union Square in Manhattan, when he saw defendant.2 Officer Leone saw a black knife protruding from the right-rear pocket of defendant’s tan khaki pants (Leone: 8-9).3 When Officer Leone first observed 1 The remaining count was dismissed on the People’s motion. 2 Officer Leone had been with Transit District 4 of the NYPD for more than ten years (Leone: 7). In 2015, Officer Leone made 55 arrests for possession of knives in subway stations, including the possession of gravity knives, switchblade knives, and other knives (Leone: 7-8). And, at the time of the suppression hearing, Officer Leone had made nine knife possession arrests in 2016 (Leone: 7). When Officer Leone stopped people in subway stations, he generally inquired as to their “intent” and “why they ha[d] the knife,” and asked “what they d[id] for a living” (Leone: 7-8). 3 Initially, on direct examination, Officer Leone stated that the knife was in defendant’s front-right pants pocket, but then corrected himself during cross-examination (Leone: 9, 18). -4- defendant, he saw the top of the knife, the side of the blade, and a “button” on the knife (Leone: 9, 14). Upon seeing the knife, Officer Leone approached defendant, introduced himself, and asked if he could talk to defendant “for a second” (Leone: 10). At that point, Officer Leone did not place defendant under arrest, nor did he handcuff or restrain defendant (Leone: 11). Officer Leone’s tone was “nice and calm and cool,” and there were no other officers present (Leone: 10-11). Officer Leone then asked defendant what he did for a living (Leone: 9-10). Defendant replied that he worked “in an office” (Leone: 10). Upon hearing defendant’s response, Officer Leone removed the knife from defendant’s pocket because he believed it to be a “weapon” (Leone: 10, 15). Officer Leone would “never ask” the individual he stopped “to give [him] the weapon;” he would always remove the weapon himself “for [his] safety” and the “safety of others” (Leone: 15). After removing the knife from defendant’s pocket, Officer Leone asked defendant why he had the knife (Leone: 10). Defendant replied that he bought the knife “on Groupon,” and they “both laughed” (Leone: 10). Then, Officer Leone tested the knife multiple times by pressing the “button,” which consisted of a piece of metal on “the side of the blade on the handle” (Leone: 10). When Officer Leone pressed the button, “each time[,] the knife opened and locked into place” because it was “spring loaded” (Leone: 10, 19-20). The knife was “black” and shaped like a “grenade,” and it bore a “U.S. Army emblem” (Leone: 14). When opened, a “hole” in -5- between the blade and the handle of the knife was exposed, allowing the holder of the knife to “get a good grip on the knife” (Leone: 14). After testing the knife, Officer Leone walked with defendant to the station house, and placed defendant under arrest (Leone: 15-16). The Defense Case Defendant presented no evidence at the hearing. The Hearing Court’s Decision On February 8, 2016, Judge Crane issued an oral decision denying defendant’s motion to suppress the knife and his statements (2/8/16 Tr.: 26-28). As a preliminary matter, the court found Officer Leone credible (2/8/16 Tr.: 26). Next, Judge Crane found that while on patrol in the Union Square subway station, Officer Leone noticed the top of a knife sticking out of defendant’s right-rear pants pocket (2/8/16 Tr.: 27). The judge ruled that because defendant was inside a subway station, Officer Leone “legally had the right to approach [him]” and “take the knife” from defendant’s pocket (2/8/16 Tr.: 27, 28). The court cited to 21 NYCRR § 1050.8(a), which makes it “a violation to carry a dangerous instrument on the subway” (2/8/16 Tr.: 28). In addition, the court determined that defendant’s statements that he worked in an office and that he bought the knife on Groupon were made in response to Officer Leone’s proper investigatory questions, and were voluntary (2/8/16 Tr.: 27). -6- THE EVIDENCE AT TRIAL The People’s Case At approximately 10:55 a.m. on April 22, 2015, Transit Police Officer MICHAEL J. LEONE was on patrol in the 14th Street Union Square subway station in Manhattan, when he observed defendant inside the subway station (Leone: 34). Defendant was wearing tan pants, and there was a black knife sticking out of his right- rear pants pocket (Leone: 34). Upon seeing the knife, Officer Leone approached defendant, initiated conversation, and removed the knife from defendant’s pocket (Leone: 34). Defendant provided no indication that he was a member of law enforcement (Leone: 36). Then, Officer Leone tested the knife by pressing the 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 on the side of the knife 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).4 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). And, if the knife was 4 When the knife was in the open position, the button that opened the blade moved to the opposite side of the knife, above the handle (Leone: 43-44). -7- a “regular pocket knife,” and not a switchblade, pressing a “button [on] the side” of the knife would not cause it to open (Leone: 44). After determining that defendant’s knife was a switchblade, Officer Leone escorted defendant to his precinct, which was roughly 100 feet away in the subway station, and placed defendant under arrest (Leone: 36). The Defense Case On April 22, 2015, STEVEN BERREZUETA was on his way to work, when he was stopped by Officer Leone (Defendant: 61-62). Officer Leone asked defendant what was in his back pocket, and defendant replied, “a knife” (Defendant: 61). Officer Leone took defendant’s knife, opened it, and then told defendant to follow him to the precinct (Defendant: 62). Defendant had purchased the knife on Groupon one or two years earlier (Defendant: 59-60). There was nothing in the knife advertisement on Groupon that caused defendant to believe that the knife was a switchblade, or that it was illegal to possess (Defendant: 60-61). Defendant 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 himself, however, was not in the military (Defendant: 63). Nor was he a member of law enforcement (Defendant: 63). At the time of his arrest, defendant worked in the mailroom at an investment firm, where he had worked for nearly five years (Defendant: 57-58). He had been performing mailroom-type work for 12 years (Defendant: 58). -8- Defendant’s job duties included handing out packages and mail to approximately 355 employees (Defendant: 58-59, 63). Defendant used his knife to open mail and between 40 and 50 boxes per day (Defendant: 59). Other employees in the mailroom used knives and scissors to open boxes (Defendant: 61, 66). Defendant used his knife only at work, and he could leave his knife at work (Defendant: 64). Defendant had also used a knife to open boxes in his previous jobs (Defendant: 59). Before he bought the knife, defendant had used a box cutter to open boxes (Defendant: 60, 63- 64). The box cutter was different from his current knife; it popped open with the control of his thumb (Defendant: 63-64). Defendant testified that he did not open the knife the way Officer Leone had demonstrated (Defendant: 64-65). Rather, he opened the knife by pushing a knob with his thumb, using one hand, until the blade locked into place (Defendant: 65). However, defendant knew that he could also open the knife by pushing on the right side of the blade (Defendant: 67-68). Defendant’s knife was different from a Swiss Army knife in that it had “a knob, not a groove” (Defendant: 65). In addition, unlike defendant’s knife, a Swiss Army knife had “other tools with it,” like a “screwdriver” (Defendant: 65). -9- POINT I DEFENDANT’S GUILT WAS COMPELLINGLY PROVEN (Answering Defendant’s Brief, Point II). Defendant stands convicted of Attempted Criminal Possession of a Weapon in the Fourth Degree for possessing a switchblade knife (Penal Law §§ 110/265.01[1]). In addition, for possessing that knife in a New York City subway station, defendant stands convicted of Possession of a Weapon or Other Dangerous Instrument Within the Transit Authority (21 NYCRR § 1050.8[a]). On appeal, defendant does not dispute that he was in possession of a knife in a subway station. Rather, defendant argues that the trial evidence did not prove his guilt, asserting that the knife was not a switchblade, a weapon, or a dangerous instrument (see DB: 29-30). Defendant’s argument is meritless, as the evidence amply established that he possessed a switchblade knife. 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 jury 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); People v. Blackwood, 108 A.D.3d 163, 173 (1st Dept. 2013). 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 -10- reviewing court should not conduct a “fact-finding reassessment of the overall persuasiveness of the evidence.” People v. Taylor, 94 N.Y.2d 910, 911-912 (2000). Rather, the appellate court should assess whether inferences of guilt could have been drawn from the facts proven below. Id. Further, a verdict is against “the weight of the evidence” only if “the [fact- finder’s] findings of credibility and fact were ‘manifestly erroneous and so plainly unjustified by the evidence that rejection is required in the interest of justice.’” People v. Bartley, 219 A.D.2d 566, 567 (1st Dept. 1995), quoting People v. Corporan, 169 A.D.2d 643 (1st Dept. 1991). When reviewing the weight of the evidence, appellate courts should accord “[g]reat deference” to the fact-finder’s “opportunity to view the witnesses, hear the testimony, and observe demeanor.” Bleakley, 69 N.Y.2d at 495; see also People v. Romero, 7 N.Y.3d 633, 643-645 (2006). This logically follows because “those who see and hear the witnesses can assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record.” People v. Lane, 7 N.Y.3d 888, 890 (2006). In this case, the evidence compellingly proved defendant’s guilt of the charged crimes. To convict defendant of attempted fourth-degree criminal possession of a weapon, the People had to prove that defendant attempted to possess a “switchblade knife,” which, in turn, is defined 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.” Penal Law §§§ 110/265.01(1), 265.00(4). To find defendant -11- guilty of possession of a weapon or other dangerous instrument in the New York City Transit Authority, the People were required to prove that defendant was carrying a “weapon, dangerous instrument, or any other item intended for use as a weapon,” in “any facility or conveyance.” 21 NYCRR § 1050.8(a). Section 1050.8(a) adds that the definition of “weapon or dangerous instrument shall include, but not be limited to” firearms and various sorts of knives, including “switchblade” knives. Here, to begin, there is no dispute that defendant carried a knife in his pocket inside a subway station. And, the evidence clearly established that the knife recovered from defendant’s pocket was a switchblade. In that regard, Officer Leone described for the court how he tested the knife to determine that it was a switchblade. Specifically, he pressed a button protruding from the handle on the side of the knife, with little pressure, and the knife opened automatically and locked into place (Leone: 35).5 Of course, that description tracked the statutory definition of a switchblade: a knife that “opens automatically by hand pressure applied to a button.” Penal Law § 265.00(4). 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). In addition, Officer Leone twice demonstrated the operability of the knife in open court (Leone: 41-42). Thus, the court not only heard Officer Leone’s 5 The “button” described by Officer Leone is a piece of metal attached to side of the blade. When the knife is closed, the blade is inside the handle, and the “button” protrudes from the right side of the handle. See Exhibit 3. -12- description of how the knife operated, but saw how the knife operated first-hand. Under these circumstances, this Court should not disturb the trial court’s finding that the knife was a switchblade. 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 non-switchblade knives. In response, defendant contends that the button used to open the device was on the blade rather than the handle, and thus, in his view, the knife did not qualify as a switchblade (see DB: 31-32). To be sure, the Penal Law defines a switchblade as a knife opened by a button “on the handle.” Penal Law § 265.00(4). As discussed, however, Officer Leone testified that he pressed a button on the handle to open the -13- knife (Leone: 35). That conclusion was not undermined by Officer Leone’s observation that the button was on “the side of the knife” (Leone: 19, 35; DB 32-33). In fact, Officer Leone’s statements were entirely consistent. As one can plainly see when examining the knife, the button consists of a piece of metal that, when the knife is closed, protrudes from the side of the handle. Simply put, as Officer Leone’s testimony and the photographs in evidence demonstrate, the button was on an area of the knife that could be safely touched when the knife was closed – that is, the “handle” of the knife. The fact that the button was adjacent to the blade, and that it moved with the blade when the knife opened, is immaterial, since the definition of a switchblade is based on how the blade opens. Indeed, the critical question was the location of the button when the knife was in the closed position, which was adjacent to the handle. Whether the button moved when the knife was opened had no bearing on whether it met the statutory definition of a switchblade.6 6 Nor is there any merit to defendant’s argument that the court misunderstood the Penal Law as requiring “that the knife open automatically by means of a device, regardless of the location of that device” (DB: 34-35). Indeed, the court said no such thing when it remarked, in response to defense counsel’s request to have Officer Leone conduct an experiment by opening the knife on a table, “I am not sure where you’re going with this . . . [t]he statute switchblade knife means any knife which opens automatically by hand pressure applied to a button, spring or other device” (2/8/16 Tr.: 45). Tellingly, defendant raised no objection when the court made that remark at trial, rendering his current claim that the court misunderstood the definition of “switchblade” unpreserved. In any event, as discussed, the evidence unequivocally demonstrated that the knife opened from the closed position by pressing a button protruding from the handle. -14- Next, contrary to defendant’s contention (see DB: 30), the court properly permitted Officer Leone to testify to his conclusion that the knife he removed from defendant’s pocket was a switchblade. After all, as discussed, Officer Leone had substantial experience with switchblade knives, and his expertise was well established. Officer Leone merely related his experience – he did not substitute his legal judgment for the court’s. In any event, at the bench trial, the court obviously decided for itself whether the knife qualified as a switchblade, based both on Officer Leone’s description of how the knife was opened and Officer’s Leone demonstration of the operability of the knife in open court. The trial judge, of course, understood her obligation to apply the law as written without regard to Officer Leone’s opinion. Finally, for the same reason, defendant was properly convicted under 21 NYCRR § 1050.8(a) for possessing a weapon in the subway, since the knife was a switchblade. Notably, too, even assuming, arguendo, that the knife was not a switchblade, it nonetheless qualified as a “weapon” within the meaning of 21 NYCRR § 1050.8(a). In that regard, 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 box cutter (see -15- Defendant: 60, 63-64), a regular pocket knife (see Leone: 44), or a Swiss Army knife (see Defendant: 65), and it was a far cry from the steak knife at issue in Matter of Jamie D., 59 N.Y.2d 589, 592-593 (1983), which, of course, was intended for household use (see DB: 35). Rather, defendant’s knife possessed the characteristics of a weapon, and thus, it fell within the purview of 21 NYCRR § 1050.8(a). In sum, the evidence compellingly established that defendant possessed a switchblade knife inside the Union Square subway station. Accordingly, his convictions should not be disturbed. -16- POINT II THE INFORMATION WAS JURISDICTIONALLY SUFFICIENT (Answering Defendant’s Brief, Point I). Despite having been convicted after a trial at which the evidence soundly proved his guilt, defendant argues that his conviction must be vacated because, in his view, the allegations in the accusatory instrument were insufficient to support the charges. In that regard, defendant contends that the accusatory instrument did not properly allege that (1) the knife was a switchblade as defined in Penal Law § 265.00(4), or (2) that he carried a “weapon” in the subway within the meaning of 21 NYCRR § 1050.8(a).7 Defendant’s contentions lack merit. A. The prosecutor’s information charged defendant with Attempted Criminal Possession of a Weapon in the Fourth Degree (Penal Law §§ 110/265.01[1]), 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]). In support of this charge, the information provided that on April 22, 2015, in the County of New York: 7 In addition, the information charged defendant with Possession of a Knife Worn Outside Clothing (NYC Admin. Code § 10-133[c]). However, because the Administrative Code charge was dismissed after the court rendered a guilty verdict on the other two charges, the sufficiency of the allegations supporting that charge presents a moot question. Accordingly, it will not be discussed in this brief. -17- [D]efendant carried in and on a facility and conveyance a weapon or dangerous instrument and 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. (Information). A supporting deposition 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 Deposition, dated July 21, 2015). B. 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 -18- thereof.” People v. Kalin, 12 N.Y.3d 225, 228-229 (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 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). 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- 1067 (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 should give the information “a fair and not overly restrictive or technical reading.” Smalls, 26 N.Y.3d at 1066-1067. 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; -19- People v. Lang, 81 A.D.3d 538, 538 (1st Dept. 2011). Likewise, “the court is not required to ignore common sense or the significance of the conduct alleged.” People v. Gonzalez, 184 Misc.2d 262, 264 (App. Term 1st Dept. 2000) (citation and internal quotation marks omitted). At the pleading stage, even “bare boned” factual allegations may be sufficient to support criminal charges. People v. Allen, 92 N.Y.2d 378, 386 (1998). Judged by these standards, the accusatory instrument was jurisdictionally sufficient. To begin, as discussed in Part I, above, a person is guilty of attempted fourth-degree criminal possession of a weapon 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). 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 this charge, the accusatory instrument alleged that Officer Leone recovered “a switchblade knife from the defendant’s rear right pants pocket.” Officer Leone averred that he knew “the knife [was] in fact a switchblade knife based on [his] training and experience as a police officer and 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.” -20- Initially, by citing the statute, the information put defendant on notice of the definition of a switchblade as a knife that opens automatically by pressing a “button, spring, or other device” on the handle. Further, Officer Leone’s supporting deposition provided reasonable 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” in a blade that was protruding from the “handle,” the accusatory instrument clearly described a knife that operated in the manner proscribed by Penal Law § 265.00(4). Indeed, consistent with the statutory definition, Officer Leone explained that a “spring-loaded” device by the handle caused the knife to open automatically. Officer Leone’s allegations were clearly sufficient for pleading purposes, since he was required only to allege how, in his experience, he concluded that the knife was a switchblade. See People v. Sans, 26 N.Y.3d 13, 17 (2015) (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 or experience, how he or she formed the belief that the object observed in defendant’s possession was a gravity knife”). Nevertheless, defendant contends that the knife described in the accusatory instrument was not a “switchblade” as defined in Penal Law § 265.00(4), because -21- Officer Leone averred that the spring was in the “blade of the knife protruding from the handle of the knife,” and not in the “handle of the knife” (see DB: 18-19). Defendant, however, is splitting hairs. As Officer Leone explained above, the spring- loaded device was undeniably on the “handle” of the knife, because it protruded from the handle when the knife was closed. Further, to the extent that there is any difference between a spring-loaded device “on the handle” and one “protruding from the handle,” 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). In any event, even if the accusatory instrument revealed some doubt as to whether the knife qualified as a switchblade, that would not render it insufficient for pleading purposes. After all, at the pleading stage, the accusatory instrument need only “give an accused notice sufficient to prepare a defense,” and provide adequate detail “to prevent a defendant from being tried twice for the same offense.” Smalls, 26 N.Y.3d at 1066. That requirement was certainly met here, as the accusatory instrument provided a detailed description of Officer Leone’s encounter with defendant and of the knife. Indeed, defendant’s contention that the knife he possessed was not a switchblade “was a matter to be raised as a defense” at trial, “not by insistence that this information was jurisdictionally defective.” Konieczny, 2 N.Y.3d at 577 (citation omitted). To insist on perfect and airtight allegations at the pleading stage, as defendant does here, would force reviewing courts to engage in an “overly -22- restrictive” and “technical reading” of the accusatory instrument, which the Court of Appeals warned against in Kalin. People v. Fiumara, 116 A.D.3d 421, 421 (1st Dept. 2014); see also People v. Casey, 95 N.Y.2d 354, 360 (2000). Notably, defendant’s argument here is similar to one that was rejected by the Court of Appeals in People v. Sans, 26 N.Y.3d at 16-17. There, the defendant also 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. Id. at 16.8 The 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, the Court found that “the accusatory instrument sufficiently pleaded that the police officer exercised his expertise by testing the knife and determining that it opened and locked in the manner proscribed by the statute defining gravity knife.” Id. at 18; accord People v. Sylla, 7 Misc.3d 8, 10 (App. Term. 2d Dept. 2005) (“The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that a crime and the factual basis therefore be sufficiently alleged”); accord People v. Deveaux, 50 Misc.3d 133(A) (2d Dept. App. Term 2016) (arresting officer’s failure to specify the precise motion he 8 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, level or other device,” as required by the statutory definition of a gravity knife. Id. at 16. -23- used to open the knife did not prevent defendant from preparing his defense or avoiding double jeopardy). 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 proscribed by the statutory definition. These allegations were more than sufficient to provide defendant with “sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy.” Sans, 26 N.Y.3d at 17, citing Dreyden, 15 N.Y.3d at 103. Nothing more was required. For the same reasons, the accusatory instrument sufficiently alleged that defendant possessed a switchblade knife in the subway station, in violation of 21 NYCRR § 1050.8(a). As noted, the accusatory instrument alleged that defendant possessed a switchblade knife, and it added that he possessed the knife in the Union Square subway station. Those allegations satisfied the People’s pleading requirements. In sum, the accusatory instrument sufficiently alleged that defendant attempted to possess a switchblade knife in violation of Penal Law §§ 110/265.01(1), and possessed a weapon or dangerous instrument, specifically, a switchblade knife, in a subway station in violation of 21 NYCRR § 1050.8(a). At the very least, the information gave defendant ample notice of the charges and contained no jurisdictional defects. -24- POINT III THE COURT PROPERLY DENIED DEFENDANT’S MOTION TO SUPPRESS HIS STATEMENTS AND THE SWITCHBLADE KNIFE RECOVERED FROM HIS POCKET (Answering Defendant’s Brief, Point III). Focusing once again on the definition of “switchblade,” defendant argues that Officer Leone unlawfully approached him and seized the knife. Specifically, defendant asserts that although Officer Leone saw him in possession of a knife, he lacked reasonable suspicion that defendant possessed an illegal knife (DB: 36). Thus, defendant contends that Judge Crane erred in denying his motion to suppress the knife and his statements to Officer Leone (DB: 36). This claim too is meritless. The touchstone of any analysis of police conduct is reasonableness. See Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977); Terry v. Ohio, 392 U.S. 1, 19 (1968); People v. Wheeler, 2 N.Y.3d 370, 374 (2004); People v. DeBour, 40 N.Y.2d 210 (1976); People v. Chestnut, 51 N.Y.2d 14, 23 (1980), cert. denied, 449 U.S. 1018 (1980). “[P]olice- citizen encounters” are “dynamic situations” in which the basis for suspicion, and thus the intrusiveness of permissible police action, may escalate as events unfold. DeBour, 40 N.Y.2d at 223. In making any assessment of the legality and propriety of police conduct, the court must consider the “totality of the circumstances” at the time the action is taken. People v. Benjamin, 51 N.Y.2d 267, 271 (1980); People v. Prochilo, 41 N.Y.2d 759, 761 (1977); People v. Giles, 223 A.D.2d 39, 43 (1st Dept. 1996). The hearing court is in the best position to evaluate the reasonableness of the police -25- encounter, and its determination “should not be set aside unless clearly unsupported by the record.” People v. Spencer, 188 A.D.2d 408, 408 (1st Dept. 1992). In assessing the reasonableness of police conduct, the Court of Appeals has defined four stages of police-citizen interaction. The first stage is simply an approach for “the purpose of requesting information,” which need only be based on “some objective credible reason” not necessarily indicating criminality. The second level, a “common-law right of inquiry,” must be based on “a founded suspicion that criminal activity is afoot.” DeBour, 40 N.Y.2d at 213-217. A common-law right to inquire entitles a police officer “to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure.” Id. at 223. A level-three encounter occurs when an officer harbors a “reasonable suspicion that a particular person” committed a crime. Id. Reasonable suspicion has been defined as “the quantum of knowledge to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand.” People v. Cantor, 36 N.Y.2d 106, 112-113 (1975). The fourth level, probable cause, authorizes an arrest. DeBour, 40 N.Y.2d at 223; see also People v. Hollman, 79 N.Y.2d 181, 184-185 (1992). Probable cause does not require “proof to a mathematical certainty or proof beyond a reasonable doubt,” People v. Mercado, 68 N.Y.2d 874, 877 (1986), but instead exists when, “viewed through the prism of the [observing] officer’s experience and training,” it is “more probable than not” that criminality is at hand. People v. Alexander, 218 A.D.2d 284, 290 (1st Dept. 1996) (internal citations omitted). -26- Significantly, an officer may conduct a protective “frisk” if the officer reasonably believes that a suspect is armed and dangerous. See CPL 140.50(1),(3); see also Terry, 392 U.S. at 24; People v. Batista, 88 N.Y.2d 650, 654 (1996); People v. Breaziel, 246 A.D.2d 310, 310 (1st Dept. 1998); People v. Finlayson, 76 A.D.2d 670, 678 (2d Dept. 1980) (“[a]n officer may take appropriate self-protective measures when he lawfully confronts an individual and reasonably believes him to be armed or otherwise dangerous to [himself] or others”). Moreover, courts “do not require certainty” before officers are allowed to undertake protective measures. Finlayson, 76 A.D.2d at 680; Chestnut, 51 N.Y.2d at 23. Indeed, it would “be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety.” Benjamin, 51 N.Y.2d at 271. Guided by these principles, as the court below found, Officer Leone lawfully approached defendant to investigate whether he possessed an illegal weapon in the subway. In that regard, the evidence at the hearing established that on April 22, 2015, while on patrol in the Union Square subway station, Officer Leone noticed the top of a knife protruding from defendant’s right-rear pants pocket (Leone: 9, 18). Specifically, he saw the top of the knife, the side of the blade, and critically, a “button” on the knife (see Leone: 9, 14). As discussed in Point I, above, a “button” is a distinctive feature of a switchblade knife. Thus, Officer Leone had reason to believe that defendant possessed a switchblade, and he acted properly in approaching and removing the illegal weapon from defendant’s pocket (Leone 10, 15). See People v. -27- Brannon, 16 N.Y.3d 596, 602 (2011) (companion case, Fernandez: officer lawfully stopped defendant and removed knife that, based on its characteristics, reasonably appeared to be a gravity knife); People v. Herrera, 76 A.D.3d 891, 895 (1st Dept. 2010) (reasonable suspicion where arresting detective specifically testified that, “based on his training and experience, he believed the object in question to be an illegal weapon”).9 Critically, too, Officer Leone testified to his extensive experience with identifying and distinguishing knives. Specifically, he had made 55 knife-possession arrests in 2015, and nine arrests in 2016 (Leone: 7). He had worked for the NYPD for more than ten years, and during that time, he had been exclusively assigned to the transit division (Leone: 7). Thus, Officer Leone was well qualified to assess whether defendant reasonably appeared to be in possession of an illegal knife in the subway. See Chestnut, 51 N.Y.2d at 22 (officer experience is a valid factor to consider in determining the reasonableness of suspicion that a defendant was committing a crime). For those reasons, defendant is wrong to argue that Officer Leone did not testify to sufficient facts from which he could infer that defendant possessed a 9 By contrast, an officer may not conduct a forcible stop to seize a knife where there is no reason to suspect that the knife is an illegal weapon. See Brannon, 16 N.Y.3d at 602; People v. Vargas, 89 A.D.3d 582, 583 (1st Dept. 2011) (no reasonable suspicion where officer did not articulate any facts at all, much less specific facts, from which he could have inferred that the knife was a gravity knife); People v. Mendez, 68 A.D.3d 662, 662 (1st Dept. 2009) (officer did not see any characteristics of an illegal type of knife; in fact, he thought knife was a folding knife). -28- switchblade knife (see DB: 37-38). Simply put, Officer Leone had reason to believe that the knife in defendant’s pocket was a switchblade, because of its telltale button. To be sure, Officer Leone did not testify that he approached defendant specifically because of the button on the knife. Reasonable suspicion, however, is evaluated based on “objective facts,” not on the officer’s subjective intent. People v. Bennett, 70 N.Y.2d 891, 893 (1987); accord People v. Robinson, 97 N.Y.2d 341, 349-350 (2001). Thus, because the objective facts provided reasonable suspicion for Officer Leone’s actions, they were lawful. Notably, Officer Leone did not immediately conduct an intrusive stop. When he approached defendant, Officer Leone did not frisk or restrain defendant, or immediately reach into defendant’s pocket. Instead, he introduced himself and asked if he could talk to defendant “for a second” (Leone: 10-11). Then, in a calm and non- accusatory manner, Officer Leone asked defendant what he did for a living (Leone: 9- 10). Defendant’s reply that he worked “in an office” reasonably indicated that he was not a member of law enforcement (Leone: 9-10). Thus, only after confirming that defendant was not a law enforcement officer licensed to carry a weapon, and being reasonably concerned for his “safety” and the “safety of others” in the subway station, Officer Leone removed the knife from defendant’s pocket (Leone: 10, 15). Thus, Officer Leone’s investigation was measured, responsible, and lawful. It is significant, too, that the encounter occurred in a subway station as opposed to on the street. Of course, given the volume of people in the subway and -29- the lack of avenues to escape if confronted by an armed criminal, the possession of illegal weapons in the subway poses a particularly serious threat. That is why the Legislature enacted a special statute banning weapons in the subway, 21 NYCRR § 1050.8(a), which is broad in scope and applies to “weapons” and “dangerous instruments” not enumerated in the Penal Law. Indeed, the purpose of 21 NYCRR § 1050.8 is to “promote safety . . . [and] to protect those transit facilities and their passengers . . . .” 21 NYCRR § 1050.1(b). Thus, to lawfully approach defendant and test the knife, Officer Leone did not need to suspect that defendant’s knife was a switchblade; rather, he needed only to reasonably believe that the knife was an illegal weapon under 21 NYCRR § 1050.8(a). And here, given that defendant’s knife plainly appeared to be something other than a run-of-the-mill pocket knife, Officer Leone was justified in conducting an investigation. After all, reasonable suspicion “does not require absolute certainty that the knife the individual is carrying is” an illegal knife. Brannon, 16 N.Y.3d at 602.10 Finally, once Officer Leone tested the knife and confirmed that it was a switchblade, he had probable cause to arrest defendant for possession of a switchblade knife inside a subway station, as well as criminal possession of a weapon 10 Further, contrary to defendant’s contention (see DB: 36), the trial court did not commit reversible error by remarking that 21 NYCRR § 1050.8(a) “includes, but [is] not limited to unwrapped razor blade[s]” (2/8/16 Tr.: 28). While, of course, this case did not involve a razor blade, that offhand remark did not undermine the court’s appropriate conclusion that Officer Leone had reasonable suspicion to approach defendant and test the knife. -30- in the fourth degree. See CPL 140.10(1), 140.50(1),(3); DeBour, 40 N.Y.2d at 223; Alexander, 218 A.D.2d at 290, citing People v. Carrasquillo, 54 N.Y.2d 248 (1981). In sum, the court properly determined that Officer Leone had reasonable suspicion to approach defendant and test the knife. Accordingly, defendant’s motion to suppress was correctly denied. -31- CONCLUSION The judgment of conviction should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County danyappeals@dany.nyc.gov DAVID M. COHN KATHERINE KULKARNI Assistant District Attorneys Of Counsel February 2017