The People, Respondent,v.Steven Berrezueta, Appellant.

Brief

N.Y.June 5, 2018

To be argued by SIOBHAN C. ATKINS Time Requested: 10 minutes New York Supreme Court Appellate Term -- First Department THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - New York County Dkt. 2015NY030812 STEVEN BERREZUETA, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT ROBERT S. DEAN Attorney for Defendant-Appellant CENTER FOR APPELLATE LITIGATION 120 Wall Street, 28th Floor New York, NY 10005 satkins@cfal.org (212) 577-2523, Ext. 535 Fax: (212) 577-2535 SIOBHAN C. ATKINS Of Counsel TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT PURSUANT TO RULE 5531. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT PURSUANT TO RULE 640.3(c). . . . . . . . . . . . . . . . . . . . . . . . . . 2 PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Mapp/Dunaway/Huntley Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Arguments of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 The Court’s Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The Bench Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The People’s Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Defense Counsel’s First Motion for a Trial Order of Dismissal. . . 11 The Defense Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Summations and Verdict.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 POINT I THE ACCUSATORY INSTRUMENT SHOULD HAVE BEEN DISMISSED BECAUSE IT DESCRIBED A KNIFE DIFFERENT FROM A SWITCHBLADE OR OTHER “WEAPON OR DANGEROUS INSTRUMENT”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 POINT II THE VERDICT SHOULD BE REVERSED AS LEGALLY INSUFFICIENT AND AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE THE KNIFE DID NOT HAVE THE CHARACTERISTICS OF A SWITCHBLADE OR A “WEAPON” OR “DANGEROUS INSTRUMENT”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 POINT III THE TRIAL COURT SHOULD HAVE SUPPRESSED THE KNIFE RECOVERED FROM MR. BERREZUETA BECAUSE THE OFFICER LACKED REASONABLE SUSPICION TO BELIEVE WHAT HE SAW WAS A “WEAPON” OR “DANGEROUS INSTRUMENT” UNDER THE NYCRR.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42 PRINTING SPECIFICATIONS STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . 42 ii TABLE OF AUTHORITIES FEDERAL CASES Dunaway v. New York, 442 U.S. 200 (1979)............................................................. 41 Dunn v. United States, 442 U.S. 100 (1979) . ............................................................ 22 Mapp v. Ohio, 367 U.S. 643 (1961). ........................................................................... 41 United States v. Harriss, 347 U.S. 612 (1954)............................................................ 22 United States v. Macias, 740 F.3d 96 (2d Cir. 2014) ................................................ 17 STATE CASES Auerbach v. Bd. of Educ. of City Sch. Dist. of City of New York, 86 N.Y.2d 198 (1995). ............................................................................................................................. 17 Matter of Edward K., 226 A.D.2d 1097 (4th Dep’t 1996) . ...................................... 26 Matter of Jamie D., 59 N.Y.2d 589 (1983)........................................................................... 12, 24, 25, 35, 38 Morton v. State, 15 N.Y.3d 50 (2010). ....................................................................... 17 People v. Alejandro, 70 N.Y.2d 133 (1987) . ............................................................. 17 People v. Alvarez, 76 A.D.3d 1098 (2d Dep’t 2010) . .............................................. 32 People v. Bannister, 44 Misc.3d 143(A), 2014 WL 4686047 (App. Term 1st Dept. 2014)................................................................................................................................ 16 People v. Berrios, 28 N.Y.2d 361 (1971).................................................................... 37 People v. Bleakley, 69 N.Y.2d 490 (1987). ................................................................. 30 People v. Brannon, 16 N.Y.3d 596 (2011). ...................................................... 5, 37, 39 iii People v. Brannon, 16 N.Y.3d 596 (2011). ................................................................ 37 People v. Burwell, 53 N.Y.2d 849 (1981). ............................................... 16, 29, 33, 36 People v. Cabey, 85 N.Y.2d 417 (1995) . ................................................................... 30 People v. Casey, 95 N.Y.2d 354 (2000) . .............................................................. 23, 29 People v. Contes, 60 N.Y.2d 620 (1983). ................................................................... 30 People v. Davis, 13 N.Y.3d 17 (2009). ....................................................................... 27 People v. De Bour, 40 N.Y.2d 210 (1976). ................................................................ 37 People v. Delamota, 18 N.Y.3d 107 (2011). .................................................. 30, 31, 35 People v. Dodt, 61 N.Y.2d 408 (1984) . ..................................................................... 40 People v. Dreyden, 15 N.Y.3d 100 (2010). ................................................................ 16 People v. Edwards, 95 N.Y.2d 486 (2000). ................................................................ 37 People v. Giordano, 87 N.Y.2d 441 (1995). ........................................................ 18, 20 People v. Golb, 23 N.Y.3d 455 (2015) . ..................................................................... 23 People v. Hafeez, 100 N.Y.2d 253 (2003).................................................................. 32 People v. Jonas, 42 Misc.3d 135(A), 2014 WL 349611 (App. Term 1st Dept. 2014) .......................................................................................................................................... 16 People v. Jones, 9 N.Y.3d 259 (2007)......................................................................... 17 People v. Kohut, 30 N.Y.2d 183 (1972). .................................................................... 27 People v. Ocasio, 48 Misc. 3d 127(A), 2015 WL 3824054 (App. Term 1st Dep’t 2015), rev’d on other grounds, 2016 N.Y. Slip Op. 07105 (Nov. 1, 2016). .......... 19 People v. Pilotti, 127 A.D.2d 23(1st Dep’t 1987) . ................................................... 40 iv People v. Roberts, 165 A.D.2d 598 (1st Dep’t 1991). .............................................. 31 People v. Sans, 26 N.Y.3d 13 (2015). ................................................................... 21, 22 People v. Santana, 7 N.Y.3d 234 (2006). .................................................................... 28 Tonis v. Bd. of Regents of Univ. of State of N.Y., 295 N.Y. 286 (1946). ............. 20 STATE STATUTES CPL § 70.10. ................................................................................................................... 19 CPL. § 470.05................................................................................................................. 41 N.Y. Comp. Codes R. & Regs. tit. 21, § 1050.8. .............................. 4, 8, 9, 24, 25, 38 New York City, N.Y., Code § 10-133[c]. ................................................... 4, 27, 40, 41 Penal Law § 10.00[13]. .................................................................................................. 26 Penal Law § 215.50[3] . ................................................................................................. 28 Penal Law § 265.00[4] . .................................................................... 4, 11, 15, 18, 31, 34 Penal Law § 265.01 . ......................................................................................... 30, 31, 37 Penal Law § 265.05............................................................................................ 21, 24, 25 Penal Law § 265.06 . ..................................................................................................... 21 OTHER AUTHORITIES Merriam-Webster Dictionary, Online Ed., available at http://www.merriam-webster.com/dictionary/handle (last accessed November 3, 2016) .......................................................................................................................................... 32 N.Y. Const., Art. 1, § 12. .............................................................................................. 36 v U.S. Const., Amend. IV................................................................................................ 36 U.S. Const., Amend. XIV............................................................................................. 36 vi SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: FIRST DEPARTMENT - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : STEVEN BERREZUETA, : Defendant-Appellant. : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x STATEMENT PURSUANT TO RULE 5531 1. The docket number in the court below was 2015NY030812. 2. The full names of the original parties were People of the State of New York against Steven Berrezueta. 3. These actions were commenced in Criminal Court, New York County. 4. These actions were commenced by the filing of a misdemeanor complaint. 5. This appeal is from a judgment convicting appellant, after a bench trial, of attempted criminal possession of a weapon in the fourth degree (Penal Law §§ 110 and 265.01) and possessing a weapon or dangerous instrument within the transit authority (N.Y. Comp. Codes R. & Regs. tit. 21, § 1050.8). 6. This is an appeal from a judgment of conviction rendered February 11, 2016 (Crane, J.). 7. Appellant has been granted permission to appeal as a poor person on the original record. The appendix method is not being used. STATEMENT PURSUANT TO RULE 640.3(c) Appellant has not applied to stay his sentence’s execution, as he has completed it. He is not presently incarcerated. PRELIMINARY STATEMENT This is an appeal from a judgment of the Criminal Court, New York County, rendered February 11, 2016, convicting appellant, 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 dangerous instrument within the transit authority (N.Y. Comp. Codes R. & Regs. tit. 21, § 1050.8) and sentencing him to time served (Crane, J., at hearings, trial, and sentence; Mitchell, J., at arraignment). This Court, on or about April 6, 2016, granted appellant leave to appeal as a poor person, and assigned Robert S. Dean, Center for Appellate Litigation, as counsel. Mr. Berrezueta had no co-defendants below. QUESTIONS PRESENTED 1. Whether the accusatory instrument must be dismissed because it described a knife different from a “switchblade,” “weapon,” or “dangerous instrument” and failed to plead facts establishing that Mr. Berrezueta was not carrying the knife for a lawful purpose; 2 2. Whether the verdict must be reversed and the accusatory instrument dismissed because the physical knife in evidence at trial lacked the characteristics of a switchblade, weapon, or dangerous instrument and the trial court fundamentally misunderstood the definition of a switchblade; 3. Whether the trial court should have suppressed the knife recovered from Mr. Berrezueta because the officer lacked reasonable suspicion to believe that the knife was a “weapon” or “dangerous instrument” under the NYCRR. INTRODUCTION On April 22, 2015, Steven Berrezueta, a father with no criminal record, was commuting to his job in the mail room of an investment company when he was stopped by Police Officer Michael Leone. Leone, who worked in the Transit District of the New York Police Department (“NYPD”), told Mr. Berrezueta that he saw a knife in his pocket and took it out. After opening the knife, Leone became convinced that it was a switchblade and arrested Mr. Berrezueta shortly thereafter. Mr. Berrezueta was soon charged with criminal possession of a weapon in the fourth degree, a misdemeanor (Count One), along with violations of New York City’s Administrative Code (Count Two) and the New York Codes, Rules, and Regulations (“NYCRR”) (Count Three). As Mr. Berrezueta would later explain at his trial, he purchased the knife on Groupon and used it exclusively to open boxes at his job. Ultimately, neither the accusatory instrument nor the evidence at trial established that the knife Mr. Berrezueta possessed was, in fact, a 3 switchblade. The People in fact previously agreed with this argument: they moved to dismiss the Penal Law charge before trial. In Point I, Mr. Berrezueta argues that the accusatory instrument in this case should have been dismissed as facially insufficient. Under the Penal Law, a “switchblade knife” 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 § 265.00[4] (emphasis added). The affidavit accompanying the prosecutor’s information, however, states that Leone opened the knife by “appl[ying] hand pressure to a spring-loaded portion of the blade of the knife protruding from the handle of the knife.” Because the accusatory instrument described a knife different from that proscribed by the Penal Law, it failed to provide reasonable cause that Mr. Berrezueta committed the crime of attempted criminal possession of a weapon in the fourth degree and the charge should have been dismissed. For similar reasons, the accusatory instrument failed to establish that Mr. Berrezueta possessed a weapon, dangerous instrument, or other item intended for use as a weapon under § 1058 of the NYCRR. Finally, because the accusatory instrument failed to plead facts establishing that Mr. Berrezueta did not possess the knife for a “lawful purpose” as set forth in an exception to § 10-133[c] of the Administrative Code, that count was also facially insufficient. Accordingly, Mr. Berrezueta’s convictions should be reversed and the 4 accusatory instrument dismissed. In Point II, Mr. Berrezueta argues that his convictions at trial were both legally infirm and against the weight of the evidence. The People’s evidence failed to establish that the button or device on Mr. Berrezueta’s knife was in the handle of the blade as required by the Penal Law, or that the knife qualified as a “weapon or dangerous instrument” under the NYCRR. In Point III, he argues that Leone lacked reasonable suspicion to approach him and take his knife. When questioned at a Mapp/Dunaway hearing about the knife when he first saw it in Mr. Berrezueta’s pocket, Leone failed to provide “specific and articulable facts from which he . . . inferred that the defendant was carrying” a knife proscribed by the NYCRR. People v. Brannon, 16 N.Y.3d 596, 602 (2011). STATEMENT OF FACTS The Charges On June 2, 2015, Mr. Berrezueta was arraigned on one charge of criminal possession of a weapon in the fourth degree. (File:1 2 (Misdemeanor Complaint); Tr.: 1-4)). At arraignment, defense counsel made an oral motion to dismiss the 1 Citations to documents contained in the court file furnished as part of the record on appeal are preceded by “File.” Citations to the provided transcript, which contains consecutively-numbered minutes of the arraignment, Mapp/Dunaway hearing, and trial, are preceded by “Tr.”. Citations to the transcript of a July 15, 2015 pretrial hearing, made part of the record on appeal, are preceded by “Hr’g Tr.”. Citations to the People’s trial exhibits, made part of the record on appeal (with the exception of People’s Ex. 3, the physical knife, which is in the People’s custody), are preceded by “People’s Ex.”. 5 accusatory instrument, noting that it alleged that the arresting officer (Leone) pressed a button “near” the handle of the knife rather than “in” the handle of the knife in order to open it automatically. (Tr.: 2-4). The arraigning court denied the motion, but indicated that counsel was free to file a written motion to dismiss. (Id. at 3). Shortly after defense counsel filed an omnibus motion requesting, inter alia, a Mapp/Dunaway hearing and an order dismissing the accusatory instrument for the same reasons discussed at the arraignment, the People themselves moved to dismiss the Penal Law charge and add two charges based on violations of New York’s Administrative Code and the NYCRR. (File: 6 (Record of Court Action, 7.15.15); Hr’g Tr. 2). The Court denied the People’s request, but directed them to file a superseding information. (File: 6 (Record of Court Action, 7.15.15); Hr’g Tr. 5). The People then filed a superseding prosecutor’s information adding the NYCRR and Administrative Code charges, but keeping the Penal Law charge as an attempt and amending Leone’s affidavit. (File: 8-9 (Prosecutor’s Information); id. at 35-36 (Affidavit)). The affidavit now read that the knife opened automatically when Leone “applied hand pressure to a spring-loaded portion of the blade of the knife protruding from the handle of the knife.” (Id. at 35-36 (Affidavit) (emphasis added)). Defense counsel then filed a second omnibus motion arguing, inter alia, 6 that the prosecutor’s information was facially insufficient and that the police lacked reasonable suspicion to approach Mr. Berrezueta and lacked probable cause to arrest him. (File: 59-73 (Omnibus Motion)). Defense counsel also requested a Mapp/Dunaway hearing. (Id.). On February 8, 2016, the Court conducted a joint Mapp/Dunaway hearing and a bench trial. The Mapp/Dunaway/Huntley Hearing As of February 2016, Police Officer Michael Leone was an officer in the Transit District of the NYPD. (Tr. 7). According to Leone, he first noticed Mr. Berrezueta in the Union Square subway station because he had a black knife in the front-right pants pocket of his khaki pants. (Tr. 9). When pressed, however, the officer admitted that he made a “mistake” and that according to his sworn criminal complaint, he actually saw the knife in Mr. Berrezueta’s right rear pants pocket. (Id. at 17-18). Leone did not testify that he saw anything particular about the knife that made him think it was an illegal knife or a weapon. He testified that he saw the top of the knife as well as the side of the blade, and insisted that he could tell from the outline of Mr. Berrezueta’s pants that the knife had a button, but he did not testify that these features made him believe that the knife was a switchblade or was otherwise illegal. (Id. at 9, 14). Instead, he stopped Mr. Berrezueta because he had a “[k]nife exposed in the subway which is against the law.” (Id. at 10). 7 Leone then asked Mr. Berrezueta for his occupation; he responded that he worked in an office. (Id. at 10). Mr. Berrezueta also told Leone that he bought the knife on Groupon. (Id.). Leone then took the knife from Mr. Berrezueta’s waist and opened it up. (Id.). Leone was shown People’s Exhibit 1, a photo of a knife, and said he recognized it as the one Mr. Berrezueta possessed on the day of the incident. (Id. at 12-13). Leone explained that he opened the knife by pressing a button on “the side of the blade on the handle[,] each time the knife opened and locked into place.” (Id. at 10). On cross-examination, however, he confirmed that in order to open the knife, he would “touch a piece of metal on the side of the blade.” (Id. at 19). After Leone opened the knife, Mr. Berrezueta accompanied him to the nearby precinct. (Id. at 15). After confirming that Mr. Berrezueta had no outstanding warrants, Leone placed Mr. Berrezueta under arrest. (Id. at 16). Arguments of Counsel Defense counsel argued that Leone’s testimony was incredible and that he lacked reasonable suspicion to approach Mr. Berrezueta or probable cause to place him under arrest. (Id. at 21). In response, the People argued that Mr. Berrezueta’s statements to Leone were voluntary and that Leone’s conduct towards Mr. Berrezueta was legal. Citing § 1050.8 of the NYCRR, which prohibits 8 weapons and dangerous instruments from being carried on the subway, the prosecutor insisted that if a knife “is in plain view an officer has probable cause at that point to stop the person and recover the knife.” (Id. at 23). The Court’s Decision The trial court issued an oral ruling denying Mr. Berrezueta’s motion to suppress. The court found that Leone noticed the top of the knife in question sticking out of Mr. Berrezueta’s right-rear pants pocket, and held that “because this was the subway Police Officer Leone legally had the right to approach the defendant.” (Id. at 27). The court then declined to suppress the knife, holding that “[S]ection 1050.8 of the [NYCRR] states or makes it a violation to carry a dangerous instrument on the subway, this includes, but [is] not limited to unwrapped razor blade[s,] accordingly upon seeing the handle of the knife Police Officer Leone was right to approach defendant and take the knife.” (Id. at 28). In rendering its decision, the court did not cite to any portions of Leone’s testimony that established any suspicion that the knife was an “unwrapped razor blade.” The Bench Trial The People’s Case At the bench trial, Leone again testified regarding his interaction with Mr. Berrezueta. At the outset, Leone was permitted to testify that after removing the 9 knife from Mr. Berrezueta’s pocket, he “observed there was a switchblade knife by testing it”; defense counsel objected on the ground that Leone was testifying regarding a legal conclusion, but his objection was overruled. (Tr. 34-35). The People then asked Leone whether he “had seen numerous switchblades” and “numerous knives that were not switchblades” during his time with the NYPD; to both questions, the officer replied that he had. (Id.). Again, defense counsel objected based on the statements’ legal conclusions. The trial court overruled the objection, holding that Leone’s “expertise about knives carried on the subway I think is established at this point.” (Id. at 35-36). Leone demonstrated opening the knife while testifying, and said that he opened it by “put[ting] pressure on the button, spring loaded inside, the spring opens the knife and locks the blade into place.” (Id. at 42). Although he testified that the button in question was “not on the blade” and insisted that “[i]f I was pressing on the blade it wouldn’t unlock in place,” Leone implicitly acknowledged that the button was “[a]ttached to the blade, the same piece of metal.” (Id. at 43- 44). And while Leone also testified at various points that the button was on the “handle,” he testified at other points that the button was “on the side of the knife” rather than on the handle of the knife. (Id. at 41-42 (emphasis added)). Additionally, when asked, “The button moves when you press the buttons, it goes to the top side of the knife?” Leone admitted, “Yes, it goes to the opposite side, 10 yes.” (Id. at 43-44). Defense counsel then asked Leone to try to open the knife while it laid flat on the table in front of him - presumably in order to demonstrate that the button was not on the handle of the knife. (Id. at 45). Absent any objection from the People, the trial court interrupted defense counsel’s inquiry, stating “I am not sure where you’re going with this. The statute switchblade knife means any knife which opens automatically by hand pressure applied to a button, spring or other device. I’m not quite sure where you’re going.” (Id.). Notably, although the trial court appeared to be quoting - or attempting to quote - the Penal Law, it did not quote the portion of the Penal Law defining a switchblade’s opening device as “in the handle of the knife.” Penal Law § 265.00[4]. (Id. (emphasis added)). Defense Counsel’s First Motion for a Trial Order of Dismissal After the close of the People’s case, defense counsel moved for a trial order of dismissal as to Counts One and Three - the Penal Law charge and the NYCRR charge - arguing that the People had failed to establish that the knife recovered from Mr. Berrezueta was a switchblade under the Penal Law or a “weapon or dangerous instrument” under the New York Codes, Rules and Regulations. Counsel noted that, in order to open the knife, Leone did not press a button on the handle of the knife, or a spring on its handle, but rather pressed on the blade itself. (Id. at 46). Counsel noted that a button, if on the handle, would not have 11 moved with the blade or have been connected to the blade like the device on the knife in question. (Id.). Because the Penal Law defines a switchblade as only those knives with a button, spring, or device on their handles, counsel argued that the knife in question did not qualify as one. (Id. at 46-47). Defense counsel also argued that the knife did not qualify as a “weapon or dangerous instrument” under the NYCRR because (1) it was not a switchblade; and (2) it did not have any of the characteristics of a knife that qualified as a weapon under the Court of Appeals’s decision in Matter of Jamie D., 59 N.Y.2d 589 (1983). (Id. at 50). Regarding the Penal Law charge, the People argued that it was “clear from the language of the definition . . . that this was not meant to be a very narrow definition of only if there is a plastic button that you press that’s attached to the handle of the knife is it a switchblade.” (Id. at 51). Rather, the People insisted, the Legislature was “most likely” intending to penalize knives that can be opened automatically with one hand. (Id. at 51-52). Regarding the NYCRR charge, the People argued that the knife was a switchblade and was also a weapon or dangerous instrument. Because the statute was not expressly limited to switchblades or other enumerated weapons, the People argued that the regulation should be read expansively to include the knife in question. (Id. at 55-56). The Court denied the motion with respect to both counts, holding that there was “at best” an issue of fact as to whether the knife qualified as a 12 switchblade under the Penal Law and the NYCRR. (Id. at 56) The Defense Case Steven Berrezueta had no criminal record. (Tr. 62). He had been working in the mail rooms of various investment companies for almost twelve years at the time he was arrested. (Id. at 57-58). In order to open boxes at his job, Mr. Berrezueta used the knife recovered from him on April 22, which he purchased on the website Groupon a year or two before the incident. (Id. at 59-60). There was nothing in the product description that indicated it was a switchblade or that it was illegal to possess. (Id. at 60-61). Mr. Berrezueta previously used a box cutter to open packages, which he lost shortly before purchasing the knife at issue. (Id. at 60). He testified that he opened the knife similarly to how he opened the box cutter: “with the control of my thumb it would pop open.” (Id. at 64). He never opened the knife by pressing a button, but noted that “but even that method you have to put enough force. If you just tap it it’s just going to flick open, it’s not going to pop open.” (Id. at 68). 13 Summations and Verdict2 In summation, defense counsel argued that the button on the knife could not have been on the handle, since it moved with the knife when it opened and closed, and in fact moved away from the only stationary part of the knife. (Id. at 79-80). Accordingly, because the button was not on the handle, it could not qualify as a switchblade under the Penal Law. (Id. at 80). Finally, counsel argued that Mr. Berrezueta was not guilty of violating the NYCRR because the knife was not a switchblade or other “weapon or dangerous instrument.” (Id. at 86-88). The People argued that they proved beyond a reasonable doubt the elements of all three charges. Regarding Counts One and Three, the People made arguments similar to those raised in opposing defense counsel’s first motion for a trial order of dismissal: they argued that the knife did qualify as a switchblade regardless of how Mr. Berrezueta used it, and that the NYCRR should be construed broadly to encompass the knife at issue. (Id. at 90, 94). The following day, the Court found Mr. Berrezueta guilty of Counts One and Three, the Penal Law charge and NYCRR charge. After a bench conference, the People dismissed Count Two, the Administrative Code charge. The Court 2After Mr. Berrezueta testified, defense counsel moved for a trial order of dismissal on Count Two, the Administrative Code count, which the Court denied. (Id. at 69-71). Because the People ultimately moved to dismiss the count following trial, this brief does not discuss the substance of defense counsel’s motion. 14 sentenced Mr. Berrezueta to time served. ARGUMENT POINT I THE ACCUSATORY INSTRUMENT SHOULD HAVE BEEN DISMISSED BECAUSE IT DESCRIBED A KNIFE DIFFERENT FROM A SWITCHBLADE OR OTHER “WEAPON OR DANGEROUS INSTRUMENT” AND FAILED TO PLEAD FACTS ESTABLISHING THAT MR. BERREZUETA DID NOT CARRY THE KNIFE FOR A LAWFUL PURPOSE Put quite simply, the accusatory instrument in this case did not describe any crime, let alone the misdemeanor crime of attempted criminal possession of a weapon in the fourth degree. Under the Penal Law, a “switchblade knife” 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 § 265.00[4] (emphasis added). The affidavit accompanying the prosecutor’s information, however, stated that Leone opened the knife by “appl[ying] hand pressure to a spring-loaded portion of the blade of the knife protruding from the handle of the knife.” Because the accusatory instrument described a knife different from that proscribed by the Penal Law, it failed to provide reasonable cause that Mr. Berrezueta had committed the crime of attempted criminal possession of a weapon in the fourth degree. For similar reasons, the accusatory instrument failed to establish that Mr. Berrezueta 15 possessed a weapon, dangerous instrument, or other item intended for use as a weapon under § 1058 of the NYCRR. Finally, because the accusatory instrument failed to plead facts establishing that Mr. Berrezueta did not possess the knife for a “lawful purpose” as set forth in an exception to § 10-133[c] of the Administrative Code, that count was also facially insufficient. Accordingly, Mr. Berrezueta’s convictions should be reversed and the accusatory instrument dismissed. In the event that this Court reaches only the sufficiency of the Penal Law count and the NYCRR count, the remaining count - a violation - should be dismissed as well. Mr. Berrezueta has satisfied the conditions of his sentence and no further penological purpose would be served by remand and further proceedings on a complaint charging one minor offense. See, e.g., People v. Bannister, 44 Misc.3d 143(A), 2014 WL 4686047 (App. Term 1st Dept. 2014); People v. Jonas, 42 Misc.3d 135(A), 2014 WL 349611 (App. Term 1st Dept. 2014); People v. Dreyden, 15 N.Y.3d 100, 104 (2010); see generally People v.Burwell, 53 N.Y.2d 849, 851 (1981). To be considered facially sufficient, a misdemeanor information must recite non-hearsay allegations that “establish, if true, every element of the offense charged and the defendant’s commission thereof.” CPL § 100.40[1](c).3 Because 3 Although labeled a “prosecutor’s information,” the operative accusatory instrument was supported by an amended affidavit, and thus both the trial court and the parties seemed to view it as a superseding information under CPL 100.50[1] rather than a prosecutor’s information under CPL 100.50[2]. See 16 the misdemeanor information is the sole instrument upon which a defendant is prosecuted and he or she is not afforded the additional protection of a grand jury proceeding, the facial sufficiency standard for an information is “much more demanding” than that for a felony complaint. People v. Alejandro, 70 N.Y.2d 133, 139 (1987) (noting the “vital legislative concern” that a defendant prosecuted on the basis of an information have “an assurance that the information contains allegations establishing a legally sufficient case”). Facial sufficiency is a non-waivable jurisdictional defect, and failure to comply with these requirements mandates dismissal of the accusatory instrument. Id. at 140; People v. Jones, 9 N.Y.3d 259, 263 (2007). “Where the terms of a statute are clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used.” Auerbach v. Bd. of Educ. of City Sch. Dist. of City of New York, 86 N.Y.2d 198, 204 (1995). Courts must be particularly careful in construing strict liability offenses, which “invariably produce some harsh outcomes.” Morton v. State, 15 N.Y.3d 50, 66 (2010); see also United States v. Macias, 740 F.3d 96, 105 (2d Cir. 2014) People v. Inserra, 4 N.Y.3d 30, 32 (2004) (noting that the facial sufficiency of a prosecutor’s information is judged by reference to the allegations in the previous information, not by the allegations within the four corners of the prosecutor’s information). Nevertheless, if this Court judges the accusatory instrument by reference to the standards applicable to a prosecutor’s information, the accusatory instrument is deficient for the same reasons, as it describes a knife that opened automatically by hand pressure applied “near the handle.” (File: 2). 17 (noting that “in construing statutes, courts assume that Congress intends to legislate consistently with the Constitution,” and “[t]he Due Process Clause admits only a narrow category of strict liability crimes”). Courts “should assume the Legislature had a purpose” when it used certain words or phrases in statutes, and should “avoid a construction which makes the words superfluous.” People v. Giordano, 87 N.Y.2d 441, 448 (1995). “Whether it might have been wise” for the Legislature to prohibit some weapons in addition to others, the court must “deal only with the plain and natural meaning of the language employed.” Matter of Michael R., 61 N.Y.2d 316, 320 (1984) (holding that the defendant did not violate the Administrative Code by possessing a real but inoperable pistol, since the Code proscribed only “toy or imitation pistols”). A. The Knife Described in the Accusatory Instrument is Not a “Switchblade Knife” Under Penal Law §§ 265.00[4] & 265.01[1] Here, according to the plain language of the Penal Law, the knife described in the accusatory instrument is not a “switchblade knife.” As noted above, the Penal Law defines a “switchblade knife” 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 § 265.00[4] (emphasis added). In contrast to a gravity knife, which the Penal Law defines as locking into place by a “button, spring, lever or other device” without specifying that device’s location, the 18 definition of a switchblade specifies that the button or device must be in the handle of the device. By contrast, Leone’s affidavit described the button as on the “blade of the knife.” (File: 35-36 (Affidavit) (emphasis added)). Since the accusatory instrument described a knife different from that proscribed by the Penal Law, it failed to provide facts that make it “reasonably likely” that Mr. Berrezueta violated the Penal Law. CPL § 70.10. In these circumstances, where the facts in the information not only failed to establish that the defendant committed a crime but in fact were inconsistent with the defendant committing a crime, the charge must be dismissed. See People v. Ocasio, 48 Misc. 3d 127(A), 2015 WL 3824054 (App. Term 1st Dep’t 2015) (holding that “[s]ince the mere possession of a per se weapon constitutes a violation of Penal Law 265.01[1], it must clearly appear [from the accusatory instrument] that the item possessed answers the description of one of the prohibited instruments or weapons set forth in the statute”), rev’d on other grounds, 2016 N.Y. Slip Op. 07105 (Nov. 1, 2016); see also, e.g., Jones, 9 N.Y.3d at 262 (dismissing accusatory instrument because its allegation that the defendant did not obey orders to move on a busy sidewalk failed to establish charge of disorderly conduct); People v. Jin Lu, 39 Misc. 3d 501, 504 (Crim. Ct., Kings Cty. 2013) (dismissing charge under Penal Law § 265.01 because the accusatory instrument described a weapon that did not qualify as a “bludgeon”). 19 In arguing the issue below, the People insisted that a switchblade is any knife that can be opened automatically by pressing a button or device, “when you just press something so that someone can very easily grab it with one hand.” (Tr. 51-52). But this Court cannot accept that a switchblade is any knife that opens automatically by pressing a device, regardless of where that device is located, as that would render the phrase “in the handle of the knife” superfluous. See Giordano, 87 N.Y.2d at 448 (holding that courts “should assume the Legislature had a purpose” when it used certain words or phrases in statutes). If the Legislature wanted to define a switchblade as a knife which “opens automatically by hand pressure applied to a button, spring or other device,” without specifying the location of that device, it could have easily done so. And indeed, as noted above, it did do so with a gravity knife: such a knife also locks into place by means of a “button, spring . . . or other device” without any reference to its location. In defining a switchblade knife, however - a knife proscribed by the same subsection as a gravity knife - the Legislature specifically added the modifying phrase “in the handle of the knife.” This Court must read the Penal Law “so that each word will have a meaning” and must presume that “every provision of [the] statute was intended to serve some useful purpose,” particularly when the Legislature omitted the same clause with respect to a similar weapon. Tonis v. Bd. of Regents of Univ. of State of N.Y., 295 N.Y. 286, 293 (1946); see also T.D. v. New York State 20 Office of Mental Health, 228 A.D.2d 95, 106 (1st Dep’t 1996)(“Where statutes relate to the same subject matter they should be read harmoniously and consistently.”). In the trial court, the People also focused on the “springloaded” nature of Mr. Berrezueta’s knife. (Tr. 52). But even assuming that the accusatory instrument establishes that Mr. Berrezueta’s knife was springloaded, this fact does not make out a prima facie case that the knife was a switchblade. Indeed, in other subsections of § 265, the Legislature specifically proscribed, under certain circumstances, the possession of spring-assisted weapons more generally. See, e.g., Penal Law § 265.06 (proscribing, among other things, the possession of any “spring-gun or other instrument or weapon in which the propelling force is a spring” on school grounds); id. § 265.05 (making unlawful the possession of a “spring-gun or other instrument or weapon in which the propelling force is a spring or air” by persons under the age of sixteen). If the Legislature wished to make it a per se crime to own any spring-assisted knife, it knew how to do so. Instead, however, it crafted a much narrower definition of a switchblade. And the description of the knife in the accusatory instrument does not meet that narrow definition. People v. Sans, 26 N.Y.3d 13 (2015), is not to the contrary. In that case, a defendant convicted of possessing a gravity knife challenged the facial sufficiency 21 of an accusatory instrument that, among other things, failed to state that the the gravity knife “locked in place by means of a button, spring, lever or other device” as defined in the Penal Law. Id. at 16. The Court of Appeals rejected the defendant’s contention, reasoning that one of the instrument’s allegations - that the knife, once opened, “locks automatically in place” - necessarily meant that the knife “lock[ed] by means of a built-in device, rather than manually.” Id. Therefore, the accusatory instrument unquestionably described a gravity knife, even if it did not track the precise language used in the statute. Id. Here, by contrast, the accusatory instrument does not just omit language used in the statute: it describes a knife that is qualitatively different from a “switchblade knife.” In sum, the Legislature crafted a very specific definition of the term “switchblade knife.” This careful drafting was for good reason: as the Supreme Court has emphasized in discussing due process challenges to statutes, “no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U.S. 612, 617 (1954). Here, the text of the Penal Law makes it indisputably clear that a “switchblade knife” has a button on the handle, not elsewhere, and therefore Mr. Berrezueta’s conviction should be reversed and the accusatory instrument dismissed. If this Court finds that the statute is ambiguous, however, any ambiguities must inure to Mr. Berrezueta’s benefit. See Dunn v. United States, 442 U.S. 100, 112 (1979) 22 (noting that the rule of lenity “is rooted in fundamental principles of due process which mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited”); People v. Golb, 23 N.Y.3d 455, 468 (2015) (“[I]f two constructions of a criminal statute are plausible, the one more favorable to the defendant should be adopted in accordance with the rule of lenity.” (quoting People v. Green, 68 N.Y.2d 151, 153 (1986))). Defense counsel below was not required to preserve any challenges to these deficiencies. See People v. Casey, 95 N.Y.2d 354, 364 (2000) (noting that a failure to allege an element of the crime is a “a non-waivable jurisdictional defect that [is] reviewable on appeal even in the absence of a timely objection”). In any event, however, counsel timely objected to the accusatory instrument’s deficiencies by specifically arguing that the knife described did not qualify as a switchblade. (See File: 61-65). B. The Accusatory Instrument Also Does Not Describe a “Weapon” or “Dangerous Instrument” Under the NYCRR The allegations in the accusatory instrument are also insufficient to establish a prima facie violation of § 1058 of the NYCRR. That subsection states: “No weapon, dangerous instrument, or any other item intended for use as a weapon may be carried in or on any facility or conveyance . . . . [A] weapon or dangerous instrument shall include, but not be limited to, a . . . switchblade knife . 23 . . . straight razor or razor blades that are not wrapped or enclosed . . . .” N.Y. Comp. Codes R. & Regs. tit. 21, § 1050.8. As discussed above, see Point IA, supra, the knife described in the accusatory instrument is not a switchblade knife. Nor does the accusatory instrument establish a prima facie case that the knife was otherwise a “weapon” or “dangerous instrument.” In Matter of Jamie D., a case addressing a conviction under § 265.05 of the Penal Law, the Court of Appeals analyzed when a “knife . . . may be characterized as a weapon.” 59 N.Y.2d at 592. It then described three categories of knives that so qualified. The first category, including a knife such as “a bayonet, a stiletto, or a dagger,” consists of a knife that. although it “may possibly be employed for utilitarian purposes, is primarily intended for use as a weapon.” Id. at 592-93. The second category includes knives that because of “physical modification,” have been converted from utensils into weapons. Id. at 593. The final category consists of a knife that, while not necessarily a weapon on its own, was on the “occasion of its possession . . . essentially a weapon rather than a utensil.” Id. Ultimately, the Court determined that the knife possessed by the defendant was a weapon based on the final category: the defendant “by his [violent] behavior and reluctance to give up the knife effectively manifested that he himself considered it a weapon of significance to the police and not an innocent utilitarian utensil.” Id. at 593-94. 24 Although Matter of Jamie D. analyzes Penal Law § 265.05, its logic is wholly applicable to § 1050.8 of the NYCRR. Like § 265.05, § 1050.8 does not proscribe the carrying of all knives; rather, its scope is limited to certain enumerated knives such as switchblades and other “weapon[s]” and “dangerous instrument[s].” Since Mr. Berrezueta’s knife does not qualify as a switchblade knife, see Point IA, supra, this Court, just like the Court of Appeals, must address whether Mr. Berrezueta’s knife qualifies as a “weapon” or “dangerous instrument.” And in doing so, this Court must consider the analysis set forth in Matter of Jamie D., which held that knives should be considered weapons in only three specific circumstances. The knife described here in the accusatory instrument does not fit into any of the categories of weapons described in Matter of Jamie D. First, the knife described is not “primarily intended for use as a weapon.” Id. at 592-93. All that the accusatory instrument indicates is that the knife opened automatically, but that fact alone does not render the knife similar to a “bayonet, stiletto, or dagger” as described by the Court of Appeals. Id. Second, the accusatory instrument does not indicate that Mr. Berrezueta physically modified the knife in any way to make the knife dangerous. Third, there is no allegation that Mr. Berrezueta actually used 25 the knife as a weapon.4 Accordingly, because the allegations in the accusatory instrument were insufficient to suggest that Mr. Berrezueta possessed a “weapon” or “dangerous instrument,” the charge under § 1050.8 of the NYCRR must be dismissed. See Matter of Edward K., 226 A.D.2d 1097, 1098 (4th Dep’t 1996) (holding that a juvenile petition’s allegation - that the respondent possessed “a straight blade knife with an orange handle” - was insufficient to establish that the respondent possessed a knife that was a weapon). C. The Allegations in the Accusatory Instrument are Insufficient to Provide Reasonable Cause that Mr. Berrezueta Violated the Administrative Code As discussed above, the People ultimately dismissed the Administrative Code count following the trial court’s verdict, and this Court need not reach the facial sufficiency of that count. See Burwell, 53 N.Y.2d at 851. In any event, however, the accusatory instrument fails to establish that Mr. Berrezueta violated § 10-133 of New York City’s Administrative Code. That statute makes it a crime for “any person in a public place, street or park, to wear outside of his or her clothing or carry in open view any knife with an exposed or unexposed blade unless such person is actually using such knife for a lawful purpose as set forth in 4 Although not argued by the People below, the knife also did not qualify as a “dangerous instrument.” The Penal Law defines a “dangerous instrument” as “any instrument, article or substance . .. which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury.” Penal Law § 10.00[13]. Mr. Berrezueta did not use, try to use, or threaten to use the knife in any way. 26 subdivision d of this section.” New York City, N.Y., Code § 10-133[c]. Because the accusatory instrument did not plead facts establishing that Mr. Berrezueta was not using the knife for a lawful purpose, it was facially insufficient. See People v. Kohut, 30 N.Y.2d 183 (1972). In People v. Kohut, the Court of Appeals described the pleading requirements regarding exceptions to crimes. The Court held, “If the defining statute contains an exception, the indictment must allege that the crime is not within the exception.” 30 N.Y.2d at 187. “But when the exception is found outside the statute,” the Court explained, “the exception generally is a matter for the defendant to raise in defense, either under the general issue or by affirmative defense.” Id. “The main goal of the interpretative rules governing exceptions and provisos is to discover the intention of the enacting body.” People v. Davis, 13 N.Y.3d 17, 31 (2009). Here, the lawful-purpose exception is plainly within the text of the relevant statute. The exception is both referenced in § 10-133[c] of the Administrative Code and explained in a subsection of the same provision (§ 10-133[d]). Further, in looking to whether the Legislature intended for the exceptions to § 10-133[c] to be pleaded in the accusatory instrument, the Court should take note of the fact that § 10-133[b] - which prohibits the carrying of knives with blades over four inches - is subject to the same lawful-purpose exception but does not include a 27 reference to that exception in the subsection itself. The drafters, by contrast, specifically chose to reference the exception in the text of § 10-133[c], a much broader crime than § 10-133[b] and one that encompasses a larger category of knives. This statutory construction suggests that the Legislature intended for the lawful-purpose exception to be pleaded in the first instance with respect to § 10- 133[c], in order to prevent the prosecution of those using more innocuous objects for lawful purposes. People v. Santana, 7 N.Y.3d 234 (2006), is not to the contrary. In that case, the Court of Appeals addressed whether a type of criminal contempt in the second degree - prohibiting “[i]ntentional disobedience or resistance to the lawful process or other mandate of a court except in cases involving or growing out of labor disputes as defined by subdivision two of section seven hundred fifty-three-a of the judiciary law,” Penal Law § 215.50[3] - contains an exception that must be pleaded in the accusatory instrument or a proviso that may be raised as an affirmative defense. 7 N.Y.3d at 236. The Court concluded the latter, reasoning that the “statute refers to a definition of ‘labor disputes’ set forth outside the Penal Law.” Id. at 237. Here, of course, the relevant exception is not only in the Penal Law, but in the same provision of the Penal Law. Accordingly, the People had an obligation to plead facts establishing, if true, that Mr. Berrezueta’s conduct did not fall within the exception. Since they did not do so, 28 the charge and the accusatory instrument must be dismissed. Defense counsel below was not required to preserve any challenges to these deficiencies. See People v. Casey, 95 N.Y.2d 354, 364 (2000) (noting that a failure to allege an element of the crime is a “a non-waivable jurisdictional defect that [is] reviewable on appeal even in the absence of a timely objection”). In any event, however, counsel timely objected to the accusatory instrument’s omissions by challenging its facial sufficiency with respect to every count. (See File: 61-65). In light of the foregoing, this Court must dismiss every count of the accusatory instrument. In the event that this Court reaches only the sufficiency of the Penal Law count and the NYCRR count, the remaining count - a violation - should be dismissed as well. Mr. Berrezueta has satisfied the conditions of his sentence and no further penological purpose would be served by remand and further proceedings on a complaint charging one minor offense. See, e.g., Burwell, 53 N.Y.2d at 851. POINT II THE VERDICT SHOULD BE REVERSED AS LEGALLY INSUFFICIENT AND AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE THE KNIFE DID NOT HAVE THE CHARACTERISTICS OF A SWITCHBLADE OR A “WEAPON” OR “DANGEROUS INSTRUMENT” AND THE TRIAL COURT FUNDAMENTALLY MISUNDERSTOOD THE DEFINITION OF A SWITCHBLADE At Mr. Berrezueta’s trial, the prosecution’s only evidence consisted of 29 Leone’s testimony and the knife itself. None of this evidence was legally sufficient to establish an essential element of Penal Law § 265.01 as charged here: that the knife was, in fact, a switchblade. Further, the verdict as to both charges was against the weight of the evidence, as the knife did not have the characteristics of a switchblade or “weapon” or “dangerous instrument.” Rather than give appropriate weight to the physical characteristics of the knife, however, the trial court allowed Leone to testify regarding his own legal conclusion that the knife was a switchblade and seemed to fundamentally misunderstand the definition of a “switchblade knife.” For these reasons, the verdict must be reversed. A review of legal sufficiency involves determining whether “the evidence viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that the elements of the crime had been proven beyond a reasonable doubt.” People v. Cabey, 85 N.Y.2d 417, 420 (1995) (citations omitted); see also People v. Bleakley, 69 N.Y.2d 490, 495 (1987); People v. Contes, 60 N.Y.2d 620, 621 (1983). Further, and upon the defendant’s request, the Court must evaluate the weight of the evidence, an inquiry “governed by a legal standard that is far broader than one employed in a sufficiency analysis.” People v. Delamota, 18 N.Y.3d 107, 115 (2011). Where an acquittal would not have been unreasonable, this Court must weigh the conflicting testimony and review the rational inferences that can 30 be drawn from the evidence. Id. “Based on the weight of the credible evidence,” the court then determines whether the fact-finder was justified in finding the defendant guilty beyond a reasonable doubt in light of the elements charged. Id. “This Court is not only statutorily empowered to reverse a judgment of conviction which is the result of a verdict that was, in whole or part, against the weight of the evidence, but should, in fact, do so even if the evidence is legally sufficient from a technical standpoint.” People v. Roberts, 165 A.D.2d 598, 598-99 (1st Dep’t 1991). Ultimately, this Court is vested with the exclusive authority to upset a conviction on the basis that the fact-finder “got it wrong.” Delamota, 18 N.Y.3d at 115. Here, in order to convict Mr. Berrezueta of attempted criminal possession of a weapon in the fourth degree, the prosecution was required to prove beyond a reasonable doubt that the knife was one of the per se weapons enumerated in Penal Law § 265.01 - namely, that the knife was a switchblade. And as discussed above, see Point IA, supra, the Penal Law defines “switchblade knife” 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 § 265.00[4]. The evidence at trial did not establish that the knife recovered from Mr. Berrezueta met that definition. First, the Court should examine the knife itself, which indisputably has a 31 button on the blade of the knife, not on the handle. From examining pictures of the knife as well as the knife itself, one can see that the button used to open the knife is not on the handle, but rather on the blade protruding from the side of the handle; when one opens the knife, the button and blade it rests on swing around to the top. (See People’s Exs. 1-3). Clearly, the button is not on “a part of something that is designed to be held by your hand.” Merriam-Webster Dictionary, Online Ed., available at http://www.merriam-webster.com/dictionary/handle (last accessed November 3, 2016). Further, although Leone testified at various points that the button of the knife was on the “handle,” he testified at other points that the button was “on the side of the knife” rather than on the handle of the knife. (Id. at 41-42 (emphasis added)). “No reasonable view of th[is] evidence” establishes Mr. Berrezueta’s guilt beyond a reasonable doubt of attempted criminal possession of a weapon in the fourth degree. People v. Hafeez, 100 N.Y.2d 253, 258 (2003); see also People v. Alvarez, 76 A.D.3d 1098, 1099 (2d Dep’t 2010) (reversing conviction under Penal Law § 265.01 because the prosecution presented no evidence at trial that the knife at issue was an operable gravity knife), rev’d on other grounds, 20 N.Y.3d 75 (2012). Defense counsel preserved this claim below by moving for a trial order of dismissal specifically based on the People’s failure to establish that the knife at 32 issue was a switchblade. (Tr. 46-47). Accordingly, and based on the foregoing, this Court should reverse Mr. Berrezueta’s conviction for attempted criminal possession of a weapon in the fourth degree. Because Mr. Berrezueta has served his full sentence and no penological purpose would be served by further proceedings on the minor remaining count, the Court should also dismiss the second count of the accusatory instrument. See, e.g., Burwell, 53 N.Y.2d at 851. The guilty verdict on both the Penal Law count and the NYCRR count was also against the weight of the evidence. Beginning first with the Penal Law conviction, the prosecution relied only on Leone’s testimony and the knife itself in order to establish that the knife was a switchblade. And as to an essential feature of a switchblade as defined by the Legislature - whether or not the button was on the knife’s handle - Leone’s testimony was equivocal at best. Although he testified at various points that the button of the knife was on the “handle,” he also testified that the button was on the “side” of the knife, and acknowledged that the button was “[a]ttached to the blade, the same piece of metal.” (Tr. 41-44). Further, Leone’s testimony at trial conflicted with portions of his testimony at the suppression hearing, when he admitted that in order to open the knife, he would “touch a piece of metal on the side of the blade.” (Id. at 19 (emphasis added)). Other than, at most, Leone’s muddled and contradictory testimony, there was no evidence that this knife qualified as a switchblade. In fact, the objective 33 physical evidence established the opposite. An examination of the physical knife makes clear that the button to open it is on the blade of the knife, not on the handle. (See People’s Exs. 1-3).5 From just taking a look at the knife, the trial court should have concluded that it was not a switchblade as defined by the Penal Law. Instead, however, the trial court fundamentally misunderstood the Penal Law and may have improperly relied on legal conclusions offered by Leone. Despite the fact that the trial court was required to make an independent determination as to whether or not Mr. Berrezueta’s knife qualified as a switchblade rather than rely on legal conclusions by any witness, the trial court repeatedly allowed Leone to testify that the knife was a “switchblade” and that he had seen many “switchblades” in the past. (See id. at 34-36). Moreover, and even more importantly, the trial court seemed to fundamentally misunderstand the definition of a switchblade. It sua sponte interrupted defense counsel’s cross- examination of Leone regarding opening the knife, expressing its mistaken belief 5 Further, Mr. Berrezueta’s testimony indicated that the knife did not even open automatically as Leone insisted. Although Mr. Berrezueta opened his knife by pressing on the blade with his thumb, rather than by pressing the button, he noted that force was required even if one attempted to open the knife using the button. He testified, “[E]ven that method you have to put enough force. If you just tap it[,] it’s just going to flick open, it’s not going to pop open.” (Id. at 68). As discussed above, see Point IA, supra, the knife opening automatically would not be a sufficient basis for convicting Mr. Berrezueta. But it is a necessary condition. See Penal Law § 265.00[4] (defining a “switchblade knife” as one that “opens automatically”). 34 that the Penal Law required merely that the knife open automatically by means of a device, regardless of the location of that device. (Id. at 45). As discussed above, see Point IA, supra, this belief disregards the plain language of the statute. In light of the clear physical characteristics of the knife - characteristics that were not given their proper weight - the trial court was not “justified in finding that guilt was proven beyond a reasonable doubt.” Delamota, 18 N.Y.3d at 117. Accordingly, Mr. Berrezueta’s conviction for attempted criminal possession of a weapon must be reversed as against the weight of the evidence. Mr. Berrezueta’s conviction under the NYCRR for possessing a weapon or dangerous instrument was also against the weight of the evidence. As discussed above, the evidence at trial did not establish that the knife was a switchblade. See also Point IA, supra. Further, as previously discussed, see Point IB, supra, the Court of Appeals has defined three circumstances in which a knife qualifies as a weapon. See Matter of Jamie D., 59 N.Y.2d at 592-93. The evidence at trial did not fairly establish that the knife recovered from Mr. Berrezueta met any of those circumstances. The physical knife does not possess characteristics akin to those of a “bayonet, stiletto, or dagger,” id. - indeed, the blade itself is about the size of a pen cap, and the knife looks most similar to a utility knife. (See People’s Ex. 1). Further, the People produced no evidence that Mr. Berrezueta physically modified the knife in any way to make the knife dangerous, or that he actually used the 35 knife as a weapon. To the contrary, Mr. Berrezueta, a man with no criminal record, testified that he used the knife only for his work in a mail room. (Tr. 64). As such, the verdict must be set aside as against the weight of the evidence, and the accusatory instrument should be dismissed. See, e.g., Burwell, 53 N.Y.2d at 851. POINT III THE TRIAL COURT SHOULD HAVE SUPPRESSED THE KNIFE RECOVERED FROM MR. BERREZUETA BECAUSE THE OFFICER LACKED REASONABLE SUSPICION TO BELIEVE WHAT HE SAW WAS A “WEAPON” OR “DANGEROUS INSTRUMENT” UNDER THE NYCRR Even taking Leone’s testimony at the suppression hearing as true, it failed to establish that the officer had reasonable suspicion that the knife he saw on Mr. Berrezueta was one proscribed by the NYCRR. What is more, the trial court’s proffered reason for finding reasonable suspicion had no basis in Leone’s testimony. Accordingly, this Court must reverse the trial court’s decision and suppress the fruits of the search and seizure as obtained in violation of the Federal and State Constitutions. U.S. Const., Amends. IV, XIV; N.Y. Const., Art. 1, § 12. Because Mr. Berrezueta’s charges and convictions all rested on fruits of the illegal stop, the judgment of conviction should be reversed and the accusatory instrument should be dismissed in its entirety. At a suppression hearing, the People bear the burden of coming forward 36 with evidence establishing the legality of police conduct in the first instance. People v. Berrios, 28 N.Y.2d 361 (1971); see also People v. Edwards, 95 N.Y.2d 486, 491 (2000). In People v. De Bour, 40 N.Y.2d 210 (1976), the Court of Appeals “set out a four tiered method for evaluating the propriety of encounters initiated by police officers in their criminal law enforcement capacity.” People v. Hollman, 79 N.Y.2d 181, 184 (1992). An officer can forcibly stop and detain a person only when the officer has a reasonable suspicion that the person has committed, is committing or is about to commit a crime. DeBour, 40 N.Y.2d at 216. The Court of Appeals recently clarified the level of suspicion needed to stop and frisk a person when the officer believes that person possesses an illegal knife. People v. Brannon, 16 N.Y.3d 596 (2011). The Court noted that Penal Law § 265.01 “criminalizes the mere possession, and not use” of certain knifes such as gravity knives, but “the possession of many similar objects, including other knives, is not illegal.” Id. at 602. Accordingly, the Court held that before approaching and frisking a defendant, an officer must “possess[] specific and articulable facts from which he or she inferred that the defendant was carrying a gravity knife.” Id. The Court then suppressed the knife seized from one of the defendants because “although [the officer] testified that he was able to see a hinged top of a closed knife and observed the outline of a pocketknife in 37 defendant’s pocket, he was unable to testify that he suspected or believed it to be a gravity knife[;] [t]o the contrary, he testified that it looked like a pocketknife.” Id. As noted above, § 1050.8 of the NYCRR does not punish the carrying of all knives on the subway: rather, it prohibits possession of any “weapon, dangerous instrument, or any other item intended for use as a weapon . . . . includ[ing], but not [] limited to” specific types of weapons such as switchblades and gravity knives. N.Y. Comp. Codes R. & Regs. tit. 21, § 1050.8. Accordingly, as with Brannon’s discussion of Penal Law § 265.01, it is not enough that an officer have reasonable suspicion that a person is carrying any knife: rather, he or she must have reasonable suspicion that the person is carrying either a knife named in § 1050.8 or otherwise qualifying as a “weapon, dangerous instrument, or any item intended for use as a weapon.” Id. In evaluating whether an officer possessed reasonable suspicion that a knife was a “weapon, dangerous instrument or [an] item intended for use as a weapon,” the Court should be guided by the same overarching principles established in Matter of Jamie D., 59 N.Y.2d at 592- 93. Specifically, a court should evaluate whether the officer perceived any inherent characteristics of or modifications to the knife, or any behavior on the part of the defendant, that suggested the knife was a weapon. Id. Here, Leone testified that he approached Mr. Berrezueta because he saw a 38 “black knife.” (Tr. 9). According to him, he saw the top of the knife as well as the side of the blade, and could tell from the outline of Mr. Berrezueta’s pants that the knife had a button. (Id. at 9, 14). But Leone did not testify that any of these characteristics led him to believe the knife was a switchblade or was otherwise a weapon. (Id.). Indeed, Leone stated that he approached the defendant for having a knife on the subway, not for having any specific kind of knife. (Id. at 10). The characteristics Leone described are ones that many knives share, including folding knives or Swiss Army knives that have grooves or other attachments. (See, e.g., Tr. 65). Because Leone failed to “testify that he suspected or believed [Mr. Berrezueta’s knife] to be” one specifically proscribed by NYCRR § 1050.8, he did not possess reasonable suspicion to approach Mr. Berrezueta and take his knife. Brannon, 16 N.Y.3d at 602. The trial court seemed to recognize that NYCRR § 1050.8 does not prohibit passengers from possessing all types of knives on the subway, and therefore did not rely on Leone spotting a knife generally in denying Mr. Berrezueta’s suppression motion. (Tr. 28). Instead, it noted that § 1050.8 “includes, but [is] not limited to unwrapped razor blade[s]” and that for this reason, “upon seeing the handle of the knife Police Officer Leone was right to approach defendant and take the knife.” (Id.). But Leone never testified that he thought he saw unwrapped razor blades or even that what he saw had any 39 characteristics similar to unwrapped razor blades. Indeed, he testified to the contrary: he testified that he spotted the “side of the blade” of a “black knife.” (Tr. 9 (emphasis added)). Nor does the knife itself support the trial court’s conclusion: no part of it looks like an unwrapped razor blade or would look like one if partially concealed. (See People’s Exs. 1-3). Accordingly, and for this additional reason, the trial court’s decision on the suppression motion should be reversed. See People v. Pilotti, 127 A.D.2d 23, 29 (1st Dep’t 1987) (“Although factual findings by the hearing court are not to be lightly discarded, plainly unjustified or clearly erroneous findings are not to be accepted.”). The People relied on only § 1050.8 of the NYCRR at the suppression hearing, and the trial court discussed only that provision in holding that Leone’s actions were lawful. Accordingly, the People waived any argument that Leone possessed reasonable suspicion that Mr. Berrezueta violated § 10-133 of New York City’s Administrative Code. See People v. Dodt, 61 N.Y.2d 408, 416 (1984) (holding that the People waived an alternative argument for denying the defendant’s suppression motion where the People failed to raise the argument at the hearing and that argument was not addressed in the trial court’s opinion). In any event, Leone did not possess reasonable suspicion that Mr. Berrezueta violated § 10-133 of New York City’s Administrative Code. That subsection punishes a person who, with certain exceptions, wears a knife “outside 40 of his or her clothing or carr[ies it] in open view.” New York City, N.Y., Code § 10-133. While Leone testified that he saw part of the knife, he unequivocally testified that the knife was in one of Mr. Berrezueta’s pockets. (See Tr. 9, 12, 15, 17-18). Because, according to Leone’s own testimony, Mr. Berrezueta was carrying the knife inside his khaki pants, he was not wearing the knife “outside of his clothing” or “carry[ing] it in open view,” even if the officer was able to see a small part of the knife. Id. This issue is preserved for this Court’s review. Before and during the suppression hearing, counsel argued that Leone did not have any reasonable suspicion of criminal activity to approach Mr. Berrezueta, let alone probable cause, and that both the stop and the search violated Mr. Berrezueta’s State and Federal constitutional rights, requiring suppression of the initially recovered knife and all subsequently recovered evidence. (Tr. 20-21; File: 66-68 (Omnibus Motion)). These are the exact arguments raised on this appeal, and the issue is therefore preserved. CPL. § 470.05. Since the facts do not support a finding that the officer had either probable cause or reasonable suspicion to authorize a search, the knife and all testimonial evidence recovered as fruits of the illegal search must be suppressed, Mapp v. Ohio, 367 U.S. 643 (1961); Dunaway v. New York, 442 U.S. 200, 218 (1979), and the accusatory instrument dismissed. 41 CONCLUSION FOR THE REASONS ABOVE, MR. BERREZUETA’S CONVICTIONS SHOULD BE REVERSED AND THE ACCUSATORY INSTRUMENT DISMISSED. Respectfully submitted, ROBERT S. DEAN CENTER FOR APPELLATE LITIGATION Attorney for Defendant-Appellant Siobhan Atkins Of Counsel November 2016 PRINTING SPECIFICATIONS STATEMENT The brief was prepared in WordPerfect X6, using a 14-point Garamond font, except for footnotes, which appear in a 12-point Garamond font, and totaled 10,831 words. 42