The People, Respondent,v.John Andujar, Appellant.BriefN.Y.September 5, 2017 To be argued by CHERYL WILLIAMS (10 Minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - v - JOHN ANDUJAR, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT SEYMOUR W. JAMES, JR. CHERYL WILLIAMS Attorneys for Defendant- Appellant THE LEGAL AID SOCIETY Criminal Appeals Bureau 199 Water Street, 5th Floor. New York, N.Y. 10038 (Tel.) (212) 577-3384 (Fax) (212) 577-3523 i TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................... iii PRELIMINARY STATEMENT ..................................................................... 1 QUESTION PRESENTED ............................................................................. 2 STATEMENT OF FACTS .............................................................................. 3 Introduction ........................................................................................... 3 The Original Accusatory Instrument ..................................................... 4 Motion to Dismiss for Facial Insufficiency .......................................... 5 The Superseding Accusatory Instrument .............................................. 7 The People’s Response .......................................................................... 7 The Criminal Court’s Decision ............................................................. 8 The People’s Appeal ........................................................................... 10 Defendant’s Appellate Term Brief ...................................................... 11 The Appellate Term’s Decision .......................................................... 11 ARGUMENT POINT I TO “EQUIP A MOTOR VEHICLE” WITH A RADIO RECEIVING SET CAPABLE OF RECEIVING POLICE TRANSMISSIONS REQUIRES PROOF THAT THE RADIO RECEIVNG SET IS EITHER AFFIXED TO A VEHICLE OR ADAPTED FOR USE IN A VEHICLE. V.T.L. § 397. .......................................................... 13 ii A. Statutory Construction and the Meaning of Equip a Motor Vehicle ......................................................... 16 B. Tellingly, a Shift in the Statutory Language Comes With Technological Development ........................... 17 C. The Technological Context When V.T.L. §397 Was Enacted ............................................................... 23 D. The Appellate Term’s Decision is Wrong ...................... 33 E. The Criminal Court’s Decision was Correct ................... 37 F. The Information is Facially Insufficient .......................... 40 CONCLUSION .............................................................................................. 42 iii TABLE OF AUTHORITIES FEDERAL CASES Brown v. Gardner, 513 U.S. 115 (1994) ....................................................... 23 U.S. v. Thompson, 82 F.3d 849 (9th Cir. 1996) ............................................ 35 United States v. Rodriguez, 841 F. Supp. 79 (E.D.N.Y. 1994) ......... 12, 33-35 STATE CASES People v. Alejandro, 70 N.Y.2d 133 (1987) .................................................. 41 People v. Andujar, 49 Misc.3d 36 (App. Term 1st Dept. 2016) ... 1, 12, 34, 36 People v. Case, 42 N.Y. 2d 98 (1977) ..................................................... 39-40 People v. Casey, 95 N.Y.2d 354 (2000) ........................................................ 41 People v. Ditta, 52 N.Y. 2d 657 (1981) ......................................................... 38 People v. Dumas, 68 N.Y. 2d 729 (1986) ..................................................... 40 People v. Faude, 88 Misc.2d 434 (Just. Ct. 1976) ................................... 21, 23 People v. Gilbert, 414 Mich. 191 (Mich. 1982) ................................ 22-23, 31 People v. Hall, 48 N.Y.2d 927 (1979) ........................................................... 40 People v. Ioannidis, 14 Misc.3d 183 (Crim. Ct., Queens Co. 2006) ............. 30 People v. Jones, 9 N.Y. 3d 259 (2007) .......................................................... 40 People v. Kalin, 12 N.Y.3d 225 (2009) ......................................................... 40 People v. Martell, 16 N.Y. 2d 345 (1965) ..................................................... 17 People v. McGee, 92 Misc. 2d 360 (Town Ct., Erie Co. 1978) .................... 14 People v. Moore, 92 Misc.2d 807 (County Court, Broome County 1978) ................................................................................................... 22-23 iv People v. Verdino, 78 Misc.2d 719 (County Ct., Suffolk Co. 1974)…………………………………… 6, 8-11, 14-15, 37-38 STATUTES C.P.L. § 100.15 (3) ........................................................................................ 40 C.P.L. § 100.40 (1)(c) ................................................................................ 5, 40 C.P.L. § 100.40 (4)(b) .................................................................................... 40 C.P.L. § 170.30.(A) ......................................................................................... 5 C.P.L. § 450.90 ................................................................................................ 2 McKinney’s Statutes Vol. I §93 ............................................................... . . .17 McKinney’s Statutes Vol. I §239 ............................................................. . . .16 P.L. § 5.00 ...................................................................................................... 38 P.L. § 140.40 ............................................................................................ 18-21 P.L. § 195.05 .................................................................................................. 39 P.L. § 1916 ..................................................................................................... 13 V.T.L. § 375 ................................................................................................... 36 V.T.L. § 397 ............................................... 1, 3-5, 10, 13-14, 16-23, 30, 34-38 MISCELLANEOUS Black’s Law Dictionary ............................................................................. 6, 15 Webster’s Third International Dictionary ................................................ . . .15 “Antique Radio Receiving Set” ................................................................ . . .25 v “ Are Police Scanners Legal” .................................................................. . . .33 “Definition” .............................................................................................. . . .25 “History of the Car Radio in Motor Cars/Automobiles” .................... . . .25-26 “ History of Police Scanners” .................................................................. . . .28 “Radio Motor Patrol Cars” ....................................................................... . . .27 “U.S. Scanner Laws” ................................................................................ . . .33 Danielle Paquette, “Why Some Police Departments Let Anyone Listen to Their Scanner Conversations – Even Criminals,” .................... 32 Ernest Erb, “History and Development of Early Car Radios,” March 13, 2007 ......................................................................................... 25 Paul Litwinovich, “Zenith Trans-Oceanic, The Royalty of Radios,” March 27, 2015 ................................................................................... 29-30 Tom Glover, “Police Communications in the 1930s” .............................. . . .29 Worcestor Warren, “A Screen Grid Portable” Radio World, June 7, 1930 .................................................................................................... 26-27 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : JOHN ANDUJAR, : Defendant- Appellant. : ---------------------------------------------------------------------X PRELIMINARY STATEMENT By permission of the Honorable Eugene M. Fahey, a judge of the Court of Appeals, granted December 16, 2015 (A1), appellant, John Andujar, appeals from an order of the Appellate Term, First Department, entered on August 14, 2015, (A2-5) (People v. Andujar, 49 Misc.3d 36, 37 (App. Term 1st Dept. 2016)), that reversed, on the law, an order of the Criminal Court, Bronx County (Kelly, J)(A6-10), dated June 4, 2013, that had dismissed for facial insufficiency the superseding accusatory instrument, charging appellant with equipping a motor vehicle with a radio receiving set capable of receiving police transmissions pursuant to V.T.L. §397. The Appellate Term reinstated the accusatory instrument and remanded the case 2 to criminal court for further action. The case in the criminal court has been adjourned pending further action from this Court. On January 14, 2016, this Court issued an order granting appellant permission to appeal as a poor person and assigning Seymour W. James, Esq., The Legal Aid Society, 199 Water Street, New York, New York 10038, as counsel for appellant. All of the questions raised by defendant-appellant on this appeal affect the “mode of proceedings prescribed by law.” In addition, counsel moved to dismiss the information on the grounds that it was facially insufficient. The criminal court dismissed it for the same reason. The Appellate Term reversed, finding the information facially sufficient. This Court has jurisdiction to entertain this issue pursuant to Criminal Procedure Law § 450.90. QUESTION PRESENTED Whether to “equip a motor vehicle” with a radio receiving set capable of receiving police transmissions requires proof that the receiving set is either affixed to a vehicle or adapted for use in a vehicle. V.T.L. § 397. 3 STATEMENT OF FACTS Introduction The original information (A11-12), under Dkt. 2013BX011524, charged appellant, John Andujar, with having a motor vehicle equipped with a radio receiving set tuned to and capable of receiving frequencies allocated to the police in violation of V.T.L. §397.1 Appellant was in his truck when he was stopped by Officer Vincent DiMurro who alleged that he found a scanner in appellant’s left jacket pocket. Counsel, in a motion to dismiss, argued that the original accusatory instrument was facially insufficient since it did not contain information that the radio receiving set was affixed to the vehicle and was capable of receiving police radio signals (A15-27). The People responded that the device did not need to be affixed or connected to the car (A28-40). Before that motion was decided, the People filed a superseding accusatory instrument and the court based its decision on this information (A13-14). 1 V.T.L. § 397, reads, in part, as follows that “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 to do so from the person authorized to issue such a permit . . .” 4 The court held that while the new instrument properly pleaded that the set was capable of receiving police signals, it failed to properly plead that the vehicle was “equipped” with the radio receiving set. Since the information contained no factual allegations that the scanner was attached to the motor vehicle or prepared for use with a motor vehicle, the trial court dismissed the superseding accusatory instrument (A6-10). The People appealed. The Appellate Term reinstated the accusatory instrument holding that by operating the vehicle while in possession of a scanner in his left jacket pocket appellant had “equipped” the vehicle with it within the meaning of V.T.L. §397, which included the carrying of a hand-held scanner (A2-5). The remanded case has been adjourned pending the outcome of this appeal. The Original Accusatory Instrument The original accusatory instrument, dated February 26, 2013, charged John Andujar, with the crime of equipping a motor vehicle with a radio receiving set capable of receiving signals on the frequencies allocated for police use in violation of V.T.L. §397. In the factual portion of the accusatory instrument, deponent, Officer Vincent DiMurro, alleged that while he was on his way to an accident on Allerton Avenue and Paulding 5 Avenue in the Bronx at 1:25 p.m., he observed defendant operating a pickup truck which bore the name Empire Tow Company. This occurred on the corner of Hone Avenue and Allerton Avenue. After, the officer stopped him, Andujar told the officer that he had received a call from an off duty officer in an accident. The officer further alleged as follows: Deponent further states, that he observed defendant to have on his person, inside his front left jacket pocket, one (1) scanner, which was on and receiving signals on the frequencies allocated for police use. Deponent further states, defendant could not produce a permit to operate and or possess said scanning device. (A11-12; Original Accusatory Instrument). Motion to Dismiss for Facial Insufficiency On April 1, 2013, counsel filed a motion to dismiss the accusatory instrument on grounds of facial insufficiency pursuant to C.P.L. §§100.40 and 170.30. (A15-27). Counsel argued that, pursuant to V.T.L.§ 397, the accusatory instrument failed to show that appellant “knowingly equipped his vehicle with a radio that receives signals allocated for the police.” Counsel argued further that the instrument was facially insufficient “because it renders conclusory statements from the arresting police officer regarding 6 his knowledge and accuracy of the signals transmitted.” Nothing was alleged showing the device was interfering with police signals (A23, 25, 27; Defense Motion to Dismiss, pages 9, 11, 13). In support of this argument, counsel cited People v. Verdino, 78 Misc.2d 719, 721 (County Ct., Suffolk Co. 1974), that cited Black’s Law Dictionary, which states that equip means “to furnish for service or against a need or exigency; to fit out; to supply with whatever is necessary to efficient action in any way; synonymous with furnish.” Counsel argued that the vehicle was not equipped with the scanner, since the scanner was located in defendant’s left jacket pocket. It was not taken from the dashboard, center console, or passenger seat (A24-25; Defense Motion to Dismiss, pages 10- 11). Counsel pointed out that in Verdino, the court based its holding that the defendant violated V.T.L. § 397 on the fact that the receiving device had an electrical power cord that was adapted to receive current via the cigarette lighter socket located in the vehicle. Thus, counsel argued, Verdino was distinguishable from the present case since appellant’s vehicle was not equipped with the scanner (A25; Defense Motion to Dismiss, page 11).2 2 Along with challenging that the facts alleged did not prove the vehicle was “equipped” with the radio receiving set, counsel’s motion to dismiss also argued that no facts were pleaded that showed that the scanner interfered with police transmission (A26- 27; Defense Motion to Dismiss, pages 12-13). 7 The Superseding Accusatory Instrument Before the court ruled on counsel’s application, the prosecution filed a superseding accusatory instrument which contained an allegation that the scanner picked up police transmissions from the 47th and 49th precincts. The officer further alleged as follows: Deponent further states, that while he observed defendant seated in the driver’s seat . . . he observed the defendant to have on his person, inside his front left jacket pocket, one (1) radio receiver, also known as a scanner. Otherwise, the superseding information was materially identical to the original information (A13-14; Superseding Accusatory Instrument). The People’s Response In response to the motion to dismiss, the People asserted that the superseding information was facially sufficient (A32; People’s Response, page 5). Officer DiMurro stated that he had observed the defendant seated in the driver’s seat of his truck and he had a radio receiver, also known as a scanner, inside his front left jacket pocket. On turning on the radio receiver, DiMurro observed that it was receiving police frequencies originating from the 47th and 49th precincts. The radio receiver’s display stated that it was receiving frequencies from the 47th and 49th precincts. Mr. Andujar could not 8 produce a permit that allowed him to operate and/or possess such radio receiver (A35, 39-40; People’s Response, pages 8, 12-13). In regard to whether the vehicle was equipped with the receiving device, the People argued that People v. Verdino, 78 Misc.2d 719, 721 (County Ct., Suffolk Co. 1974), holds that “[t]he fact that [a] receiver was not fastened to [a] truck does not mean that [a] truck was not equipped with a receiver so as to fall within the proscriptions of the statute.” According to the People, the Verdino court, relying on Black’s Law Dictionary, held that equipped was synonymous with “fitted out” and concluded that “a physical fastening is neither implicit in the term ‘equip’ nor necessary in order for a vehicle to be ‘equipped’ as proscribed in the statute.” Id. Since the information stated that the defendant was seated in the vehicle with a police scanner in his pocket, then the vehicle was furnished or fitted out with a scanner (A36-37; People’s Response, pages 9-10). The Criminal Court’s Decision On June 4, 2013, Judge Kelly of the criminal court rendered a decision on the motion. The court stated that the essentials of the crime are: 1) equipping or using a motor vehicle with 2) a radio capable of receiving signals used by the police (A8; Decision and Order, page 3, Criminal Court 9 File). The court held that the first element, equipping or using a motor vehicle with a police scanner, was not sufficiently pled. Citing People v. Verdino, 78 Misc.2d 719, 721 (County Ct., Suffolk Co. 1974), the court pointed to the fact that the court there found that the car was equipped with a police scanner because even though the receiver was not then plugged into the cigarette lighter socket, if it had been plugged in, it would have been capable of receiving signals on a frequency allocated for police use. Citing Verdino, 78 Misc.2d at 721, the court held that “the Verdino court concluded that ‘the vehicle was equipped with a receiver as proscribed in the statute since the receiving device was located within the defendant’s truck and was specially prepared to be used within a vehicle as manifested by the fact that the receiving device had an electrical power cord which was adapted to receive current through the standard vehicular cigarette lighter’” (A8-9; Decision and Order, pages 3-4, Criminal Court File). Judge Kelly held that the cigarette lighter socket cord was an important factor in the Verdino decision: In the present case, the People have not pled any factual allegations that would allow the conclusion that Defendant’s vehicle was equipped with the police radio scanner. The superseding information merely states the police scanner was found in Defendant’s pocket and that it was capable of 10 receiving police frequencies. There are no allegations that the scanner was specifically prepared to be used with a vehicle, either by having a particular power cord or otherwise. Accordingly, Defendant’s motion to dismiss for facial insufficiency is granted. (A9; Decision and Order, page 4, Criminal Court File). The People’s Appeal On appeal, the People argued that the superseding information was facially sufficient (The People’s Brief, page 8). The People argued that the trial court erred because V.T.L. §397 does not require a physical fastening or specific design and that it is enough that one has a device on one’s person while operating a vehicle (The People’s Brief, page 9). The purpose of the statute was to prohibit individuals from having a device capable of receiving police frequencies in private vehicles (The People’s Brief, pages 12-13). The People argued further that even though the Legislature did not define “equip,” the ordinary meaning of the word does not require a specific design or physical fastening. Thus, they claimed that the court below misinterpreted Verdino which never required a physical fastening, only that the vehicle contains the prohibited device. To require a physical fastening or specific design, would not take into account modern technology, and V.T.L.§ 397 embraces the introduction of such modern devices. Thus, by having the 11 device in his pocket, John Andujar, had “equipped” his motor vehicle (The People’s Brief, pages 14-20). Defendant’s Appellate Term Brief Appellant, John Andujar, relying on the plain language of the statute, Verdino, supra and the state of the development of radio technology at the time of its enactment, argued that the criminal court’s decision was correct, that the statute requires a physical connection or adaptation between the scanner and the vehicle. In other words, the vehicle must be equipped with such a device to run afoul of the law (Appellant’s Brief, pages 18-21). The phrase “who equips a motor vehicle” was determinative (Appellant’s Brief, page 19). The Legislature did not pass a statute that accommodates modern, hand-held, unattached scanners, so there was no basis to punish appellant. Because no factual allegations were adduced showing the vehicle was equipped with the scanner as originally defined by the statute, the accusatory instrument was jurisdictionally defective as the criminal court correctly ruled (Appellant’s Brief, page 21). The Appellate Term’s Decision On August 14, 2015, the Appellate Term, First Department, reversed the Criminal Court’s dismissal of the accusatory instrument and held it 12 facially sufficient. (A2; People v. Andujar, 49 Misc.3d 36, 37 (App. Term 1st Dept. 2016). After looking at various definitions of equip, the court, quoting United States v. Rodriguez, 841 F. Supp. 79, 83 (E.D.N.Y. 1994), concluded that “What is key to these definitions is not whether items are attached one to the other, 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.” Id. at 38 (A3). The Appellate Term stated that because the scanner was in defendant’s left jacket pocket “where it could be accessed and operated in the vehicle, within seconds, the accusatory instrument was sufficient . . . to satisfy ‘the equips a motor vehicle’ element of the charge.” Id. (A4). The Appellate Term stated further that had the legislature intended to prohibit only those devices that defendant attached or installed in the vehicle it would have said so as it did in other parts of vehicle and traffic law, which required equipping vehicles with some items and used verbs indicating that. One required a mirror to be “attached,” another, a side view mirror to be “affixed” and another a front and rear bumper to be “fastened.” Id. (A4). 13 ARGUMENT POINT TO “EQUIP A MOTOR VEHICLE” WITH A RADIO RECEIVING SET CAPABLE OF RECEIVING POLICE TRANSMISSIONS REQUIRES PROOF THAT THE RADIO RECEIVNG SET IS EITHER AFFIXED TO A VEHICLE OR ADAPTED FOR USE IN A VEHICLE. V.T.L. §397. The clear intent of the Legislature in enacting V.T.L. §397 was to prevent people from equipping vehicles with radio receiving sets and using these to access police communication. Accordingly, the criminal court properly dismissed the information that merely alleged that appellant, while inside his truck, had a scanner in his pocket that accessed police communications.3 Respondent’s and the Appellate Term’s interpretation of “equip” as merely requiring possession and use of the device inside a vehicle does not hone to the definition of the term as conceived by the Legislature. Accordingly, the criminal court correctly dismissed the accusatory instrument, and this Court should reinstate that decision. The statute, V.T.L. § 397, reads, in part, as follows: A person, not a police officer or peace 3 The statute refers to a radio receiving set capable of picking up police communications. Today, the word used for this device is police scanner. 14 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 to do so from the person authorized to issue such a permit . . . Thus, V.T.L. §397, aside from the permit exception which is inapplicable here, requires proof of these elements: 1) equipping or using a motor vehicle with 2) a radio capable of receiving signals used by the police 3) or knowingly using a vehicle so equipped. See People v. McGee, 97 Misc. 2d 360, 361 (Town Ct., Erie Co. 1978); People v. Verdino, 78 Misc.2d 719, 721 (County Ct., Suffolk Co. 1974). Originally written as Section 1916 of the Penal Law, in 1933 it also became V.T.L. §397 (see McKinney’s Sessions Law 1933, Chapter 405). In 1948, the law changed to exclude amateur radio operators from liability (L. 1948, ch. 183). In 1966, both P.L. § 1916 and V.T.L. § 397 were reformed by essentially changing in both statutes the words “an automobile” to “a motor vehicle.” See McKinney’s Sessions Law 1966, Chapter 620, 759. The language of “equip a vehicle” has remained unchanged for 82 years. Both V.T.L. §397 and P.L. § 1916 are essentially the same, except one prosecuted 15 the offense under the traffic law and the other under the penal code. Penal Law 1916 was subsequently repealed. The statute, V.T.L. §397, does not define “equip.” The word has been variously described in contemporary dictionaries. In Webster’s Third International Dictionary, equip means to provide with, supply with, to fit out, to make ready or competent for service or action. Black’s Law Dictionary defines equip as “To furnish for service or against a need or expediency; to fit out; to supply with whatever is necessary to efficient action in any way; synonymous with furnish.” In the superseding accusatory instrument, these were the facts alleged to show the vehicle was equipped: “Deponent further states, that while he observed defendant seated in the driver’s seat . . . he observed the defendant to have on his person, inside his front left jacket pocket, one (1) radio receiver, also known as a scanner” (A13). They were patently inadequate. At issue here is not the meaning of “equip” in isolation, but its meaning in the context of the associated term “motor vehicle.” The phrase “equip the motor vehicle” dictates that the device must be connected or adapted to something in the car to function properly. Respondent’s argument 16 and the Appellate Term’s conclusion that the phrase does not require some attachment or adaptation of the radio receiver to the vehicle is plainly wrong. A. Statutory Construction and the Meaning of Equip a Motor Vehicle Appellant contends that clarity as to what the Legislature intended is provided by the applicable statutory construction analysis, an examination of the plain meaning of the statute, the legislative intent, the historical context in which the law was framed, and changes in the language of similar laws over time. A court’s responsibility when it construes a statute is to implement the purpose and intent of those who have written it. The 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 persons from specially adapting or preparing their vehicles with receiving sets and accessing police communications. This becomes evident when the tools of statutory construction are applied. A fair reading of the language of the statute indicates that equip is indelibly linked to the vehicle. The word equip is not isolated in the statute, but is part of a phrase “who equips a motor vehicle.” As the principle of noscitur a sociis holds, “words employed in a statute are construed in 17 connection with, and their meaning is ascertained by reference to the words and phrases with which they are associated.” McKinney’s Statutes, Vol. I §239. See People v. Martell, 16 N.Y.2d 245, 247 (1965). Obviously, the linkage between the term “equip” and “motor vehicle” cannot be ignored. The language in V.T.L. §397 obviously requires a linkage between the vehicle and the radio receiving set. Here, the confusion arises because respondent and the Appellate Term interpreted the word “equip” in isolation, ignoring the linkage to “motor vehicle.” In so doing, they erroneously propose an expansive rather than a more restrictive reading of the statute. Respondent wants to expand the meaning of equipped to include “use” in order to accommodate modern devices that can be carried without being attached or adapted to the vehicle in any way. But that was not the intent of the Legislature. Had the Legislature intended this it would simply have said use or possess. As written, “equip the vehicle” does not accommodate a device that is merely carried in the pocket. B. Tellingly, a Shift in the Statutory Language Comes With Technological Development Another principle of statutory interpretation holds that “generally, a statute speaks, not . . . when the courts are called on to interpret it, but as of 18 the time it took effect. . . . that act must . . . be construed as the courts would have construed it if it come in question soon after its passage.” McKinney’s Statutes, Vol. I §93. No clearer demonstration of how statutory language reflects the technological development of the time is a law about police scanners that the Legislature wrote after the radio scanner technology had evolved. The Legislature adapted to changes in the technology when they wrote Penal Law Section 140.40 in 1970. V.T.L. §397 prohibits equipping a vehicle “with a radio set capable of receiving signals on the frequencies allocated for police use;” P.L. §140.40 prohibits the use of a radio device capable of receiving a wireless voice transmission on any frequency allocated for police use “with the intent to use that device during the commission of certain crimes.” The crime of unlawful possession of radio devices pursuant to P.L. §140.40 states as follows: A person is guilty of unlawful possession of a radio device when he possesses a radio device with the intent to use that the device in the commission of robbery, burglary, larceny, gambling or a violation of any provision of article two hundred twenty of the penal law. What is critical here is the definition the Legislature gave of a radio device: 19 As used in this section, the term radio devices means any device capable of receiving a wireless voice transmission on any frequency allocated for police use, or any device capable of transmitting and receiving a wireless voice transmission. In V.T.L. §397, the Legislature spoke of a radio receiving set; in P.L. §140.40 a radio device. P.L. §140.40 defines a radio device as “any device capable of receiving a wireless voice transmission on any frequency allocated for police use”; V.T.L. §397 prohibits use of a “radio receiving set capable of receiving signals on the frequencies allocated for police use.” Both deal with the ability to receive signals on police frequencies or interfering with the transmission of police frequencies. Both laws essentially proscribe the same thing. The significant difference is that V.T.L. §397 penalizes one for equipping a motor vehicle with the device while P.L. §140.40 criminalizes the possession and use of the device during the commission of certain crimes. Since the intent of both statutes is to prevent the interception and monitoring of police communications and monitoring of police activity, and prohibit essentially the same device, it begs the question as to why the Legislature did not track the language of the extant V.T.L. §397. This is because “equip a vehicle” would not have been appropriate for the devices 20 the Legislature envisioned as being covered by the new Penal Law provision. Penal Law Section 140.40 was enacted on September 1, 1970, and envisions a mobile device such as existed at the time of its passage. P.L. §140.40 did not track the language of V.T.L. §397 because it did not fit the modern situation where scanners and radio devices became portable and wireless. The Legislature, therefore, embraced the modern technology in a way that was not possible during the periods when V.T.L. §397 was written and modified. Thus, “equip” was not meant to cover any and all of its definitions, including use, as is evidenced by this later legislation about radio devices. The statutory language in P.L. §140.40 and the failure to track the “equip the vehicle” language proves that equip has a specific meaning under V.T.L. §397, and was not meant to be open-ended. It was tied to the vehicle in that the device had to be attached in some way to the vehicle. The language of P.L. § 140.40 takes into account the portability of the modern devices. What is evident here is a shift in language as modernization changed the technology. 21 In fact, correspondence on the Bill Jacket pertinent to P.L. § 140.40 showed support for the law because it distinguished between the installation necessary for V.T.L. §397 and the mere possession implicit in the P.L. § 140.40 law. On April 29, 1970, Jacob Spatz, the Senior Attorney, Legal and Technical Assistance for the State Government, in a letter discussing the new law stated that P.L.§ 140.40 would serve a useful purpose because it covered an area not covered by V.T.L. §397. He notes that “Under 397, the violation consists of ‘equipping a motor vehicle’ with a prohibited device. We understand this to mean actually affixing the same to a vehicle. Under the bill, possession of such device (even if portable) in any place, with criminal intent, is made a crime” (emphasis added)(A41-44). See also People v. Faude, 88 Misc.2d 434, 436 (Just. Ct. 1976)(“[P.L. §140.40] makes it a crime to possess (as opposed to equipping a motor vehicle with) a radio device capable of receiving a wireless voice transmission on police frequencies with intent to use it in the commission of certain crimes”). This clearly shows that V.T.L. §397 was widely seen as requiring some attachment to the vehicle. In addition, the comparison between the language of P.L.§ 140.40 and V.T.L. §397 makes it apparent that the Legislature 22 recognized that in order to outlaw a portable device it was necessary to adopt a new statute and that V.T.L. §397 did not cover it. People v. Gilbert, 414 Mich. 191, 324 N.W.2d 834 (Mich. 1982), persuasively argues that the linkage between the interpretation of the law and the level of technological development existing at the time of a law’s enactment is critical. At issue in Gilbert was whether a Michigan statute, virtually identical to V.T.L. §397, prohibiting equipping a motor vehicle with a radio receiving set that will receive signals on frequencies assigned for police purposes, encompassed the use of a radar detector that had not been in existence at the time the statute was enacted in 1929. The Michigan Supreme Court held that the law did not apply to radar detectors because such detectors did not exist at the time the statute was enacted. Id. at 197. Gilbert emphasized that when the statute was enacted the only radio receiving set in existence was a conventional radio. Id. at 198. Thus, Gilbert, concluded, “[t]he statute was enacted to prohibit vehicular monitoring of police communications reporting a crime and directing police forces in an effort to apprehend offenders.” Id. at 206. See also People v. Moore, 92 Misc.2d 807, 808-809 (County Court, Broome County 1978)(a radar detector was not covered by V.T.L. §397 because it does not receive signals 23 but detects signals and was not in existence when the statute was written); (People v. Faude, 88 Misc.2d at 437)(also concluding for similar reasons that V.T.L. §397 does not apply to radar detectors). C. The Technological Context When V.T.L. §397 Was Enacted The reasoning underlying Gilbert applies equally here. Central to statutory interpretation, and as exemplified in Gilbert, Moore, Faude and P.L.§ 140.40, is the principle that the interpretation of a statute cannot be divorced from the context in which it was framed. As the Supreme Court has stated, “The meaning of statutory language, plain or not, depends upon context.” Brown v. Gardner, 513 U.S. 115 (1994). Hence the statutory interpretation of V.T.L. §397 must be placed within the context of the technology existing at the time the original statute took effect The historical and technological context surrounding the emergence of police radio communications supports appellant’s contention that V.T.L. §397 requires an attachment or adaptation to the vehicle. The statute was first written and enacted long before the modern free-standing devices such as appellant had were invented, or were so foreseeable that the Legislature would have preemptively deemed equip to mean possess and use. By relying so heavily on the dictionary definitions, respondent and the Appellate Term 24 have given an unnecessarily broad and all-inclusive meaning to equip. In that way, the court and respondent escape the necessity of locating the statute within time, space and context, to allow, in error, the conclusion that the statute also proscribes modern portable radio devices. It is appellant’s position that the language of the statute 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. By ignoring this, both the Appellate Term and respondent fail to place the word “equip” in the historical and contextual meaning, as set forth in the statute. Thus, a proper inquiry must be made as to how a “radio receiving set” was used in vehicles at the time of the statute’s writing in 1933, 82 years ago. The technology of radio receiving sets was distinct when the statute proscribed its use. Although there is little literature focusing on the early development of the radio receiving set and police scanner or radio scanner as it was known in the 1930s, writings across the internet give some insight into the development of this technology. The technological development of the radio receiving set in the 1930s, as shall be seen, indicates that some connection to the vehicle was necessary. 25 A radio receiving set detects, demodulates and amplifies transmitted signals. http://www.thefreedictionary.com/radio+receiver accessed 2/10/16 (A45). Mention is made of a “portable” set but all the “components weighed a loaded suitcase” and needed a wire antenna to function. These were what was “adapted for installation into a car.” However, by the early 1930s, car radios were being specifically manufactured. The car radios of the 1920s and early 1930s were comprised of a box, receiver, and a speaker, and most importantly, “the car battery was used to heat the tube filaments.” See Ernest Erb, Jurgen Stichling, Bernhard Nagel, “History and Development of Early Car Radios,” March 13, 2007, http://radiomuseum.org/forum/first accessed 3/18/2016 (A46-50). A radio receiving set developed between 1910-1920 was also powered by using a 6 volt car battery and other batteries “Antique Radio Receiving Set,”https://etsy.com/listing/229347987/antique-radio- receiving-set. accessed 2/10/16 (A51). In the “History of the Car Radio in Motor Cars/Automobiles,” the writer acknowledges that before 1930 there were battery operated domestic radio sets. Later sets were built in weatherproof steel boxes and “were mounted under the car or on the running board” and radios were “mounted” in the car as they grew smaller. Car radios had started becoming popular in 26 the 1930s. After 1930, several companies developed patents for car radios and by 1932, there were over 100 different car radio models in the U.S. Between 1930 and 1936 the number of cars “equipped” with radios increased from 34,000 to three million. Interestingly, the article states that up to the early 1930s the car’s battery provided power for the radio valve heater and was used with other batteries but after the early 1930s, “[a] car radio could now operate entirely off the existing car battery” and “[b]y the end of the 1930s, 20 percent of all cars in the USA had built in car radios.” http://www.carhistory4u.com accessed 3/18/16 (A52-56). Thus, while there were portable radio receivers in the 1920’s they were bulky and generally had to be attached to a car to function properly. The word equip was necessary precisely because of the nature of the device being used at the time of the statute’s enactment. Most significantly, an article written in the 1930’s indicates that the radio receiving device functioned within a vehicle through connections to items within the vehicle, even when the device was called portable. The following describes how to install the radio set for it to work and demonstrates how connectivity to the car is important: Connect the two free ends of the battery cable to the storage battery at the ammeter or at the 27 dash light socket or with battery clips direct to the battery terminals . . . There are several ways in which to provide an antenna in the automobile. The most common practice is to tack a piece of copper screen up inside the top. Another is to zigzag a wire back and forth across the top in place of the screen. In some cars, however, an inside antenna will not produce results . . . In such cases, an insulated wire strung underneath the car from the front to the rear bumper will give fairly good response. Another method is to tack metal plates or string insulated wire beneath the wooden running boards. Worcestor Warren, “A Screen Grid Portable” Radio World, June 7, 1930, www.americanradiohistory.com (A57-59). The article further states that while in the home the antenna can be connected to “a radiator or other ground,” in the car “[a] ground is automatically provided through the battery, which is grounded to the frame of the car.” (A 59). The article concludes that in the 1930’s, “]i]nstallation in an automobile is quite simple and can be done by almost anyone.” (A58). The history of the Radio Motor Patrol Cars (RMPS) in New York State also uses language that indicate installation was required. By the 1930’s, patrol cars from the 1920s were “being fitted with radio receivers” and a photograph shows a car that had been “retrofitted” with a radio receiver in 28 1932. The receiver here is attached to the car’s dashboard. http//www.policeny.com/rmps11920sl.hmtl (A60-61). From the above, the verbs used to describe the process of adapting these sets to the car indicate that “equip” meant install. Words and language are dynamic. The meaning of a word in a contemporary dictionary may not reflect the meaning in a prior context. The early history of the radio and the car radio show that in the 1920s portable sets existed but were bulky. Even so they used the car battery. In the 1930s, the car battery remained necessary to enable the receiving device to operate in the motor vehicle. The use of the scanner also evolved consonant with the technological advances. One article, “History of Police Scanners” states that police broadcasts were done through local AM radio stations and the monitoring of police activity started in the 1930s on local AM radio stations. Thus, the radio receiver was the medium for accessing the police broadcasts. The first generation of police scanners were “crystal controlled scanners” and to monitor a police frequency one had to have the quartz-crystal tuned to that frequency. By the late 1970s, there were programmable scanners that did not use crystals. Analog trunking scanners allowed users to use a pool of frequencies. Today digital scanners are used. 29 https://www.policescannerinfo.us/about-police-scanners/history-of-police- scanners/ (A62-64). Tom Glover confirms how widespread was this burgeoning police communication. “The 1930s marked the advent of mobile two-way radio communications in towns all over America.” Glover also describes the radio used by the police as huge, taking up half of the trunk of the police car. See Tom Glover, “Police Communications in the 1930s.” http//www.nj.com/times-opinion/index.ssf/2013/07/glover-police- communications-1.html (A65-66). As indicated above, while there were mobile battery radios, they were bulky and needed an antenna to function properly. The difficulties with the portability of the radio receiving set, the increasing need for attachments for proper functioning, plus the development of car radios in the 1930s makes it obvious that the Legislature was not referring to free-standing portable sets when the statute was enacted. Indeed, the research shows that the first truly popular portable battery operated radio set, the Zenith Transoceanic, was produced around World War II. Even then these battery powered radios were initially bulky. Paul Litwinovich, “Zenith Trans-Oceanic, The Royalty of Radios,” March 27, 2015. http://wshu.org/post/zenith-trans-oceanic- 30 royalty-radio accessed 3/3/2016 (A67-72). But V.T.L. §397 predated the development of such radios and took effect in 1933. The research makes it clear that it was difficult to have portable sets in vehicles in 1933 and that to operate them, an effort had to be made to equip the vehicle with the radio set. To establish a violation of V.T.L. §397, you are prohibited from both equipping the vehicle with a radio receiving set, and having the set attuned to and capable of intercepting police signals. See People v. Ioannidis, 14 Misc.3d 183, 189 (Crim. Ct., Queens Co. 2006)(charge under V.T.L. §397 dismissed because of a lack of allegations that the device was being operated or capable of being operated to receive police frequencies). The statute’s purpose was to discourage those with criminal intent from accessing these communications from their vehicle. The inference is that if one goes to the trouble to equip the vehicle with the device to access these communications, 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 prepared and specially equipped. Here too, the analysis by the Michigan Supreme Court in Gilbert is instructive. The court warned against assuming that the language that 31 applied to the technology of a past era applies to the changed technology of today, and recognized that a radio receiver did not mean a radio detector. Gilbert stated that the Legislature had in mind the radio receiving set when it enacted the Michigan statute in 1929. It warned that “ [t]he advance in the art, 10 to 15 years after the statute was enacted, does not enlarge the meaning of the term ‘radio receiving set’ from the only meaning known to those who used that term when the statute was enacted.” People v. Gilbert, 414 Mich. at 198-199. Similarly, the technology of eight decades ago required some interaction between the radio receiving set as it then existed and the vehicle, and “equip the motor vehicle” should not be construed to include portable devices that did not exist and were not foreseeable at the time of the statute’s enactment. The court in Gilbert specifically warned about misconstruing the meaning of the language in a statute without paying attention to the historical context: Words do not stand outside their history. They draw meaning from it. The plain-meaning rule of statutory construction assumes that the words of a statute have the same meaning to those who authored it and to those who read it. This assumption might be accurate if linguistic usage remained static. But usage and meanings may change considerably over time . . . A succeeding 32 generation of readers may read meanings into a text which were never intended. Id. at 199. Thus, the court warned, the failure to consider whether the Legislature understood the meaning of a term quite differently when the statute was enacted than it is understood today is error. This would allow a statute to be construed in a manner “which extends its intended scope.” Id. at 200. In sum, as our research shows, a radio receiving device was generally attached to a car during the period when the statute was enacted. Gilbert notes that radar had not been developed in 1929. Id. Nor was the easily carried portable receiving set available in 1933. Given the state of the technological development in that period and the directions for the use of the set within an automobile, it is clear that equip meant some attachment or adaptation to allow the device to function. By contrast, this was not necessary for the device appellant had in his jacket pocket. Today, such scanners and portable radio devices are ubiquitous and the technology is rapidly evolving. Today, scanners can appear as routine “apps” on an individual’s smartphone and some police departments even encourage the use of it. Danielle Paquette, “Why Some Police Departments Let Anyone Listen to Their Scanner Conversations – Even Criminals,” 33 December 4, 2015, https://www.washingtonpost.com/news/wonk/wp/2015/12/04/why-some- police-department accessed 12/14/2015 (A73-76). Only five states, including New York, penalize the possession of these devices. The others are Florida, Kentucky, Minnesota and Indiana. Many more, however, penalize the use of these devices while committing a crime. See “Are Police Scanners Legal?” http//www.zipscanners.com/resources/are-police-scanners-legal/ accessed 2/6/16 (A77-79) and “U.S. Scanner Laws.” www.fireline.org/scanlaws/scanner5.hmtl (A80-81). It is the task of the Legislature to make laws to accommodate these new technological developments. D. The Appellate Term’s Decision is Wrong The Appellate Term, First Department, erred by basing its statutory construction upon cases determining the meaning of “equip” in entirely different and inapplicable contexts. The court relied on a definition of equip from United States v. Rodriguez, 841 F. Supp. 79 [EDNY 1994], affd. 53 F3d 545 [2d Cir, 1995], cert denied 516 us 893 [1995], to interpret what “equip a motor vehicle” means. Firstly, that case simply does not provide the answer as to what the Legislature intended. By relying on it, the Appellate 34 Term misconstrued the meaning of the statute under V.T.L. §397. In Rodriguez, the issue was whether a firearm that had been threaded to accept a particular silencer was a firearm “equipped with silencer” where both the silence and firearm were in the same briefcase, but the silencer was not attached to the firearm at the time. The court decided yes, concluding that equipped does not mean that an item had to be attached, but is understood to mean “supplied or made ready for action with whatever is necessary to meet a particular need or exigency.” Id. at 80. Decisive to the court in Rodriguez, was the fact that it would only have taken seconds to affix the silencer to the firearm. Id. The Rodriguez court explored the different dictionary definitions of equip. The court concluded that “What is key to these definitions is not whether items are attached to one another . . . 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.” Id. at 83. It is this quote that the Appellate Term cited as applicable to the instant case. (A3, People v. Andujar, 49 Misc.3d at 38). That conclusion, vague as it was, may be understandable in the particular factual context of the Rodriguez case, but has no bearing upon the entirely different context here. Notably, the Rodriguez court stated that 35 whether one item is equipped with another “necessarily turns on the circumstances of a particular case, not simply on the fact of attachment.” Rodriguez, 841 F. Supp. at 83. That the context affects the meaning of equip was borne out in U.S. v. Thompson, 82 F.3d 849 (9th Cir. 1996), where the Ninth Circuit found Rodriguez inapplicable and rejected the concept that something is equipped with another if it is “readily available for joint use . . .” In that case, the defendant shot a man. The silencer was not attached to the firearm, but a fake suppressor that could function as a silencer was found in a closet. Instructively, the court stated that “[u]nder the facts as they were presented in this case, only actual attachment would satisfy this requirement.” Id. at 853. Context is, therefore, important. Rather than relying on the case specific context in Rodriguez to justify its holding that equip means to possess and use, the Appellate Term would have been better served by recognizing that that case and appellant’s deal with dissimilar contexts. Rodriguez, is patently unhelpful in determining what the Legislature meant when V.T.L. § 397 was enacted in 1933 emerged. The cases involve different types of statutes. In Rodriguez, what is critical is whether the language requires the prohibited device, the 36 firearm, from having the added feature of the silencer on it to be equipped. Here, the language relates not to the prohibited device itself, but to the vehicle to which it is “equipped.” Thus, the fact that the device can be attached quickly is not enough. Second, the Appellate Term relied, unavailingly, on the use of the term “equip” in some statutes in the Vehicle and Traffic Law to argue that had the Legislature required an attachment it would have said so in V.T.L. §397. The court quoted portions of statutes which specifically used language indicating that equipping the vehicle required an installation of some kind. For instance, the court’s decision stated that “V.T.L. §§ 375 [10] [b] requires that an omnibus be ‘equipped with a mirror attached to the right side’; 375 [10-a] requiring that a motor vehicle be ‘equipped with a side view mirror which shall be affixed to the left side’; . . . 375[9] requiring that omnibuses must be ‘equipped with one hand fire extinguisher . . . mounted in a place readily accessible for use.’” (A4, People v. Andujar, 49 Misc.3d at 38). But there is a difference here. The subsections of V.T.L. §375 cited by the Appellate Term require certain devices to be attached to the vehicle and proactively instruct as to where to place mirrors, bumpers, and fire extinguishers in a vehicle, and how to equip the vehicle by fastening, 37 affixing or mounting to be in compliance with the law. Here the meaning of equip is self-evident. V.T.L. §397 is different in that it specifically prohibits equipping the vehicle. In sum, the Appellate Term’s decision and the case on which it relied provided no clarity as to what “equip the motor vehicle” means in this case. E. The Criminal Court’s Decision was Correct Judge Kelly focused on People v. Verdino, 78 Misc.2d 719, 721 (County Ct., Suffolk Co. 1974), the sole case, besides appellant’s, which has sought to interpret what “equip the vehicle” means under V.T.L. § 397. Its holding has been variously interpreted. Both appellant and Judge Kelly correctly rely on an interpretation of Verdino which holds that the statute requires some connection between the vehicle and the radio receiving device. In Verdino, the court found that the defendant’s truck was equipped with a radio receiving set capable of receiving signals on the frequencies allocated for police use because the defendant had a receiver that when plugged into the truck’s cigarette lighter socket was able to pick up police signals. People v. Verdino, 78 Misc.2d at 721. In reaching its conclusion in the instant case, the criminal court relied on the connection between the vehicle and the radio receiving set in 38 Verdino. The court held that “the Verdino court concluded that ‘the vehicle was equipped with a receiver as proscribed in the statute since the receiving device was located within the defendant’s truck and was specially prepared to be used within a vehicle as manifested by the fact that the receiving device had an electrical power cord which was adapted to receive current through the standard vehicular cigarette lighter’” citing Verdino, 78 Misc.2d at 721. In appellant’s case, the operation of his device, carried in his pocket, was entirely unconnected from the vehicle. Thus, he had not equipped the vehicle (see A8-9; Decision and Order, pages 3-4, Criminal Court File). Judge Kelly, therefore, honed to the plain meaning of the statute, as it originally intended equip to mean. The connection between the plugging in of the cord and the defendant’s culpability under the statute cannot be underplayed. Judge Kelly located the statute within the historical context of the time, and, additionally, comported with the mandate of P.L. §5.00 to construe the Penal Law “according to the fair import of [its] terms to promote justice and effect the objects of law.” See People v. Ditta, 52 N.Y. 2d 657, 660 (1981). If this Court accepts the interpretation of V.T.L. §397 proffered by respondent and the Appellate Term, many will be criminalized for the 39 simple possession of a device that technology has made easy to possess without installation in a vehicle. This is all the more reason for the Legislature to redefine the law to bring it in line with contemporary realities. At this time, there is no basis to construe the statute to cover new technology that did not exist at the time the statute was enacted. In the meantime, however, this Court should conform with the meaning of the V.T.L. §397 and the intent of the Legislature when the statute was enacted in 1933. The only reasonable outcome is to hold that V.T.L. §397 does not apply to the contemporary technology and was not meant to apply to a portable scanner such as appellant’s. It is not for the courts to preempt the Legislature to make new laws to accommodate new technologies. It is the role of the Legislature to rewrite the statute, if deemed necessary. This Court recognizes that. In analyzing the scope of the crime of obstructing governmental administration, P.L. §195.05, the Court of Appeals gave a warning that is applicable here. It cautioned that “Although a court must not be overly technical in interpreting penal provisions, penal responsibility cannot be extended beyond the fair scope of the statutory mandate. If there is to be a diametric change in the statute, it should come from the Legislature.” People v. Case, 42 N.Y. 2d 98, 40 102 (1977). F. The Information is Facially Insufficient A valid and sufficient accusatory instrument is “a fundamental and non-waivable jurisdictional prerequisite” to any criminal prosecution. People v. Hall, 48 N.Y.2d 927 (1979). The Court of Appeals has held that a misdemeanor complaint is facially insufficient and fails to provide jurisdiction for a conviction, when it does not include factual allegations “of an evidentiary character” establishing, if true, reasonable cause to believe that the defendant committed a crime. Conclusory statements are inadequate. People v. Dumas, 68 N.Y. 2d 729, 731 (1986). See also C.P.L. § 100.15 (3), 100.40 (4)(b). Additionally, in an information, such as presented here, the factual allegations must set forth a prima facie case, that is, they must contain factual allegations that establish every element of the charged offense. See C.P.L. §100.40 (1)(c); People v. Kalin, 12 N.Y.3d 225, 228-29 (2009). The People have the burden to make out a prima facie case in the text of the information. People v. Jones, 9 N.Y. 3d 259, 261 (2007). The prima facie requirement is a “much more demanding standard” than a showing of reasonable cause alone and the absence of any allegations on an element is a 41 facial insufficiency defect that was jurisdictional in nature. People v. Alejandro, 70 N.Y.2d 133, 138-39 (1987). Here, neither reasonable cause nor the much higher standard of a prima facie case was met. The facts merely alleged that appellant had a battery operated receiver in his left jacket pocket that was receiving police frequencies. The criminal court correctly found that the pleadings lacked allegations that demonstrating how the vehicle was equipped with the device as defined by the statute. See A9, Decision and Order, page 4, Criminal Court File. Here, the officer wrongly concluded, without proffering the evidence, that appellant had equipped the vehicle with the device. Counsel’s motion to dismiss and the criminal court’s decision granting it have preserved this issue. Moreover, this affects the mode of proceeding. “Pleading errors involving omission of elements of the charged crime are fundamental. They impair a defendant’s basic rights to fair notice sufficient to enable preparation of a defense and to prevent double jeopardy.” People v. Casey, 95 N.Y.2d 354, 366 (2000). This Court should reverse the Appellate Term’s decision, affirm the criminal court’s decision, and dismiss the information. CONCLUSION FOR THE REASONS STATED ABOVE, THIS COURT SHOULD REVERSE THE APPELLATE TERM'S FINDING THAT THE INFORMATION WAS FACIALLY SUFFICIENT, AFFIRM THE CRIMINAL COURT'S DECISION THAT IT WAS FACIALLY INSUFFICIENT, AND DISMISS THE INFORMATION. Respectfully submitted, SEYMOUR W. JAMES, JR. Attorney for Defendant- Appellant C_ ~ \ \_;~,\\ ·-~ CHERYD WILLIAMS Of Counsel April 2016 42 CERTIFICATE OF COMPLIANCE Pursuant to 22 N.Y.C.R.R. §670.10(3)(f) The foregoing brief was prepared on a computer. A proportionally spaced typeface was used as follows: Name of typeface: Times New Roman Point Size: 14 Line Spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, proof of service, and certificate of compliance, is 8,680. c: ~ \ \;~,\\' ~- CHERYl WILLIAMS STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) CHERYL WILLIAMS, an attorney duly admitted to practice law in this State, does hereby affirm and show: That on April 8, 2016, I served 3 copies of the within Brief for Defendant- Appellant upon ADA Catherine Reno, attorney for respondent, at Bronx County District Attorney's Office, Appeals Bureau, 198 E. 16Pt Street, Bronx, New York, 10451, the address designated by her for that purpose, by depositing 3 true copies of the same in a postpaid, properly addressed Express Mail wrapper, in an official depository under the exclusive care and custody of the United States Post Office Department within the State of New York. Dated: New York, New York April 8, 2016 GS\ \__~ "'"""' -----= CHERYK WILLIAMS