The People, Respondent,v.John Andujar, Appellant.BriefN.Y.September 5, 2017APL-2015-00338 To be argued by: CATHERINE M. RENO (10 minutes requested) Criminal Court, Bronx County, Docket Number 2013BX011524 Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellee, -against- JOHN ANDUJAR, Defendant-Appellant. BRIEF FOR RESPONDENT-APPELLEE DARCEL D. CLARK NANCY D. KILLIAN District Attorney CATHERINE M. RENO Bronx County ASSISTANT DISTRICT ATTORNEYS Attorney for Respondent-Appellee Of Counsel Bronx, New York 10451 (718) 838-7119 Dated: September 8, 2016 (718) 590-6523 (facsimile) PRINTED ON RECYCLED PAPER TABLE OF CONTENTS TABLE OF AUTHORITIES i STATEMENT 1 QUESTION PRESENTED 2 THE FACTS 2 The Accusatory Instrument 2 Defense’s Motion to Dismiss 3 The People’s Response 4 The Motion Court’s Decision 5 The People’s Appeal 5 ARGUMENT 8 POINT ONE: THE APPELLATE TERM CORRECTLY DETERMINED THAT A SHOWING OF SPECIFIC DESIGN OR PHYSICAL FASTENING WAS NOT RE- QUIRED TO CREATE A FACIALLY SUFFICIENT ACCUSATORY INSTRUMENT CHARGING VTL § 397, AND ALSO THAT THE SUPERSEDING IN- FORMATION AT ISSUE WAS SUFFICIENT TO ES- TABLISH REASONABLE CAUSE TO BELIEVE, AND A PRIMA FACIE CASE THAT, DEFENDANT EQUIPPED THE VEHICLE HE WAS OPERATING WITH A POLICE SCANNER 8 A. VTL § 397 Does Not Require a Physical Attachment or Specific Design 10 B. The Factual Allegations in the Accusatory Instrument Set Forth a Prima Facie Case that Defendant Equipped His Motor Vehicle with a Radio Receiving Set, As Prohibited in VTL § 397 39 CONCLUSION 45 i TABLE OF AUTHORITIES CASES PAGE Bradley v. Buffalo, N.Y. & E.R. Co., 34 N.Y. 427 (1866) . . . . . . 42 Bright Homes, Inc. v. Wright, 8 N.Y.2d 157 (1960) . . . . . . . . . . . 38 Caetano v. Massachusetts, 136 S.Ct. 1027 (2016) . . . . . . . . . . . . 20 Dept. of Welfare of City of New York v. Siebel, 6 N.Y.2d 536 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17 District of Columbia v. Heller, 554 U.S. 570 (2008) . . . . . . . . . . 19, 20 Gaines v. City of New York, 215 N.Y. 533 (1915) . . . . . . . . . . . . 36 Hudson Riv. Tel. Co. v. Watervliet Turnpike & R. Co., 135 N.Y. 393 (1892) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 In re Di Brizzi, 303 N.Y. 206 (1951) . . . . . . . . . . . . . . . . . . . . . . . 23 Lawrence Constr. Corp. v. State of New York, 293 N.Y. 634 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Lederer v. Wise Shoe Co., 276 N.Y. 459 (1938) . . . . . . . . . . . . . . 33 Long v. State, 7 N.Y.3d 269 (2006) . . . . . . . . . . . . . . . . . . . . . . . . 10 Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Matter of Industrial Comr. of State of N. Y. v. Five Corners Tavern, 47 N.Y.2d 639 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Matter of Russo v. Valentine, 294 N.Y. 338 (1945) . . . . . . . . . . . 38 ii New York Life Ins. Co. v. State Tax Commn., 80 A.D.2d 675 (3d Dept. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) . . . . . 21 People ex rel. McClelland v. Roberts, 148 N.Y. 360 (1896) . . . . . 23 People ex rel. McDonald v. Keeler, 99 N.Y. 463 (1885) . . . . . . . . 31 People ex rel. Opdyke v. Brennan, 39 Barb 651 (Sup. Ct, Gen. Term, N.Y. 1863) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 People v. Andujar, 49 Misc.3d 36 (App Term, 1st Dept. 2015). . 1, 6, 7 People v. Casey, 95 N.Y.2d 354 (2000) . . . . . . . . . . . . . . . . . . . . . 40 People v. Cruz, 48 N.Y.2d 419 (1979) . . . . . . . . . . . . . . . . . . . . . . 13 People v. Dreyden, 15 N.Y.3d 100 (2010) . . . . . . . . . . . . . . . . . . . 40 People v. Faude, 88 Misc.2d 434 (Erie County Ct 1976) . . . . . . . 22 People v. Friedman, 302 N.Y. 75 (1950) . . . . . . . . . . . . . . . . . . . . 38 People v. Gilbert, 414 Mich. 191 (1982) . . . . . . . . . . . . . . . . . . . . 22 People v. Henderson, 92 N.Y.2d 677 (1999) . . . . . . . . . . . . . . . . . 40 People v. Ioannidis, 14 Misc.3d 183 (Crim. Ct, Queens County 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 34 People v. Kalin, 12 N.Y.3d 225 (2009) . . . . . . . . . . . . . . . . . . . . . 39, 40 People v. Konieczny, 2 N.Y.3d 569 (2004) . . . . . . . . . . . . . . . . . . 40 iii People v. McConnell, 11 Misc.3d 57 (App Term, 9th & 10th Jud. Dist., 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 People v. Moore, 92 Misc.2d 807 (Broome County Ct 1978) . . . . 22 People v. Verdino, 78 Misc.2d 719 (Suffolk Dist. Ct 1974) . . . . . passim Riley v. County of Broome, 95 N.Y.2d 455 (2000) . . . . . . . . . . . . 10 Roosevelt Raceway, Inc. v. Monaghan, 9 N.Y.2d 293 (1961) . . . . 31 Rosner v. Metro. Prop. and Liab. Ins. Co., 96 N.Y.2d 475 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Tompkins v. Hunter, 149 N.Y. 117 (1896) . . . . . . . . . . . . . . . . . . 17 U.S. v. Rodriguez, 841 F.Supp 79 (E.D.N.Y. 1994) . . . . . . . . . . . 6,18,19 U.S. v. Thompson, 82 F.3d 849 (9th Cir. 1996) . . . . . . . . . . . . . . 19 Vil. of Chestnut Ridge v. Howard, 92 N.Y.2d 718 (1999). . . . . . . 14 Wakefield v. Fargo, 90 N.Y. 213 (1882). . . . . . . . . . . . . . . . . . . . . 24 STATUTES PAGE 18 U.S.C. § 924(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 CPL § 70.10(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 CPL § 100.15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 CPL § 100.40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 39 CPL § 170.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 iv L. 1933, ch. 405 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim L. 1948, ch. 183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,38 L. 1966, ch. 620 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,38 Penal Law § 70.15(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Penal Law § 140.35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Penal Law § 140.40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Penal Law § 1916 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,10 VTL § 375 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,12,13 VTL § 397 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim VTL § 397-a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 VTL 501-a(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 MISCELLANEOUS PAGE Antonin Scalia and Bryan A. Garner, Reading Law: The Inter- preting of Legal Texts (Thomson/West 2012) . . . . . . . . . . . . . . . . 32 Black’s Law Dictionary (4th ed., 1951) . . . . . . . . . . . . . . . . . . . . . 15 Black’s Law Dictionary (rev. 4th ed. 1968) . . . . . . . . . . . . . . . . . 12 James Kent, Commentaries on American Law 432 (1826) . . . . . 14 McKinney’s Cons Laws of NY, Book 1, Statutes, § 73. . . . . . . . . 38 v McKinney’s Cons Laws of NY, Book 1, Statutes, § 93. . . . . . . . . 23 McKinney’s Cons Laws of NY, Book 1, Statutes, § 114. . . . . . . . 13 McKinney’s Cons Laws of NY, Book 1, Statutes, § 144. . . . . . . . 33 McKinney’s Cons Laws of NY, Book 1, Statutes, § 192. . . . . . . . 11 McKinney’s Cons Laws of NY, Book 1, Statutes, § 232. . . . . . . . 13 McKinney’s Cons Laws of NY, Book 1, Statutes, § 239. . . . . . . . 24 N.Y. Const. Art. III, § 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Oxford English Dictionary, OED Online, Oxford University Press. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 The Concise Oxford Dictionary of Current English (7th Im- pression 1919) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 The Random House Dictionary of the English Language (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16 Webster’s Third New International Dictionary (1986). . . . . . . . 15 1 COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellee, -against- APL-2016-00338 JOHN ANDUJAR, Defendant-Appellant. --------------------------------------------------------------------------X RESPONDENT’S BRIEF STATEMENT The People submit this brief in response to John Andujar’s appeal, taken by permission of the Honorable Eugene M. Fahey, dated Decem- ber 16, 2015 (A-1),1 from an order of the Appellate Term, First Depart- ment, dated August 14, 2015, reversing, as a matter law, the order of the Criminal Court, Bronx County (Kelly, J.), which granted defend- ant’s motion to dismiss the accusatory instrument for facial insufficien- cy (A-2–5; People v. Andujar, 49 Misc.3d 36 [App Term, 1st Dept. 2015]). Defendant is currently at liberty. 1 Numbers preceded by “A-” refer to the pages of the Appendix for Defendant- Appellant; Numbers preceded by “SA-” refer to the pages of the Supplemental Ap- pendix for Respondent-Appellee. 2 QUESTION PRESENTED Whether the misdemeanor information charging that defendant “equipped” a motor vehicle with a radio receiving set capable of receiv- ing signals on the frequencies allocated for police use in violation of Ve- hicle and Traffic Law § 397 was facially sufficient since it contained fac- tual allegations showing that defendant had on his person a radio re- ceiving set tuned to the frequencies used by police officers in the 47th and 49th precincts while he was driving a tow truck on a public road- way, but it did not contain an allegation that the radio receiving set was physically fastened to or specifically designed to be used with the vehi- cle. The Appellate Term held that “equip” did not require the device to be attached to or installed in the vehicle, and, accordingly deter- mined that the misdemeanor information was facially sufficient. THE FACTS The Accusatory Instrument On February 27, 2013, defendant was arraigned on Equipping a Motor Vehicle with Radio Receiving Sets Capable of Receiving Signals on the Frequencies Allocated for Public Use (Vehicle and Traffic Law [“VTL”] § 397). On March 13, 2013, the People filed a superseding in- formation with amended factual allegations. It alleged that Officer Di- Murro was responding to a radio call of a motor vehicle accident on Al- lerton Avenue and Paulding Avenue when he observed defendant seat- ed in the driver’s seat of and operating a 2000 Chevrolet Silverado pick- up truck bearing the name EMPIRE TOW COMPANY and tow permit 3 6868 on the northwest corner of Hone Avenue and Allerton Avenue, and that he observed defendant to have on his person, inside his front left jacket pocket, one (1) radio receiver, also known as a scanner (A-13–14). Further, it alleged that defendant stated, in sum and substance, I RE- CEIVED A PHONE CALL FOR AN OFF DUTY OFFICER IN AN AC- CIDENT (A-13). It also alleged that, based on his training and experi- ence, Officer DiMurro believed that the radio receiver was capable of re- ceiving frequencies allocated for police use because he turned on the de- vice and heard police frequencies originating from the 47th and 49th precincts, and the device’s display indicated that it was receiving said frequencies (A-13–14). Defense’s Motion to Dismiss Defendant filed motion papers dated April 1, 2013, seeking, inter alia, to dismiss the information as facially insufficient pursuant to CPL §§ 100.40 and 170.30 (A-15–27). Defendant posited, in pertinent part, that a plain reading of the accusatory instrument showed that the vehi- cle was not “equipped” with the alleged scanner based on the definition of “equip” as outlined in People v. Verdino, 78 Misc.2d 719 (Suffolk Dist. Ct 1974), because it failed to allege that the scanner had been taken 4 from the dashboard, center console, or passenger seat, and there were not any outlets in the vehicle that could fit the device; instead defend- ant had the alleged scanner in his left jacket pocket (A-24–25). The People’s Response The People argued, inter alia, that the superseding information clearly articulated that defendant’s car was equipped with a police scanner, since it stated that he was seated in the vehicle with a police scanner in his pocket. The People explained that the Verdino court held that “equip” did not require a physical fastening (A-36). That court had expressed concern that an individual could have, in his vehicle, a scan- ner that could receive police signals, but could escape prosecution under the statute if the scanner was not turned on or was not physically at- tached to the vehicle (A-37, citing Verdino, 78 Misc.2d at 720–22). The People averred that technological advances have yielded battery- operated devices capable of receiving police frequencies that do not need to be physically attached to a vehicle to receive such frequencies, and to interpret the statute as requiring a physical connection to the vehicle would undermine the statute’s purpose (A-38, citing People v. Ioannidis, 14 Misc.3d 183 [Crim. Ct, Queens County 2006]). Further, the com- 5 plaint in Ioannidis had been dismissed because it failed to state the grounds for the officer’s statement that the item recovered was capable of receiving police communication, not because the vehicle was not “equipped” with a radio; thus, the Ioannidis court implicitly held that a radio’s presence in the vehicle was sufficient to establish that the vehi- cle was equipped with a radio (A-38). The Motion Court’s Decision In a written decision dated June 4, 2013, the Bronx County Crim- inal Court (Kelly, J.) granted defendant’s motion to dismiss the accu- satory instrument for facial insufficiency (A-9). In reaching this deter- mination, the court explained that the existence of the cigarette lighter socket cord was an important factor in the Verdino court’s determina- tion that the vehicle was “equipped” with the radio receiver, and be- cause the superseding information at issue contained “no allegations that the scanner was specifically prepared to be used with a vehicle,” it was facially insufficient (A-9). The People’s Appeal On August 14, 2015, a unanimous panel of the Appellate Term, First Department, reversed the motion court’s dismissal order, reinstat- 6 ed the accusatory instrument, and remanded the matter for further pro- ceedings (A-2; Andujar, 49 Misc.3d at 37). The Appellate Term ex- plained that the Vehicle and Traffic Law did not define the term “equip,” and thus, it should be given its plain and ordinary meaning (id.). After examining several dictionary definitions of “equip,” the court determined that, “‘What is key to these definitions is not whether items are attached to one another, as urged by defendant, but whether the items stand in a relation one to the other that makes them ready for ef- ficient service to meet a particular need or exigency’” (id., citing U.S. v. Rodriguez, 841 F.Supp 79, 83 [E.D.N.Y. 1994], aff’d 53 F.3d 545 [2d Cir. 1995], cert denied 516 U.S. 893 [1995]). Further, giving a fair and not overly technical reading and drawing reasonable inferences to the sworn allegations that defendant was operating a tow company vehicle while possessing a police scanner on his person, in his left jacket pocket, the pleading was sufficient to establish reasonable cause to believe and a prima facie case that defendant equipped the vehicle he was operating with a police scanner (A-3–4; Andujar, 49 Misc.3d at 37–38). The scan- ner was located in defendant’s pocket, where it could be accessed and operated in the vehicle within seconds, which was sufficient, for plead- 7 ing purposes, to satisfy the “equips a motor vehicle” element of the charge (A-4; Andujar, 49 Misc.3d at 38). The Appellate Term also pointed out that if the legislature had in- tended to prohibit only devices that were attached or installed in the vehicle, it would have so stated, as it had in other provisions of the Ve- hicle and Traffic Law (id., citing VTL §§ 375 [10][b] [requiring that an omnibus be “equipped with a mirror attached to the right side”]; 375 [10-a] [requiring that a motor vehicle be “equipped with an adjustable side view mirror which shall be affixed to the left outside”]; 375[48][b] [requiring that a passenger car be “equipped with both a front and rear bumper, each securely fastened”]; 375 [9] [requiring that omnibuses must be “equipped with one hand fire extinguisher . . . mounted in a place readily accessible for use”] [all emphasis added]). 8 ARGUMENT POINT ONE THE APPELLATE TERM CORRECTLY DETERMINED THAT A SHOWING OF SPECIFIC DESIGN OR PHYSICAL FASTENING WAS NOT REQUIRED TO CREATE A FACIALLY SUFFICIENT ACCUSATORY INSTRUMENT CHARGING VTL § 397, AND ALSO THAT THE SUPERSEDING INFORMATION AT ISSUE WAS SUFFICIENT TO ESTABLISH REASONABLE CAUSE TO BELIEVE, AND A PRIMA FACIE CASE THAT, DEFENDANT EQUIPPED THE VEHICLE HE WAS OPERATING WITH A POLICE SCANNER. VTL § 397, in pertinent part, prohibits “equip[][ing] a motor vehi- cle with a radio receiving set capable of receiving signals on the fre- quencies allocated for police use” when one does not have a permit to do so.2 Defendant argues that “equip” requires proof that the radio receiv- 2 The entire statute reads as follows: A person, not a police officer or peace officer, acting pursuant to his special duties, who equips a motor vehicle with a radio receiving set capable of receiving signals on the frequencies allocated for police use or knowingly uses a motor vehicle so equipped or who in any way knowingly interferes with the transmission of radio messages by the police without having first secured a permit so to do [sic] from the per- son authorized to issue such a permit by the local governing body or board of the city, town or village in which such person resides, or where such person resides outside of a city or village in a county hav- ing a county police department by the board of supervisors of such county, is guilty of a misdemeanor, punishable by a fine not exceeding one thousand dollars, or imprisonment not exceeding six months, or both. Nothing in this section contained shall be construed to apply to any person who holds a valid amateur radio operator's license issued by the federal communications commission and who operates a duly li- (footnote continued on the following page) 9 ing set is either affixed to a vehicle or adapted for use in a vehicle. This is evident, he asserts, from the statute’s language, which he claims is indelibly linked to the nature of the technology in existence at the time of VTL § 397’s enactment. Thus, he claims, the superseding information in this case was facially insufficient because it alleged only that defend- ant had a police scanner in his pocket. An examination of VTL § 397’s censed portable mobile transmitter and in connection therewith a re- ceiver or receiving set on frequencies exclusively allocated by the fed- eral communications commission to duly licensed radio amateurs. VTL § 397. The statute was originally adopted in 1933 as Penal Law § 1916, and stated: AN ACT to amend the penal law, in relation to equipping automobiles with radio receiving sets capable of receiving signals on the frequencies allocated for police use Became a law April 24, 1933, with the approval of the Governor. Passed, three-fifths being present The People of the State of New York, represented in State and Assem- bly, do enact as follows: Section 1. Article one hundred and seventy-two of the penal law is hereby amended by adding thereto a new section, to be section nine- teen hundred and sixteen, to read as follows: § 1916. Equipping automobiles with radio receiving sets capable of re- ceiving signals on the frequencies allocated for police use. A person, not a peace officer, who equips an automobile with a radio receiving set ca- pable of receiving signals on the frequencies allocated for police use or knowingly uses an automobile so equipped or who in any way knowing- ly interferes with the transmission of radio messages by the police without having first secured a permit so to do [sic] from the person au- thorized to issue such a permit by the local governing body or board of the city, town or village in which such person resides, is guilty of a misdemeanor, punishable by a fine not exceeding one thousand dollars, or imprisonment not exceeding six months, or both. §2 This act shall take effect September first, nineteen hundred thirty- three. (L. 1933, ch. 405). 10 text, however, reveals the specious nature of defendant’s claim, since the ordinary meaning of “equip” does not require a physical attachment or particular design, and by using a general term, the legislature in- tended the statute to encompass technological advancements since the statute’s enactment. Given this clear legislative intent, any narrowing of VTL § 397 must come from the legislature. Accordingly, the accu- satory instrument was facially sufficient. A. VTL § 397 Does Not Require a Physical Attachment or Specif- ic Design. The goal of statutory interpretation is to ascertain and give effect to the legislature’s intention. Long v. State, 7 N.Y.3d 269, 273 (2006), citing Riley v. County of Broome, 95 N.Y.2d 455, 463 (2000). “As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof.” Majewski v. Broadalbin- Perth Cent. School Dist., 91 N.Y.2d 577, 583 (1998). VTL § 397’s text reveals that its purpose3 was to prohibit people from accessing police frequencies in private vehicles. The statute pro- 3 Although the statute was initially enacted as Penal Law § 1916, Respondent will refer to it as VTL § 397 throughout this brief for consistency. 11 vides a precise, technical definition of the device at issue: “a radio re- ceiving set capable of receiving signals on the frequencies allocated for police use.” It also narrowly defines the context of its reach, limiting the prohibition of the device to motor vehicles, rather than criminalizing the possession of such a device in one’s home or while walking down the street. The statute carefully limits the individuals to which its prohibi- tion applies—someone who is not a police officer and has not obtained a permit from a specific government body. Subsequent amendments to this statute are consonant with this purpose. See McKinney’s Cons Laws of NY, Book 1, Statutes, § 192 (“the amendment may be useful as an indicium of the legislative intent in the enactment of the prior statute”). In 1948, the legislature narrowed the statute’s scope by exempting persons possessing a valid amateur radio operator’s license issued by the Federal Communications Commission and who operate a duly licensed portable mobile transmitter in connec- tion with a receiver set on frequencies exclusively allocated by the FCC to duly licensed radio amateurs (L. 1948, ch. 183). Further, in 1966, the legislature revised the statute by replacing “automobile” with the broader term “motor vehicle” (L. 1966, ch. 620). This widened the stat- 12 ute’s scope to include motorbuses, trucks, and motorcycles,4 and sug- gests that the original wording did not adequately serve the intent to prohibit having these devices in all private vehicles. Thus, the legisla- ture provided very specific definitions of the “who,” “what,” and “where” of the statute. In contrast stands the “how” of the statute. The legislature could have adopted similarly precise language to describe the introduction of the device to the vehicle as it had in describing the “who,” “what,” and “where” of the statute, such as “permanently affixes upon the interior of a motor vehicle” or “introduces such a device that is specifically de- signed to be used with a motor vehicle.”5 The legislature did just that in other VTL provisions. See e.g. VTL §§ 375(9) (requiring every omnibus operating on a public high with a carrying capacity of ten or more pas- 4 See Black’s Law Dictionary (rev. 4th ed. 1968) at 1164–65 (“The term ‘motor vehicles,’ although sometimes regarded as synonymous with or limited to ‘automo- biles,’ often has a broader meaning, and includes not only ordinary automobiles, but also motorbuses and trucks, as well as motorcycles.”). 5 The legislative history buttresses this conclusion. A letter to the governor from the Committee on Criminal Courts explained that, after consultation with technical advisors, the expression “short wave length radio receiving sets” was re- placed with “radio receiving sets capable of receiving signals on the frequencies allo- cated for police use” to avoid the chance of a “wider implication than was desired” (Letter from The Committee on Criminal Courts, April 17, 1933, Bill Jacket, L. 1933, ch. 405, at 10–11, SA-15–16). The drafters could have sought similar precision regarding the “how,” but instead, they used the general word “equips.” 13 sengers, “shall be equipped with one hand fire extinguisher … and must be mounted in a place readily accessible for use”); 375(10-a) (requiring that a motor vehicle be “equipped with an adjustable side view mirror which shall be affixed to the left outside); 375(10)(b) (requiring that an omnibus be “equipped with a mirror attached to the right side”); 375(48)(b) (requiring that a passenger car be “equipped with both a front and rear bumper, each securely fastened”) (emphasis added). In- stead, for VTL § 397, it used the general term “equips.”6 Accordingly, “equip” must be given its full and fair meaning and may not be arbitrar- ily limited. See People v. Cruz, 48 N.Y.2d 419, 428 (1979), citing McKin- ney’s Cons Laws of NY, Book 1, Statutes, § 232; McKinney’s Cons Laws of NY, Book 1, Statutes, § 114. (“General words not limited: If there is nothing to indicate a contrary intent on the part of the lawmakers, terms of general import in a statute ordinarily are to receive their full significance.”); Dept. of Welfare of City of New York v. Siebel, 6 N.Y.2d 6 Defendant acknowledges, as he must, that the legislature used specific lan- guage requiring physical attachment in conjunction with the term “equip” in VTL § 375. In response, defendant simply proclaims that the meaning of “equip” in VTL § 397 is “self-evident” and that these provisions “provide no clarity as to what ‘equip the motor vehicle’ means in this case” (defendant’s brief at 37). Beyond the absence of any justification for this declaration, the statement is puzzling given defendant’s reliance on Penal Law § 140.40 (see defendant’s brief at 18–21), a statute that does not contain the term “equip” and that statute’s legislative history, in defining “equip.” 14 536, 543 (1959) (explaining that, “Legislative intent is to be determined primarily from the language used in the act under consideration. Here the word chosen by the Legislature was ‘step parent’, not ‘step father’, although the latter word was certainly available. We are not at liberty to restrict by conjecture, or under the guise or pretext of interpretation, the meaning of the phrase selected.”). Further, the legislature did not define “equip” in the Penal Law, Vehicle and Traffic Law, or General Construction Law. When the legis- lature gives no indication that a different meaning was intended, words in a statute should be given their ordinary meaning. See James Kent, Commentaries on American Law 432 (1826) (“The words of a statute are to be taken in their natural and ordinary signification and import; and if technical words are used, they are to be taken in a technical sense.”). Dictionary definitions are “useful guideposts” in determining the mean- ing of a word or phrase in the absence of a controlling statutory defini- tion. Rosner v. Metro. Prop. and Liab. Ins. Co., 96 N.Y.2d 475, 479–80 (2001), citing Vil. of Chestnut Ridge v. Howard, 92 N.Y.2d 718, 723 (1999). The Concise Oxford Dictionary of Current English defines “equip” as, “Furnish (ship, army, person, with requisites); dress (one- 15 self&c.) for journey.” The Concise Oxford Dictionary of Current English (7th Impression 1919) at 276. Black’s Law Dictionary defines “equip”: “To furnish for service or against a need or exigency; to fit out; to supply with whatever is necessary for efficient action in any way. Synonymous with furnish.” Black’s Law Dictionary (4th ed. 1951) at 631. Oxford English Dictionary defines “equip”, in relevant parts: “To fit out (a ship)” and “In wider sense: ‘To furnish for service’ (Todd); to provide with what is requisite for efficient action, as arms, instruments, or ap- paratus of any kind” (Oxford English Dictionary, OED Online [accessed March 2014] Oxford University Press, available at http://www.oed.com/view/Entry/63778?redirectedFrom=equip&) (exam- ples omitted). Webster’s Third New International Dictionary defines “equip,” in pertinent parts, “to provide with what is necessary, useful, or appropriate: as a (1) : to supply with material resources (as implements or facilities) : fit out,” and also “to make ready or competent for service or action or against a need : PREPARE” Webster’s Third New Interna- tional Dictionary (1986) at 768 (examples omitted). Lastly, The Random House Dictionary defines “equip”: “to furnish or provide with whatever is needed for use or for any undertaking; fit out, as a ship or army.” The 16 Random House Dictionary of the English Language (1987) at 656 (ex- ample omitted).7 The common thread from these definitions is to provide or supply with the means or something that is needed or required to efficiently carry out an action, service, or purpose. Although something with a spe- cific design or physical fastening would certainly fall under this defini- tion, there is nothing in the definition to imply that a device lacking such a design or physical connection would be outside its scope. In Ver- dino, the District Court of Suffolk County explained that “[t]he fact that the receiver was not fastened to the truck does not mean that the truck was not equipped with a receiver so as to fall within the proscriptions of the statute.” Verdino, 78 Misc. 2d at 721. After consulting several dic- tionaries, it reiterated this point, “a physical fastening is neither implic- it in the term ‘equip’ nor necessary in order for a vehicle to be equipped as proscribed in the statute” (id.).8 To construe “equip” to require a spe- 7 Defendant’s arguments regarding the danger of consulting only contempo- rary dictionaries are misplaced in this case (see defendant’s brief at 27, 32); the def- initions cited herein date as far back as 1919 and demonstrate that the ordinary meaning of “equip” has not changed. 8 Despite this clear statement, the motion court in this case fixated on the Verdino court’s explanation of why it found that the vehicle at issue had been equipped with the device: it was located within the truck and “was specifically pre- pared to be used within a vehicle as manifested by the fact that the receiving device (footnote continued on the following page) 17 cific design or physical fastening would be to “restrict by conjecture” the ordinary meaning of the word (Siebel, 6 N.Y.2d at 543). See Tompkins v. Hunter, 149 N.Y. 117, 122–23 (1896) (“In construing statutes, it is a well-established rule that resort must be had to the natural significa- tion of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction, and courts have no right to add to or take away from that meaning.”). In the context of a federal weapons statute,9 the Eastern District of New York examined various definitions of “equip” in an attempt to find its ordinary meaning and concluded that no physical attachment had an electrical power cord which was adapted to receive current through the standard vehicular cigarette lighter socket” (A-9). Thus, the motion court disregard- ed Verdino’s determination of what the statute itself encompassed and focused in- stead on that court’s explanation of why the particular device in that defendant’s vehicle fit into the broader statutory definition. Put another way, Verdino does not stand for the proposition that “equip” requires a physical fastening—that court ex- plained twice that it does not—but instead that a vehicle containing a receiving de- vice that has an electrical cord adapted to receive current through the standard ve- hicle cigarette lighter socket was “equipped” within the meaning of VTL § 397. Thus, while “equip” can include a specific design or physical fastening, it does not require either of these characteristics. In fact, one could persuasively argue that Verdino stands for the precise opposite of the proposition for which the motion court cited it: that VTL § 397 does not require a physical fastening. 9 The statute the court was interpreting read, in pertinent part, “Whoever, during and in relation to any crime of violence or drug trafficking crime… uses or carries a firearm, shall, in addition to the punishment provided for such crime of vi- olence or drug trafficking crime, be sentenced to imprisonment for five years, and if the firearm is … equipped with a firearm silencer or firearm muffler, to imprison- ment for thirty years.” 18 U.S.C. § 924(c)(1) (emphasis added). 18 was required. See U.S. v. Rodriguez, 841 F.Supp. 79 (E.D.N.Y. 1994), aff’d 53 F.3d 545 (2d Cir. 1995), cert denied 116 S. Ct. 243 (1995). It ex- plained that the “key to these definitions is not whether items are at- tached to one another, as urged by defendant, but whether the items stand in a relation one to the other that makes them ready for efficient service to meet a particular need or exigency… Obviously, one can fre- quently achieve this goal by attaching the items, but that is not the only means by which to do so.” Id. at 83. The court provided examples demonstrating the frequency with which one item can generally be un- derstood to be equipped with another although they are not always at- tached, such as a hardware manufacturer selling a saw “equipped” with various blades although the items are separated in the packaging, a store selling a vacuum cleaner “equipped” with cleaning tools and at- tachments even though none are actually attached to the suction nozzle at the time of sale, and a solider “equipped” for service with uniforms for various duties and climates, various weaponry, and supplies of am- munition but, except in actual combat, he is rarely required to carry all of them on his person. Id. at 84–85. Accordingly, “it can commonly be understood by the person of average intelligence—that a firearm may 19 be equipped with a silencer even though the latter is not actually at- tached to the former.” Id. at 84.10 Contrary to defendant’s argument, the jurisprudence of this Court and the U.S. Supreme Court make clear that general terms encompass future developments and technological advancements. In District of Co- lumbia v. Heller, 554 U.S. 570 (2008), the Supreme Court characterized the argument that only those arms in existence in the eighteenth centu- 10 Defendant’s attempt to show that Rodriguez is “patently unhelpful” (de- fendant’s brief at 34–36) is ineffectual. The Rodriguez court’s explanation of the meaning of “equip” is useful in gleaning the word’s ordinary meaning. This remains true despite a subsequent, non-binding decision determining that “equip with” should be narrowly construed under the specific circumstances therein, which in- cluded the wording of § 924, the Supreme Court’s determination of Congressional intent to narrowly define “uses,” and avoidance of a sentencing disparity—imposing only a five-year penalty when a defendant actively employs a firearm, but a thirty- year sentence if the same defendant happened to own a compatible silencer (U.S. v. Thompson, 82 F.3d 849, 853 [9th Cir. 1996]). Notably, even that decision expressly stopped short of holding that § 924(c)(1) required an attachment to the firearm; ra- ther, it held that the silencer must play some role in the predicate drug trafficking crime to satisfy the statute, and under the circumstances of that case, where a si- lencer was found in a locked gun case in the hallway closet and the pistol was on a table near the door, the firearm had not been “equipped with” a silencer. Thompson, 82 F.3d at 853, 853 n. 5. Thus, defendant’s definition of “equips” is even more re- strictive than the narrow definition espoused in Thompson. Moreover, none of the circumstances that the Thompson court found required such a narrow construction of “equipped with” in that case are present in VTL § 397. Defendant’s point that each case should be considered on its facts is well tak- en; the circumstances in this case demonstrate that defendant can and did actively use his police scanner to listen to police frequencies while in his vehicle, and de- fendant does not contend otherwise. This behavior satisfies even Thompson’s nar- row definition of “equip,” and is clearly a violation of VTL § 397. 20 ry were protected by the Second Amendment as “bordering on the frivo- lous.” Heller, 554 U.S. at 582. It explained that, Just as the First Amendment protects modern forms of communications, e.g., Reno v. ACLU, 521 U.S. 844, 849, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35-36, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. Id. See also Caetano v. Massachusetts, 136 S.Ct. 1027, 1027–28 (2016) (rejecting the argument that stun guns were not protected under the Second Amendment because they “were not in common use at the time of the Second Amendment’s enactment” as inconsistent with Heller). Along the same lines, this Court has explained that courts should as- sume that legislatures are forward-looking, It would be an unjust reflection upon the wisdom and intelli- gence of the lawmaking body to assume that they intended to confine the scope of their legislation to the present, and to exclude all considerations for the developments of the future. If any presumption is to be indulged in, it is that general leg- islative enactments are mindful of the growth and increasing needs of society, and they should be construed to encourage, rather than to embarrass, the inventive and progressive ten- dency of the people. Hudson Riv. Tel. Co. v. Watervliet Turnpike & R. Co., 135 N.Y. 393, 403–04 (1892). 21 Accordingly, defendant’s assertion that “the language of the stat- ute is indelibly linked to the nature of the technological development of the tools employed to intercept the police communications at the time of the statute’s writing,” and thus, the definition of “equip” must be tied to how a radio receiving device was used in vehicles in 1933 (defendant’s brief at 24) is unfounded and his exposition of the history of car radios is not pertinent. What is more, the fact that battery operated domestic radio sets were in use prior to 1930 (defendant’s brief at 25) suggests that portable radios were reasonably foreseeable when this statute was crafted, certainly more so than the Internet was to the framers of the Constitution. Moreover, general terms are to be interpreted broadly and gener- ally-worded statues apply to situations beyond the “principal evil” or context in which it was enacted “to cover reasonably comparable evils” (Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 [1998]). In On- cale, the Supreme Court found that same-sex harassment claims could not be excluded from Title VII of the Civil Rights Act of 1964, which prohibited discrimination because of sex in the terms or conditions of employment, even though same-sex harassment was not the “principle 22 evil” with which Congress was concerned when it enacted the statute, because “it is ultimately the provisions of our laws rather than the prin- cipal concerns of our legislators by which we are governed.” Id. at 79– 80.11 Furthermore, this Court upheld the application of a wartime stat- ute, which granted authority to the Attorney General to inquire into matters concerning the public peace, public safety, and public justice, to 11 Defendant also relies on several cases addressing radar detectors to show that VTL § 397 requires a physical attachment (see defendant’s brief at 22–23, cit- ing People v. Gilbert, 414 Mich. 191, 197, 206 [1982]; People v. Moore, 92 Misc.2d 807, 808–09 [Broome County Ct 1978]; People v. Faude, 88 Misc.2d 434, 437 [Erie County Ct 1976]). These non-binding cases are inapposite. First, they addressed whether the precise, technical definitions of devices at issue, “a radio receiving set capable of receiving signals on the frequencies allocated for police use” (VTL § 397) and “a radio receiving set that will receive signals sent on frequencies assigned by the federal communications commission of the United States of America for police purposes” (Gilbert, 414 Mich. at 197 n. 2), encompassed radar detectors, namely the “what” of the statutes. As explained, supra, the device (i.e. the “what”) in VTL § 397 (and in the Michigan statute) is carefully and narrowly defined. Thus, it is not a general term that must be read to encompass future technological advancements. Second, radio receiving devices and radar detectors perform different func- tions. The former receives a radio signal and translates it into comprehensible form, meaning that the listener is able to hear the specific words law enforcement is transmitting. Faude, 88 Misc.2d at 435. A radar detector, in contrast merely notifies the driver with a colored light when radar beams are within a certain proximity; it cannot transmit or relate any sounds or voices within the airwave upon which it op- erates. Id. Given their different functions, the evils the two statutes were designed to remedy differ. A radar detector, at most, allows a driver to flout a speed trap, whereas a radio receiving set enables criminals to intercept actual police communi- cations and react in ways that may create a hazard for others or use the information in furtherance of a crime. This is reflected in the differing punishments: a traffic in- fraction including a fine of $25 to $100 (VTL § 397-a[3]) versus a class B misde- meanor, which is punishable by up to three months’ incarceration (Penal Law § 70.15[2]). 23 an Attorney General’s investigation into organized crime conducted well after the war’s end. In re Di Brizzi, 303 N.Y. 206, 214 (1951). Even though there was “little doubt” that the Legislature first recognized the need for the statute because of a war emergency, because it utilized general terms in enacting the statute, and did not expressly or implicit- ly limit its operation to a time of war, the Court recognized that it could not impose such a limitation. Id. See also People ex rel. McClelland v. Roberts, 148 N.Y. 360, 368 (1896) (“A general law may, and frequently does, originate in some particular case or class of cases which is in the mind of the legislature at the time; but, so long as it is expressed in general language, the courts cannot, in the absence of express re- strictions, limit its application to those cases, but must apply it to all cases that come within its terms and its general purpose and policy.”).12 Defendant’s efforts to demonstrate that a physical attachment to a vehicle is required to establish a violation of VTL § 397 are unavailing. 12 Defendant quotes McKinney’s Cons Laws of NY, Book 1, Statutes, § 93 in support of his position that VTL § 397 only prohibits the use of technology that ex- isted in 1933. In doing so, however, he omits the second half of the quoted passage (see defendant’s brief at 17–18), which undermines his point. It states in its entire- ty, “Generally, a statute speaks, not from the time when it was enacted, or when the courts are called on to interpret it, but as of the time it took effect; and statutes framed in general terms ordinarily apply to cases and subjects within their terms subsequently arising” McKinney’s Cons Laws of NY, Book 1, Statutes, § 93 (empha- sis added). 24 He begins by attempting to demonstrate that “[t]he language of V.T.L. §397 clearly shows that the Legislature’s intent was not to prohibit the use of a radio receiving set, per se, but to prevent people from specifical- ly adapting their vehicles with receiving sets and accessing police com- munication” (defendant’s brief at 16). Tellingly, the two dictionary defi- nitions of “equip” defendant cites do not make any reference to a physi- cal attachment or particular design (defendant’s brief at 15). In an ef- fort to glean a physical connection requirement from the words of the statute where none exists, defendant claims to engage nocistur a sociis. He utilizes this canon of construction, however, in name only. Under nocistur a sociis, “analogous words and phrases in a statute lend color and expression to each other and are construed to express the same re- lations.” McKinney’s Cons Laws of NY, Book 1, Statutes § 239, citing Wakefield v. Fargo, 90 N.Y. 213 (1882). See Wakefield, 90 N.Y. at 218 (“To the language of the act must be applied the rule common in the construction of statutes, that when two or more words of analogous meaning are coupled together, they are understood to be used in their cognate sense, express the same relations, and give color and expression to each other.”). In Wakefield, this Court found that a particular claim- 25 ant was not a “laborer, servant, or apprentice” within the meaning of the act at issue because the word “servant” was limited by the words la- borer and apprentice, with which it was associated, and it comprehend- ed only persons performing the same kind of service that was due from the others; to hold that the intermediate, or second class, represented a higher grade than the class first named would violate the doctrine of noscitur a sociis. Id. at 218–19. Thus, that canon applies to words with similar meanings that are grouped in a list, not as a mechanism of lim- iting the meaning of a stand-alone general term, as defendant posits. Defendant’s textual argument is thus reduced to a logical fallacy. As defendant tacitly concedes, the ordinary meaning of “equip” does not require a physical connection. To override this normal usage requires a demonstration that the express purpose of the statute was narrower, namely to prevent the installation of such radio receiving sets in vehi- cles. Unable to point to any actual indication in the text that this was the legislature’s purpose, defendant simply assumes what he seeks to prove, that “[t]he language in V.T.L. §397 obviously requires a linkage between the vehicle and the radio receiving set” (defendant’s brief at 17). 26 Defendant contends that the legislature could have substituted “use” or “possess” for “equip” if it did not intend to require a physical at- tachment (defendant’s brief at 17). These words, however, would not carry out the statute’s purpose. “Use” is narrower than “equip” in that it requires active operation, whereas “equip” does not. “Possess,” on the other hand, is too broad. It does not take into account the ease of access present in “equip.” A person could have a police scanner in his posses- sion (i.e. in his custody and control), but not be able to access it while operating the vehicle, for instance, if it is in a locked suitcase in the ve- hicle’s trunk. As the Appellate Term observed, equip entails the items standing in relation to one another in a way “that makes them ready for efficient service” (A-3). As such, it explained that defendant here had “equipped” his vehicle with the scanner because it “was in defendant’s jacket pocket, where it could be accessed and operated in the vehicle within seconds” (A-4). Defendant’s subsequent conjecture regarding VTL § 397’s purpose and the meaning of “equip” fares no better. He opines, The statute’s purpose was to discourage those with criminal intent from accessing these communications from their vehi- cle. The inference is that if one goes to the trouble to equip the vehicle with the device to access these communications, 27 one was likely to have criminal intentions. The vehicle was the central focus. Thus, to effect its purpose the Legislature created a specific prohibition about a vehicle specially pre- pared and specially equipped. (defendant’s brief at 30). Even, assuming, arguendo, that his assess- ment of the legislature’s purpose were true, the argument is a non se- quitur; his conclusion that the legislature created a prohibition about a vehicle being specially prepared does not follow from the premise that the legislature wanted to discourage people with criminal intent from accessing police communication in their vehicles. Moreover, the same purpose would be served without requiring a physical connection, which is consonant with the normal usage of “equip.” Defendant builds a straw man in asserting that Respondent “in- terpreted the word ‘equip’ in isolation, ignoring the linkage to ‘motor vehicle’” in the statute (defendant’s brief at 17). As explained, supra, motor vehicle plays an essential role as the “where” in the statute; the legislature carefully limited the location where such radios are prohib- ited, and VTL § 397 does not prohibit possession of one in places other than a vehicle, such as a public park, dwelling, or the sidewalk. Nothing about the specified location requires a tether or specific design. And in claiming that it entails such a requirement, defendant asks this Court 28 to unduly restrict the statute, without any basis in VTL § 397’s text. See People ex rel. Opdyke v. Brennan, 39 Barb 651, 653 [Sup. Ct, Gen. Term, N.Y. 1863] (finding that the court had “no right” to add the phrase “in the city of New York” to a statute requiring advertisements to be pub- lished in the “four papers having the largest daily circulation” because although it was reasonable and probable that the legislature intended to refer to the papers with the largest circulation in the city of New York, it was also reasonable and probable that the legislature believed that the four papers that had the largest daily circulation generally would have the largest daily circulation in the city of New York). Defendant’s comparison of VTL § 397 to Penal Law § 140.4013 does not show that the legislature intended a narrow definition of “equip” to apply to VTL § 397. He asserts that the language of Penal Law § 140.40, enacted nearly four decades after VTL § 397, illustrated a reac- tion to technological development and demonstrates that equip as used 13 Penal Law § 140.40 Unlawful Possession of Radio Devices, states: “As used in this section, the term “radio device” means any device capable of receiving a wire- less voice transmission on any frequency allocated for police use, or any device ca- pable of transmitting and receiving a wireless voice transmission. A person is guilty of unlawful possession of a radio device when he possesses a radio device with the intent to use that device in the commission of robbery, burglary, larceny, gambling or a violation of any provision of article two hundred twenty of the penal law.” 29 in VTL § 397 required a physical attachment, since “both laws essen- tially proscribe the same thing” (defendant’s brief at 19–20). In actuality, the two statutes prohibit very different behavior, so it comes as no surprise that Penal Law § 140.40 did not track VTL § 397’s language. The “who,” “what,” and “where” of Penal Law § 140.40 are all broader than the corresponding portions of VTL § 397. The “what” of Penal Law § 140.40 includes the radio receiving devices referred to in VTL § 397, but also encompasses “any device capable of transmitting and receiving a wireless voice transmission,” also known as walkie talk- ies. Penal Law § 140.40 applies to any person, whereas VTL § 397 ap- plies only to people who are not police officers acting pursuant to their duties and people who do not have specific permits. While VTL § 397 only applies to motor vehicles, Penal Law § 140.40’s prohibition does not have a locational limitation. In contrast, Penal Law § 140.40’s “how” is narrowly tailored— possession with intent to use to commit robbery, burglary, larceny, gambling or a violation of any provision of article two hundred twenty of the penal law (e.g. narcotics offense, gambling, and prostitution)— oth- erwise, it would have imposed a blanket ban on all walkie talkies (such 30 as children’s toys and citizen band radios), as well as any radio receiv- ing sets capable of receiving police frequencies, no matter their loca- tion.14 There is no such risk with VTL § 397, since its reach is limited to motor vehicles. Thus, VTL § 397’s “how” is broader. “Equip” simply means that a person is aware that he is supplying his vehicle with the means of receiving signals on the frequencies allocated for police use. Accordingly, there is no reason for Penal Law §140.40 to track the lan- guage of VTL § 397. Instead, Penal Law § 140.40 logically tracked the language of Penal Law § 140.35 Possession of Burglar’s Tools (requiring possession under circumstances evincing an intent to use or knowledge that some person intends to use the same in the commission of a bur- glary-related offense), which was enacted only five years prior to Penal Law § 140.40, is included in the same section of the Penal Law, and, like Penal Law § 140.35, is tied to the commission of, or intent to com- mit, larceny-related offenses. Moreover, the facts of the instant case il- lustrate the difference between VTL § 397 and Penal Law §140.40. De- 14 Defendant incorrectly states that New York penalizes mere possession of radio receiving devices (see defendant’s brief at 33). Tellingly, he points to no provi- sion in the Penal Law or any other statute supporting this claim. If it were true, Penal Law §140.40 and VTL §397 would be obsolete, and this endeavor would be a purely academic exercise. 31 fendant’s conduct, having a police scanner in his pocket while driving a motor vehicle to allow him to hear police communications about vehicle accidents, violates VTL § 397, but does not violate Penal Law § 140.40 because he did not have the intent to commit a larceny, gambling, or narcotics crime. Unable to point to any indication that VTL § 397’s text or legisla- tive history mandates his narrow interpretation of “equip,” defendant relies on the legislative history of Penal Law § 140.40, part of a separate chapter of New York law. He claims that VTL § 397 was “widely seen” as requiring a physical attachment to the vehicle based on a single line in a letter from an attorney from the state’s executive department’s Of- fice for Local Government (defendant’s brief at 21). Even if this state- ment had been made by a legislator involved in crafting Penal Law § 140.40, “[t]he Legislature has no power to declare, retroactively, that an existing statute shall receive a given construction when such a con- struction is contrary to that which the statute would ordinarily have re- ceived” (Roosevelt Raceway, Inc. v. Monaghan, 9 N.Y.2d 293, 304–05 [1961]). See also People ex rel. McDonald v. Keeler, 99 N.Y. 463, 480 (1885) (“To declare what the law shall be, is a legislative power; to de- 32 clare what it is or has been, is judicial.”). Thus, Penal Law § 140.40’s bill jacket is not relevant to the meaning of VTL § 397.15 Nor does the legislature’s choice of wording of VTL § 397-a indi- cate that “equip” must be given the unduly narrow meaning defendant urges. VTL § 397-a states that “No radar detector or laser detector shall be used in any motor vehicle” weighing more than eighteen thousand pounds or a commercial vehicle weighing more than ten thousand pounds. VTL § 397-a’s prohibition is narrower in that the word “use” requires active operation of the device, while “equip” does not. In other words, “equipping” one’s vehicle with a radar detector is not prohibited. VTL § 397-a’s “where” is also narrower, limiting the use prohibition to vehicles with a gross vehicle weight rating (GVWR)16 of more than eighteen thousand pounds or a commercial vehicle with a GVWR of over ten thousand pounds. This excludes the vast majority of passenger cars, 15 Defendant’s inclusion of only one page from, and reliance on one sentence in Penal Law § 140.40’s bill jacket, epitomizes the oft-heard criticism of the reliance on legislative history, that its use is the equivalent of “entering a crowded cocktail party and looking over the heads of the guests for one’s friends.” Antonin Scalia and Bryan A. Garner, Reading Law: The Interpreting of Legal Texts (Thomson/West 2012) at 377, citing Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983). 16 The Vehicle and Traffic Law defines gross vehicle weight rating (GVWR), as, “The weight of a vehicle consisting of the unladen weight and the maximum car- rying capacity recommended by the manufacturer of such vehicle.” VTL 501-a(2) 33 for instance, a current-model GMC pickup truck has a GVWR of only 7,100 pounds (GMC, How to Know Your Vehicle’s Strength, available at http://www.gmc.com/gmc-life/how-to/understanding-gross-vehicle- weight-rating.html [accessed August 31, 2016], SA-28). In statutory interpretation, there exists a presumption against in- effectiveness. “A construction which would render a statute ineffective must be avoided, and as between two constructions of an act, one of which renders it practically nugatory and the other enables the evident purposes of the Legislature to be effectuated, the latter is preferred.” McKinney’s Cons Laws of NY, Book 1, Statutes, § 144. See also New York Life Ins. Co. v. State Tax Commn., 80 A.D.2d 675, 676 [3d Dept. 1981], aff’d sub nom. Metro. Life Ins. Co. v. State Tax Commn. of State, 55 N.Y.2d 758 (1981), citing Matter of Industrial Comr. of State of N. Y. v. Five Corners Tavern, 47 N.Y.2d 639, 646–47 (1979) and Lederer v. Wise Shoe Co., 276 N.Y. 459, 465 (1938) (“It remains a basic principle of statutory construction that a court will ‘not by implication read into a clause of a rule or statute a limitation for which * * * no sound reason (can be found) and which would render the clause futile.’”). 34 As discussed, supra, defendant has not put forth a sound reason to limit the ordinary meaning of “equip.” His overly restrictive reading of the statute to require a specific design or physical fastening would allow for the statute’s purpose to be easily flouted, and given the current technology, make the statute practically ineffective. See, e.g. Ioannidis, 14 Misc.3d at 189 (explaining that “[w]ith advancing technology, there are a multitude of items capable of receiving terrestrial and/or satellite radio signals that may be recovered from a motor vehicle”). Today, most police scanners, like the device at issue, are battery-operated and do not need to be physically connected to a vehicle to operate. Moreover, any- one with a smart phone has access to dozens of free police scanner apps like “5-0 Radio Police Scanner Lite,” which allows users to “tap into the largest collection of live police firefighters, aircraft, railroad, marine, emergency, and ham radios” wherever they have their smart phones.17 “Don’t buy special equipment,’’ a recent New York Times Magazine arti- cle entitled How to Listen to a Police Scanner recently advised; instead, it recommended visiting broadcastify.com, which allows users to listen 17 5-0 Radio Police Scanner Lite (Free), Smartest Apps LLC, https://itunes.apple.com/us/app/5-0-radio-police-scanner-lite/id356336433?mt=8 [ac- cessed Sept. 2, 2016], SA-29. 35 to police broadcasts across the country, or downloading a free app like 5-0 Radio Police Scanner (Malia Wollan, How to Listen to a Police Scan- ner, The New York Times Magazine [Jan. 1, 2016], available at http://www.nytimes.com/2016/01/03/magazine/how-to-listen-to-a-police- scanner.html?_r=0, SA-32). Although defendant will no doubt attempt to assuage concerns about the ineffectiveness of VTL § 397 under his unduly narrow inter- pretation by citing Penal Law § 140.40, that statute does not cover many of the ways police scanners can be used in vehicles to create a hazard or danger to others. Most obviously, that statute does not apply to use during or after the commission of many crimes, such as kidnap- ping, assault, or murder. Beyond this, there are myriad ways to utilize police scanners in vehicles that create a danger to others. One example is driving above the speed limit in order to beat competitor tow compa- nies to the scene of an accident after hearing about it on a police scan- ner. Although it is always possible to conjure up extreme scenarios that stretch the boundaries of a statute, such far-fetched hypotheticals cannot govern this Court’s interpretation of the statute. Instead, the 36 statute must be interpreted based on the facts at hand. See Gaines v. City of New York, 215 N.Y. 533, 541 (1915) (“Grotesque or fanciful situ- ations, such as those supposed, will have to be dealt with when they arise. That they are conceivable, though improbable, ought not to gov- ern our construction.”). The circumstances in the instant case fall squarely within the conduct the legislature intended to prohibit by en- acting VTL § 397. Moreover, it is worth noting that VTL § 397’s legislative history demonstrates the legislature’s intent to limit the statute’s application. For instance, it indicates that the statute only applies to devices in pri- vate vehicles (see Letter from Austin J. Roche, Commissioner of Police, April 14, 1933, Bill Jacket, L. 1933, ch. 405, at 5, SA-10; Letter from Martin L. Cadin, Chief of Police, City of Syracuse, April 13, 1933, Bill Jacket, L. 1933, ch. 405, at 6, SA-11; Letter from Andrew Kavanaugh, Chief of Police, City of Rochester, April 13, 1933, Bill Jacket, L. 1933, ch. 405 at 8, SA-13), not, for example, to devices in public buses. VTL § 397’s legislative history also indicates that an individual must act knowingly in equipping a vehicle with a police scanner, specif- ically, he must be aware that his conduct is of such a nature. A letter 37 from The Committee on Criminal Courts to the governor explained how the bill had been amended to remedy the concerns that had led to the governor’s veto the prior year (Letter from The Committee on Criminal Courts, April 17, 1933, Bill Jacket, L. 1933, ch. 405, at 10–11; SA-15– 16). The amendments included adding “knowingly” to the prohibition against the use of an automobile equipped as prohibited by the statute since “The Bar Association and others very properly thought that this was a serious defect” and “disapproved of the bill for that reason” (id.). Thus, VTL § 397’s legislative history evidences a clear intent against creating a statute of strict liability. As such, pursuant to Penal Law § 15.15(2), this section must be construed as defining a crime of mental culpability. Construing the “equips a motor vehicle” portion of VTL § 397 as requiring anything less than a “knowing” mental state would be inconsistent with the remainder of the statute and the aforementioned legislative history; criminalizing an unknowing possession would not further the purpose of prohibiting people from accessing police frequen- cies in private vehicles. Unable to demonstrate that the statute or its history requires his narrow definition of “equip,” defendant urges this Court to impose this 38 restriction itself. In the 83 years since VTL § 397 was enacted (L. 1933, ch. 405), the legislature has not narrowed the “how” of the statute, de- spite amending other portions of it (see L. 1948, ch. 183; L. 1966, ch. 620) and vast technological advances. This is because VTL § 397 al- ready encompasses these developments. If the legislature wishes to adopt defendant’s suggested physical fastening requirement, it is within its purview to do so, but this Court should refrain from engaging in ju- dicial legislation. See McKinney’s Cons Laws of NY, Book 1, Statutes, § 73, citing N.Y. Const. Art. III, § 1) (“It is a basic rule of statutory con- struction that the courts should avoid judicial legislation, since the Constitution of this state vests the legislative power in the Senate and Assembly.”). Moreover, it is not the job of this Court to “sit in review of the dis- cretion of the Legislature or determine the expediency, wisdom or pro- priety of its action on matters within its powers” (People v. Friedman, 302 N.Y. 75, 79 [1950], citing Lawrence Constr. Corp. v. State of New York, 293 N.Y. 634, 639 [1944] and Matter of Russo v. Valentine, 294 N.Y. 338 [1945]); Bright Homes, Inc. v. Wright, 8 N.Y.2d 157, 162 (1960) (“[c]ourts are not supposed to legislate under the guise of interpretation, 39 and in the long run it is better to adhere closely to this principle and leave it to the Legislature to correct evils if any exist”). B. The Factual Allegations in the Accusatory Instrument Set Forth a Prima Facie Case that Defendant Equipped His Motor Vehicle with a Radio Receiving Set, As Prohibited in VTL § 397. Criminal Procedure Law (CPL) §§ 100.15 and 100.40 set forth the requirements for a facially sufficient misdemeanor information. The substance of the information must show “reasonable cause” that a “pri- ma facie” case exists against the defendant. People v. Kalin, 12 N.Y.3d 225, 229 (2009). “Reasonable cause” exists when the allegations “ap- pear[] reliable” and are sufficient “to convince a person of ordinary intel- ligence, judgment and experience” that the defendant’s guilt is “reason- ably likely.” CPL § 70.10(2). To meet the “prima facie requirement,” the information must allege facts which “establish, if true, every element of the offense[s] charged and the defendant’s commission thereof.” CPL 100.40(1)(c). See also Kalin, 12 N.Y.3d at 229. The prima facie case requirement is lower than the legally suffi- cient evidence standard required to survive a motion to dismiss at trial and “not the same as” the proof beyond a reasonable doubt standard re- quired to establish guilt at trial. Kalin, 12 N.Y.3d at 230, quoting People 40 v. Henderson, 92 N.Y.2d 677, 680 (1999); see also People v. Konieczny, 2 N.Y.3d 569, 575 (2004). For this reason, the allegations in an infor- mation “should be given a fair and not overly restrictive or technical reading.” People v. Casey, 95 N.Y.2d 354, 360 (2000). The information need not “contain the most precise words or phrases most clearly ex- pressing the charge,” People v. McConnell, 11 Misc.3d 57, 60 (App Term, 9th & 10th Jud. Dist., 2006); rather, it must only provide facts sufficient to “give an accused notice sufficient to prepare a defense and . . . pre- vent a defendant from being tried twice for the same offense.” Casey, 95 N.Y.2d at 360; accord, Kalin, 12 N.Y.3d at 230; Konieczny, 2 N.Y.3d at 575; see also People v. Dreyden, 15 N.Y.3d 100, 103 (2010) (“The test is, simply, whether the accusatory instrument failed to supply the defend- ant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy.”). The superseding information in this case satisfied this prima facie requirement and showed that defendant “equipped” his vehicle with a radio receiving set capable of receiving signals on the frequencies allo- cated for police use. It alleged that defendant was driving a tow truck on a public road and had, in his left front jacket pocket, a radio receiver 41 capable of receiving police frequencies (A-13–14). It further alleged that only one switch was required to turn on the device, which was already tuned to the frequency used by the 47th and 49th precincts, and, fur- ther, that defendant was unable to produce a permit to operate the de- vice (id.). As stated, supra, the common thread from the “equip” defini- tions is to provide or supply with the means or something that is needed or required to efficiently carry out an action, service, or purpose. De- fendant’s action, service, or purpose was to glean information about ve- hicular accidents via local police frequencies and use this to beat com- peting tow companies to the scene of the accident. Here, Officer DiMur- ro himself was en route to the scene of an accident, having just received the radio call about the accident when he apprehended defendant, only one block away from the scene. Defendant provided or supplied his tow truck with the means or something that is needed or required to effi- ciently carry out this purpose by physically bringing the radio receiving set tuned to frequencies originating from the 47th and 49th precincts into his tow truck and holding it on his person, allowing him to access said frequencies in seconds. The Appellate Term correctly found that the superseding information showed reasonable cause that a prima fa- 42 cie case exists against defendant. A contrary finding would “do[] vio- lence both to the letter and policy of the statute” since “[t]he precise thing which might have been apprehended happened—the precise thing, too, against which the statute was intended to guard” (Bradley v. Buffalo, N.Y. & E.R. Co., 34 N.Y. 427, 430 ([1866]). In any event, even if this Court were to adopt defendant’s unduly narrow version of VTL § 397, defendant would still be in violation of the statute. The police scanner at issue, YAESU V/X-3R/E, is “adapted for use in a vehicle” (defendant’s brief at 13). The operating manual ex- plains that, the scanner’s battery may be charged using an E-DC-21 DC Adapter with a cigarette lighter plug (YAESU VX-3R/E Operating Manual, available at http://www.yaesu.com/ [accessed Jul. 12, 2016], SA-27). In addition, the EAR Jack, a 3-pin miniature jack that provides connection points for stereo headphones (SA-22), is the same size as a standard auxiliary audio cable commonly used to connect an audio de- vice to a vehicle’s stereo system (see InCarCables, AUX Inputs, Tips on Using Your Car’s AUX-IN Socket, available at http://www.incarcables.com/aux-inputs.php [accessed Sept. 2, 2016], SA-34–37), thus, the device can be connected to the car stereo. 43 Along the same lines, any distinction created by defendant’s in- sistence that a device be “adapted for use in a vehicle” (defendant’s brief at 13) crumbles in a real-world setting, since all modern smartphones fit into this category. There are a variety of ways to connect smartphones to vehicles. Any smartphone with a headphone jack can be connected via an Auxiliary cord to a car stereo in the same manner de- scribed above. In addition, iPhone and Samsung smartphones (and their apps) can be connected to a vehicle’s stereo via Bluetooth (iPhone 6s Manual at 42, available at www.iphone6smanual.com [accessed Sept. 2, 2016], SA-40–44; Samsung, Synching Your Bluetooth Device to Your Car, available at http://techlife.samsung.com/syncing-bluetooth-device- car-1002.html [accessed Sept. 2, 2016], SA-45). IPhones can also be con- nected to a vehicle through “CarPlay,” which “puts key iPhone apps— the ones you want to use while driving—on your car’s built-in display” (iPhone 6s Manual, supra at 180–82, SA-42–44). Beyond this, smartphone vehicle chargers are widely available from cellular tele- phone retailers (see e.g. Verizon Wireless, Accessories, Car Chargers, available at https://www.verizonwireless.com/accessories/car-chargers/ [accessed Aug. 30, 2016], SA-48–49; AT&T, Phone Chargers & Tablet 44 Chargers, available at https://www.att.com/shop/wireless/accessories/chargers.html [accessed Aug. 30, 2016], SA-50–52), as well as general retail stores (see e.g. Walmart: “car charger,” available at https://www.walmart.com/search/?query=car%20charger [accessed Aug. 30, 2016), SA-53–56; Target: “car charger,” available at http://www.target.com/ [search “car charger”] [accessed Aug. 30, 2016], SA-58–65). Further, under these technological circumstances, a stand- ard holding that a person is only in violation of VTL § 397 if their device is actively connected to the car via a charger or an auxiliary cord would be arbitrary and capricious. 45 CONCLUSION SINCE “EQUIP” DOES NOT REQUIRE A PHYSICAL CONNECTION, THE APPELLATE TERM’S DECISION SHOULD BE AFFIRMED. Respectfully Submitted, DARCEL D. CLARK District Attorney Bronx County Attorney for Respondent NANCY D. KILLIAN CATHERINE M. RENO Assistant District Attorneys Of Counsel September 8, 2016