The People, Respondent,v.Albert Edward, Appellant.BriefN.Y.January 4, 2018APL-2016-147 To be argued by SHERYL FELDMAN (15 Minutes Requested) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ALBERT EDWARD, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 ALAN GADLIN SHERYL FELDMAN ASSISTANT DISTRICT ATTORNEYS Of Counsel FEBRUARY 9, 2017 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 THE CRIMINAL COURT PROCEEDINGS.................................................................. 2 DEFENDANT’S APPEAL TO THE APPELLATE TERM ........................................ 4 COUNTER-QUESTION PRESENTED ......................................................................... 8 SUMMARY OF ARGUMENT ........................................................................................... 8 POINT SINCE DEFENDANT WAIVED PROSECUTION BY INFORMATION, AND IT IS BEYOND DISPUTE THAT THE TRESPASS CHARGES WERE SUFFICIENTLY ESTABLISHED IN THE MULTICOUNT MISDEMEANOR COMPLAINT, THE CRIMINAL COURT HAD JURISDICTION OVER DEFENDANT’S PROSECUTION. THUS, IT WAS AUTHORIZED TO ACCEPT DEFENDANT’S GUILTY PLEA TO THE WEAPON CHARGE, EVEN IF HE WERE CORRECT ABOUT THE SUPPOSED DEFICIENCIES IN THE PLEADINGS WITH RESPECT TO THAT PARTICULAR CHARGE, WHICH HE IS NOT ................................................................................... 10 CONCLUSION ................................................................................................................... 40 -ii- TABLE OF AUTHORITIES FEDERAL CASES Peruta v. County of San Diego, 824 F.3d 919 (9th Circ. 2016) (en banc) ............................ 38 STATE CASES Matter of Antwaine T, 23 N.Y.3d 512 (2014) ................................................................... 7, 31 Matter of Jahron S, 79 N.Y.2d 632 (1992) ............................................................................ 26 Matter of Jamie D, 59 N.Y.2d 589 (1983) ................................................................... 7, 31, 36 People ex rel. Ortiz v. Commissioner, New York City Department of Corrections, 93 N.Y.2d 959 (1999) ............................................................................................... 17, 21 People v. Acevedo, 46 Misc.3d 150(A) (App. Term 1st Dept. 2015), lv. denied, 26 N.Y.3d 1142 (2016) ............................................................................ 24, 27 People v. Alejandro, 70 N.Y.2d 133 (1987) ........................................................................... 26 People v. Allen, 92 N.Y.2d at 378, 385 (1998) ..................................................................... 29 People v. Almodovar, 62 N.Y.2d 126 (1984) ...................................................................... 7, 37 People v. Carracedo, 89 N.Y.2d 1059 (1997) ......................................................................... 12 People v. Case, 42 N.Y.2d 98 (1977) ..................................................................................... 17 People v. Casey, 95 N.Y.2d 354 (2000) ..................................................... 7, 20, 22, 26, 29, 33 People v. Cepero, 50 Misc.3d (App. Term 1st Dept.), lv. denied, 27 N.Y.3d 1067 (2016) ............................................................................. 24, 27 People v. Chan, 36 Misc.3d 44 (App. Term 2d Dept.), lv. denied, 19 N.Y.3d 975 (2012) ................................................................................. 6, 18 People v. Connor, 63 N.Y.2d 11 (1984) ................................................................................. 28 People v. Dreyden, 15 N.Y.3d 100 (2010) .................................... 11-12, 15-19, 25-27, 29, 33 People v. Dumay, 23 N.Y.3d 518 (2014) ............................................................. 14-16, 27, 32 -iii- People v. Francis, 38 N.Y.2d 150 (1975) ......................................................................... 13, 24 People v. Galindo, 23 N.Y.3d 719 (2014) ...................................................... 10, 32, 35-36, 38 People v. Harper, 37 N.Y.2d 96 (1975).................................................................................. 25 People v Hightower, 18 N.Y.3d 249 (2011) ....................................................................... 25-28 People v. Hughes, 22 N.Y.3d 44 (2013) ................................................................................. 38 People v. Jackson, 18 N.Y.3d 738 (2012) .......................................................................... 29-30 People v. Johnson, 89 N.Y.2d 905 (1996) ............................................................................... 20 People v. Kalin, 12 N.Y.3d 225 (2009) ............................................................... 15, 26, 29, 33 People v. Kasse, 22 N.Y.3d 1142 (2014) .......................................................................... 15, 19 People v. Keizer, 100 N.Y.2d 114 (2003) ................................ 5-6, 8-14, 16, 19-24, 26-28, 39 People v. Key, 45 N.Y.2d 111 (1978) ..................................................................................... 22 People v. Lineberger, 46 Misc.3d 152(A) (App. Term 1st Dept. 2015), lv. denied, 27 N.Y.3d 1001(2016) .......................................................................... 6, 25, 27 People v. Lamb, 49 Misc.3d 135(A) (App. Term 1st Dept.), lv. denied, 26 N.Y.3d 1089 (2015) ......................................................................... 6, 24, 27 People v. Pons, 68 N.Y.2d 264 (1986) ................................................................................... 37 People v. Prescott, 66 N.Y.2d 216 (1985) ............................................................................... 23 People v. Richards, 22 Misc.3d 798 (Crim. Ct. N.Y. Cty. 2008) .......................................... 35 People v. Sans, 26 N.Y.3d 13 (2015) ............................................................................... 15, 19 People v. Smalls, 26 N.Y.3d 1064 (2015) .............................................................................. 32 People v. Weinberg, 34 N.Y.2d 429 (1974) ............................................................................ 16 STATE STATUTES CPL §1.20 .............................................................................................................................. 15 -iv- CPL §1.20 (7) ............................................................................................................ 14, 16, 19 CPL §70.10 (2) ................................................................................................................ 19, 29 CPL §100.10 (4) .................................................................................................................... 15 CPL §100.15 .................................................................................................................... 17, 22 CPL §100.15 (3) .................................................................................................................... 15 CPL §100.40 .................................................................................................................... 17, 22 CPL §100.40 (4)(b) ............................................................................................................... 15 CPL §100.50 .......................................................................................................................... 23 CPL §170.30 (1)(a) ................................................................................................................ 22 CPL §170.70 .......................................................................................................................... 17 CPL §220.10 (3) .................................................................................................................... 21 CPL §220.10 (4) .................................................................................................................... 21 CPL §220.10 (4)(b)(c) ........................................................................................................... 21 CPL §340.20 (1) .................................................................................................................... 21 Penal Law §10.00 (13) .......................................................................................................... 30 Penal Law §35.15 (1) ............................................................................................................ 37 Penal Law §35.15 (2) ............................................................................................................ 37 Penal Law §140.05 .............................................................................................................. 2, 4 Penal Law §140.10(e) ............................................................................................. 2, 4, 18-19 Penal Law §140.15(1) ............................................................................................................. 2 Penal Law §140.15 (2) .......................................................................................................... 18 Penal Law §265.01 (2) ......................................................................................... 1-2, 7, 29-30 Penal Law §265.15 (4) .............................................................................. 7, 10-11, 32, 35, 38 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ALBERT EDWARD, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Janet DiFiore, Chief Judge of the Court of Appeals, defendant Albert Edward appeals from a March 22, 2016 order of the Appellate Term, First Department. By that order, the court unanimously affirmed a July 26, 2012 judgment of the Criminal Court of the City of New York (Abraham L. Clott, J.), convicting defendant, upon his guilty plea, of Criminal Possession of a Weapon in the Fourth Degree (Penal Law §265.01[2]), and sentencing him to 10 days in jail. Defendant has served his sentence. Defendant’s conviction arose from his trespass in a dwelling while in possession of a box cutter that he admittedly intended to use as a weapon. More specifically, on the evening of July 25, 2012, a police officer observed defendant trespassing in the lobby of a public housing building at 405 East 102nd Street in -2- Manhattan, in violation of conspicuously posted signs notifying him that it was unlawful to do so. Defendant confessed that he was not a tenant or an invited guest of any tenants, and he was arrested by the officer, who was an agent of the dwelling. Pursuant to that arrest, the officer recovered a box cutter from defendant. Defendant stated in substance, “I use it on the train for protection,” thereby admitting that he had no intention of using it as an innocent utilitarian utensil for cutting boxes, but rather as a dangerous knife. THE CRIMINAL COURT PROCEEDINGS On July 26, 2012, the Criminal Court proceedings were commenced with the filing of a multicount misdemeanor complaint (Dkt. No. 2012NY058343). It charged defendant with two Class A misdemeanors -- second-degree criminal trespass (Penal Law §140.15[1]), which was labelled a “DNA eligible MISD,” and fourth-degree weapon possession (Penal Law §265.01[2]). The complaint also included two lesser charges -- third-degree criminal trespass, a Class B misdemeanor, and trespass as a violation (Penal Law §§ 140.10[e] and 140.05, respectively) (A6). The sworn complaint -- which named Police Officer Luis Sanchez of the 23rd Precinct as the deponent -- alleged that, at around 6:05 p.m. on July 25, 2012, at 405 East 102nd Street in the County of New York, defendant “knowingly entered and remained unlawfully in a public housing project,” which was “a dwelling,” in “violation of conspicuously posted rules and regulations governing entry,” and “possessed a dangerous and deadly instrument and weapon with intent to use it -3- unlawfully against another” (A6). The factual portion of the complaint stated that those offenses were committed under the following circumstances: [D]eponent is informed by Officer Theohari Kouminiotes, [sic] that while on patrol inside the above location, an apartment building where people reside, informant observed the defendant inside the lobby of the dwelling beyond the vestibule and that said location is beyond a posted sign which read, “No Trespassing”, [sic] “tenants and their Guests Only” and “in part: Anyone who remains unlawfully upon these premises will be prosecuted”. [sic] Deponent is further informed by Officer Kouminiotes, [sic] that defendant is not a tenant in that the defendant provided an address different from the above location and defendant is not an invited guest in that the defendant was unable to provide the identity of a resident of whom defendant was an invited guest and informant is a member of the New York Police Department and as such is an agent of this dwelling and defendant did not have permission or authority to enter or remain in the area in which he was found. Deponent is further informed by Officer Kouminiotes, [sic] that informant recovered a box cutter from the defendant and defendant stated in substance, I USE IT ON THE TRAIN FOR PROTECTION (A6-7 [capitalization in original]). At his arraignment, defendant voiced no complaints about the facial sufficiency of any of the charges in the accusatory instrument. Rather, defense counsel told the court that defendant was “interested in resolving the matter” and that he would like to spend no “more than a week in jail” because he did not want to “lose his bed and … -4- his personal items” in the “MICA shelter,” where he lived and “receive[d] psychiatric treatment two times a week” (A9). The People initially recommended that defendant receive a 90-day jail term, but voiced no objection when Judge Clott offered defendant a 10-day sentence on a guilty plea to the weapon charge (id.). Defendant told the court that he wanted to waive prosecution by information and accept that plea bargain (A9-10). Defendant assured the court that he understood that his plea to the “A misdemeanor” would add to his criminal record and that, by pleading guilty, he would be giving up his rights to “a speedy and public jury trial, to be presumed innocent, not to be convicted unless the prosecution can persuade a jury unanimously of [his] guilt beyond a reasonable doubt, and all the other rights [he] had in this matter” (A9-10). Defendant also confirmed that he chose to give up those rights and that no one had forced him to plead guilty (A10). Finally, defendant told the court that “yesterday,” on the evening of July 25, 2012, he “possessed a box cutter that [he] intended to use unlawfully against another person” (A10-11). Defendant was sentenced to the promised 10-day jail term the same day (A11). DEFENDANT’S APPEAL TO THE APPELLATE TERM Three years later, in July 2015, defendant tried to eliminate his conviction. He claimed for the first time that the court did not have the authority to accept his plea to the weapon charge, because the factual allegations in the complaint failed to establish reasonable cause to believe that he possessed the box cutter with the intent to use it -5- unlawfully against another person. According to defendant, his statement that he was “carrying a weapon for protection” established that he “did not anticipate using the weapon unless it was absolutely necessary to lawfully defend himself in an unexpected and dangerous situation,” and the “potential contemplated future use of justified force [did] not support an inference of unlawful intent.” Thus, defendant asserted, that “fatal, non-waivable, jurisdictional defect” barred his guilty plea and required the court to reverse his conviction and dismiss the accusatory instrument even though he had never raised the issue before (See Appellant’s Brief to the Appellate Term). In response, the People did not debate the sufficiency of the allegations supporting the weapon charge.1 Rather, relying on People v. Keizer, 100 N.Y.2d 114 (2003), the People argued that the supposed defect that defendant alleged was not jurisdictional. As the People pointed out, since defendant did not, and could not, dispute that the misdemeanor trespass counts met the reasonable cause standard for misdemeanor complaints -- which was applicable given that defendant had waived his right to prosecution by information -- the Criminal Court had jurisdiction over defendant’s prosecution. Thus, under Keizer, the court was authorized to accept 1 As the People explained, they were not conceding that defendant was correct about the insufficiency of the “factual allegations in the complaint” with respect to the weapon charge. Rather, “[d]ue to the high volume of defense filings” -- including a large number of these sort of belated challenges to accusatory instruments -- there was a “backlog” of appeals. Thus, the People were taking the advice that the Appellate Division, First Department, had given in the past to “make less-detailed presentations in cases that the People believe [were] not likely to turn on such detail” (Respondent’s Brief at 3). -6- defendant’s guilty plea to the weapon charge, even if it was insufficiently pleaded in the complaint. Indeed, for plea bargaining purposes, it would have been permissible for defendant to plead guilty to an offense that had no factual support and was not even charged in the complaint; he even could have pled guilty to a hypothetical crime. See Keizer, 100 N.Y.2d at 117-119. The People reminded the court that it, as well as the Appellate Term, Second Department, had already applied the reasoning of Keizer to reject defendants’ belated assertions that their pleas were jurisdictionally defective simply because, in their view, the counts to which they pled guilty were insufficiently established in their multicount complaints. See, e.g. People v. Lamb, 49 Misc.3d 135(A) (App. Term 1st Dept.), lv. denied, 26 N.Y.3d 1089 (2015); People v. Lineberger, 46 Misc.3d 152(A) (App. Term 1st Dept. 2015), lv. denied, 27 N.Y.3d 1001(2016); People v. Chan, 36 Misc.3d 44 (App. Term 2d Dept.), lv. denied, 19 N.Y.3d 975 (2012). Putting it in the words of Keizer, the People argued that, with the “Criminal Court’s jurisdiction [ ] validly established” through the indisputably valid trespass charges, it was not “subsequently abrogated by acceptance of a guilty plea” to the weapon charge. Keizer, 100 N.Y.2d at 119 (See Respondent’s Brief to the Appellate Term). The Appellate Term did not address whether defendant’s guilty plea would have been jurisdictionally defective if the weapon count had not been sufficiently pleaded in the accusatory instrument. Instead, it found that the factual allegations in the misdemeanor complaint were “sufficient for pleading purposes” to establish “reasonable cause to believe that defendant was guilty of criminal possession of a -7- weapon in the fourth degree,” particularly when “given a fair and not overly restrictive or technical reading,” as required by People v. Casey, 95 N.Y.2d 354, 360 (2000) (A2-5). In arriving at that decision, the Appellate Term observed that “it would be unreasonable to infer that defendant, while trespassing in a Housing Authority dwelling, carried the box cutter to open cardboard boxes” (A4, citing Matter of Antwaine T, 23 N.Y.3d 512, 516 [2014]). Moreover, defendant’s own statement that he carried the box cutter “for protection” “‘effectively manifested that he himself considered it a weapon of significance to the police and not an innocent utilitarian utensil’” (A4, quoting Matter of Jamie D, 59 N.Y.2d 589, 593-594 [1983]). Thus, the court decided that the complaint sufficiently established that the box cutter that defendant possessed was a “dangerous knife within the contemplation of Penal Law §265.01 (2),” which this Court defined as “an instrument of offensive or defensive combat” (A3-4, quoting Jamie D, 59 N.Y.2d at 592). Under those circumstances, Penal Law §265.15 (4) would allow the “infer[ence] from the facts alleged that defendant’s possession of the box cutter was ‘presumptive evidence of intent to use the same unlawfully against another’” (A4). The court rejected the notion that defendant’s statement showed that he “would not use the box cutter unless absolutely necessary to lawfully defend himself,” observing that defendant’s claim was “untested” and “justification” does “not excuse the unlawful possession of [a weapon]” (A4, citing People v. Almodovar, 62 N.Y.2d 126, 130 [1984]). On July 13, 2016, the Honorable Janet DiFiore granted leave to appeal. -8- COUNTER-QUESTION PRESENTED Where the Criminal Court’s jurisdiction over defendant was established with the filing of a valid multicount misdemeanor complaint that, as even defendant concedes, contained two facially sufficient misdemeanor trespass charges, was the Court’s jurisdiction subsequently abrogated by the acceptance of defendant’s guilty plea to a weapon charge that, in defendant’s belated view, was not sufficiently pleaded in the complaint? SUMMARY OF ARGUMENT Before this Court, defendant claims once again that the arraignment court did not have the authority to accept his guilty plea to the weapon charge in full satisfaction of his multicount misdemeanor complaint because, in his view, the factual allegations in the complaint failed to establish reasonable cause to believe that he possessed the box cutter with the intent to use it unlawfully. However, defendant waived prosecution by information, and it is beyond dispute that the trespass charges were sufficiently established in the multicount misdemeanor complaint. Accordingly, the court had jurisdiction over defendant’s prosecution and was authorized to accept his guilty plea to the weapon charge, even if defendant were correct about the supposed deficiencies in the pleadings with respect to that particular charge. That conclusion is completely in line with the statutory scheme for prosecuting misdemeanors and with Keizer, which held that, once jurisdiction over the defendant was established with the filing of a misdemeanor complaint containing legally sufficient counts, the court’s jurisdiction was not “subsequently abrogated by -9- acceptance of a guilty plea” to an offense for which there was no factual support and that was not even contained in the complaint. 100 N.Y.2d at 117-119. Consequently, this Court should apply the reasoning of Keizer to reject defendant’s claim that the issue that he raises “is jurisdictional in nature” and may be raised for the first time on appeal (DB:1). Indeed, in Keizer, this Court advanced the sensible rule that a defendant’s favorable plea bargain “generally marks the end of a criminal case, not a gateway to further litigation,” Id. at 118, by holding that the defendant forfeited “[a]ny claim of error that the disposition was not statutorily authorized” because the charge to which he pled guilty was not factually supported in the complaint. Id. at 119. There is no good reason to reach a different conclusion here. Even if this Court had to look at the factual allegations underlying the weapon possession count to determine whether defendant’s claim was jurisdictional, his belated attempt to upset his conviction would fail. None of defendant’s arguments cast any doubt on the Appellate Term’s firmly-grounded decision that the factual allegations in the complaint provided reasonable cause to believe that defendant possessed a weapon with the intent to use it unlawfully. As the Appellate Term rightly concluded, by including defendant’s statement that he carried the box cutter to use as a weapon for defensive combat, rather than as a utensil for cutting boxes, the People sufficiently alleged that defendant possessed a dangerous knife, with the intent to use it unlawfully. After all, once that weapon possession was established, it -10- triggered the presumption of unlawful intent under Penal Law §265.15 (4). And, as this Court decided in People v. Galindo, 23 N.Y.3d 719, 724 (2014), nothing more was required to establish a prima facie case -- which, of course, is a higher standard than the one the People had to meet. POINT SINCE DEFENDANT WAIVED PROSECUTION BY INFORMATION, AND IT IS BEYOND DISPUTE THAT THE TRESPASS CHARGES WERE SUFFICIENTLY ESTABLISHED IN THE MULTICOUNT MISDEMEANOR COMPLAINT, THE CRIMINAL COURT HAD JURISDICTION OVER DEFENDANT’S PROSECUTION. THUS, IT WAS AUTHORIZED TO ACCEPT DEFENDANT’S GUILTY PLEA TO THE WEAPON CHARGE, EVEN IF HE WERE CORRECT ABOUT THE SUPPOSED DEFICIENCIES IN THE PLEADINGS WITH RESPECT TO THAT PARTICULAR CHARGE, WHICH HE IS NOT (Answering Defendant’s Brief). Of course, “[p]lea bargaining is a valued component of the criminal justice system and when properly administered, can benefit both parties and save valuable judicial resources.” Keizer, 100 N.Y.2d at 118. Here, defendant received the benefit of his bargain. At his arraignment, defendant was charged in a multicount complaint with three misdemeanors arising from his trespass in a dwelling with a box cutter that he admittedly intended to use as a dangerous weapon. The People initially recommended a 90-day jail term, but defendant was allowed to plead guilty to just the weapon charge and receive a sentence of 10 days. To avail himself of that favorable -11- plea bargain, defendant knowingly and voluntarily gave up his right to test the People’s proof at trial, waived prosecution by information, and admitted that he possessed the box cutter with the intent to use it unlawfully against another. That guilty plea should have “mark[ed] the end of [his] criminal case.” Keizer, 100 N.Y.2d at 118. But, instead, it became a “gateway to further litigation.” Id. Now, over five years after he entered his guilty plea, defendant asks this Court to find that the arraignment court did not have jurisdiction to accept his guilty plea because, as he sees it, the facts in the complaint failed to establish reasonable cause that his box cutter was a “dangerous instrument” or a “dangerous knife” (DB:12-17), and thus the presumption of unlawful intent in Penal Law §265.15(4) does not apply (DB:17-20). Defendant goes so far as to contend that, if this Court were to find otherwise, that would be a violation of his federal “due process” and Second Amendment rights -- constitutional claims that he never even advanced in the Appellate Term or in Criminal Court (DB: 21-24). In challenging his conviction, defendant still makes no attempt to suggest that the facts supporting the two misdemeanor trespass charges were facially insufficient, and he does not even address the forfeiture argument that the People made below. Instead, to demonstrate that his case is properly before this Court, defendant simply cites to People v. Dreyden, 15 N.Y.3d 100 (2010), and contends that, “[t]he issue raised -12- regarding the facial sufficiency of the accusatory instrument” is “jurisdictional in nature and is not subject to the preservation argument” (DB:1, 10).2 As will be demonstrated, defendant is wrong on all scores. A. To begin, defendant’s focus on the supposed deficiencies in the factual allegations supporting the weapon charge is entirely misplaced. Indeed, as this Court held in Keizer, 100 N.Y.2d at 114, a guilty plea is not jurisdictionally defective simply because the charge to which a defendant pleads guilty is not sufficiently established in the complaint. In Keizer, the defendant “was charged by misdemeanor complaint with petit larceny and criminal possession of stolen property in the fifth degree.” Id. at 117. At his arraignment, the defendant “waived prosecution by information” and pled guilty to disorderly conduct -- a charge that was not even contained in the complaint and for which there was no factual support. Id. On appeal, the defendant sought to upset his conviction by claiming “that [the] Criminal Court lacked jurisdiction to convict [him] on his plea of disorderly conduct because this offense was neither charged in the 2 Curiously, defendant does not address the forfeiture issue, except to cite Dreyden, even though the People raised it in their leave response and defendant replied that it was a “leave worthy” issue for the Court (see June 13, 2016 Reply at 2). Perhaps he is taking the alternate position that he voices in his letter – that this case does not present that issue for this Court because the Appellate Term did not base its decision on forfeiture grounds (id. at 1-2, citing People v. Carracedo, 89 N.Y.2d 1059 [1997]). Of course, however, the forfeiture issue implicates the jurisdiction of this Court to consider defendant’s appeal, and that is always an issue that this Court can review. -13- complaint nor [constituted] a lesser included offense of the offense[s] [charged].” Id. at 117. This Court rejected the defendant’s attempt to upset his plea bargain. It found that, since the defendant waived prosecution by information and did not dispute that the petit larceny and stolen property charges were sufficiently established in the complaint, the Criminal Court “had jurisdiction over defendant.” Id. at 118. With jurisdiction thereby “validly established,” it was not “subsequently abrogated by acceptance of a guilty plea” to disorderly conduct, even though that offense was not charged or factually supported in the complaint Id. at 119. As this Court observed, for plea bargaining purposes “a defendant may plead guilty to a crime for which there is no factual basis and even plead guilty to a hypothetical crime.” Id. at 118 fn. 2, citing People v. Francis, 38 N.Y.2d 150, 155-156 (1975). This Court further recognized that “[t]he specific constitutional limitations, and their underlying policies, that restrict the plea process for felony charges are not present” in “misdemeanors, jurisdiction over which is grounded in the Criminal Procedure Law.” Keizer, 100 N.Y.2d at 119. Finding “no constitutional impediment to the plea” and no “statutory noncompliance rising to the level of a jurisdictional defect,” Id., this Court advanced the sensible notion that a defendant’s favorable plea bargain “generally marks the end of a criminal case, not a gateway to further litigation,” Id. at 118, by holding that “[a]ny claim of error that the disposition was not statutorily authorized [was] forfeited by his guilty plea.” Id. at 119. -14- As Keizer shows, defendant’s focus on supposed deficiencies in the pleadings underlying the weapon charge is entirely misplaced. Keizer makes plain that a guilty plea is not jurisdictionally defective simply because the charge to which a defendant pleads guilty is not sufficiently established in the complaint. Rather, the guiding inquiry is whether the Criminal Court obtained jurisdiction over the defendant’s prosecution such that the judge was authorized to accept defendant’s bargained-for guilty plea. If jurisdiction is established, then “[a]ny claim of error that the disposition was not statutorily authorized” -- which, in effect, is the claim that defendant is making here by contending that the Criminal Procedure Law’s pleading requirements were not satisfied -- is “forfeited by his guilty plea.” Keizer, 100 N.Y.2d at 119. B. There is no doubt that the Criminal Court had jurisdiction here. As this Court recognized in Keizer, “jurisdiction over [misdemeanors] is grounded in the Criminal Procedure Law.” Id. at 119. For misdemeanors, the Criminal Court obtains “jurisdiction to commence a criminal action” and takes “jurisdiction over” the accused with the filing of a misdemeanor complaint. Keizer, 100 N.Y.2d at 117; People v. Dumay, 23 N.Y.3d 518, 522 (2014). See CPL §§1.20 (7); 100.10 (4). And, of course, a misdemeanor complaint may also “serve as a basis for prosecution” where, as here, -15- a defendant “waives prosecution by information.” Dumay, 23 N.Y.3d at 522; People v. Kalin, 12 N.Y.3d 225, 228 (2009). See CPL §§100.10 (4); 170.65.3 Notably, both CPL §1.20 and §100.10 (4) provide that a misdemeanor complaint is “a verified written accusation,” charging a person with “one or more offenses, at least one of which is a misdemeanor” (emphasis added). As this Court has frequently observed, the Criminal Procedure Law requires that the misdemeanor be supported by “‘facts of an evidentiary character (CPL 100.15 [3]) demonstrating ‘reasonable cause” to believe the defendant committed the crime charged (CPL 100.40 [4][b]).” Dreyden, 15 N.Y.3d at 102; People v. Sans, 26 N.Y.3d 13, 15 (2015); People v. Kasse, 22 N.Y.3d 1142 (2014). And, as this Court has repeatedly emphasized, “so long as the factual allegations … give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense,” the “core concerns” of a jurisdictionally sufficient complaint have been met. Kalin, 12 N.Y.3d at 230; see Dreyden, 15 N.Y.3d at 103. Thus, under the statutory scheme, it is a nonwaivable jurisdictional prerequisite to the prosecution of a misdemeanor that a complaint contain at least one misdemeanor that is supported by facts of an evidentiary character, demonstrating 3 Since that is what occurred here (A9-10), there is no dispute that “the accusatory instrument must only satisfy the reasonable cause requirement” to be jurisdictionally valid; it need not meet the higher prima facie standard, which requires “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant’s commission thereof.” Dumay, 23 N.Y.3d at 522; Kalin, 12 N.Y.3d at 228. -16- reasonable cause to believe that the defendant committed the crime charged, with enough detail to provide notice. If a complaint does not meet that statutory criteria, it is jurisdictionally defective. The Criminal Court has no “jurisdiction to commence [the] criminal action,” it cannot take “jurisdiction over” the accused, and it has no basis for the defendant’s prosecution, even if he waives prosecution by information. Keizer, 100 N.Y.2d at 117; CPL §§1.20 (7); 100.10 (4). 100.15 (3); 100.40 (4)(b); see also Dumay, 23 N.Y.3d 518 at 522 (a “valid and sufficient” complaint provides the court with “jurisdiction over an accused,” allows “the state to jail the defendant for up to five days” following arraignment, and may serve as the basis for prosecution if a defendant waives prosecution by information); People v. Weinberg, 34 N.Y.2d 429, 431 (1974) (same). The jurisdictional defect in Dreyden, 15 N.Y.3d at 100, was that the complaint did not contain any valid misdemeanor count. There, the defendant waived prosecution by information and pled guilty to a weapon charge, which was the only misdemeanor in the complaint; the other offense was unlawful possession of marihuana, a violation. Id. at 102. Thus, when the defendant claimed for the first time on appeal that his guilty plea had to be overturned because it was based on a jurisdictionally defective accusatory instrument, this Court had to look at the weapon count to determine whether there was at least one facially sufficient misdemeanor in the complaint. If that count was insufficiently pled, the Criminal Court had no jurisdiction over defendant’s prosecution and the court lacked the authority to accept -17- his guilty plea to a misdemeanor. Finding that the factual allegations supporting the weapon charge did not meet “the reasonable cause requirement” of a misdemeanor complaint, this Court rejected the People’s argument that, “by pleading guilty, defendant forfeited his right to challenge the accusatory instrument charging him with the crime to which he … admitted guilt.” Dreyden, 15 N.Y.3d at 103. As this Court explained, there was no “valid and sufficient accusatory instrument,” which is a “nonwaivable jurisdictional prerequisite to a criminal prosecution.” Id. at 103, citing People v. Case, 42 N.Y.2d 98, 99 (1977). In other words, nothing in Dreyden or the statutory scheme for prosecuting misdemeanors supports defendant’s view that an entire multicount “accusatory instrument is jurisdictionally defective” if one count does not meet the statutory pleading requirements. Rather, they are both in full accord with a premise that this Court recognized long ago -- as long as “at least one count” in a multicount accusatory instrument satisfies the statutory requirements of CPL §§100.15 and 100.40, the accusatory instrument is jurisdictionally valid and the proper basis for prosecution of a criminal action. People ex rel. Ortiz v. Commissioner, New York City Department of Corrections, 93 N.Y.2d 959, 960 (1999), confirms this point. In Ortiz, the defendant claimed that he was improperly held in custody past the five-day time limit of CPL §170.70 because the People had failed to corroborate “every charge” in the accusatory instrument. Rejecting that claim, this Court declared that the multicount “accusatory instrument satisfied the requirements of an information and from its -18- inception could have been the basis for prosecution of a criminal action,” because at least one count was “facial[ly] sufficien[t].” See also People v. Chan, 36 Misc.3d 44, 46 (App. Term 2d Dept. 2012) (where a multicount instrument is involved, as long as the “allegations in the accusatory instrument satisf[y] the pleading requirements … as to any of the counts,” the instrument is jurisdictionally sufficient). With that understood, it is plain that there was no jurisdictional defect barring defendant’s guilty plea here. Indeed, unlike the prosecution in Dreyden, defendant’s prosecution was commenced by the filing of a complaint that charged him with two misdemeanors in addition to fourth-degree possession of a weapon. Specifically, he was charged with second-degree and third-degree trespass for “knowingly enter[ing] or remain[ing] unlawfully in a dwelling” (Penal Law §140.15 [2]), which was “used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof” (Penal Law §140.10[e]) (A6-7). And, even he does not dispute that the two trespass charges were sufficiently pleaded in the complaint. That is not surprising. The deponent swore in the complaint that he was informed by Police Officer Kouminiotes -- who was the custodian of an apartment building at 405 East 102nd Street in Manhattan, a public housing building where people reside -- that, at 6:05 p.m. on July 25, 2012, he saw defendant inside the lobby of that dwelling without permission or authority to be there, beyond a posted sign which read, “No Trespassing,” “tenants and their Guests Only” and “Anyone who remains unlawfully upon these premises will be prosecuted” (id.). The deponent -19- further averred that defendant was not a tenant or an invited guest, that he admitted that he lived at another address, and that he was unable to provide the identity of a resident of whom he was an invited guest (id). It is simply beyond dispute that those “facts or circumstances,” which are of an evidentiary nature, are “collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely” that defendant committed criminal trespass in the second and third degrees. See CPL §70.10 (2); Sans, 26 N.Y.3d at 15; Kasse, 22 N.Y.3d at 1142; Dreyden, 15 N.Y.3d at 102. Thus, as was the case in Keizer, there was no “jurisdictional defect” barring defendant’s guilty plea. Keizer, 100 N.Y.2d at 119. After all, through the two indisputably sufficient misdemeanor trespass charges in the complaint, the Criminal Court “obtained jurisdiction to commence [the] criminal action,” took “jurisdiction over” defendant, and had a basis for his prosecution because he waived prosecution by information to avail himself of the favorable plea bargain that he received at his arraignment. Keizer, 100 N.Y.2d at 118; CPL §§1.20 (7); 100.10 (4). 100.15 (3); 100.40 (4)(b). And, with the “Criminal Court’s jurisdiction” validly established, it was not “subsequently abrogated by acceptance of a guilty plea” to the weapon charge even if that crime had not been sufficiently “charged in the complaint.” Id. Consequently, this Court should declare, as it did in Keizer, that “[a]ny claim of error that the disposition was not statutorily authorized [was] forfeited by [defendant’s] guilty plea.” Id. -20- C. There is no good reason to find Keizer inapplicable. In both cases, the defendants alleged that pleading defects barred their guilty pleas, but they never disputed that their misdemeanor complaints contained other facially sufficient misdemeanor charges, and it was those charges that provided the Criminal Court with jurisdiction over their prosecutions. Thus, the court had the authority to accept their favorable plea bargains, which allowed them to plead guilty to a single offense in satisfaction of valid multicount complaints, even if those particular offenses were not adequately established in those complaints. As a result, the supposed defect in both cases did not fit into the “narrow” categories of nonwaivable “procedural defects” that are “reviewable as an error of law.” Casey, 95 N.Y.2d 365. The Criminal Court did have “jurisdiction” over the defendants’ prosecutions and there was no “other defect in the proceedings, which could not be waived or cured and is fundamental.” Id. To be sure, Keizer was permitted to plead guilty to a lesser crime not charged in the complaint. But, that is not a basis to treat the two cases differently. In Keizer, this Court addressed the “implications of article I, section 6” of the New York Constitution “in the context of guilty pleas” in felonies. Keizer, 100 N.Y.2d 118-119. It recognized that, because of those constitutional limitations, “a jurisdictional defect was implicated” in People v. Johnson, 89 N.Y.2d 905, 908 (1996), when the defendant pled guilty to an uncharged crime that was “equal [to] or higher [than]” the charge for -21- which he was indicted. Keizer, 100 N.Y.2d 118-119. It was in the very context of that discussion that this Court observed that “[t]he specific constitutional limitations, and their underlying policies, that restrict the plea process for felony charges are not present here” because, unlike felonies, “jurisdiction over” misdemeanors is simply “grounded in the Criminal Procedure Law.” Keizer, 100 N.Y.2d at 118-119. Consequently, if the disposition in Keizer’s case did not involve “any statutory compliance rising to the level of a jurisdictional defect,” surely there was no defect here. Certainly it would be counterintuitive to suggest that a court could accept a guilty plea to an uncharged lesser crime that was not even mentioned in the accusatory instrument, as in Keizer, but would be barred from accepting a guilty plea to a crime that was actually charged in a valid multicount complaint but was inadequately pled under the statutory pleading requirements, as defendant alleges happened here. Nothing calls for such an anomalous result. On the contrary, Keizer’s guilty plea to the uncharged offense of disorderly conduct actually was in technical violation of the statute governing permissible guilty pleas, since it was not even a lesser included offense of any of the charges in the complaint. See CPL §§340.20 [1] and 220.10 [3], [4][b][c]). Here, however, the disposition of defendant’s case was in total compliance with that statute, which authorized his guilty plea to one “of the offenses charged” to cover the other counts in his valid multicount complaint. See CPL §§340.20 (1) and 220.10 (4); Ortiz, 93 N.Y.2d at 959. Thus, the statute itself belies any notion that the -22- Legislature authorized the guilty plea in Keizer, but not defendant’s, because Keizer’s plea was to a lesser offense not charged in the complaint. D. Moreover, the Legislature could not have been any clearer about its desire that convictions obtained through guilty pleas mark the end of litigation regarding the sufficiency of pleadings in accusatory instruments. Indeed, it explicitly provided that a motion to dismiss charges in a misdemeanor complaint or an information for noncompliance with CPL §§100.15 and 100.40 must be made, even upon a showing of good cause, no later than sentencing. See CPL §§170.30 (1)(a); 170.35 (1)(a); 255.20; People v. Key, 45 N.Y.2d 111, 116 (1978). Surely, that statute, which, in and of itself, is an independent basis to find forfeiture here, leaves no doubt that the Legislature did not intend that a defendant who pleads guilty to one count of a multicount complaint should be able to undo his plea bargain years later simply by pointing to a supposed pleading deficiency in an otherwise jurisdictionally valid multicount complaint. Casey, 95 N.Y.2d at 366 (“Pleading deficiencies cannot be jurisdictional”). That is particularly true given that the supposed jurisdictional defect that defendant belatedly points to on appeal could have been easily cured if he had voiced his current arguments prior to his sentencing, as the statute requires. Had defendant complied with that statute, the issue would have been litigated. If a court had found defendant’s arguments to be colorable, the simplest solution to ensure finality would -23- have been to allow defendant to plead guilty to second-degree trespass, the other Class A misdemeanor that was contained in the complaint. But, the People also would have had the option of filing a superseding complaint containing additional facts to support the weapon charge. See CPL §100.50. However, none of those scenarios occurred because defendant had no interest in engaging in that litigation. His only interest was in securing the 10-day sentence that the judge offered him, which was significantly lower than the 90-day jail term that the People had initially recommended. Thus, he voiced no concerns at all regarding the facial sufficiency of the weapon count, knowingly and voluntarily waived prosecution by information, gave up his right to test the People’s proof at trial, and admitted that he possessed the box cutter with the intent to use it unlawfully against another. There is no jurisdictional basis for this Court to allow defendant to “keep the benefit” of that reduced sentence, and “yet be relieved of the admission of guilt which is his consideration for the bargain.” People v. Prescott, 66 N.Y.2d 216, 220 (1985). As this Court aptly put it when it held that a defendant may lawfully plead guilty to even a hypothetical crime – a holding on which it relied in finding that forfeiture was appropriate in Keizer: Where the court which accepts the plea has no reason to believe that the plea is unfair or inappropriate, the bargain becomes final. Unless there was unfairness in its negotiation or acceptance, the fact that a loophole might have been available to defendant is not sufficient grounds -24- upon which to set aside the bargain made. The defendant here has not been shown to have been victimized by inherent unfairness, nor is it evident that the court should have perceived any. Francis, 38 N.Y.2d at 155-156. The same is true here. Thus, this Court should advance the sensible rule that a defendant’s favorable plea bargain “generally marks the end of a criminal case, not a gateway to further litigation,” Id. at 118, by declaring -- as it did in Keizer -- that, since the court had jurisdiction over defendant’s prosecution, his guilty plea was not jurisdictionally defective, and that he forfeited his present claim that the statutory pleading requirements were not satisfied. Keizer, 100 N.Y.2d at 119; see also People v. Cepero, 50 Misc.3d at *1 (App. Term 1st Dept.) (where defendant did not dispute that the accusatory instrument “described facts of an evidentiary character demonstrating reasonable cause to believe that he was guilty of the charged crimes of attempted third degree assault, third-degree menacing and second degree harassment,” court “had jurisdiction over defendant and was authorized to accept his plea to the charged offense of criminal mischief in the fourth degree”) (internal quotations omitted), lv. denied, 27 N.Y.3d 1067 (2016); People v. Acevedo, 46 Misc.3d 150(A) (App. Term 1st Dept. 2015) (same where defendant did not dispute sufficiency of facts supporting count of seventh-degree possession of a controlled substance and pled guilty to criminal facilitation count), lv. denied, 26 N.Y.3d 1142 (2016); Lamb, 49 Misc.3d at 135(A) (same where defendant did not dispute sufficiency of facts supporting count -25- charging Loitering in a New York City park, an unclassified misdemeanor, and defendant pled guilty to second-degree obstructing governmental administration count); Lineberger, 46 Misc.3d at 152(A) (same where defendant did not dispute sufficiency of facts supporting count of possession of an imitation controlled substance with intent to sell and pled guilty to fraudulent accosting count). To be sure, defendant can point to cases that seem to reject that rule. See, e.g., People v Hightower, 18 N.Y.3d 249, 254 (2011) (“[a]lthough the [multicount] information in this case described the events with enough clarity to provide reasonable cause that defendant was engaged in the unlawful sale of NYCTA services and providing unlawful access to NYCTA services, we hold that it was jurisdictionally defective as to the crime of which defendant was actually convicted—petit larceny”). But, the simple answer is that the arguments that the People are making here were not presented in Hightower. Rather, the People essentially made the same arguments as they did in Dreyden -- that any claim that reasonable cause was not established in a misdemeanor complaint is forfeited by a guilty plea (see Respondent’s Briefs in Dreyden and Hightower). That is not the rule that the People are seeking to invoke here. In cases like Dryden, where the accusatory instruments contain only a single misdemeanor, the sufficiency of the pleadings underlying that count may be jurisdictional in nature, because, despite their easy curability, that was not achieved prior to the entry of judgment, as required by statute. See, e.g., People v. Harper, 37 N.Y.2d 96 (1975). But, -26- as demonstrated in Section B, supra, where a defendant is charged in a multicount complaint that does contain at least one properly pled misdemeanor count, a defendant has no legitimate basis to claim that there is a “jurisdictional defect” in his accusatory instrument barring his guilty plea. As shown, that notion is entirely consistent with both Keizer and Dreyden. To the extent that Hightower could be viewed as standing in the way of such a rule, though, this Court has frequently revisited its decisions on the topic of “jurisdictional defects” when confronted squarely with arguments showing that its interpretation of applicable statutes is being used to contravene the principles underlying the narrow exceptions to the preservation and forfeiture rules. See, e.g., Casey, 95 N.Y.2d at 365 (revisiting People v. Alejandro, 70 N.Y.2d 133 [1987]) on issue of whether non-hearsay violations must be preserved); People v. Pittman, 100 N.Y.2d 114 (2003) (in companion case to Keizer, revisiting and broadening Casey to hold that “alleged hearsay defect” was forfeited by guilty plea); see also, e.g., Kalin, 12 N.Y.3d. at 225 (revisiting standard set in Matter of Jahron S, 79 N.Y.2d 632 [1992], to find that guilty plea forfeited claim that information was deficient); Aragon, 28 N.Y.3d 125 (2016) (explaining distinction between sufficient weapon allegations and those missing in Dreyden). Those principles are being contravened repeatedly in cases such as this one. Indeed, defendants charged by valid multicount complaints routinely keep the benefits of their bargains and then try to erase their convictions by belatedly pointing -27- to cases such as Dreyden or Hightower to claim that their guilty pleas were “jurisdictionally defective” because the court allowed them to plead guilty to the wrong count. As this Court is surely aware from its docket, this case, Cepero, Acevedo, Lamb, and Lineberger, supra, are simply a fraction of the cases that pass through the Appellate Terms using that tactic.4 Obviously, the “specific policy goals” of plea bargaining are being contravened in these cases. Keizer, 100 N.Y.2d at 118; see also Dumay, 23 N.Y.3d at 523-524 (“If a defendant can later appeal a knowing and voluntary plea by resuming the same sufficiency argument the defendant had forsaken in the trial court, it would undermine the finality of the conviction” and “allow defendant[ ] to manipulate the plea bargaining system,” with the “unintended result” of prosecutors being “no longer willing to broker plea bargains in misdemeanor cases for fear of endless litigation over the accusatory instrument”). Indeed, with the law as it is, defendants would be well-served to plead guilty to the most bare-boned count to preserve their opportunity to have their convictions 4 Of course, here, as well as in many misdemeanor cases, a reduced sentence is the benefit that provides the impetus to plead guilty to one count to cover an entire complaint. But, there are many reasons that a defendant might choose to plead guilty to one charge, rather than another, when charged in a multicount complaint. In Lineberger, 46 Misc.3d at 152(A), for example, the defendant apparently wanted to plead guilty to fraudulent accosting, rather than the Public Health Law crime that was also contained in the complaint, because the latter would have been a felony had he been convicted of that charge again. And, in Cepero, 50 Misc.3d at 140(A), a domestic violence case, the defendant may well have preferred to plead guilty to a criminal mischief charge than to have to admit that he attempted to assault his girlfriend. For those defendants, not being required to plead guilty to all the charges in their multicount complaints itself is a valued benefit. -28- erased despite their admissions of guilt. As demonstrated, that gamesmanship is not what the Legislature had in mind when it created the statutory scheme for prosecuting misdemeanors. See, e.g., People v. Connor, 63 N.Y.2d 11, 16 (1984) (“tactic” to not complain about failure to file information “when the oversight could readily and promptly have been remedied” is “not to be rewarded …or tolerated”). If that tactic is permitted to continue, surely it will result in fewer guilty pleas, given that prosecutors and courts would be wise to insist that defendants plead guilty to every count of a multicount instrument. That would be the only way to ensure that defendants who reap the benefits of bargains do not succeed in having their convictions eliminated, too. Indeed, as a matter of course, defendants who wait years to bring their appeals, ask that their convictions be reversed and urge appellate courts to simply dismiss, rather than restore, the valid charges in their multicount complaints in the event that their appeal is successful. That is what occurred in Hightower, 18 N.Y.3d at 255, and it is the remedy that defendant seeks here (See DB:10, 24). To be sure, that relief may be denied, but the People will still be prejudiced by the passage of time, particularly where, as here, the defendants do not raise their claims until several years after they have served their sentences. Again, that is surely not the result that the Legislature was looking for when it created the statutory scheme for prosecuting misdemeanors. No fundamental unfairness will occur if this Court were to close the gateway for that tactic by applying Keizer to bar claims like the one that defendant is making -29- here. Since the statutory scheme for prosecuting misdemeanors clearly shows that defendant’s claim is not jurisdictional, this Court should find that it was forfeited by his guilty plea. E. Even if this Court had to look at the factual allegations underlying the weapon possession count to determine whether defendant’s claim was jurisdictional, his belated attempt to upset his conviction would fail. Indeed, defendant’s arguments cast no doubt on the Appellate Term’s firmly-grounded decision that the factual allegations in the complaint provided reasonable cause to believe that defendant possessed a weapon with the intent to use it unlawfully in violation of Penal Law §265.01 (2). In fact, defendant’s claims simply provide further evidence that his challenge to his guilty plea is not properly before this Court. As the Appellate Term recognized, in order to determine whether the allegations established that it was “reasonably likely” that defendant committed the weapon possession crime (CPL §70.10 [2]), the complaint had to be “given a fair and not overly restrictive or technical reading.” Kalin, 12 N.Y.3d at 230; Casey, 95 N.Y.2d at 360. The test is simply whether the pleadings supplied defendant with sufficient notice to prepare a defense and were adequately detailed to prevent him from being tried twice for the same offense. Kalin, 12 N.Y.3d at 230; see also, e.g., Aragon, 28 N.Y.3d at 128; People v. Jackson, 18 N.Y.3d 738, 746 (2012); Dreyden, 15 N.Y.3d at 103; Casey, 95 N.Y.2d at 360. That is true even if the allegations were “bare-boned,” People -30- v. Allen, 92 N.Y.2d at 378, 385 (1998), and not “a model of specificity.” Jackson, 18 N.Y.3d at 747. When viewed under these standards, there is no doubt that the pleadings were entirely sufficient. The misdemeanor complaint alleged that, while trespassing in a designated public housing building, which was a dwelling, at a particular date and time, defendant possessed a “dangerous and deadly instrument and weapon with intent to use it unlawfully against another,” in that the officer recovered a box cutter from defendant and defendant told the officer, “I use it on the train for protection” (A6-7). In pertinent part, Penal Law §265.01 (2) makes it a crime to possess “a dangerous knife … or any other dangerous or deadly instrument or weapon” with “the intent to use the same unlawfully against another.” Penal Law §10.00 (13) defines “dangerous instrument” 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 of other serious physical injury.” The term “knife” is not defined in the Penal Law, so “courts should give the term its usual and commonly understood meaning.” Aragon, 28 N.Y.3d at 128 (internal marks and citations omitted). Of course, it hardly needs stating that a “knife” is “a cutting instrument” or “tool” with a “sharp cutting blade.” See https://www.merriam- webster.com/dictionary/knife; see generally Aragon, 28 N.Y.3d at 128 (relying on dictionary definitions). -31- While “the statute [also] contains no definition of the term ‘dangerous knife,’” this Court defined it over 30 years ago as “a knife which may be characterized as a weapon,” and it defined a “weapon” as “an instrument of offensive or defensive combat.” Jamie D., 59 N.Y.2d at 592. This Court explained that even “knives [ ] designed and primarily intended for use as utilitarian utensils” are “dangerous knives,” 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.” Id. at 592-593. Consequently, “when the circumstances of its possession including the behavior of its possessor demonstrate that the possessor himself considered it a weapon” for “offensive or defensive combat,” even a common cutting tool or utensil is a “‘dangerous knife’ within the contemplation of the statute.” Id. at 591-593; see also Antwaine T., 23 N.Y.3d at 516. Here, the complaint established that, while trespassing in a dwelling, defendant possessed a box cutter. Of course, a box cutter is a cutting instrument or tool with a sharp cutting blade. And, by his own account, defendant was carrying the box cutter “for protection,” rather than for use as a utensil for cutting boxes. Thus, by including defendant’s statement, the People established in the complaint that defendant “himself considered [the box cutter] a weapon” for “defensive combat,” and “thus a ‘dangerous knife’ within the contemplation of the statute.” Jamie D, 59 N.Y.2d at 591-592. -32- Consequently, as the Appellate Term recognized, the People sufficiently established that defendant both possessed a dangerous knife and intended to use it unlawfully. After all, Penal Law §265.15 (4) provides, in pertinent part, that “[t]he possession by any person of any … dangerous knife or any other weapon … is presumptive evidence of intent to use the same unlawfully against another.” Thus, once defendant’s possession of a “dangerous knife” was established, that “predicate fact” triggered the statutory presumption of unlawful intent in Penal Law §265.15 (4); Galindo, 23 N.Y.3d at 724. And, as this Court decided in Galindo, 23 N.Y.3d at 724, the statutory presumption is itself sufficient to establish a prima facie case at trial -- which, of course, is a higher standard than the one the People needed to satisfy here. People v. Smalls, 26 N.Y.3d 1064, 1066 (2015) (even 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 marks omitted); Dumay, 23 N.Y.3d at 522 (unlike the higher “prima facie requirement” for informations, complaints need only satisfy the “reasonable cause” standard). Under those circumstances, the Appellate Term’s conclusion that the allegations in the complaint were facially sufficient to support the weapon charge is unassailable. Defendant’s claims to the contrary simply confirm that the allegations supplied him with more than sufficient notice to “prepare a defense and [were] -33- adequately detailed to prevent [him] from being tried twice for the same offense” Kalin, 12 N.Y.3d at 230; Dreyden, 15 N.Y.3d at 103; Casey, 95 N.Y.2d at 360. For instance, defendant admits that “a box cutter” is “a utility knife designed to open cardboard boxes” and that, “[o]f course, a box cutter may be used as a weapon” (DB:10). That shows that he clearly understood the “common meaning in ordinary American parlance” of a box cutter and that his box cutter constituted a knife. See Aragon, 28 N.Y.3d at 128-129. Clearly, then, the People adequately provided him with notice of the weapon that he was alleged to have possessed.5 Nonetheless, defendant claims that his box cutter was not a dangerous knife within the contemplation of either the weapon statute or the statutory presumption (DB:12-20). Defendant resorts to appending a pastel-colored photo of an item called, “Lovely-Mini-Pen-Paper-Cutting-Knife-Letter-Opener-Box-Cutter,” in an effort to show that a “typical box cutter is ill-equipped for use as a weapon” (DB:15-16; Appendix:A12). See https://www.aliexpress.com/item/Lovely-Mini-Pen-Paper- Cutting-Knife-Letter-Opener-Box-Cutter-F4571/32653565304.html?spm=2114.40. However, that tactic ignores this Court’s rule that it will not “rely on external factors to create jurisdictional defects not evident from the face of the [accusatory instrument].” People v. Konieczy, 2 N.Y3d 569, 576 (2004). 5 Since defendant acknowledges that a box cutter is “a utility knife” that “may be used as a weapon” (DB:10), he cannot prevail by characterizing it as just a “razor” in order to remove the statutory presumption from its reach (DB:12-17). -34- Moreover, far from showing that the complaint was “jurisdictionally defective,” defendant’s ability to produce that photograph demonstrates that he had enough information to prepare a defense. After all, if defendant’s box cutter actually looked like the “lovely-mini” one that appears in his photograph -- rather than the actual box cutter that the People surely would have produced at trial -- then defendant could have tried to convince a jury that his box cutter was “ill-equipped for use as a weapon” (DB:15-16), even though he admitted that he carried that box cutter to use as a weapon for defensive combat. However, the fact that “lovely-mini” box cutters exist is not a basis for claiming that the accusatory instrument was “jurisdictionally defective.” Konieczy, 2 N.Y3d at 576 (matters “to be raised as a defense” are not proper grounds for asserting that an accusatory instrument is defective); see Aragon, 28 N.Y.3d at 129, fn.1 (if defendant’s brass knuckles were in actuality “jewelry or other novelty items shaped like metal knuckles,” that claim could have been “tested at trial,” and cannot be raised by challenging the sufficiency of accusatory instrument). The same holds true of defendant’s claim that his “utility knife” was not a dangerous weapon because he “was not using, attempting to use, or threatening to use it,” and because he told the officer that he “use[d] it on the train for protection” (DB:10). As defendant sees it, the “only rational inference that could be drawn from [his] statement is that he potentially intended to use the knife for the lawful purpose of self-defense if that ever became necessary” (DB:10). But, defendant’s view -35- presents a question for the jury; it does “not negate the existence of a prima facie case.” Galindo, 23 N.Y.2d at 723 (internal marks omitted). Indeed, defendant’s self-serving interpretation of the complaint’s allegations runs counter to the legislative judgments underlying the relevant Penal Law provisions. As one lower court observed, “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. Cty. 2008). Thus, as this Court recognized in Galindo: The [L]egislature intended Penal Law §265.15 (4) to permit a jury to … find that a defendant intended to use a weapon unlawfully merely because he or she possessed that weapon. This permissive presumption would be superfluous if … the People were required to put forth independent evidence of intent to prove that element of the offense Galindo, 23 N.Y.2d at 725. Consequently, that the People did not allege that defendant was “displaying, brandishing, using, threatening to use, or attempting to use the box cutter against another person” (DB:20), is completely irrelevant to the determination of whether the pleadings in the complaint were sufficient. All that was required to trigger the presumption of unlawful intent under Penal Law §265.15 (4) was the “possession of ‘any weapon.’” Galindo, 23 N.Y.3d at 725. The People established that predicate fact. Indeed, the complaint more specifically established that defendant possessed “a -36- ‘dangerous knife’ within the contemplation of the statute,” Jamie D, 59 N.Y.2d at 591- 592, by including defendant’s statement that he was carrying his box cutter -- a utility knife -- “for protection.” Id. That statement showed that, “on the occasion of its possession,” defendant “himself considered [it] a weapon” for “defensive combat,” rather than a utilitarian utensil for cutting boxes. Id. at 591-593. Consequently, “the unlawful intent presumption” was triggered, and it automatically became “part of the People’s prima facie case.” Galindo, 23 N.Y.3d at 724-725. To be sure, since the presumption is a “permissive” one, defendant could have tried to “rebut the presumption” by arguing to a jury that he was carrying his “dangerous knife” while trespassing in the dwelling only because “he intended to use [it] for the lawful purpose of self-defense if that ever became necessary” (DB:10). See Galindo, 23 N.Y.3d at 724-725. However, defendant’s ability to conjure up that defense does “not negate the existence of a prima facie case.” Id. at 723 (internal marks omitted). Rather, it merely “presents an alternate set of facts, or inferences from facts [for] the jury.” Id. Thus, quite simply, 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 -- an avenue that he chose to forego by pleading guilty -- not a basis to claim that the pleadings were “jurisdictionally defective.” Konieczy, 2 N.Y.3d at 577. Indeed, contrary to defendant’s view, there is not only one inference to be -37- drawn from his statement that carried his box cutter “for protection.” As this Court, recognized: a person either possesses a weapon lawfully or he does not and he may not avoid the criminal charge by claiming that he possessed the weapon for his protection. Justification may excuse otherwise unlawful use of the weapon but it is difficult to imagine circumstances where it could excuse unlawful possession. People v. Almdovar, 62 N.Y.2d 126, 130 (1984); accord People v. Pons, 68 N.Y.2d 264 (1986). Moreover, and contrary to defendant’s repeated insistence otherwise, his claim that he used the box cutter “for protection” on the train does not remotely establish a valid claim of self-defense and thus that he lacked an intent to use the knife unlawfully. Penal Law Article 35 sets out a carefully constructed and limited justification defense, incorporating requirements such as that the actor reasonably believes that his use of force is necessary to defend himself, and that the other person’s use of force is at least “imminent.” See Penal Law §35.15 (1). There are even greater restrictions when using deadly physical force -- which could easily be the case when the actor is using a dangerous knife -- such as the duty to retreat. See Penal Law §35.15 (2). Defendant’s undetailed statement does not come close to establishing that he would limit his potential use of what he viewed as a weapon to the appropriate circumstances. At the very least, defendant certainly is not entitled to insist that, at -38- the pleading stage, his statement must be accepted as establishing that he would only ever use his weapon in accordance with the strictures of a valid self-defense claim. Finally, defendant now warns that if this Court were to apply the unlawful use presumption in Penal Law §265.15(4), his federal due process and Second Amendment rights would be violated (DB: 21-24). However, 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 undoubtedly foreclosed this Court from considering that portion of his claim. In any event, an exhaustive analysis of the history relevant to the Second Amendment and its incorporation by the Fourteenth Amendment shows that “the Second Amendment does not protect in any degree, the right of a member of the general public to carry a concealed weapon in public.” Peruta v. County of San Diego, 824 F.3d 919, 942 (9th Circ. 2016) (en banc). Moreover, as was the case in Galindo, defendant cannot “credibly claim that the presumption of unlawful intent was unconstitutional as applied to [him],” when the “analysis of a permissive presumption … rests[s] on an evaluation of the presumption as applied to the record before the Court.” Galindo, 23 N.Y.3d at 725-726. After all, defendant’s claim that would be irrational to apply the presumption to him rests on the premise that his claim that he intended to use his dangerous knife “for protection” was the equivalent of “lawful” intent (DB:22), a premise that, as demonstrated, is faulty on the face of his statement. -39- In addition, as defendant himself points out, at the time that he was found trespassing in a dwelling with a concealed weapon to use “on the train for protection,” he was “receiv[ing] psychiatric treatment twice a week” (DB:6). Surely, there is nothing irrational about inferring that defendant’s thoughts on the need to use his weapon “for protection” against unspecified train travelers were not aligned with the limited circumstances that Penal Law Article 35 allows. Consequently, there are no constitutional implications in applying the statutory presumption to establish defendant’s unlawful intent to his dangerous knife. * * * In sum, since defendant waived prosecution by information, and it is beyond dispute that the trespass charges were sufficiently established in the multicount misdemeanor complaint, the Criminal Court had jurisdiction over defendant’s prosecution. Consequently, the arraignment court was authorized to accept his guilty plea to the weapon charge, even if defendant were correct about the supposed deficiencies in the pleadings with respect to that particular charge. Since the statutory scheme for prosecuting misdemeanors clearly shows that defendant’s claim is not jurisdictional, this Court should apply Keizer to find that it was forfeited by his guilty plea. Moreover, because the allegations supporting the weapon count easily satisfied the statutory pleading standards, defendant’s challenge to his conviction would fail even if those pleadings were relevant to the legality of his conviction. -40- CONCLUSION The order of the Appellate Term should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: SHERYL FELDMAN Assistant District Attorney ALAN GADLIN SHERYL FELDMAN Assistant District Attorneys Of Counsel February 8, 2017 INDEX TO ADDENDUM EXCERPTS FROM APPELLANT'S BRIEF TO THE APPELLATE TERM EXCERPTS FROM RESPONDENT'S BRIEF TO THE APPELLATE TERM APPELLANT'S REPLY LEAVE LETTER New York C~unty Clerk's No. 570942/12 Jllf="Q .rR}fbyfl h~<'-' REA lJ sA.'RAtti.~M 5· ·• '"CiiT:;- -'V'- (10 minutes).. ·· NEW YORK SUPREME Coruif":;0~'~ 'g~"~ , .... ~._ : APPEftLATE TERM: 1ST JUDICIAL DISTRICT THE PEOPLE OF THE STATE OF NEW YORK, · Respondent, -against- ALBERT EDWARD, Defe~dant-Appellant. Docket No. 2012NY058343 BRIEF FOR DEFENDANT-APPELLANT SARAH ZIMMER Attorney for Defendant-Appellant DLA PIPER LLP (US) 1251 A venue of the Americas, 27th Floor New York, NY 10020-1104 (212) 335-4500 sarah.zimmer@dlapiper.com SEYMOUR W. JAMES, JR. THE LEGAL AID SOCIETY Criminal Appeals Bureau · 199 Water Street- 5th Floor New York, NY 10038 (212) 577-7989 thausman@legal-aid.org Lawrence T. Hausman . . ! . J r unlawfully, the potential contemplated future use of justified force does not support an inference of unlawful intent. The accusatory instrument in the instant case is also facially insufficient because it fails to allege that Mr. Edward intended to use the box cutter unlawfully against another person. To prove criminal possession of a weapon in the fourth degree, there is an explicit requirement of intent to use the object unlawfully against another. See Matter of Patrick L., 244 A.D.2d 244 (1st Dep 't 1997). The possession of a box cutter alone is not presumptive evidence of intent to use unlawfully against another because a box cutter is not designed, made, or adapted for use primarily as a weapon. P.L. § 265.15(4); See People v. Montilla, supra (possession of a steak knife on a street comer does not raise the presumption of unlawful intent). A box cutter, unlike a dagger, dirk, stiletto, or dangerous knife, is primarily used in households and businesses to cut boxes, and unlawful intent cannot be presum~ by possession. P.L. § 265.15(4). . · The intent to use a box cutter unlawfully against another is typically established by showing that the defendant was in close proximity to another person and there was a credible threat of harm to another person. See People v. Purvis, 90 A.D.3d 1339, 1339-40 (3d Dep't 2011) (finding intent to use a box cutter unlawfully against another when defendant came within a foot proximity to a store clerk, waived the box cutter at the store clerk, and threatened to kill him); People v. Fisher, 52 A.D.3d 1120, 1120-21 (3d Dep't 2008) (defendant swung knife at a security employee); People v. Jackson, 38 A.D.3d 1052, 1054 (3d Dep't 2007) (defendant stood over victim with knife in hand and gave him the choice of leaving or being killed); People v. Holland, 279 A.D.2d 645,646 (3d Dep't 2001) (defendant brandished a sword, advanced toward victim, and refused to drop the sword). 7 There are no facts in the accusatory instrument to support that Mr. Edward intended to use the box cutter unlawfully against another person. Although Mr. Edward was in a residential building where he did not live, he was not threatening any person nor was there any evidence that he was displaying the knife or was in the proximity of any person in the building. Indeed, Mr. Edward's statement that he "uses the [box cutter] on the train for protection" directly contradicts the conclusory allegation that Mr. Edward intended to use the box cutter unlawfully against another person in the residential building. In fact, carrying a weapon for protection establishes that Mr. Edward did not anticipate using the weapon unless it was absolutely necessary to lawfully defend himself in an unexpected and dangerous situatjon. See People v. Mont ilia, supra. Where the only evidence of intent is lawful intent, a critical element of the offense is not satisfied. Without any additional evidence, there is no proof that Mr. Edward intended to use a box cutter unlawfully against another. * * * * Because the accusatory instrument does not satisfy the requirements of Criminal Procedure Law sections 100.15(3) and 100.40, it is jurisdictionally defective. See People v. - . Dreyden, 15 N.Y.3d at 103; People v. Tarka, 75 N.Y.2d at 997; People v. Alejandro, 70 N.Y.2d 133 (1987); People v. Hall, supra. Accordingly, base4 on the above fatal, non-waivable, jurisdictional defect, Mr. Edward's conviction for criminal possession of a weapon in the fourth degree should be reversed and the accusatory instrument dismissed. C.P.L. §§ 100.40, 100.15; People v. Dreyden, 15 N.Y.3d 100 (2010); People v. Jones, 9 N.Y.3d 259 (2007). CONCLUSION For the reasons stated above, Appellant's conviction should be reversed and the accusatory instrument dismissed. 8 ( T(} be arg11ed by SHERYL FElDMAN ~etu ~ork ~uprtmt QCourt Appellate Term - First ·Department THE PEOPLE OF THE STATE OF NEW YORK, &.rpOndent~ -against- ALBERT EDWARD, Defendant-Appellant. BRIEF FOR RESPONDENT SHERYL FEilllVIAN ASSISTANT DISTRICT ATTORNEY OJCoNnsel CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place NewYor~NewYork 10013 {212) 335-9000 danyappeals@dany.nyc.gov ------···---·· POINT THE ACCUSATORY INSTRUMENT WAS· JURISDICTIONALLY Defendant's Brief) .. SUFFICIENT (Answering Of course, "[pJ~ea bargaining is a valued component of the criminal justice system and wheri properly administered, can. benefit both parties and save valuable judicial resources." People v. Keizer, 100 N.Y.2d 114, 118 (2003). That is precisely ·what. happened here. Defendant was allowed to plead guilty to one misdemeanor in exchange for a. 1 0-day sentence, when he was originally. charged with four offenses and the People were seeking a 90-day jail term (P: 2). On appeal, defendant claims that his conviction must be vac~ted because the accusatory instrument was ju.rlsdictionilly deficient, in that it failed to allege sufficient facts to support the charge to which he pled guilty -- fourth-degree weapon possession. However, defendant does not even attempt to suggest that the three trespassing chaiges in this multi-count complaint were supported by insufficient facts. Thus, even if defendant were ~o.rrect about the supposed deficiencies in the factual allegations supporting the weapon charge, his challenge to the jUrisdictional sufficiency of the complaint fails.1 1 Due to the high volume of defense filings, this Office has a backlog of pending appeals bo~ in this Court and the Appellate Division. In similar situations in the past, the Appellate Division has suggested that this Office make less-detailed presentations of the facts and legal arguments in cases that the People believe are not lik~ly to turn on. such detail. Consistent with that p1:actice, the People will not debate whether the factual allegations in the complaint support the fourth-degree weapon charge. Although we do not concede that (Continued ... ) -3- The sworn misdemeanor complaint which named Police Officer Luis Sanchez of the 23rd P~ecinct as the deponent -- charged defendant with four offenses: the weapon count, criminal trespass in second and ·third degrees, and trespass as a violation. It alleged that, at around 6:05 p.m. on July 25, 2012, at 405 East 102rid Street in the County of New York, <;lefendant ''knowingly entered and remained unlawfully in a pu~Iic housing project,'' which ·was ''a dwelling/' in "violation of conspicuously posted rules and regulations governing entry," and "possessed a dangerous and deadly. instrument and weapon with intent to use it unlawfully against another" (Complaint). The fa.crual portion qf the complaint stated that those offenses were committed under the following circumstances: [D]eponent is informed by Officer Theohari Kouminiotes, [sic] that while on. patrol inside the above location, an apartment building where people reside, informant observed the defendant inside the lobby of the dwelling beyond the vestibule and that said location is beyond a posted sign which read, ''No Trespassing", [sic] "tenants and theiJ: Guests Only" and "in part: Anyone who remains unlawfully upon these premises will be prosecuted". [sic] Deponent is further informed by Officer Kouminiotes, [sic] that defendant is not a tenant in that the defendant provided an address different from the above location and defendant is not an invited guest in that the ( ... Continued) defendant is correct in that regard, that debate is unnecessary since defendant does not challenge the suffisiency of any of the trespass counts. -4- is entirely misplaced. After all, with the "criminal court's jurisdiction[ ] validly established," it was not "subsequently abrogated by acceptance of a guilty plea, to that charge. Keizer, 100 N.Y.2d at 119. * * * In sum, the multi-count accusatory ins_trument containing the weapon count was jurisclictiori.ally sufficient Thus, there is no reason for this Court to vacate defendant's conviction of that charge, much less a basis for the Court to .dismiss 00 the multi-count accusatory instrument, containing the ~espass counts that defendant does not even contest. CONCLUSION 0 0 0 The judgment of conviction should be affirmed. SHERYL FELDMAN Assistant District Attorney Of Counsel J anua.ry 2016 Respectfully submitted, CYRUS R VANCE, JR. District Attorney New York County -9- 1·~~· THE ·=~~LEGAL :::11 AID ::::1 SOCIETY The Honorable Janet DiFiore Chief Judge· New York Court of Appeals Court of Appeals Hall 20 Eagle. Street Albany, N.Y. 12207 Your Honor: 2ol'2-/lJ-{0 5 0. 3\.1.'2 Criminal Appeals Bureau \ "U 'T-.:> 199 Water Street June 13, 2016 New York, NY 10038 Tel: 212-577-3300 www.legal-aid.org Blaine (Fin) V. Fogg President Seymour W. James, Jr. Attorney-in-Chief Justine M. Luongo Attorney-in-Charge Criminal Practice zo ~ ~ ,.,.,(/) -- -o .:E-1 v :::::,~ ~ f"-1:::0 Re:. People v. Albert Edward _:.a :z: ~~ Reply letter =x:.> U1 cntTJ ·::: = en< ::::> ~- 'T1 c: , ..-.._. u ;:co ~~ rT-. -,""-- r:y ' .• -/,., J> '-< "" c: In appellant's main leave letter, he argued that a leave grant is warranted in ffiis case as it raises the following interesting issue: whether an accusatory instrument charging a --· ·~ defendant with possession of a dangerous knife with the intent to use it unlawfully against another [Penal Law§ 265.01(2)] is facially sufficient, where the element of unlawful intent is "established" by a defendant's statement that he carried the knife for self-protection. As to the leave-worthiness of this issue, appellant relies on .his main letter, which detailed the varied irreconcilable approaches to this issue taken by the lower courts.1 This reply letter2 is submitted to address an alternative ground for affirmance raised by the People in their June 9, 2016, letter. Specifically, the People contend that this case is not the appropriate vehicle to review the issue presented by appellant because any facial sufficiency defect in the fourth-degree weapon possession charge- to which appellant plt~d guilty was, in their view, made irrelevant by the fact that there were other _charges in the accusatory instrument that were facially sufficient. This alternative ground for affirmance was raised by .the People in the Appellate Term but was not relied on by the Appellate Term (see Appellate Term decision). As a result, this alternative ground for affirmance urged by the People could not be an obstacle to this 1 On the question of leave-worthiness, it should be noted that the People's contention that the Appellate Term, in resolving this appeal, simply applied well-settled law of the Court of Appeals (i.e., Matter of Jamie D. 59 N.Y.2d 589, 592 (1982)) misses the mark. In Matter of Jamie D., the Court held that a knife designed for primarily utilitarian purposes could qualify as a "dangerous knife" if the behavior of the possessor indicated that the possessor considered the knife to be a weapon. Id But that case simply did not address the question of whether a knife possessed for lawful self-protection constitutes possession with the intent to use unla-Wfully. 2 Permission to file this reply letter was granted by Your Honor's chambers on June 9, 2016, with this reply letter to be posted by June 16, 2016. Page 2 Court's review of the issue presented. See People v. Caracedo, 89 N.Y.2d 1059, 1061 (1997) (holding that if People were to prevail in the Court of Appeals on alternative grounds not decided adversely to the defendant in the intermediate appellate court, the Court of Appeals "would in essence be affording affinnative relief to a nonappealing party, [which] we are not empowered to do") quoting People v. Carpenito, 80 N.Y.2d 65, 68 (1992). In any event, the alternative ground for affirmance raised by the People is an issue that is, in-and-if-itself, leave worthy as the Appellate Terms have divided on whether an (equal level) facially sufficient charge "saves" a plea to a facially insufficient charge. Compare People v. Gavrilov, No. 2013-135KCR, 2015 WL 6511678, 49 Misc. 3d 138(A), at * 1 (App. Term 2d Dep't Oct. 21, 2015) (reversing conviction on appeal where, in a multi- count accusatory instrument charging defendant with two class A misdemeanors, defendant pled guilty to one count and later contended that the accusatory instrument was jurisdictionally defective as to the count to which he pled guilty); People v. Washington, No. 2012-2322KCR, 2015 WL 9694109, at *1 (App. Term 2d Dep't Dec. 31, 2015) (same) with People v. Lineberger, 46 Misc. 3d 152(A) (1st Dep't 2015) (where defendant did not dispute facial sufficiency of one charge, conviction affirmed regardless of facial insufficiency of misdemeanor to which defendant pled guilty); People v. Lamb, 49 Misc. 3d 135 (A) (App. Term pt Dept. 2015)(same). Respectfully submitted, ence T. Hausman Supervising Attorney (212) 577-7989. Cc: Hon. Cyrus R. Vance, Jr. (without enclosures)· District Attorney New York County One Hogan Place New York, N.Y. 10013 ATTN.: A.D.A. Sheryl Feldman Appeals Bureau