The People, Respondent,v.Steven Berrezueta, Appellant.BriefN.Y.June 5, 2018ATTORNEY-IN-CHARGE ROBERT S. DEAN ASSISTANT ATTORNEY-IN-CHARGE MARK W. ZENO SENIOR SUPERVISING ATTORNEYS ABIGAIL EVERETT CLAUDIA S. TRUPP BARBARA ZOLOT MANAGING ATTORNEY DAVID J. KLEM SUPERVISING ATTORNEYS ROBIN NICHINSKY MARIANNE C. YANG ASSISTANT MANAGING ATTORNEY KATHARINE SKOLNICK CENTER FOR APPELLATE LITIGATION 120 WALL STREET – 28TH FLOOR, NEW YORK, NY 10005 TEL. (212) 577-2523 FAX 577-2535 SIOBHAN ATKINS APPELLATE COUNSEL satkins@cfal.org extension 535 December 13, 2017 VIA EXPRESS MAIL Hon. John P. Asiello Clerk of the Court Court of Appeals Hall 20 Eagle Street Albany, New York 12207 Re: People v. Steven Berrezueta APL-2017-00224 Your Honor: Pursuant to this Court’s letter dated November 9, 2017, appellant Steven Berrezueta submits the following written comments and arguments pursuant to Rule 500.11. Appellant further requests that this Court place the appeal on regular course briefing, as the novel issues it presents - one of which turns on a knife’s physical characteristics, an issue best discussed at oral argument - would benefit from the opportunity for argument, as well as full briefing. INTRODUCTION In this case, Mr. Berrezueta, a father of two with no criminal record, was arrested after an officer observed a knife in Mr. Berrezueta’s pocket as Mr. Berrezueta was on his way to work. Mr. Berrezueta, who worked in the mail room of an investment company, had purchased the knife on Groupon, and used it exclusively for work. He was charged with, among other things, a violation of Penal Law §§ 110/265.01(1) based on allegedly possessing a switchblade, and was convicted after a bench trial. Crucially, however, the knife in question - as described by the arresting officer himself - did not meet the statutory definition of a “switchblade knife.” The Penal Law defines a switchblade as “any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife.” Penal Law § 265.00[4] (emphasis added). The People agree that the Penal Law’s switchblade provision does not proscribe the carrying of spring-assisted knives more generally, but instead requires that the device used to open the knife be “in the handle,” and for good reason: particularly when analyzing strict-liability crimes such as this, where the mere possession of a knife can lead to criminal charges, courts must interpret the Penal Law narrowly and in accordance with its plain language. In the misdemeanor information, however, the arresting officer described a knife different from that contemplated by the Penal Law’s unambiguous language. The officer stated that the knife opened not by hand pressure applied to a device in the handle, but instead when he “applied hand pressure to a spring-loaded portion of the blade of the knife protruding from the handle of the knife.” The information thus failed to provide facts that “establish, if true, every element of the offense charged and the defendant’s commission thereof,” C.P.L. § 100.40[1][c] - instead, the factual allegations negated an element of the crime. See Point I. Similarly, the evidence at trial failed to establish that the knife in question was a switchblade, as the physical evidence showed that the device used to open the knife was not in the handle of the knife, as the Penal Law clearly requires, but instead was 2 on a non-sharp portion of the blade of the knife. Notably, on appeal, the People themselves referred to the button as being “adjacent to the handle” and “attached to [the] side of the blade” - not in the handle as the Penal Law demands. As is clear from the People’s own concessions, the evidence was not sufficient to establish that the knife was a switchblade. This issue is clearly subject to this Court’s review, as defense counsel argued in a motion for a trial order of dismissal that the device’s location on the blade demonstrated that it was not a switchblade. Accordingly, this Court must reverse Mr. Berrezueta’s conviction. See Point II. 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 (Penal Law § 265.01(1)), based on allegedly possessing a switchblade knife. At arraignment, defense counsel made an oral motion (followed by a written motion) to dismiss the accusatory instrument, noting that it stated that the arresting officer Michael Leone had pressed a button “near” the handle of the knife rather than “in” the handle of the knife in order to open it automatically. (A5-8).1 The People soon filed a superseding information that added violations of New York City’s Administrative Code and the New York Codes, Rules, and Regulations (“NYCRR”), retained the Penal Law charge as the top count, and amended Leone’s allegations. (A11-12). The information now alleged that Officer Leone knew that the knife was a switchblade because 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. (emphasis added)). Defense counsel then filed a second omnibus motion arguing, inter alia, that 1 Citations to the Appendix are preceded by “A.”; citations to the People’s response brief in the Appellate Term are preceded by “Resp. Br.” 3 the prosecutor’s information was facially insufficient and that the police lacked both reasonable suspicion to approach Mr. Berrezueta and probable cause to arrest him. (A13-27). Defense counsel also requested a Mapp/Dunaway hearing. (Id.). On February 8, 2016, the day set for hearings and trial, the People filed a prosecutor’s information amending the Penal Law charge to an attempt, a B misdemeanor to which no jury trial right attached. (A28-29). That same day, the court held a Mapp/Dunaway hearing and, after denying Mr. Berrezueta’s motion to suppress the knife, a bench trial. The Trial Officer Leone’s Testimony Police Officer Michael Leone of NYPD’s Transit District was the People’s sole witness at trial. On April 22, 2015, Leone was working in the Union Square subway station when he saw Mr. Berrezueta walk past. (A30-31). When Leone first saw Mr. Berrezueta, Leone could see “the top of [a] knife with the side of the blade exposed” in Mr. Berrezueta’s rear-pants pocket. (A37). Leone then approached him and, after a brief conversation, pulled the knife from his pocket. (A39). Leone showed the knife to the court, which was entered into evidence, and testified 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.” (A39). While Leone testified at various points that the button used to open the knife was “on the handle” and was “not on the blade,” he testified at other points that the button was “on the side of the knife” rather than in the handle, and acknowledged that the button was “[a]ttached to the blade, the same piece of metal.” (A38-42). 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, yes.” (A37-38). Finally, Leone testified that the “thing [he] 4 press[ed to open the knife] . . . moves to above the handle.” (A40-41).2 Steven Berrezueta’s Testimony Steven Berrezueta had no criminal record. At the time he was arrested, he had been working in mail rooms of investment companies for almost 12 years. (A54-55). In order to open boxes at his job, Mr. Berrezueta used the knife in question, which he bought on the website Groupon a year or two before. (A56-57). There was nothing in the product description that indicated it was a switchblade or that it was illegal to possess. (A57-58). Mr. Berrezueta previously used a box cutter to open packages, which he had lost shortly before purchasing the knife. (A57). 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.” (A61). He never opened the knife by pressing a button, but noted that “even [with] 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.” (A65). Motion for Trial Order of Dismissal and Verdict After the close of the People’s case, defense counsel moved for a trial order of dismissal as to, among other charges, the Penal Law charge, arguing that the People had failed to establish that the knife was a switchblade. Counsel noted that Leone opened the knife by pressing on the blade itself, not by pressing a button or device in the handle. (A43). Counsel argued that a button located in the handle would not move with the blade or be connected to the blade like the device on the knife in 2 The photo of the knife in the closed position, entered as People’s Exhibit Two, shows that the device is not on the stationary, grenade-shaped portion of the knife that one would grip when using the knife. Instead, it is on a non-sharp portion of the blade that is protruding from the stationary part of the knife. (A73). Consistent with Leone’s testimony, the photo of the knife in the “open” position shows that the device is above the handle, and demonstrates more clearly that the device is attached to a non-sharp portion of the blade, beside the blade’s tip. (A72). 5 question. (Id.). Because the Penal Law defines a switchblade as a knife with a button, spring, or device in its handle, counsel argued, the evidence was insufficient to establish that the knife was a switchblade. (A43-44). Counsel renewed this motion at the end of the case. (A66-67). In response, the People did not argue that the device used to open the knife was, in fact, “in the handle” of the knife. Instead, they argued that Leone’s testimony “established this knife . . . meets th[e] definition” of a switchblade because the definition “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.” (A48). The People appeared to argue that it was enough that the device “protrudes from” the handle, and concluded that “the legislature was most likely intending to penalize a knife that . . . opens automatically with one hand when you just press something[,] so that someone can easily grab it with one hand, push something and they have a knife open which they can then use as a weapon which is why the legislature defined it as such, as a per se weapon.” (A48-49). The court denied defense counsel’s motions, holding that it was “at best” an issue of fact as to whether the knife qualified as a switchblade under the Penal Law. (A53; see A67). The court then found Mr. Berrezueta guilty of violating the Penal Law and the NYCRR; after a bench conference, the People dismissed the Administrative Code charge. Mr. Berrezueta was sentenced to time served. Appeal to the Appellate Term On appeal to the Appellate Term, Mr. Berrezueta argued, inter alia, that the accusatory instrument was facially insufficient and that the evidence at trial was insufficient to find him guilty of violating the Penal Law. Mr. Berrezueta argued that the People’s own accusatory instrument, and the evidence introduced later at trial, established that the device used to open the knife was on the blade of the knife, not 6 in the handle of the knife as the Penal Law’s plain text demands. The Appellate Term affirmed Mr. Berrezueta’s conviction, holding in relevant part: The information was not jurisdictionally defective. Nonhearsay allegations established every element of the charged weapons offenses . . . Although the officer failed to specifically state that the “button, spring or other device [was] in the handle of the knife” (see Penal Law § 265.00[4]), the weapon described possessed general features common to a switchblade so as to give defendant “sufficient notice of the charged crime[s] to satisfy the demands of due process and double jeopardy” (People v Sans, 26 NY3d at 17, quoting People v Dreyden, 15 NY3d 100, 103 [2010]) . . . . The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). The evidence established the operability of the switchblade at issue (see Penal Law § 265.00[5]). The arresting officer who tested the knife described the manner in which it operated, and also demonstrated its operability in court (see People v Parrilla, 112 AD3d 517 [2013], affd 27 NY3d 400 [2016]). (A2-A4). Chief Judge DiFiore granted Mr. Berrezueta permission to appeal to this Court. 7 ARGUMENT POINT I MR. BERREZUETA’S PENAL LAW CONVICTION MUST BE REVERSED BECAUSE THE ACCUSATORY INSTRUMENT DESCRIBED A KNIFE DIFFERENT FROM A SWITCHBLADE, AND THUS NEGATED AN ELEMENT OF THE CRIME. The information charging Mr. Berrezueta was facially insufficient for one simple reason: it did not describe a “switchblade knife” satisfying the Penal Law’s unambiguous statutory definition. Specifically, rather than describing a knife that opened by means of a “button, spring, or other device in the handle of the knife,” Penal Law § 265.00[4], the information stated that the knife opened by means of hand pressure applied “to a spring-loaded portion of the blade of the knife protruding from the handle of the knife.” Plainly, the accusatory instrument described a knife that was not proscribed by the clear text of the statute, and therefore negated an element of the crime. Accordingly, Mr. Berrezueta’s Penal Law conviction must be reversed and the accusatory instrument dismissed. In order for an information to be facially sufficient, it must provide “reasonable cause” to believe that the defendant committed the charged crime, and must contain nonhearsay allegations that “establish, if true, every element of the offense charged and the defendant’s commission thereof.” CPL § 100.40[1][b-c]; see also CPL § 100.15[3] (reiterating requirement that in order for an information to be facially sufficient, non-hearsay allegations must support “every element of the offense charged and the defendant’s commission thereof”). Behind this requirement is a “vital legislative concern that a defendant — who, under the Criminal Procedure Law, can be prosecuted on the basis of an information alone — must have, at least, an assurance that the information contains allegations establishing a legally sufficient 8 case.” People v. Alejandro, 70 N.Y.2d 133, 139 (1987). Because 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. Id. 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). Further, “[w]here 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 “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). Courts must also be particularly careful in construing strict liability offenses such as Penal Law § 265.01, which “invariably produce some harsh outcomes.” Morton v. State, 15 N.Y.3d 50, 66 (2010); see People v. Ocasio, 28 N.Y.3d 178, 182 (2016) (holding that “Penal Law § 265.01(1) should be interpreted narrowly in light of the absence of an intent element”); see generally Morissette v. United States, 342 U.S. 246, 263 (1952) (noting that courts “should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute”). “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”). 9 The plain language of the Penal Law unequivocally requires that a switchblade knife must have “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). Nor did the People on appeal argue otherwise, and for good reason: courts must read the Penal Law “so that each word will have a meaning.” Tonis v. Bd. of Regents of Univ. of State of N.Y., 295 N.Y. 286, 293 (1946). If the Legislature wanted to proscribe spring-assisted weapons more generally, or a weapon that opened a certain way without regard to the location of the device used to open it, it could have done so. Indeed, it already has done so: in other subsections of Penal Law § 265, the Legislature 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). And the Legislature has also proscribed gravity knives, which it defined as locking into place by a “button, spring, lever or other device” without specifying that device’s location. See Penal Law §§ 265.01, 265.00[5]. Finally, a knife that does not qualify as a per se weapon may nevertheless be proscribed by the Penal Law if a defendant has the “intent to use the same unlawfully.” Penal Law § 265.01(3) (barring the possession of, inter alia, a “dangerous knife” with intent to use unlawfully). Therefore, knives that fall outside the narrow definition of a “switchblade knife” are not necessarily outside the reach of the Penal Law: the law simply requires a defendant to have unlawful intent in possessing them, an element not present in Penal Law § 265.01(1). In sum, the parties agree that the Penal Law defines a switchblade as a knife 10 that must open automatically by means of a device located in the handle. However, the weapon described in the information was different from the knife proscribed by the Penal Law: rather than open automatically by means of a button in the handle, the knife opened automatically when the officer “applied hand pressure to a spring- loaded portion of the blade of the knife protruding from the handle of the knife.”3 Particularly given that Penal Law § 265.01 is a strict-liability crime, for which the instrument’s character as one of the proscribed weapons is the most important element (and indeed, one of the only elements) of the crime, an information is facially insufficient if it unquestionably describes a knife different from a switchblade. See C.P.L. § 100.40[1][c]; see also Alejandro, 70 N.Y.2d at 139 (noting that “a defendant . . . must have, at least, an assurance that the information contains allegations establishing a legally sufficient case”). In affirming Mr. Berrezueta’s conviction, the Appellate Term misdescribed the accusatory instrument. The court held that “[n]onhearsay allegations established every element of the charged weapons offenses,” because, “[a]lthough the officer failed to specifically state that the ‘button, spring or other device [was] in the handle of the knife,’ (see Penal Law § 265.00[4]), the weapon described possessed general features common to a switchblade so as to give defendant ‘sufficient notice of the 3 As noted above, the People filed a prosecutor’s information the day of trial, meaning the operative factual allegations in a facial sufficiency analysis lie in the preceding information. See People v. Inserra, 4 N.Y.3d 30, 32 (2004) (“A prosecutor’s information is jurisdictionally defective if the original information it supersedes and any supporting depositions do not contain adequate factual allegations. To be adequate, the allegations must establish, if true, every element of the crime charged and the defendant’s commission of each.”). Similarly, although the prosecutor’s information charged Mr. Berrezueta with attempted possession - a B misdemeanor to which no jury trial right attached - the People’s theory of the crime, as explained in the preceding information and as developed at trial, was that the knife met the definition of a switchblade knife. Accordingly, the parties agree that the information was required to provide reasonable cause that the knife was a switchblade. (See Resp. Br. at 20). 11 charged crime[s] to satisfy the demands of due process and double jeopardy.’” But the accusatory instrument did not fail to state that the button was in the handle of the knife: it affirmatively stated that the button was on another part of the knife - the blade. By thus doing so, the accusatory instrument did not merely fail to provide minor details as to the knife’s features: it negated an element of the crime.4 For similar reasons, People v. Sans, 26 N.Y.3d 13 (2015), cited by the court, is not to the contrary. In that case, a defendant was charged with possessing a gravity knife and waived his right to the filing of an information. On appeal, the defendant argued that the complaint was facially insufficient because it lacked a statement that, among other things, the knife locked by means of a device. This Court 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.” 26 N.Y.3d at 16. Accordingly, the accusatory instrument met the less stringent standard applied to misdemeanor complaints, given that it necessarily described a gravity knife, even though it lacked some details about the knife (including the “precise motion” the officer used to open it). Id. 4 In the same vein, the People argued on appeal that a) the accusatory instrument adequately described the device as in the handle “because it protruded from the handle when the knife was closed”; and b) “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.” (Resp. Br. at 20-21). Both of these arguments are unavailing. The accusatory instrument clearly described the device as being on a portion of the “blade of the knife,” not “in the handle” as the Penal Law requires. And that this portion of the blade was in turn “protruding from the handle” of the knife makes no difference. Indeed, were it enough for a device to be attached to a different part of the knife that, in turn, was “protruding from the handle,” any spring-assisted knife described in an accusatory instrument could qualify as a switchblade regardless of the location of the device used to open it, because every part of a knife is in some way attached to or “protruding from” the handle. This argument renders meaningless the Penal Law’s clear statutory requirement that a device used to open a switchblade be “in the handle” of the knife, not anywhere else. 12 Here, by contrast, Mr. Berrezueta was charged via an information - meaning that its allegations were required to “establish, if true, every element of the offense charged and the defendant’s commission thereof,” CPL § 100.40[1][c]. More importantly, the defects in this accusatory instrument are of an entirely different nature than those challenged in Sans. The information here did not fairly describe a knife proscribed by the Penal Law, despite lacking some details about the knife. Instead, the accusatory instrument described a knife, in considerable detail, that simply does not meet the statutory definition of a switchblade. And certainly, an accusatory instrument fails to provide facts that “establish, if true, every element of the offense charged” if the facts negate an element (indeed, one of the only elements) of the crime. See, e.g., People v. McNamara, 78 N.Y.2d 626, 634 (1991). Indeed, this Court’s analysis in People v. Ocasio suggests that if an accusatory instrument describes a weapon different from one proscribed by Penal Law § 265.01(1), it is facially insufficient. In that case, the accusatory instrument described a weapon, in considerable detail, that the defendant alleged was different from a “billy” because it was “metal” and “extendable” rather than wooden and of a fixed length. 28 N.Y.3d at 180. In order to decide the defendant’s facial sufficiency challenge, this Court proceeded to analyze whether the weapon described in the accusatory instrument met the definition of a billy. 28 N.Y.3d at 183. Ocasio lends no support to the People’s facial sufficiency arguments in this case: the Court did not determine that the accusatory instrument was facially sufficient because the officer was “required only to allege how, in his experience, he concluded that” the instrument was a billy (Resp. Br. at 20), nor did this Court hold that the defendant’s contention regarding the billy “was a matter to be raised as a defense at trial, not by insistence that this information was jurisdictionally defective” (Resp. Br. at 21 13 (internal quotation marks omitted)). Accordingly, in analyzing the facial sufficiency of the accusatory instrument in this case, this Court must similarly determine whether the weapon described met the definition of a switchblade knife, here with the benefit of the plain language of the statute itself. And given that the parties agree that the Penal Law’s definition of a switchblade knife encompasses only a knife with an operating mechanism “in the handle” of the knife, the information is not facially sufficient because it described a knife that does not meet that statutory definition. Facial sufficiency is a jurisdictional issue not subject to preservation requirements. Alejandro, 70 N.Y.2d at 135. (In any event, counsel filed an pretrial motion arguing, inter alia, that the instrument was facially insufficient.) Accordingly, this Court must reverse Mr. Berrezueta’s Penal Law conviction and dismiss the accusatory instrument. POINT II THE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE KNIFE IN QUESTION WAS A SWITCHBLADE. The People not only failed to meet the facial sufficiency requirements in describing Mr. Berrezueta’s knife; they also failed to establish that the knife Mr. Berrezueta possessed was, in fact, a switchblade. As the objective physical evidence makes clear, the knife did not meet the clear statutory definition, since the device used to open the knife was not located in the handle. Accordingly, this Court must reverse Mr. Berrezueta’s Penal Law conviction. Due process requires that the prosecution bear the burden of proof beyond a reasonable doubt for every essential element of a crime. In re Winship, 397 U.S. 358, 361-62 (1970); Francis v. Franklin, 471 U.S. 307, 313 (1985). Accordingly, a review of legal sufficiency involves determining whether “the evidence viewed in the light most 14 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). The parties agree that in order to convict Mr. Berrezueta of the Penal Law charge, the prosecution was required to prove that the knife was one of the per se weapons enumerated in Penal Law § 265.01 - namely, that the knife was a switchblade. See Point I; see Resp. Br. at 10-11. And the evidence at trial was legally insufficient for one simple reason: the knife Mr. Berrezueta possessed was not a switchblade as defined by the Penal Law. The Penal Law unequivocally defines a switchblade as “any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife.” Penal Law § 265.00[4] (emphasis added). And here, the objective physical evidence did not and could not show that the device that opened the knife was in the knife’s handle. Instead, the evidence established that the device was located on a non-sharp portion of the blade of the knife. This conclusion is supported by multiple dictionary definitions of the word “handle,” coupled with the objective physical evidence in the case. Merriam- Webster’s Collegiate Dictionary defines “handle” as “a part that is designed especially to be grasped by the hand” (Merriam-Webster’s Collegiate Dictionary, Tenth Edition 1993); and the Macmillan Dictionary defines “handle” as “the part of an object that you hold in your hand when you use it” (Macmillan Dictionary, Online Edition (last accessed December 4, 2017)). The People’s own exhibits make clear, however, that the device used to open the knife is not on the portion designed to be held in one’s hand “when you use it.” The photo of the knife in the closed position shows that the 15 device is not in the handle, which is the stationary, grenade-shaped portion of the knife that one would grip when using the knife. Instead, it is on a non-sharp portion of the blade that protrudes from the stationary part of the knife. (A73 (People’s Ex. 2)). The photo of the knife in the “open” position even more clearly shows that the triggering button is not in the handle, but instead on the non-sharp portion of the blade - the piece of metal to which the button is attached is now up and above the handle, and would not be held when one is using the knife. (A72 (People’s Ex. 1)). Before the Appellate Term, the People did not dispute that the operating mechanism was attached to the blade, but argued that the knife met the statutory definition because, when the knife was closed, “the button was on an area of the knife that could be safely touched,” and that because the “definition of a switchblade is based on how the knife opens . . . [w]hether the button moved when the knife was opened had no bearing on whether it met the statutory definition of a switchblade.” (Resp. Br. at 13). As an initial matter, the People did not make this argument at the trial level. In response to Mr. Berrezueta’s motion for a trial order of dismissal, the People did not argue that the device was, in fact, “in the handle” of the knife, but instead argued that Mr. Berrezueta was guilty because the definition of a switchblade knife did not require the button to be “in the handle” of the knife. The People thus failed to preserve the argument that the evidence established that the device was in the handle. See People v. Ladson, 85 N.Y.2d 926, 928 (1995) (an “issue and legal theory [that] were never raised before the trial court” were “not preserved”). Moreover, this argument ignores the statute’s plain language, which expressly requires that the operating mechanism be located “in” the handle, not anywhere else. The plain text of the statute does not proscribe a knife with an operating mechanism that is “adjacent” to its handle or, although on the blade, can be pressed with one 16 hand; rather, the statute unambiguously demands that the device be “in the handle of the knife.” The People’s argument purports to divine the Legislature’s intent - to prohibit knives that can be opened automatically with one hand, regardless of whether the mechanism was “in the handle” or not. But there is no occasion to examine the Legislature’s intent when the language of the statute, as here, is crystal clear. See Finger Lakes Racing Ass’n, Inc. v. New York State Racing & Wagering Bd., 45 N.Y.2d 471, 480 (1978) (“It is an elementary principle of statutory construction that courts may only look behind the words of a statute when the law itself is doubtful or ambiguous . . . If, as here, the terms of a statute are plain and within the scope of legislative power, it declares itself and there is nothing left for interpretation.”).5 In any event, definitions of the word “handle” typically refer to the portion of the knife that is held when something is being used, and so - contrary to the People’s argument that it does not matter “where the button moved” - where the device is located when the knife is open must determine whether the device was “in the 5As explained above, the statute is unambiguous in requiring the device used to open the knife to be “in the handle” of the knife, and the People do not dispute that construction. Even if it could be argued that the operating mechanism, although fixed on the blade, was seated in the handle in a closed position, any ambiguity in the statute must inure to Mr. Berrezueta’s benefit. See 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.”). Further, the Penal Law must be interpreted in a way that avoids constitutional doubts. If the phrase “in the handle of the knife” were read to not actually demand that the device be in the handle - the easily-identifiable, grenade-shaped stationary portion of the knife here - the statute could easily be challenged as void for vagueness. See People v. First Meridian Planning Corp., 86 N.Y.2d 608, 621, 658 (1995) (“The ‘void for vagueness’ doctrine requires that a penal statute provide the ordinary citizen with adequate notice of the exact conduct prohibited” (emphasis added) (internal quotation marks omitted)). This Court must therefore construe the statute in a way that not only gives meaning to its plain language, but also avoids these constitutional issues. See FGL & L Prop. Corp. v. City of Rye, 66 N.Y.2d 111, 120 (1985) (holding that “statutes are to be construed so as to avoid constitutional issues if such a construction is fairly possible”). 17 handle.” More fundamentally, the People’s argument ignores the fact that the device itself is fixed, and moves with the piece of metal to which it is attached. Therefore, the device’s location when the knife is opened simply shows, more clearly, what portion of the knife the device has been attached to all along - unquestionably the blade. In sum, the physical evidence at trial failed to demonstrate that the device used to open the knife was “in the handle” as the statute requires; instead, it established that the device was attached to the blade. And even if Leone’s testimony could compensate for these deficiencies in the People’s proof, his testimony supports Mr. Berrezueta’s argument. While Leone testified at various points that the button used to open the knife was on the handle and was “not on the blade,” he testified at other points that the button was “on the side of the knife” rather than in the handle, and acknowledged that the button was “[a]ttached to the blade, the same piece of metal.” (A38-41). Leone also testified that the “thing [he] press[ed to open the knife] . . . moves to above the handle.” (A41). And finally, Leone testified that when he first saw Mr. Berrezueta, he saw “the top of [a] knife with the side of the blade exposed.” (A40). As is clear from the picture of the knife in the “closed” position (A73), the part of the knife he describes as the “side of the blade” could only be the part on which the device is located, or the identical part on the opposite side of the knife. Leone’s own words, thus, establish that the device was on the knife’s blade. Finally, on appeal to the Appellate Term, the People themselves were unable to describe the knife’s device as being in the handle of the knife, as the plain language of the statute requires. The People refer to the button as being “adjacent to the handle” (Resp. Br. at 13), and “attached to [the] side of the blade” (id. at 11 n.5), virtual concessions that the device deviates from the plain, unambiguous requirement that it 18 be “in the handle of the knife.” Defense counsel preserved this challenge by moving for a trial order of dismissal on the same ground discussed here and renewed that motion after the close of all evidence. See People v. Hines, 97 N.Y.2d 56, 61–62 (2001). (A43-47; A67). Accordingly, this issue is squarely presented for this Court’s review, and requires reversal of Mr. Berrezueta’s Penal Law conviction and dismissal of the charge. Respectfully submitted, Siobhan Atkins Appellate Counsel cc: Hon. Cyrus R. Vance, Jr. New York County District Attorney One Hogan Place New York, NY 10013 Attn: Katherine Kulkarni, ADA, Appeals Bureau 19 PRINTING SPECIFICATIONS STATEMENT The brief was prepared in WordPerfect®, using a 14-point Garamond font, and totalled 6,097 words. 20 STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) SIOBHAN C. ATKINS, an attorney duly admitted to the practice of law in this State, does hereby affirm and show: That on December 14, 2017, the attached letter was served upon Cyrus R. Vance, Jr., District Attorney, New York County, at One Hogan Place, New York, NY 10013 (Attn: Katherine Kulkarni), the address designated by him for that purpose, by depositing a true copy of the same in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York. Dated: New York, New York December 14, 2017 ____________________ Siobhan C. Atkins