The People, Respondent,v.Douglas McCain, Appellant.BriefN.Y.January 4, 2018To be argued by KAYONIA L. WHETSTONE (TIME REQUESTED: 15 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against DOUGLAS McCAIN, Defendant-Appellant. W444444444444444444444444444444444444444444444444444 BRIEF FOR RESPONDENT W444444444444444444444444444444444444444444444444444 RICHARD A. BROWN District Attorney Queens County Attorney for Respondent 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286–7038 JOHN M. CASTELLANO JOSEPH N. FERDENZI KAYONIA L. WHETSTONE Assistant District Attorneys Of Counsel APRIL 5, 2017 Queens County Docket Number 2013QN011516 APL-2016-00166 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 FACTUAL AND LEGAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Crime, Arrest, and Charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Plea and Sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 THE DEFENDANT’S DIRECT APPEAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ARGUMENT THE ACCUSATORY INSTRUMENT PROVIDED REASONABLE CAUSE TO BELIEVE DEFENDANT UNLAWFULLY POSSESSED A DANGEROUS KNIFE WITH THE PRESUMPTIVE INTENT TO USE IT UNLAWFULLY, AND HIS CONTRARY CLAIM OF POSSESSION FOR “PROTECTION” CONSTITUTED A DEFENSE TO BE RAISED AT TRIAL.. . . . . . . . . . . . . . . . . . . . . . . 9 A. The Jurisdictional Pleading Requirements Applicable to the Accusatory Instrument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 B. The Accusatory Instrument Was Sufficient to Allege Defendant’s Possession of a “Dangerous Knife,” to Which the Statutory Presumption of Intent Attached, and Defendant’s Purportedly Contrary Intention Raised an Issue to Be Resolved at Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 C. Defendant’s Claims to the Contrary Do Not Require a Different Result.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 TAB LE OF AUTHORITIES Page No. Cases Jackson v. Edwards, 404 F.3d 612 (2d Cir. 2005). . . . . . . . . . . . . . . . . . . . . . 22, 27 Jackson v. United States, 76 A.3d 920 (D.C. 2013). . . . . . . . . . . . . . . . . . . . . . . . 26 Matter of Antwaine T., 23 N.Y.3d 512 (2014). . . . . . . . . . . . . . . . . . . . . . . . . 12, 15 Matter of Carolina P., 83 A.D.3d 847 (2d Dept. 2011). . . . . . . . . . . . . . . . . . 12, 25 Matter of Jamie D., 59 N.Y.2d 589 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . passim Matter of Y.K., 87 N.Y.2d 430 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 People v. Aragon, 28 N.Y.3d 125 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Campos, 93 A.D.3d 581 (1st Dept. 2012).. . . . . . . . . . . . . . . . . . . . 13, 25 People v. Dreyden, 15 N.Y.3d 100 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 22 People v. Dumas, 68 N.Y.2d 729 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 29 People v. Dumay, 23 N.Y.3d 518 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13, 19 People v. Fana, 23 Misc. 3d 1114(A), 2009 N.Y. Slip Op. 50772(U) (Crim. Ct., N.Y. Co. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Galindo, 23 N.Y.3d 719 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Goetz, 68 N.Y.2d 96 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Hughes, 22 N.Y.3d 44 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 People v. Irizarry, 509 F. Supp.2d 198 (E.D.N.Y. 2007). . . . . . . . . . . . . . . . . . . . 15 People v. Jones, 3 N.Y.3d 491 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 People v. Kalin, 12 N.Y.3d 225 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 People v. Konieczny, 2 N.Y.3d 569 (2004).. . . . . . . . . . . . . . . . . . . . . . . . 21, 29, 31 ii People v. Leyva, 38 N.Y.2d 160 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 People v. McCain, 28 N.Y.3d 933 (2016).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v. McCain, 50 Misc.3d 132(A), 2015 N.Y. Slip Op. 51939(U) (App. Term 2d Dept. 2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8 People v. Moreno, 184 Misc. 2d 764 (Crim. Ct., N.Y. Co. 2000). . . . . . . . . . . . . . 8 People v. Persce, 204 N.Y. 397 (1912. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15n.6 People v. Richards, 22 Misc. 3d 798 (Crim. Ct., N.Y. Co. 2008) . . . . . . . . . . 15n.6 People v. Rodriguez, 17 N.Y.3d 486 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 People v. Smalls, 26 N.Y.3d 1064 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 People v. Sosa Lopez, 54 Misc. 3d 545 (Crim. Ct., N.Y. Co. 2016) . . . . . . . . . . . 16 People v. Valentine, __ N.Y.3d __, 2017 N.Y. Slip. Op. 02470, 2017 WL 1166757 (March 30, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Wesley, 76 N.Y.2d 555 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Statutes Administrative Code § 10-133. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6 C.P.L. § 100.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 29 C.P.L. § 100.40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 29 C.P.L. §170.65. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Penal Law § 10.00. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24 Penal Law § 35.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Penal Law § 265.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Penal Law § 265.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim iii COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------------- x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : DOUGLAS McCAIN, : Defendant-Appellant. : -------------------------------------------------------------------- x BRIEF FOR RESPONDENT PRELIMINARY STATEMENT Defendant Douglas McCain, by permission of the Honorable Leslie E. Stein, Associate Judge of the Court of Appeals, appeals from an order of the Appellate Term, Second Department, 11th and 13th Judicial Districts, entered on December 31, 2015, affirming a March 2, 2013, judgment of the New York City Criminal Court (Queens Co.)(Zaro, J.). By that judgment, defendant was convicted, upon his guilty plea, of Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01[2]). He was sentenced to time served. Defendant is at liberty. INTRODUCTION At approximately 11:18 p.m., on March 1, 2013, a police officer assigned to a housing unit, saw defendant in the back of a Queens apartment building. Defendant had a razor knife clipped to the outside of his pants pocket in plain view. The officer stopped defendant and found that the razor knife could be activated to an open and locked position through the force of gravity. Defendant told the officer that he carried the razor knife for his protection, noting, that at least it was not a gun. Subsequently, defendant was charged with Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01[2]), and Possession of Knives or Instruments (Administrative Code § 10-133[c]) (Queens County Docket Number 2013QN011516). The instrument recounted the facts alleged regarding the officer’s1 observations, his recognition of the knife as a razor knife, and defendant’s statement. Defendant proceeded to arraignment before the Honorable Stephanie Zaro of New York City Criminal Court. He waived prosecution by information and pleaded guilty to Criminal Possession of a Weapon in the Fourth Degree. The court sentenced defendant as noted above. In June, 2014, defendant filed an appellant’s brief, raising one claim. Defendant asserted that the allegations in the accusatory instrument showed that he only possessed the razor knife for self-defense, and the instrument was thus jurisdictionally defective, as it did not provide reasonable cause to believe that he intended to use the “razor knife” unlawfully. In a respondent’s brief dated August2 22, 2014, the People argued that the weapon possession count was sufficiently pleaded. The People asserted that the razor knife qualified as a weapon, and that defendant’s statement that he intended to use the knife “for [his] protection,” demonstrated that he viewed the knife as a weapon. The People also asserted that defendant’s intention to use the knife unlawfully was apparent because he clipped the Page numbers preceded by an A refer to pages of the Appellant’s Appendix.1 Defendant did not then, and does not now, controvert the facial sufficiency of the2 Administrative Code count. 2 knife to his pants pocket where he could easily access it for combat. Thus, the People argued that since even defendant considered the razor knife to be a weapon, the presumption of intent to use unlawfully applied and established a prima facie case. Lastly, the People asserted that even defendant’s unsubstantiated and self-serving claim of justification would not excuse his unlawful possession. Accordingly, the People asserted that the instrument provided reasonable cause to believe defendant committed fourth-degree criminal possession of a weapon, the crime charged. The Appellate Term ruled that a fair reading of the instrument supported the fourth-degree criminal possession of a weapon charge. It found that the accusatory instrument provided notice to defendant of the charges against him and reasonable cause to believe that defendant had an intent to use the razor knife unlawfully. Further, the court held that defendant’s possession of the razor knife was presumptive evidence that he intended to use it unlawfully pursuant to subsection four of section 265.15 of the Penal Law. And, the court also ruled that defendant’s statement that he intended to use the knife for self-defense did not negate the presumption of intent to use unlawfully. The court noted that the veracity of defendant’s stated intention was a question to be decided at trial. See People v. McCain, 50 Misc.3d 132(A), 2015 N.Y. Slip Op. 51939(U)(App. Term 2d Dept. 2015). On August 5, 2016, the Honorable Leslie Stein granted leave to appeal to this Court. 3 SUMMARY OF THE ARGUMENT The Appellate Term properly determined that the accusatory instrument provided reasonable cause to believe that defendant possessed the razor knife with the intent to use it unlawfully. Defendant’s statement, along with the circumstances of his possession, showed that he regarded the instrument as a weapon and possessed it for his value as such. This rendered the knife a “dangerous knife” within the meaning of the statute, and triggered the presumption of unlawful intent. Defendant’s claim of innocent intent did not by itself preclude application of the presumption or render it ineffectual to support the charge. Under this Court’s precedent, a knife constitutes a “dangerous knife” within the meaning of section 265.01(2) of the Penal Law, even when it has a utilitarian purpose, when the “possessor himself consider[s] it a weapon,” which this Court has defined as an “instrument of offensive or defensive combat.” Matter of Jamie D., 59 N.Y.2d 589, 591 (1983). Here, defendant himself admitted that he possessed the knife for its value as a weapon, in order to use it against others, even if in “defensive combat.” The additional allegations in the accusatory instrument – that defendant wore the weapon on his pants pocket in a manner providing its easy access and the specific allegations that it could be used with a single hand, aided by gravity and a locking mechanism, further supported defendant’s acknowledgment that he possessed the knife as a weapon, rather than for a utilitarian purpose. Because the knife constituted a “dangerous knife,” the presumption of intent specifically applied to it. Penal Law § 265.15(4) (“The possession by any 4 person of any . . . dangerous knife . . . is presumptive evidence of the intent to use unlawfully”). Because the allegations were sufficient to support that defendant possessed a dangerous knife, and because the intent to use it unlawfully was specifically established by statute, the instrument sufficiently alleged the charged crime. The allegation concerning defendant’s self-serving, unsubstantiated assertion that he carried the weapon solely for “protection” merely created an issue of fact for trial, and did not negate the presumption of unlawful intent as a matter of law. Indeed, even at trial, the People may establish a legally sufficient case beyond a reasonable doubt as to the intent element based on the presumption alone, even where the defendant’s statement supplies both the evidence of the weapon’s possession and the assertion that the possession was for a lawful purpose. See People v. Galindo, 23 N.Y.3d 719, 724 (2014). And if the jury could find unlawful intent beyond a reasonable doubt based on the presumption alone, then the allegation of unlawful intent in an accusatory instrument based on the presumption was also necessarily sufficient, as the pleading required far less proof than a trial. Nor can defendant preclusively invoke the Second Amendment and invalidate an accusatory instrument simply by uttering at the time of his arrest that he carried the knife for his protection. Defendant chose not to raise this defense at trial or make an appropriate motion asserting his Second Amendment rights. While a court would be free to consider such a constitutional challenge upon a motion, and a jury could consider an assertion of self-protection at trial, neither affected the 5 jurisdictional sufficiency of the accusatory instrument. In short, the Appellate Term properly concluded that the accusatory instrument provided defendant with fair notice and reasonable cause to believe that defendant possessed the razor knife with the intent to use it unlawfully. FACTUAL AND LEGAL BACKGROUND The Crime, Arrest, and Charges On March 1, 2013, in back of 34th Avenue, Queens County, Police Officer Edgar Brito of PSA9 observed defendant with a knife clipped to the outside of his pants pocket in plain view. Officer Brito alleged that based on his training and experience, the knife was a razor knife because he activated it to an open and locked position through the force of gravity. Defendant told Officer Brito that he possessed the knife “for my protection” and added, “at least I’m not carrying a gun.” And, in an information, defendant was charged with Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01[2]), and Possession of Knives or Instruments (Administrative Code § 10-133[c])(A 7). The Plea and Sentence On March 2, 2013, defendant appeared before the Honorable Stephanie Zaro, Judge of the New York City Criminal Court, Queens County, and pleaded guilty to Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01[2]) in full satisfaction of the charges against him. Before accepting defendant’s guilty plea, the arraignment court ensured that defendant understood that by pleading guilty he was giving up his right to trial 6 and to hold the People to their burden of proof beyond a reasonable doubt. Also defendant acknowledged that he was willingly pleading guilty because he was, in fact, guilty of possessing a “razor knife” clipped to his pants pocket on March 1, 2013. Then, defendant waived formal allocution and prosecution by information. 3 The court sentenced defendant as noted above (A8-A10). DEFENDANT’S DIRECT APPEAL On direct appeal, defendant argued the accusatory instrument failed to establish reasonable cause to believe that he intended to unlawfully use the “razor knife” that he had clipped to his pants in plain view, an element of Criminal Possession of a Weapon in the Fourth Degree. On August 22, 2014, the People submitted a brief in response arguing that defendant’s claim was entirely meritless because the accusatory instrument was jurisdictionally sufficient. The People asserted that the information provided defendant with notice of the alleged offenses, was specific enough to prevent double jeopardy, and provided reasonable cause to believe that defendant committed both of the alleged offenses. The People also argued that the information explicitly stated the factual basis for the officer’s belief that defendant committed both of the alleged offenses. Further, the People relied on the statutory presumption of unlawful intent by virtue of the fact that defendant had a razor knife in his possession. And, the People asserted that since the information included the arresting officer’s statement Although the accusatory instrument stated that defendant committed the instant offense in3 b 34 Avenue, it seems that the arraignment court mistakenly referred to the address asth “ Avenue” (A10). 7 that defendant possessed, in plain view, a knife clipped to defendant’s pants pocket, and defendant’s admission that the knife was “for his protection” without any circumstances to support a justification defense, it evidenced defendant’s intent to use the weapon unlawfully. On December 31, 2015, the Appellate Term, Second Department, 11th and 13th Judicial Districts, held that the People sufficiently pleaded that defendant possessed a razor knife because the accusatory instrument here provided notice to defendant of the charges against him and reasonable cause to believe that defendant had an intent to use the razor knife unlawfully. See McCain, 50 Misc. 3d 132(A) *2. The court noted that the People accused defendant, inter alia, of Criminal Possession of a Weapon in the Fourth Degree under Penal Law § 265.01(2) and alleged that the arresting officer observed, in plain view, a “razor knife” clipped to the outside of defendant’s pants pocket. Thus, relying on People v. Moreno, 184 Misc. 2d 764 (Crim. Ct., N.Y. Co. 2000), the court determined that pursuant to Penal Law § 265.15 (4), defendant’s possession of the “razor knife” was presumptive evidence of intent to use the same unlawfully against another.” McCain, 50 Misc. 3d 132(A) *2. The court also determined that defendant’s admission that he intended to use the knife as a weapon by itself supported the charge and his untested claim that his anticipated use would be justified was an issue for trial. Id. On August 5, 2016, the Honorable Leslie Stein granted leave to appeal. People v. McCain, 28 N.Y.3d 933 (2016). 8 ARGUMENT THE ACCUSATORY INSTRUMENT PROVIDED REASONABLE CAUSE TO BELIEVE DEFENDANT UNLAWFULLY POSSESSED A DANGEROUS KNIFE WITH THE PRESUMPTIVE INTENT TO USE IT UNLAWFULLY, AND HIS CONTRARY CLAIM OF POSSESSION FOR “PROTECTION” CONSTITUTED A DEFENSE TO BE RAISED AT TRIAL. The factual allegations in the accusatory instrument provided reasonable cause to believe defendant possessed a “razor knife” with the intent to use it unlawfully, constituting the crime of Criminal Possession of a Weapon in the Fourth Degree. The knife constituted a “dangerous knife” within the meaning of the statutory prohibition and the presumption of intent to use unlawfully thereby attached to the knife, also by operation of statute. Any other issue regarding intent provided only a question for trial. As this Court has ruled, a knife constitutes a “dangerous knife” within the meaning of section 265.01(2) of the Penal Law, even where the object is not primarily designed as a weapon or adopted to such use, when the “possessor himself consider[s] it a weapon,” Matter of Jamie D., 59 N.Y.2d 589, 591 (1983). The possession of a “dangerous knife,” in turn, triggers the presumption of unlawful intent under section 265.15(4). Here, defendant himself admitted that he possessed the knife for its value as a weapon – an “instrument of offensive or defensive combat,” id. at 592 – rather than as a utilitarian device. The additional allegations in the complaint further supported the suitability of the knife for use as a weapon under the circumstances in which defendant possessed it, including the way defendant wore it 9 for its easy access and the weapon’s inherent potential for use with a single hand, aided by gravity and a locking mechanism, both of which would be particularly advantageous in combat. Because these allegations alone were sufficient to support that defendant possessed a dangerous knife with the intent to use it unlawfully, the instrument sufficiently alleged the charged crime. Defendant’s contrary contention, that he intended to use the weapon only for a generic, undefined purpose of “protection,” presented an issue to be resolved at trial and did not negate the presumption of intent as a matter of law, thereby precluding the prosecution entirely, as defendant would have it. Indeed, this Court has held that a finder of fact at a trial may rely on the presumption, and the proof at trial is legally sufficient based on the presumption alone, even in the face of a defendant’s simultaneous assertion of innocent intention and even where there are no other circumstances supporting the presumption. See People v. Galindo, 23 N.Y.3d 719, 723 (2014). Because the presumption is sufficient to support a verdict at trial, allegations in an accusatory instrument relying on the presumption could not be deficient under the much lower standard applicable at the pleading stage. Accordingly, defendant’s current contention cannot prevail. A. The Jurisdictional Pleading Requirements Applicable to the Accusatory Instrument. Initially, the standard to be applied to the allegations in the accusatory instrument are those for a misdemeanor complaint. Defendant here failed to challenge the accusatory instrument in Criminal Court and waived prosecution by information. Thus, the People were required to allege facts providing mere 10 “reasonable cause” to believe defendant committed the crime charged. See CPL §170.65(3); People v. Dumay, 23 N.Y.3d 518, 522–524 (2014). And because this standard is far less stringent than that required for proof sufficient to uphold a jury verdict, allegations are sufficient where a jury could draw inferences from all or some part of the evidentiary allegations sufficient to support the crime. Moreover, because defendant pleaded guilty without raising any issue with regard to the sufficiency of the allegations in the accusatory instrument, that pleading need only have complied with minimum jurisdictional prerequisites. People v. Kalin, 12 N.Y.3d 225, 228-229 (2009). This requires no more than that the allegations provide a sufficiently specific allegation of the time, date, and place of the offense and the nature of the crime to provide notice of the offense and avoiding double jeopardy. CPL § 100.15(3); CPL § 100.40(4)(b); see People v. Dreyden, 15 N.Y.3d 100, 103 (2010); People v. Dumas, 68 N.Y.2d 729, 731 (1986). Here, the allegations amply satisfied those requirements. B. The Accusatory Instrument Was Sufficient to Allege Defendant’s Possession of a “Dangerous Knife,” to Which the Statutory Presumption of Intent Attached, and Defendant’s Purportedly Contrary Intention Raised an Issue to Be Resolved at Trial. In order to be guilty of Criminal Possession of a Weapon in the Fourth Degree, a defendant must possess specific types of instruments or weapons, including a “dangerous knife,” with the intent to use the item unlawfully. This Court has held4 A person is guilty of Criminal Possession in the Fourth Degree when “[h]e or she possesses4 any dagger, dangerous knife, dirk, machete, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another.” Penal Law 265.01(2). 11 that a knife may qualify as a “dangerous knife” under Penal Law § 265.01(2), where, despite ordinary use for utilitarian purposes, defendant himself regards it as a weapon or possesses it for its use as one. As this Court has explained, a knife may constitute a “dangerous knife,” regardless of whether it is a weapon by virtue of its “inherent characteristics,” when “the circumstances of its possession demonstrate that the possessor himself considered it a weapon and thus a ‘dangerous knife’ within the contemplation of the statute.” Matter of Jamie D., 59 N.Y.2d at 591. For example, in Matter of Antwaine T., this Court found where the defendant carried a machete late at night on a public street the circumstances of his possession demonstrated that he considered the knife a weapon, and not a utilitarian tool for cutting plants. Matter of Antwaine T., 23 N.Y.3d 512, 516-517 (2014). And in Matter of Jamie D., even without a statement by the defendant, this Court found the instrument facially sufficient, where the juvenile’s disposition to violence, as well as his reluctance to give up the kitchen knife when accosted by police effectively manifested that he considered it a weapon and not a utilitarian utensil. Matter of Jamie D., 59 N.Y.2d at 589. Here, the Appellate Term reasonably concluded that the instrument was facially sufficient since it alleged that defendant, who asserted that he carried the razor knife for protection, considered the knife a weapon. See, e.g., Matter of Carolina P., 83 A.D.3d 847, 847-848 (2d Dept. 2011)(possession of a dangerous knife facially sufficient because by placing knife down front pants defendant “manifested that [she] [herself] considered it a weapon . . . and not an innocent utilitarian utensil.”). 12 Moreover, as this Court has also recognized, a weapon is no less a weapon whether used for offensive or defensive combat. This Court held in Matter of Jamie D., 59 N.Y.2d at 592-593, that a knife, even though susceptible or even normally possessed for utilitarian purposes, is a dangerous knife when “on the occasion of its possession” it was “intended for use” as an “instrument of offensive or defensive combat,” rather than as “a utensil.” See, e.g., People v. Campos, 93 A.D.3d 581 (1st Dept. 2012)(ample evidence machete possessed as a weapon including, inter alia, defendant’s statement that he carried it for defensive purposes). If a defendant possesses a “dangerous knife,” section 265.15(4) of the Penal Law provides a presumption of intent to use unlawfully. The presumption arises from the possession alone and no more is required. Galindo, 23 N.Y.3d at 724; People v. Leyva, 38 N.Y.2d 160, 169 (1975). Moreover, the statutory presumption5 is sufficient to establish a prima facie case at trial -- which is a higher standard than the one the People needed to satisfy here. See Galindo, 23 N.Y.3d at 724; People v. Smalls, 26 N.Y.3d 1064, 1066 (2015) (prima facie case requirement in accusatory instrument “is not the same as the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial.”)(internal citations and quotation marks omitted); Dumay, 23 N.Y.3d at 522 “The possession by any person of any dagger, dirk, stiletto, dangerous knife or any other5 weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another.” Penal Law § 265.15(4). 13 (unlike the higher “prima facie requirement” for informations, complaints need only satisfy the “reasonable cause” standard). The accusatory instrument here provided reasonable cause to believe defendant possessed a “dangerous knife” with the intent to use it unlawfully, based on defendant’s possession of the razor knife for its use as a weapon, the presumption of unlawful intent, and the other facts and circumstances showing the special suitability of the razor knife for use as a weapon. Moreover, defendant’s expressed innocent intention did not preclude prosecution, but presented an issue for him to pursue at trial, if he so chose. The allegations amply indicated that defendant possessed a “dangerous knife.” Regardless of the ability to use a “razor knife,” or a knife handle bearing a razor, for lawful purposes, here the circumstances and defendant’s own statement establish its possession for use as a weapon. Indeed, defendant’s admission alone is unassailable proof that he “considered” the razor knife to be a weapon. The accusatory instrument included defendant’s statement that the knife was “for [his] protection[,] at least I’m not carrying a gun,” (A. 7), and a “weapon” is “an instrument of offensive or defensive combat.” Matter of Jamie D., 59 N.Y.2d at 592. Defendant himself thus indicated that he possessed the knife not for any utilitarian purpose, such as for use in a construction trade or for use opening boxes at work or home, but as a weapon to be used against others, even if for defensive purposes. Defendant’s statement about the razor knife thus left no doubt that he possessed the knife for its value and potential use as a weapon, and for this reason alone it qualified as a 14 dangerous knife under this Court’s decision in Matter of Jamie D.6 Other allegations corroborated defendant’s expressed possession of it for its usefulness as a weapon rather than for a common utilitarian purpose. The allegation that defendant was standing outside a public building on the street late at night suggests that he was not at work, deploying it as part of a construction trade, cutting open boxes, or otherwise engaged in any activity for which the knife would have had a utilitarian purpose. See, e.g., Matter of Antwaine T., 23 N.Y.3d at 516- 517. The fact that the knife could readily be deployed also demonstrated its usefulness as a weapon. Much like a gravity knife that opens and locks with one hand, the allegations here made clear the single hand effective use of the knife defendant possessed and that it could be quickly deployed in a physical confrontation. Indeed, the easy concealment and quick deploy of such weapons lead the legislature to ban certain types of knives. In fact, in 1954, the legislature banned switchblades because of their inherent dangerous nature and easy deployment. People v. Irizarry, 509 F. Supp.2d 198, 204, 208 (E.D.N.Y. 2007). Subsequently, the legislature also That defendant would be liable for his possession of the razor knife as a weapon aligns with6 the legislative intent of the statute. Notably, “Penal Law article 265 reflects a legislative determination that public safety is best preserved when the state’s citizens are forbidden from roaming the streets equipped with tools of violence.” People v. Richards, 22 Misc. 3d 798, 799 (Crim. Ct., N.Y. Co. 2008) citing People v. Persce, 204 N.Y. 397, 402 (1912). And the Legislature sought to ban the possession of certain weapons “without delaying until opportunity had bred and perhaps permitted the accomplishment of some particular evil design.” Persce, 204 N.Y. at 403. Indeed, “[t]he history of the gravity knife provision as well as the legislative scheme distinguishing ‘dangerous instruments’ from ‘per se’ weapons in [PL 265.01(1)] demonstrates a plan to ban those items designed to be used as weapons.” People v. Irizarry, 509 F. Supp.2d 198, 210 (E.D.N.Y. 2007). Thus, from a policy perspective, punishing defendant for possession of razor knife, an instrument he considered a weapon, is completely congruent with the purpose of the statute, as liability rest on the fact that defendant did not possess the razor knife for any utilitarian purpose. 15 banned gravity knives, which were viewed as the predecessor of the switchblade, for similar reasons – gravity knives inherently dangerous nature are readily apparent because they are easily concealed on the person and quickly deployed with one hand by the force of gravity. Id. at 208; People v. Sosa Lopez, 54 Misc. 3d 545, 548 (Crim. Ct., N.Y. Co. 2016) (Legislature found gravity knives to be nearly exclusively used as a weapon of choice of criminals; a practical replacement by criminals for the previously outlawed “switchblade knife.”); People v. Fana, 23 Misc. 3d 1114(A), 2009 N.Y. Slip Op. 50772(U)(Crim. Ct., N.Y. Co. 2009). And while this knife was not explicitly prohibited, its easy deployment for combat was a feature that made it valuable as a weapon, just as defendant regarded it. Also significant was the placement of the knife on defendant’s body, which made it especially capable of ready deployment. Because the knife hung from defendant’s pants pocket, defendant did not need to put his hand in his pocket to remove it or fish it out of some other location before using it, making it readily accessible on the shortest notice. This too suggested that the item would be useful as a weapon, based on rapidly developing circumstances, such as those attendant to a physical confrontation. Thus, his claim to possess the knife as a weapon was supported by the time, place and circumstances of the possession itself. And defendant’s further statement, comparing the knife to a gun – a well-known weapon – illustrated the point that defendant considered the knife to indeed be a weapon that he could use to defend himself, whatever its other utilitarian value. Thus, viewing these evidentiary 16 allegations in the light most favorable to the People, it was reasonable for the Appellate Term to conclude that defendant was carrying this razor knife clipped to his pants pocket, not for utilitarian use, but as a weapon. Moreover, the fact that defendant indicated that he did not have an illicit intent in possessing the knife did not make it any less a weapon, even if a defensive one. The avowed defensive purpose did not turn the item from a weapon for “offensive or defensive combat” into a mere utilitarian tool rather than an item that was useful, as far as he was concerned, because it was capable of inflicting injury on another human being. Because the knife thus constituted a “dangerous knife” within the meaning of the statute, it triggered the presumption of intent to use unlawfully. Here, as elsewhere, the possession alone gave rise to the presumption. Since the accusatory instrument established that the knife was indeed a “dangerous knife” that fell within the statutory definition of Penal Law § 265.01(2), the presumption appropriately applied. See Penal Law § 265.15(4); Galindo, 23 N.Y.3d at 724. And it also provided, by itself, prima facie evidence of possession with the intent to use the knife unlawfully against another. The crime of Criminal Possession of a Weapon in the Fourth Degree – possession of a dangerous knife, with the intent to use it unlawfully – was thus fully established by these allegations alone. Nor does the allegation that defendant claimed he only intended to use it for “protection” preclude the application of the presumption as a matter of law. Here, as in Galindo, the finder of fact – or here the neutral reader of the accusatory 17 instrument – was free to accept the presumption that defendant’s possession of the knife was unlawful and reject the contrary assertion. In Galindo, this Court found that the jury could have reasonably accepted the presumed fact that the defendant possessed the firearm with the intent to use it unlawfully despite his claim that he accidentally shot the victim and despite the fact that his only admission of possession was in the context of his claim of an accidental firing. There, the Court held that the defendant’s conviction of criminal possession of a weapon was supported by legally sufficient evidence because the jury could credit defendant’s statements to a witness for the prosecution in so far as they established his possession of the weapon, and could properly apply the presumption of intent, while rejecting his simultaneous claim of accidental firing made to the same witness. Further, the Court concluded that even if defendant had no intention of shooting this particular victim, his cousin, viewing the evidence in the light most favorable to the People, the jury’s acceptance of the presumption was “not inconsistent with the inference that he intended to use the gun unlawfully against someone other than his cousin.” Id. at 725. As this Court noted in Galindo, the assertion of a defense does “not negate the existence of a prima facie case.” 23 N.Y.3d at 723 (internal citations omitted). Rather, it merely “presents an alternate set of facts, or inferences from facts [for] the jury.” Id. So too here. Just as, under Galindo, a jury could rely on the presumption alone to provide a legally sufficient case at trial, even in the face of contradicting evidence 18 derived from the very same admission by the defendant, a neutral reader of the evidentiary allegations here could rely on the presumption alone, even though the admission might give rise to opposing inferences. And in the same way as a jury, under Galindo, is not bound to accept a defendant’s statement in toto, an objective reader of the allegations in an accusatory instrument need not accept a defendant’s purported excuse, even though inferences from other parts of the statement support his guilt of the crime. Defendant’s contrary view cannot be squared with the fact that the factual allegations in an accusatory instrument require far less than that required to support a conviction at trial. See Galindo, 23 N.Y.3d at 724; Dumay, 23 N.Y.3d at 522. Nor is defendant’s statement that he intended to use the knife solely for self-protection, even if taken at face value, sufficient to indicate that he would never use it under circumstances that would make it a crime. Indeed, self-defense provides a detailed, specific defense with complex multiple requirements, depending in part on whether deadly or ordinary force is used, who is deemed to be the initial aggressor, and how imminent the use of force against the actor is. Even ordinary force can only be used when a defendant “reasonably believes” that physical force will imminently be used against him, Penal Law § 35.15(1); Matter of Y.K., 87 N.Y.2d 430, 433 (1996); deadly force, such as could be inflicted by the weapon here, can only be used against similar force, Penal Law § 35.15(2)(a), and is qualified by a duty to retreat into one’s own premises to ensure that it is used only as a “last resort,” People v. Jones, 3 N.Y.3d 491, 494 (2004); and the party deemed the “initial aggressor” – often 19 difficult to discern, see People v. Valentine, __ N.Y.3d __, 2017 N.Y. Slip. Op. 02470, 2017 WL 1166757 (March 30, 2017) – does not enjoy the protection of the statute. Moreover, a “reasonable belief” contains both subjective and objective elements, see People v. Goetz, 68 N.Y.2d 96, 115 (1986); People v. Wesley, 76 N.Y.2d 555, 559 (1990), and thus a defendant’s subjective intent to defend himself or others alone is not sufficient to make out the defense. Here, neither a jury nor an objective reader of the accusatory instrument would be required to believe that the defendant’s undefined conception of “protection” was necessarily coextensive with the statute. Even if defendant had the subjective intention only to defend himself, for example, he would not necessarily be entitled even at trial to raise a defense of justification, unless the circumstances satisfied the objective circumstances test. And defendant, who apparently stood outside a public housing project, might feel that he was sufficiently close to his premises that he had no duty to retreat against an aggressor, although he would have to do so before using deadly force. And if defendant were to act too quickly, and be deemed the initial aggressor, the defense would not be available at all. Moreover, the dangerous razor knife here, is one that if used, is readily capable of causing death or other serious physical injury. That it deploys quickly and easily with only one hand to an open and locked position makes it particularly well- suited for use as a weapon. Given the extent of the injuries the razor knife could inflict, it is difficult to fathom a combat situation where the razor knife would not be used in the application of deadly physical force. But defendant’s concept of 20 protection might or might not be coextensive with the definition of justification, and a jury could properly conclude that a general invocation of “protection” is insufficient to conclusively invoke a defense of self-defense. Defendant’s contrary claim – that his invocation of self “protection” defeats a charge of criminal possession of a weapon – requires the untenable conclusion that even though a jury would be able to evaluate a claim of self “protection” at a trial, it somehow operates as a bar to the prosecution at all, by negating the presumption as a matter of law. This is neither consistent with the presumption, designed to operate upon possession alone, see Galindo, 23 N.Y.3d at 725, nor with the principle that the allegations in an accusatory instrument require less proof than that required at trial. Because a jury would not be required to accept defendant’s explanation, allegations under the far lesser standard for an accusatory instrument need not be construed to conclusively establish defendant’s claim either. Thus, defendant’s claim that he would only have used his dangerous knife for “the lawful purpose of self-defense” was “a matter to be raised as a defense” at trial -- not a basis to claim that the pleadings were “jurisdictionally defective.” People v. Konieczny, 2 N.Y.3d 569, 577 (2004). Finally, the allegations in the accusatory instrument were sufficient because, with or without defendant’s claim of self “protection,” they amply satisfied the jurisdictional pre-requisites of the prosecution ending in his guilty plea. As noted above, all that was required was for the instrument to establish the particular offense alleged for the purpose of allowing the defendant to prepare a defense and precluding 21 a later prosecution for the same offense. See People v. Aragon, 28 N.Y.3d 125, 127–128 (2016) citing Dreyden, 15 N.Y.3d at 103. Here, the instrument provided ample allegations that at a particular date, time, and place, he possessed a dangerous knife as a weapon, and that he did so with an unlawful intent presumed from the act of possession, despite his claim to the contrary. It specified the item, the manner of possession, and the crime in a way that both allowed him to defend against the charge, providing even some indication of what that defense might be. The fact that he chose not to defend against the charge and pleaded guilty did not make the allegations jurisdictionally insufficient. Nor does it now permit him to forward a defense that he could have raised at trial, and that the jury could have rejected, as preclusive of any prosecution in the first place. C. Defendant’s Claims to the Contrary Do Not Require a Different Result. Defendant’s remaining arguments do not require the conclusion he seeks – that the accusatory instrument was jurisdictionally defective. In addition to the arguments refuted above, defendant complains that the knife would not fall under the definition of a “dangerous instrument,” and claims that the interpretation of the Appellate Term would present serious constitutional problems under the Second Amendment and the Due Process clauses. He also relies heavily on Jackson v. Edwards, 404 F.3d 612 (2d Cir. 2005), which he claims establishes that the otherwise clear import of Galindo and this Court’s other decisions must be wrong. None of these arguments is correct. Initially, defendant asserts for the first time, that if this Court were to 22 apply the unlawful use presumption in Penal Law §265.15(4), his federal due process and Second Amendment rights would be violated (Defendant’s Brief: 21-25). Importantly, however, defendant never raised these claims before he pleaded guilty (A8-10). Indeed, there can be no doubt that those claims had to be “raised by defendant and decided by the [arraignment] court” to properly preserve them as questions of law for this Court. People v. Hughes, 22 N.Y.3d 44, 49 (2013). Thus, defendant’s decision not to litigate that issue below foreclosed this Court from considering that portion of his claim now. In any event, defendant’s contentions are utterly meritless. Whether the razor knife was, in addition to being a “dangerous knife” under Matter of Jamie D., also a “dangerous instrument” as defined by Penal Law §10.00(13) (Defendant’s Brief: 15-18), is irrelevant. Defendant misinterprets the rule in Matter of Jamie D. since the terms dangerous knife (which is not defined by statute) and dangerous instrument are not synonymous. In fact, in Jamie D., the Court defined dangerous knife as a knife where the “circumstances of its possession, including the behavior of its possessor, demonstrate that the possessor himself considered it a weapon, even if the knife might not otherwise be defined as a ‘dangerous knife’ by reason of its inherent characteristics.” Matter of Jamie D., 59 N.Y.2d at 591. A dangerous instrument is defined by statute as “any instrument, . . . , 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); Matter of Jamie D., 23 59 N.Y.2d at 593. On their face, then, the terms are not synonymous. Moreover, although the Court referenced the definition of “dangerous instrument” in Jamie D., it did not render them the same. In arriving at its definition of dangerous knife, this Court expressly noted that the definition of “dangerous instrument” was not made explicitly applicable to the term “dangerous knife” in section 265.05. Reasoning, however, that “criminal behavior may be determined from the particular manner and context of activity which might be wholly innocent in other circumstances,” Matter of Jamie D., 59 N.Y.2d 589 at 593, the Court focused on the intended use in defining dangerous knife. It held that a knife is a dangerous knife when “on the occasion of its possession” it was “intended for use” as an “instrument of offensive or defensive combat,” rather than as “a utensil.” Matter of Jamie D., 59 N.Y.2d at 592-593. Thus, while referencing “dangerous instruments,” the Court did not define “dangerous knife” in the same way, or hold that the requirements of the former be satisfied in order to establish the latter. The distinction is critical here because there is no requirement that the People allege defendant possessed a dangerous instrument in order for the presumption of unlawful intent to apply. As noted, the presumption applies to a host of weapons, including dangerous knives and dangerous instruments. See Penal Law § 265.15(4). While it is true that, if used, attempted to be used, or threatened to be used, the razor knife here is fully capable of creating a substantial risk of death or serious and protracted disfigurement, impairment of health, or loss or impairment of a bodily organ (see Penal Law §10.00[10]), defendant’s culpability here does not rest 24 on that definition. Rather, it rests on the definition supplied by the court. And, to be clear, the People have never alleged that the razor knife involved in this case is a dangerous instrument; the People merely asserted that defendant’s knife fell within the statute, as defendant considered it to be a weapon as evidenced by his assertion that he would use it for defensive purposes. Because defendant’s words leave no doubt that defendant considered this razor knife a weapon, defendant’s razor knife qualifies as a dangerous knife. See Matter of Carolina P., 83 A.D.3d at 847-848. Further, once the instrument alleged reasonable grounds that the knife qualified as a “dangerous knife,” the presumption of intent applied sufficient to make out a prima facie case at trial. See Galindo, 23 N.Y.3d at 724. The accusatory instrument, evaluated under a much lesser standard, was also sufficient. See, e.g., Campos, 93 A.D.3d at 581-582 (rejected claim of incorrect application of presumption of intent for possession of a machete because ample evidence machete possessed as a weapon, inter alia, defendant’s statement that he carried it for defensive purposes). Nonetheless, for many of the reasons described above, a defendant cannot conclusively establish a Second-Amendment-consistent purpose, and negate any prosecution for a weapon offense, simply by saying he had the weapon for his own protection. Where a jury can find that a defendant has an unlawful purpose not necessarily covered by the statutory provisions on self-defense, the possession would not be lawful under the statute. And if a defendant possessed the item harboring an unlawful intent, that illicit possession would not likely be covered by Second 25 Amendment. See, e.g., Jackson v. United States, 76 A.3d 920, 948 (D.C. 2013)(conviction for possession of unlawful weapon affirmed where jury found the defendant had intent to use gun unlawfully by rejecting his self-defense claim and constitutional to apply statute since Second Amendment does not protect citizen’s right to carry arms for just “any sort of confrontation”). Here, a jury could readily determine that defendant possessed an unlawful intent, either because they refused to credit defendant’s “protection” assertion or because they believed it was not coextensive with the justification statute. Moreover, under defendant’s conception, a defendant could simply invoke self- protection for any or all of the types of weapons delineated in Penal Law §265.01(2), that require an intent to use unlawfully, and by this assertion alone avoid prosecution for possession of the weapon. He cannot so easily defeat New York’s weapon possession statute. He can, however, raise the defense at trial, and invoke the Second Amendment in an appropriate motion, something he never did here. Furthermore, defendant’s premise that the presumption would be unconstitutional as applied to him under the Due Process Clause is also unavailing. While not contesting that the inference of unlawful intent is ordinarily justified, defendant claims that where, as here, an actor only possesses a weapon for “protection,” the proven fact (possession of the weapon) would no longer be connected to the presumed fact (unlawful intent). But this analysis rests on the erroneous assumptions that an objective reader must credit the defendant’s statement that he had the weapon only for “protection” merely because defendant claimed as 26 much at the time of his arrest, and that the defendant’s conception of “protection” must be coextensive with the statute. These assumptions are erroneous, as either a juror or an objective reader could accept a portion of defendant’s admission and still infer that he did not solely intend to use the instrument for purposes deemed justified under Article 35. In addition, the particular circumstances of possession, here, support the application of the presumption, including, as noted above, the manner in which he possessed the knife, clipped for easy access to the outside of his pants, and the item’s easy deployment in combat. Moreover, the question as to whether the presumption would be unconstitutional as applied to him is one that should be evaluated upon allegations developed in a motion to that effect – not at the pleading stage. If defendant were able to establish by undisputed circumstances that he only intended to use the weapon in a manner consistent with all the justification statutes, his argument might lie. But here, at the pleading stage, the reader, like a jury, would be free to accept all, part, or none of defendant’s self-defense claim. Indeed, in Galindo, this Court rejected any potential constitutional challenge to the operation of the presumption as applied to the defendant there, citing the absence of any motion to that effect. Here, too, defendant cannot credibly claim that “the presumption of unlawful intent was unconstitutional as applied to him” in the absence of such a motion. Galindo, 23 N.Y.3d at 725-726. Nor does Jackson v. Edwards, 404 F.3d 612 (2d Cir. 2005), require a reversal here. There, the firearm in question was actually used in a manner that the 27 jury could have concluded was consistent with the precise contours of the justification provisions of Penal Law Article 35, and the Second Circuit concluded that the failure to give a justification defense at trial potentially affected the weapon possession charge, as there was no other evidence of defendant’s intent to use the weapon unlawfully. But defendant’s reliance on Jackson is fatally flawed in three respects. First, Jackson is a trial case, and whether or not the defendant would be entitled to a justification instruction at trial, the availability of that instruction does not entirely preclude a prosecution at all, as defendant would have it here. As the Appellate Term concluded below, the self “protection” claim could provide a defense at trial, but did not render the instrument jurisdictionally defective. Second, Jackson did not discuss the statutory presumption at all, and did not consider its impact on the case. It therefore did not address the issue directly addressed by this Court in Galindo, whether that presumption could be held legally sufficient to support a conviction even where the People’s own evidence suggests an innocent purpose, and, even more so, failed to address the issue actually presented here, whether an accusatory instrument is jurisdictionally insufficient based on a defendant’s expression of such an intent upon arrest. Third, in Jackson, it was clear that defendant raised a defense that fell within the Penal Law’s self-defense statute, and it was for that reason that the justification defense applied at all. Here, defendant’s generic invocation of self “protection” left ample room for a finder of fact or a neutral reader to conclude that 28 he could have harbored an intent to use the weapon outside the strictures of Article 35. Accordingly, Jackson in no way precludes an affirmance here. Furthermore, even if this Court elected not to apply the presumption of unlawful intent, this accusatory instrument is still facially sufficient based on the allegations. As noted, at the pleading stage, all that is required for facial sufficiency is that the factual part of a misdemeanor complaint allege “facts of an evidentiary character supporting or tending to support the charges,” see CPL § 100.15(3), and “provide reasonable cause to believe that the defendant committed the offense charged.” CPL §100.40(4)(b); see Dumas, 68 N.Y.2d at 731. The accusatory instrument, however, “must be given a reasonable, not overly technical reading.” Konieczny, 2 N.Y.3d at 576. Importantly, intent can be inferred from defendant’s actions and the surrounding circumstances. See People v. Rodriguez, 17 N.Y.3d 486, 489 (2011)(“direct evidence [of intent] is rarely available [in the absence of an admission]”)(internal citations omitted). Here, the circumstances of defendant’s possession, including the manner in which he carried it, coupled with his words, demonstrate his intent to use the knife unlawfully against another regardless of the presumption. The instrument alleged that defendant who had a razor knife clipped to his pants pocket, commented that he carried the knife for protection, and noted that at least it was not a gun (A. 7). Because the knife was suited for, and defendant wore it as, an instrument of combat, and because defendant’s purported intent of “protection” was not necessarily coextensive with the justification statutes, an objective reader could conclude that 29 defendant intended to use the knife for a purpose that was not in fact lawful. First, that the knife was easily concealed and ready for rapid deployment from defendant’s pants pocket speaks volumes about its utility as a weapon and defendant’s intent to use it unlawfully – if defendant believed the need for combat arose, under whatever definition of “protection” he had, he would not have had to waste time searching around in his pocket for the knife. He could have discreetly removed the knife from his pocket, flicked his wrist, and deployed the blade, which activated to an open and locked position in as little as seconds. Second, the razor knife’s sharp blade attached to the handle of the knife made it particularly suited for inflicting serious bodily injury or even death on another, while protecting the user’s hands from harm. Indeed, it was far superior to a razor for this purpose. Third, defendant’s explanation for carrying the knife further corroborates his intention of using the knife for combat. Defendant’s own words indicated that he would use the weapon in a physical confrontation if he personally deemed it necessary for “protection.” But because defendant’s conception of protection did not necessarily coincide with the statutory defense, an objective reader could conclude that he intended to use the weapon for combat in a way that did not necessarily include combat protected by the justification statutes. Thus, as discussed above, defendant’s untested insistence that he would have only used the knife for self-defense does “not negate the existence of a prima facie case.” Galindo, 23 N.Y.3d at 723 (internal citations omitted). Rather, whether defendant’s claim that he would only have used 30 his dangerous knife for “the lawful purpose of self-defense” was “a matter to be raised as a defense” at trial -- not a basis to claim that the pleadings were “jurisdictionally defective.” Konieczny, 2 N.Y.3d at 577. Thus, the accusatory instrument pleaded a legally sufficient case here regardless of the presumption, and even if this Court were to accept defendant’s arguments that the presumption cannot be applied to him, the accusatory instrument would still be legally sufficient. * * * In sum, the accusatory instrument fully complied with the pleading requirements in that the allegations in the criminal court information, including defendant’s statement that he had the razor knife for his protection, provided sufficient evidentiary facts to establish that defendant possessed the weapon with intent to use it unlawfully. Thus, the Appellate Term’s decision that the information was facially sufficient, based upon its correct application of this Court’s precedent, was proper. Accordingly, this Court should affirm the Appellate Term’s determination. 31 CONCLUSION The order of the Appellate Term affirming defendant’s conviction should be affirmed. Respectfully submitted, RICHARD A. BROWN District Attorney Queens County By: _________________________ Kayonia L. Whetstone JOHN M. CASTELLANO JOSEPH N. FERDENZI KAYONIA L. WHETSTONE Assistant District Attorneys of Counsel April 5, 2017 32