The People, Respondent,v.Albert Edward, Appellant.BriefN.Y.January 4, 2018• APL-2016-147 To be argued by LAWRENCE T. HAUSMAN (15 MINUTES) (!Court of ~ppeal!i STATEOFNEWYORK THE PEOPLE OF 1HE STATE OF NEW YORK, Respondent, -against- ALBERT EDWARD, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT MARCH 31,2017 SEYMOUR W. JAMES, JR. LAWRENCE T. HAUSMAN WHJTNEY ROBJNSON Attorney for Defendant-Appellant The Legal Aid Society 199 Water Street New York, NY 10038 (212) 577-7989 (646) 616-4989 thausman@legal-aid.org TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................ , ...................................... iii PRELIMINARY STATEMENT .............................................................................. ! QUESTIONS PRESENTED ................................................................................... ! ARGUMENT POINT I BECAUSE THIS COURT IS NOT EMPOWERED TO PROVIDE AFFIRMATIVE RELIEF TO A NONAPPEALING PARTY (I.E., THE PEOPLE), THIS COURT CANNOT REACH THE PEOPLE'S ALTERNATIVE GROUND FOR AFFIRMING THE APPELLATE TERM'S ORDER THAT NOWITHSTANDING THE FACIAL INSUFFICIENCY OF THE FOURTH-DEGREE CRIMINAL POSSESSION OF A WEAPON CHARGE, APPELLANT'S PLEA TO THAT COUNT WAS VALID. PEOPLE V. CARRACEDO, 89 N.Y.2D 1059 (1997); ARTHUR KARGER, POWERS OF THE NEW YORK COURT OF APPEALS § 21:12 AT 786 [3D ED. REV. 2005]). (REPLYING TO RESPONDENT'S BRIEF ("RB."), POINT I, PP. 10-29) .......................................................... 3 POINT II THE PEOPLE'S ALTERNATIVE GROUND FOR AFFIRMING THE APPELLATE TERM'S ORDER- THAT NOWITHSTANDING THE FACIAL INSUFFICIENCY OF THE FOURTH-DEGREE CRIMINAL POSSESSION OF A WEAPON CHARGE, APPELLANT'S PLEA TO THAT COUNT WAS VALID 1 - RELIES ON THE UNSUPPORTABLE THEORY THAT THE FACIAL SUFFICIENCY OF ANY OFFENSE CHARGED IN A MISDEMEANOR ACCUSATORY INSTRUMENT FORECLOSES ANY JURISDICTIONAL CHALLENGE TO THE REMAINING CHARGES IN THE ACCUSATORY INSTRUMENT (REPLYING TO RESPONDENT'S BRIEF, POINT I, PP. 10-29) ....................................................................... 8 POINT III CONTRARY TO THE PEOPLE'S CONTENTION, THE ACCUSATORY INSTRUMENT CHARGING APPELLANT WITH FOURTH-DEGREE CRIMINAL POSSESSION OF A WEAPON WAS FACIALLY INSUFFICIENT BECAUSE IT FAILED TO PROVIDE REASONABLE CAUSE TO BELIEVE THAT APPELLANT INTENDED TO USE THE BOX CUTTER UNLAWFULLY AGAINST ANOTHER PERSON (REPLYING TO RESPONDENT'S BRIEF, POINT I, PP. 29-40) .................................................................................... 15 CONCLUSION ......................................................................................................... 23 u TABLE OF AUTHORITIES STATE CASES Matterof]amie D., 59 N.Y.2d 589 (1983) .............................................. 16, 17, 18, 19 People v. Carpenito, 80 N.Y.2d 65 (1992) .................................................................... .4 People v. Carracedo, 89 N.Y.2D 1059 (1997) .............................................................. .4 People v. Cuadrado, 9 N.Y.3d 362 (2007) ................................................................ 6, 7 People v. Dryden, 15 N.Y.3d 100 (2010) ..................................................................... 13 People v. Dumay, 23 N.Y.3d 518 (2014) .............................................................. 13, 15 People v. Gamble, 70 N.Y.2d 885 (1987) ..................................................................... .4 People v. Harper, 37 N.Y.2d 96 (1975) ...................................................... 8, 10, 11, 12 People v. Hightower, 18 N.Y. 3d 249 (2011) ..................................................... 6, 12, 13 People v. Johnson, 89 N.Y.2d 905 (1996) ...................................................................... 9 People v. Kalin, 12 N.Y.3d 225 (2009) ................................................................ 13, 15 People v. Ktizer, 100 N.Y.2d 114 (2003) .............................................................. passim People v. Thomas, 4 N.Y.3d 143 (2005) ...................................................................... 21 STATUTES C.P.L. § 100.40(b) ...................................................................................................... 15 C.P.L § 100.45(3) ...................................................................................................... 11 C.P.L. § 220.10 ...................................................................................................... 9,10 C.P.L. § 440.10 ............................................................................................................. 7 C.P.L. § 440.10(2)(c) .................................................................................................... 7 111 P.L. § 10.00(13) ......................................................................................................... 18 P.L. § 220.10 ................................................................................................................. 9 P.L. § 265.01(1) ........................................................................ , .......................... 19, 20 P.L. § 265.ot(2) .................................................................................................... passim P.L. § 265.15(4) ................................................................................................... 16,22 lV COURT OF APPEALS STATEOFNEWYORK ---------------------------------------------------------------------}[ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ALBERT EDWARD, Defendant-Appellant. ---------------------------------------------------------------------}[ PRELIMINARY STATEMENT This reply is submitted in answer to respondent's brie£ The facts and procedural history of the case are discussed in appellant's main brief and will not be repeated here, except where amplification is necessary to respond to the People's contentions. Rather, the sole purpose of this reply is to address arguments raised in respondent's brief. QUESTIONS PRESENTED 1. Whether, because this Court ts not empowered to provide affirmative relief to a nonappealing party (i.e., the People), this Court carmot reach the People's alternative ground for affirming the Appellate Term's order - that notwithstanding the facial iosufficiency of the fourth-degree criminal possession of a weapon charge, appellant's plea to that count was valid. 1 2. Whether the People's alternative ground for affirming the Appellate Term's order - that notwithstanding the facial insufficiency of the fourth-degree criminal possession of a weapon charge, appellant's plea to that count was valid - relies on the unsupportable theory that the facial sufficiency of any offense charged in a ntisdemeanor accusatory instrument forecloses any jurisdictional challenge to the remaining charges in the accusatory instrument. 3. Whether, contrary to the People's contention, the accusatory instrument charging appellant with fourth-degree criminal possession of a weapon was facially insufficient because it failed to provide reasonable cause to believe that appellant intended to use the box cutter unlawfully against another person. 2 ARGUMENT POINT I BECAUSE THIS COURT IS NOT EMPOWERED TO PROVIDE AFFIRMATIVE RELIEF TO A NONAPPEALING PARTY (I.E., THE PEOPLE), THIS COURT CANNOT REACH THE PEOPLE'S ALTERNATIVE GROUND FOR AFFIRMING THE APPELLATE TERM'S ORDER- THAT NOWITHSTANDING THE FACIAL INSUFFICIENCY OF THE FOURTH-DEGREE CRIMINAL POSSESSION OF A WEAPON CHARGE, APPElLANT'S PLEA TO THAT COUNT WAS VALID. PEOPLE V. CARRACEDO, 89 N.Y.2D 1059 (1997); ARTHUR KARGER, POWERS OF THE NEW YORK COURT OF APPEALS §21:12 AT 786 (3D ED. REV. 2005). (REPLYING TO RESPONDENT'S BRIEF ("RB."), POINT I, PP. 10-29). In the Appellate Term (as in this Court), appellant challenged the facial sufficiency of the foutth-degree criminal possession of a weapon charge (P.L. §265.01 (2)) to which he pled guilty. In response, the People argued to the Appellate Term that the facial sufficiency of the charge to which appellant pled guilty was irrelevant so long as there were other charges in the accusatory instrument that were valid. The Appellate Term declined to adopt the People's argument and reached the merits of appellant's facial sufficiency argument. Now again the People argue that regardless of the facial insufficiency of the charge to which appellant pled guilty appellant's plea is valid. (RB. 10-29). By 3 pressing this argument, the People are asking this Court to provide them with affirmative relief - adoption of an argument that was not relied on by the Appellate Term. But, as this Court has explained, it does not have the power to provide affirmative relief to a nonappealing party - in this case the People. See People v. Catracedo, 89 N.Y.2d 1059 (1997) (Court of Appeals "'not empowered"' to provide "'affirmative relief to a nonappealing party'''), citations omitted; accord People v. Warrington, 28 N.Y3d 1116 (2016); People v. Carpenito, 80 N.Y.2d 65, 68 (1992); People v. Gamble, 70 N.Y.2d 885, 886 (1987); Arthur Karger, Powers of the New York Court of Appeals §21:12 at 786 (3d ed. rev. 2005). Accordingly, the People's alternative argument should not be reviewed by this Court. People v. Carracedo, 89 N.Y.2d 1059, provides a good example of the operation of this doctrine. In that case, during a pre-trial suppression hearing, the court directed the defendant not to communicate with his lawyer during an overnight recess that occurred during cross-examination. Id. at 1061. On defendant's appeal from the subsequent conviction, the Appellate Division ruled that the suppression court's communication ban violated the Sixth Amendment and held the appeal in abeyance for a new suppression hearing. Id. Following the new suppression hearing, which was again adverse to the defendant, the Appellate Division affirmed the conviction, rejecting the 4 defendant's suppression claim. Id. On the defendant's ensuing appeal to the Court of Appeals, the People argued that the suppression court's ban did not violate the Sixth Amendment and so there was no need to review the merits of the de novo suppression hearing. Id. But the Court of Appeals held that it could not consider this alternative ground for affirmance since to do so would be to grant "affirmative relief to a nonappealing party," which this Court recognized it was "not empowered to do." Here, the People now seek to do what the People were expressly prohibited from doing in Caffacedo seeking affirmative relief as a nonappealing party. Just as the People in Cmraceclo sought to relitigate an issue that had not been decided in their favor in the intermediate appellate court - the right-to-counsel issue - the People now seek to have this Court accept an argument that was not adopted by the Appellate Term - that the facial sufficiency of the charge to which appellant pled guilty is irrelevant so long as any other charge in the accusatory instrument was valid. But because, as in Carracedo, the People here are a nonappealing party, this Court is "not empowered" to provide this relief. The People conclusorily address this reviewability bar to their alternative ground for affirmance in a footnote, asserting that their alternative ground "implicates the jurisdiction of this Court to consider defendant's appeal, and 5 that is always an issue that this Court can review." (RB. 12, fn 2). The People, however, provide no authority or explanation for why their alternative ground "implicates the jurisdiction of this Court" or why it is "always an issue that this Court can review." And indeed there is no support for the People's position. On the contrary, this Court, in People v. Hightnwer, 18 N.Y.3d 249, 252-53 (2011), addressed the facial sufficiency of the count of a misdemeanor accusatory instrument to which the defendant pled guilty notwithstanding that the defendant did not challenge the facial sufficiency of other charges in the instrument. Were the People correct that their alternative ground for affirmance is a ground that "implicates the jurisdiction of this Court" such that it is "always an issue" for this Court to review, then this Court, in Hightower, where the same circumstances were presented, would have, sua sponte, addressed the issue. But, tellingly, this Court addressed the merits of the facial sufficiency issue, and indeed, ruled in favor of the defendant. Id. at 255. This Court's approach to Hightower is not surprising, because, in fact, there is nothing "jurisdictional" about the People's alternative ground for affirmance. On the contrary, their alternative ground is essentially an argument about whether appellant's facial sufficiency argument is, under the ciJ:cumstances, sufficiendy jurisdictional in nature to warrant relief for appellant. 6 And, of equal importance, even if the People's alternative ground for affirmance were somehow "jurisdictional" there is no authority for the proposition that the jurisdictional nature of their claim would trump the reviewability bar that stands in their way. This Court made clear in People v. Cuadrado, 9 N.Y.3d 362 (2007), that the "jurisdictional" nature of an issue does not suspend the application of reviewability bars. In Cuadrado, the defendant waived indictment and pled guilty but did not appeal after his conviction. ld at 364. Later, he sought to invalidate his conviction by C.P.L. §440.1 0. Id Although the People conceded that the defendant's waiver of indictment was invalid, this Court held that C.P.L. §440.10(2)(c), which bars review of claims that could have been raised on appeal, barred review of the claim. Id at 365. The defendant argued that this bar should not apply because of the fundamental jurisdictional nature of his claim. Id But this Court held that the jurisdictional nature of his claim was irrelevant to the application of the reviewability bar: "[w]hether or not a defect is properly described by the adjectives 'fundamental' and 'jurisdictional,"' an applicable reviewability bar "should be enforced." Id Thus, as in Cuadrado, even if the People's alternative ground for affirmance were "jurisdictional," that chat:acterization does not make their alternative ground reviewable. 7 POINT II THE PEOPLE'S ALTERNATIVE GROUND FOR AFFIRMING THE APPELLATE TERM'S ORDER - THAT NOWITHSTANDING THE FACIAL INSUFFICIENCY OF THE FOURTH- DEGREE CRIMINAL POSSESSION OF A WEAPON CHARGE, APPELLANT'S PLEA TO THAT COUNT WAS VALID- RELIES ON THE UNSUPPORTABLE THEORY THAT THE FACIAL SUFFICIENCY OF ANY OFFENSE CHARGED IN A MISDEMEANOR ACCUSATORY INSTRUMENT FORECLOSES ANY JURISDICTIONAL CHALLENGE TO THE REMAINING CHARGES IN THE ACCUSATORY INSTRUMENT (REPLYING TO RESPONDENT'S BRIEF, POINT I, PP. 10-29). As noted in Point I, supra, the People's alternative ground for affirmance is not reviewable by this Court on this appeal. It is, in any event, without merit. The People contend in their brief that because one of the offenses charged in the accusatory instrument - second-degree trespass - was not challenged as facially insufficient, no jurisdictional facial sufficiency challenge can be lodged against the offense to which appellant actually pleaded guilty - fourth-degree criminal possession of a weapon. Citing People v. Keizer, 100 N.Y.2d 114 (2003), which rejected a jurisdictional challenge to a plea to an uncharged count of disorderly conduct (a non-ctintinal violation) as a faux "lesser included offense" in a case where the misdemeanor charges contained in the accusatory 8 instrument were facially sufficient, the People contend that so long as any count in a misdemeanor accusatory instrument is facially sufficient, the charge to which the defendant pled guilty is immune from a subsequent facial sufficiency challenge. But the People's position relies on a misreading of People v. Keizer and fails to apprehend the import of this Court's decision in People v. Harper, 37 N.Y.2d 96 (1975). In People v. Keizer, the defendant was charged with two A misdemeanors - petit larceny and fifth-degree criminal possession of stolen property. As occurs repeatedly every day in New York City Criminal Courts, the defendant was permitted to plead guilty to an uncharged count of disorderly conduct - a non-criminal violation. 100 N.Y.2d at 116. Thereafter, on appeal, the defendant argued that the plea was jurisdictionally defective because he pleaded to an offense that was neither charged in the complaint nor listed as a lesser included offense for plea purposes (see P.L. §220.10)1 The defendant relied heavily on People v. Johnson, 89 N.Y.2d 905 (1996), which had held that a jurisdictional defect occurred when a defendant pled guilty to an uncharged crime that was (1) equal to or higher than the charges contained in the 1 Under C.P.L. §220.10, a defendant may plead guilty to a lesser offense if it (1) meets the general statutory definition of a lesser included offense or (2) is one of the specifically enumerated offenses that qualifies as a lesser included offense for plea purposes. See People v. &izer, 100 N.Y.2d at 118. 9 indictment and (2) was not a lesser for plea purposes under C.P.L. §220.10 of any of the charges in the indictment. This Court found Johnson not controlling. Preliminarily, the Court explained that constitutional aspects of the challenge in Johnson that derived from the fact that the case involved an indicted felony were not at issue. 100 N.Y.2d at 119. In addition, the Court explained that the challenged, uncharged offense to which the defendant pleaded guilty in Johnson was equal to the validly indicted charge; in contrast, the uncharged offense in Keizer was a lesser offense. 100 N.Y.2d at 119. Indeed it was a non-criminal violation. Id. Although the plea in Keizer technically violated the provisions of C.P.L. §220.1 0 because disorderly conduct was not a statutorily enumerated lesser-included offense of the charged crimes, this Court held that "in the circumstances alleged here," there was no "statutory noncompliance rising to the level of a jurisdictional defect." Id. The Court did not articulate the broad rule of law proposed by the People here: i.e., that the facial sufficiency of any charge in a misdemeanor accusatory instrument precludes any further jurisdictional challenge to remaining counts in the accusatory instrument. The facial sufficiency of the charges in the accusatory instrument in Keizer was relevant because it 10 established jurisdiction over the defendant, but it was not sufficient to ward off any and all jurisdictional challenges; instead it was the backdrop against which to assess a statutory violation of the lesser-for-plea-purposes statute (C.P.L. §220.10) that, "in the circumstances," did not rise to the level of a jurisdictional defect. 100 N.Y.2d at 119. Those circumstances included that the charge to which the defendant pled guilty was (1) a lesser offense and (2) was a non- criminal offense. Indeed, People v. Harper, which the Court cited with a ".cj'; precludes any such broad reading of Keizer. In People v. Harper, 37 N.Y.2d at 99, the defendant went to trial pursuant to an information charging him with menacing and harassment. Midway through trial, the parties agreed to amend the information to add two additional menacing charges -charges that were equal in seriousness to the top charge in the information. The defendant was convicted of the two new charges (but acquitted of the others). Although the original menacing and harassment charges were facially sufficient (thus giving the court jurisdiction over the defendant), this Court set aside the convictions for the added menacing charges because the amendment to the accusatory instrument did not comply with C.P.L. §100.45(3), which sets out the proper method of adding charges. In so doing, this Court held that the trial court ''lacked subject matter jurisdiction over the crimes of which defendant was convicted." Id. at 99. Thus, despite 11 the defendant's express stipulation to the amendment, this Court reached the error in light of the fact that a valid and sufficient accusatory instrument is a non-waivable, jurisdictional defect. I d. Were the People's reading of Keizer correct, this Court would have reached the opposite result in Harper. After all, the defendant in Harper was charged with two facially sufficient charges. According to the People, once a defendant in a misdemeanor prosecution is charged with a facially sufficient offense, any challenge to the remaining charges is non-jurisdictional in natw:e. But the Court of Appeals, faced with exacdy that situation in Harper, expressly found the challenge to additional offenses to be jurisdictional in nature. Reading Keizer and Harper together leads to the inexorable conclusion that under the circumstances present here the court "lacked subject matter over the crimes of which defendant was convicted." People v. Harper, 37 N.Y.2d at 100. Here, as in Harper and unlike in Keizer, the facial insufficiency of the misdemeanor of which defendant was convicted was co-equal to the unchallenged misdemeanor. And here, as in Harper and unlike in Keizer, the challenged conviction was for a crime not a non-criminal violation. Moreover, in Keizer, unlike the present case, jurisdictional facial sufficiency- with all of the attendant due process and notice concerns - was not at issue. Keizer simply 12 involved a challenge to a non-criminal plea that, technicaf!y, was not a statutory lesser (but, in practice, is likely the most common lesser offense to which defendants plead guilty). In Keizer, the defendant did not labor under any misapprehension that be was supposed to get adequate notice of the uncharged disorderly conduct offense. This conclusion is consistent with this Court's prior approach to multi- count accusatory instruments where a defendant challenges only the sufficiency of the single count to which he pled guilty. Thus, in People v. Hightower, 18 N.Y.3d at 252-53, for example, the defendant was charged with one count of petit larceny, one count of unauthorized sale of certain transportation services, and one count of illegal access to Transit Authority services. Id. Defendant pled guilty to the petit larceny charge and on appeal challenged the facial sufficiency of that charge. Id. This Court, concluding that the charge of petit larceny was facially insufficient, reversed the conviction and dismissed the accusatory instrument. Id. at 255. It took this action notwithstanding that there was no challenge to the facial sufficiency of the remaining counts in the accusatory instrument. See also People v. Dumqy, 23 N.Y.3d 518 (2014) (reaching merits of defendant's facial sufficiency challenge notwithstanding that defendant was charged with three additional offenses that were not challenged as facially insufficient); People v. Dryden, 15 N.Y.3d 100 (2010) (dismissing 13 accusatory instrument where fourth-degree criminal possession charge to which defendant pled guilty was facially insufficient but defendant did not challenge facial sufficiency of marijuana charge contained in accusatory instrument); People v. Kalin, 12 N.Y.3d 225 (2009) (reaching merits of defendant's facial sufficiency challenge to seventh-degree criminal possession of a controlled substance offense notwithstanding that defendant did not challenge facial sufficiency of additional marijuana charge). Thus, the facial insufficiency of the crime of conviction in the current case is a jurisdictional defect and is not saved by the remaining charges in the accusatory instrument-' Accordingly, this Court should review the facial sufficiency of the crime of conviction. 2 Appellant does not concede the facial sufficiency of the trespass charges in the accusatory instrument. Thus, were this Court to agree with the People that their alternative ground for affirmance is both reviewable and meritorious, then this case would need to be remanded to the Appellate Tenn to consider the facial sufficiency of the trespass charges. 14 POINT III CONTRARY TO THE PEOPLE'S CONTENTION, THE ACCUSATORY INSTRUMENT CHARGING APPELLANT WITH FOURTH-DEGREE CRIMINAL POSSESSION OF A WEAPON WAS FACIALLY INSUFFICIENT BECAUSE IT FAILED TO PROVIDE REASONABLE CAUSE TO BELIEVE THAT APPELLANT INTENDED TO USE THE BOX CUTTER UNLAWFULLY AGAINST ANOTHER PERSON (REPLYING TO RESPONDENT'S BRIEF, POINT I, PP. 29- 40). Contrary to the People's contention, the accusatory instrument charging appellant with fourth-degree criminal possession of a weapon was facially insufficient because it failed to allege facts providing reasonable cause to believe that appellant intended to use the box cutter unlawfully as a weapon against another person. P.L. § 265.01(2); C.P.L. § 100.40(b); People v. Kalin, 12 N.Y.3d 225, 228 (2009); People v. Dumay, 23 N.Y.3d 518 (2014). An individual is guilty of fourth-degree criminal possession of a weapon only when "[h]e possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfttl!J against another (emphasis added)" P.L. § 265.01(2). Here, the 15 accusatory instrument merely alleged that a box cutter was recovered from appellant and that appellant stated that he carried the box cutter for the lawful purpose of self-protection. These allegations run directly counter to an inference that appellant intended to use the box cutter unlawfully against another person. P.L. § 265.01(2). Given the innocence of appellant's alleged behavior, the People attempt to indirectly establish the element of unlawful intent in P.L. § 265.01 (2) by defining the box cutter as the type of "dangerous knife" in the starute that triggers the presumption of unlawful intent in P.L. § 265.15(4). In Matter of Jamie D., 59 N.Y.2d 589 (1983), this Court established clear guidelines for detennining whether a particular knife falls within the statutory scope of the term "dangerous knife" and delineated three distinct definitions of the term. However, the People disregard the Court's analytical guidelines and make no effort to fit appellant's box cutter into any of the three definitions laid out in Jamie D. Instead, the People cherry-pick language from Jamie D. to construct a definition that only supports their position when entirely divorced from the analytical context. Selectively quoting Jamie D., the People state that even a common utility knife is a "dangerous knife" when "the circumstances of its possession 16 including the behavior of its possessor demonstrate that the possessor himself considered it a weapon for 'offensive or defensive combat."' (RB. 31, citing 59 N.Y.2d at 592-593). Applying their definition to the facts alleged in appellant's case, the People conclude that appellant's statement that he was carrying the box cutter for self-protection established that he himself considered the box cutter a weapon of "defensive combat," and thus a "dangerous knife" within the contemplation of the statute. (RB. 31). While the People demonstrate a proficiency in parsing words, Jamie D. provides no support their position. Indeed, the People's definition of "dangerous knife" merely compounds two of the definitions laid out in Jamie D. - neither of which would include a box cutter possessed for self-protection. (AB. 15-16). Specifically, the People's definition combines a knife that is "dangerous": (1) "when the circumstances of its possessioti'' demonstrate that the knife is a weapon; and, (2) because it is a weapon of "qffensive or offensive combat." The context in which these phrases appear in Jamie D. makes the distinction between these two definitions very clear. In Jamie D., the Court first explained that that the term "dangerous knife" connotes a knife characterized as a weapon, then used the Webster Dictionary definition of the term "weapon" (i.e. "an instmment of offensive or deftnsive combat') to derive the first definition of "dangerous knife," which is a knife that is characterized as a weapon of combat (e.g., bayonet, stiletto, dagger, 17 etc.). 59 N.Y.Zd at 592-93. A utility knife such as a box cutter is necessarily excluded from this first definition. The Jamie D. Court continued to explain that a knife may also come within the statutory scope of the term "dangerous knife" when "the circumstances rif its possession" demonstrate that the knife was essentially a weapon rather than a utensil. Id. at 593. The Court derived this interpretation of "dangerous knife" from the definition of "dangerous instrument" in P.L. § 10.00 (13), which is "any instrument ... which, under the circumstances in which it is being used, attempted to be used, or threated to be used, is readily capable of causing death or other serious physical injury." 59 N.Y.2d at 592. This "circumstances" or "use-based" definition informed the Court's holding that the defendant in Jamie D. possessed a "dangerous [kitchen] knife" because "he had demonstrated his disposition to violence and criminal activity and then, when accosted, by his behavior and reluctance to give up the knife effectively manifested that he himself considered it a weapon of significance to the police." Id. at 593-594. Thus, contrary to the People's assertion, the fact that appellant was not alleged to have been using, attempting to use, or threatening to use the box cutter is completely relevant to the determination of whether the pleadings in the complaint were sufficient. (See RB. 35). Indeed, the absence of such allegations 18 demonstrates that appellant's box cutter was not - under the circumstances alleged - a preswnption-triggering "dangerous knife." Unlike the defendant in Jamie D., appellant was not behaving in a violent or aggressive manner that would support an inference of criminal intent. To the contrary, the only ''circumstance" of appellant's possession was his statement that he was caxrying the box cutter for the lawful purpose of self-protection. Thus, Jamie D. provides absolutely no support for the People's position that appellant's statement was a "circumstance" or "behavior'' that transformed the box-cutter into a "dangerous knife."3 Nonetheless, the People impropedy rely on the preswnption of unlawful intent and proceed to erroneously assert that appellant's lawful intent was an issue that he could have argued to a jury. Citing Peuple v. Almodovar, 62 N.Y.Zd 126 (1984), the People argue that appellant's claim that he would only have used his box cutter for self-protection should have been raised at trial, noring that justification (Z:e., self-defense) does not excuse the unlawful possession of a Weapon. (RB. 37). However, the weapon at issue in Almodovar was a firearm - the mere possession of which is criminalized. P.L. § 265.01(1). On the other hand, the possession of a box cutter is only a crime if the possessor 3 The final definition of "dangerous knife" is a knife that is physically converted into a weapon. See Matter of Jamie D., 59 N.Y.2d at 593. Here again, the accusatory instrument did not allege that appellant's box cutter was physically modified in any way. 19 intends to use the box cutter unlawfully against another person. See P.L.§ 265.01 (2). Given that appellant did not possess an object that was, by its nature, unlawful, appellant did not bear the burden of proving his lawful intent. The People, as the party that initiated the charges against appellant, bore the burden of alleging sufficient facts in the accusatory instrument to establish the element of unlawful intent in P.L. § 265.01(1). They failed to do so. In an attempt to mask the fatal defect in the accusatory instrument, the People ntisconstrue appellant's statement of lawful purpose in a manner that enables them to presume that appellant would have used the box cutter for a crintinal purpose. Then, they make the nonsensical argument that appellant could have rebutted this "pennissive" presumption by going to trial and arguing to a jury that- just as the accusato:ry instrument alleged - he carried the box cutter for the lawful purpose of self-protection. (RB. 36). This argument suffers from the exact same flaw as the People's argument in the preceding paragraph. The People also attempt to undermine appellant's statement as too speculative of a lawful use. Specifically, the People claim that appellant's "undetailed statement does not come close to establishlng that he would limit his potential use of what he viewed as a weapon to the appropriate 20 circumstances." (RB. 36-37). They even mention the fact that appellant was receiving psychiatric treatment at the time of the alleged offense as a speculative reason for why a jury could have reasonably inferred that appellant would not have used the box cutter lawfully. (RB. 39)4 Appellant's psychiatric history was neither alleged in the accusatory instrument nor relevant whatsoever to the determination of his intended use for the box cutter. See People v. Thomas, 4 N.Y.3d 143, 146 (2005)("an information must set forth the required nonhearsay evidentiary allegations within 'the four corners of the instrument itself or in annexed supporting depositions"). In essence, the People believe that appellant's statement was simultaneously concrete enough to establish his unlawful intent, and yet too speculative to establish his lawful intent. But the People cannot have it both ways. They cannot selectively use appellant's statement of potential, prospective use to establish his unlawful intent, while ignoring the lawful purpose that appellant expressly offered. As a final matter, appellant admits that the only issue properly before this Court is his challenge to the facial sufficiency of the accusatory instrument, 4 Appellant informed the sentencing court of his participation in the psychiatric treatment program as a factor for the court to consider in determining an appropriate sentence. The People's speculative attempts to portray appellant as potentially deranged and violent are reprehensible. Appellant should not be punished for being proactive about improving his mental health. 21 and clarifies that he does not wish to raise unprese.rved constitutional claims. Rather, appellant mentions the Canon of Constitutional Avoidance to guide this Court's interpretation of the statute. (AB. 23). The People are asking that this Court interpret the statute such that the element of unlawful intent in P.L. § 265.01 (2) may be presumed from an individual's statement that he possessed a knife for self-protection. Appellant is merely pointing out that the acceptance of the People's desired interpretation would raise Second Amendment and Federal Due Process concerns and would definitely result in future challenges to the constitutionality of the statute in this application. In sum, the People failed to allege facts establishing reasonable cause to believe that appellant intended to use the box cutter unlawfully against another person. Furthermore, the People were not entided to rely on the presumption in P.L. § 265.15( 4) to plead the element of uulawful intent because it does not apply to a non-"dangerous knife" like appellant's box cutter. For these reasons, as well as those stated in appellant's main brief, the accusatory instrument was facially insufficient and must be dismissed. 22 CONCLUSION FOR THE REASONS STATED ABOVE AND IN APPELLANT'S MAIN BRIEF, THE APPELLATE TERM ORDER SHOULD BE REVERSED, THE CONVICTION VACATED, AND THE ACCUSATORY INSTRUMENT DISMISSED. March 31, 2017 Respectfully submitted, SEYMOUR W. JAMES, JR. LAWRENCE T. HAUSMAN WHITNEY ROBINSON Attorneys for Defendant- Appellant 23 A COURT OF APPEALS STATE OF NEW YORK --------------- ------------------------X THE PEOPLE OF THE STATE OF NEW YORK Respondent, - against ALBERT EDWARD, Defendant-Appellant. ----------------------------------------X STATE OF NEW YORK ss.: COUNTY OF NEW YORK AFFIRMATION CERTIFYING WORD COUNT LAWRENCE T. HAUSMAN, an attorney duly admitted and licensed to practice in the State of New York, hereby certifies that the word count of the printed text of the body of the herein Appellant's Brief has been determined using the word processing system with which the Brief was prepared and that it is 4,866 words. Dated: New York, New York March 31, 2017 ~HAUSMAN