The People, Respondent,v.John Andujar, Appellant.BriefN.Y.September 5, 2017To be argued by KAREN M. KALIKOW (15 MINUTES) Court of Appeals STATE OF NEW YORK ____________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN ANDUJAR, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT SEYMOUR W. JAMES. JR. KAREN M. KALIKOW Attorneys for Defendant- Appellant The Legal Aid Society 199 Water Street New York, NY 10038 Tel: (718) 579-3151 Fax: (646) 616-4451 OCTOBER 17, 2016 i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 REPLY STATEMENT OF FACTS .......................................................................... 1 REPLY ARGUMENT ............................................................................................... 2 BECAUSE THE LEGISLATURE DID NOT INTEND TO CRIMINALIZE THE MERE POSSESSION OF OR ACCESS TO A PORTABLE DEVICE CAPABLE OF RECEIVING SIGNALS ON POLICE FREQUENCIES IN A MOTOR VEHICLE, APPELLANT MAY NOT BE PROSECUTED UNDER V.T.L. §397 AND THE FACTUAL ALLEGATIONS IN THE ACCUSATORY INSTRUMENT -- SIMPLY THAT APPELLANT, WHO WAS IN HIS TRUCK, HAD ON HIS PERSON, A SCANNER CAPABLE OF RECEIVING SIGNALS ON POLICE FREQUENCIES -- WERE NOT SUFFICIENT TO ESTABLISH REASONABLE CAUSE TO BELIEVE OR A PRIMA FACIE CASE TO ESTABLISH THAT APPELLANT "EQUIPPED" THE VEHICLE HE WAS OPERATING WITH A POLICE SCANNER PURSUANT TO V.T.L. §397. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, §6 .......................... 2 CONCLUSION ........................................................................................................ 15 ii TABLE OF AUTHORITIES Page(s) FEDERAL CASES Brown v. Gardner, 513 U.S. 115 (1994) .................................................................... 7 Clark v. Martinez, 543 U.S. 371 (2005) .................................................................... 5 U.S. v. Brown, 333 U.S. 19 (1948) ............................................................................ 5 U.S. v. Rodriguez, 41 F. Supp. 79 (E.D.N.Y. 1994) ............................................... 11 U.S. v. Santos, 553 U.S. 507 (2008) .................................................................... 5, 14 STATE CASES Morales v. County of Nassau, 94 N.Y.2d 218 (1999) ............................................. 10 People v. Ayala, 75 N.Y.2d 422 (1990) ................................................................... 14 People v. Boothe, 16 N.Y.3d 195 (2011) ....................................................... 6, 10, 11 People v. Case, 48 N.Y.2d 95 (1977) ........................................................................ 7 People v. Dewall, 15 A.D.3d 498 (2d Dept. 2005) .................................................. 14 People v. Duggins, 3 N.Y.3d 522 (2004) ............................................................... 4-5 People v. Economakis, 10 N.Y.3d 542 (2008) .......................................................... 6 People v. Faude, 88 Misc.2d 434 (Erie County Ct. 1976) ....................................... 12 People v. Finnegan, 85 N.Y.2d 53 (1995) ................................................................. 6 People v. Gilbert, 41 Mich. 191 (Mich. 1982) ....................................... 11, 12, 14-15 People v. Gottlieb, 36 N.Y.2d 629 (1975) ............................................................... 14 People v. Green, 68 N.Y.2d 151 (1986) .................................................................. 14 People v. Hedgeman, 70 N.Y.2d 533 (1987) ................................................... 6, 7, 14 People v. Laing, 79 N.Y.2d 166 (1992) ................................................................... 14 iii People v. Litto, 8 N.Y.3d 692 (2007) .................................................................... 5, 7 People v. McGee, 97 Misc.2d 360 (Town Ct., Erie Co. 1978) ........................... 4, 12 People v. Miller, 18 N.Y.3d 704 (2012) .............................................................. 6, 11 People v. Moore, 92 Misc.2d 807 (Broome County Ct. 1978) ................................ 12 People v. Santi, 3 N.Y.3d 234 (2004) ........................................................................ 6 People v. Shapiro, 50 N.Y.2d 747 (1980) .................................................................. 5 People v. Tychanski, 78 N.Y.2d 909 (1991) ........................................................... 10 People v. Vidaurrazaga, 100 A.D.3d 664 (2d Dept. 2012) ...................................... 14 People v. Williams, 16 N.Y.3d 480 (2011) ............................................................. 10 People v. Zimmerman, 9 N.Y.3d 421 (2007) ............................................................ 6 STATUTES C.P.L. § 100.10 .......................................................................................................... 3 C.P.L. § 100.15 .......................................................................................................... 3 P.L. § 140.40 .................................................................................................. 9, 10, 11 P.L. § 176.05 ............................................................................................................ 10 P.L. § 195.05 .............................................................................................................. 7 V.T.L. §397 .......................................................................................................passim CONSTITUTIONAL PROVISIONS N.Y. CONST., Art. I, § 6 ....................................................................................... 2, 3 U.S. CONST., Amend. XIV .................................................................................. 2, 3 1 COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------ x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN ANDUJAR, Defendant-Appellant. : : : : : : : : : ------------------------------------------------------------ x PRELIMINARY STATEMENT John Andujar submits this reply brief in answer to Respondent’s Brief (hereafter cited as “R.B.”), which we received on September 8, 2016. Appellant’s original brief fully sets forth the facts and procedural history of the case. Those need not be reiterated here. Rather, the sole purpose of this reply is to respond to various contentions raised by the People in their brief. The Court has extended our time to file this brief until October 17, 2016. REPLY STATEMENT OF FACTS Appellant relies on the Statement of Facts in his main brief. 2 REPLY ARGUMENT BECAUSE THE LEGISLATURE DID NOT INTEND TO CRIMINALIZE THE MERE POSSESSION OF OR ACCESS TO A PORTABLE DEVICE CAPABLE OF RECEIVING SIGNALS ON POLICE FREQUENCIES IN A MOTOR VEHICLE, APPELLANT MAY NOT BE PROSECUTED UNDER V.T.L. §397 AND THE FACTUAL ALLEGATIONS IN THE ACCUSATORY INSTRUMENT -- SIMPLY THAT APPELLANT, WHO WAS IN HIS TRUCK, HAD ON HIS PERSON, A SCANNER CAPABLE OF RECEIVING SIGNALS ON POLICE FREQUENCIES -- WERE NOT SUFFICIENT TO ESTABLISH REASONABLE CAUSE TO BELIEVE OR A PRIMA FACIE CASE TO ESTABLISH THAT APPELLANT "EQUIPPED" THE VEHICLE HE WAS OPERATING WITH A POLICE SCANNER PURSUANT TO V.T.L. §397. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, §6. Respondent glosses over the purpose behind V.T.L. §397 and selectively reads the rules of statutory construction to isolate the statute from other statutes in the vehicle and traffic laws and the penal law to save the improvident prosecution of appellant Mr. Andujar for simply possessing a police scanner in his vehicle. By ripping the statute from its historical perspective, Respondent reaches an absurd result where anyone who enters a vehicle with a smart phone with a police scanner app could be prosecuted under V.T.L. §397. This outcome was not what the Legislature intended when it enacted the statute in 1933 and amended it in 1948 and again in 1965. Because Mr. Andujar did not adapt the scanner in any way to use it in the motor vehicle (for example: by installing it in the vehicle, affixing it to 3 the vehicle, adapting it for use in the vehicle, specifically preparing it to be used in the vehicle), he did not "equip" the vehicle with a police scanner in violation of V.T.L. §397. Accordingly, the complaint in this case was facially insufficient since it did not include factual allegations establishing, if true, reasonable cause to believe that Mr. Andujar was committing a crime and the superseding information did not set forth a prima facie case that established every element of the charged offense. U.S. Const., Amend. XIV; N.Y. Const., Art. I, §6; C.P.L. §§100.10, 100.15; V.T.L. §397. The criminal court was correct in this case when it determined that the pleadings lacked allegations demonstrating how the vehicle Mr. Andujar was driving was equipped with a device capable of receiving signals on the frequencies allocated for police use, as required by V.T.L. §397, and the Appellate Term was incorrect when it reversed the finding of the criminal court, instead concluding that because the scanner was in Mr. Andujar's 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" (A. 4).1 V.T.L. §397 proscribes three separate types of conduct: 1) equipping a motor vehicle with a radio receiving set capable of receiving signals on the frequencies allocated for police use, or 2) knowingly using a motor vehicle so 1 Numbers in parentheses preceded by "A." refer to pages of Appellant's Appendix in this Court. 4 equipped, or 3) knowingly interfering with the transmission of radio messages by the police. The rationale behind the statute was to prevent criminals from listening to police broadcasts in their automobiles, either prior to or after their commission of a crime, and to prevent the jamming of the air waves during the police broadcasts. People v. McGee, 97 Misc.2d 360 (Town Ct., Erie Co. 1978). Possessing or even using a police scanner in a motor vehicle is not prohibited whereas equipping a motor vehicle with a police scanner is prohibited. Utilizing the definitions of "equip" that Respondent asks this Court to accept, however, virtually reads the word "equip" out of the statute, R.B. 15-16. Indeed, Respondent overly simplifies their statutory construction analysis to achieve their desired result by stating that the "ordinary meaning of 'equip' does not require a physical attachment or particular design," R.B. 10. It is not simply the "ordinary" meaning of the ambiguous word in the statute that applies, but rather the meaning of the word within the context it is written and the definition of the term as conceived by the Legislature. “When a statute does not define a particular term, it is presumed that the term should be given its precise and well settled legal meaning in the jurisprudence of the state. Moreover, when terms of art or peculiar phrases are used, it is supposed that the Legislature had in view the subject matter about which such terms or phrases are commonly employed. ” See People v. Duggins, 3 N.Y.3d 522 5 (2004). “No rule of construction necessitates [a court’s] acceptance of an interpretation resulting in patently absurd consequences.” See U.S. v. Brown, 333 U.S. 19 (1948). “[T]he meaning of words in a statute cannot change with the statute’s application. To hold otherwise would render every statute a chameleon, and would establish within our jurisprudence the dangerous principle that judges can give the same statutory text different meaning in different cases.” See U.S. v. Santos, 553 U.S. 507 (2008); Clark v. Martinez, 543 U.S. 371 (2005). Respondent over relies on various dictionary definitions of "equip" while improperly divorcing those meanings from the legislative intent and purpose. See People v. Litto, 8 N.Y.3d 692 (2007). By effectively reading out the word "equip" from the statute, Respondent also ignores the statutory construction principle of “ejusdem generis,” which teaches that the scope and meaning of a word in a statute is construed in reference to its surrounding terms. See People v. Shapiro, 50 N.Y.2d 747 (1980). As this Court explained recently, in People v. Litto, 8 N.Y.3d 692, “[t]he Court’s primary goal is to interpret a statute by determining, and implementing, the Legislature’s intent. Analysis begins with the language of the statute itself. Next, in construing a statute, the courts frequently follow the course of legislation on the subject, the lineage of the act being thought to illuminate the intent of the legislature. The Court additionally looks to the purposes underlying the legislative 6 scheme.” See People v. Boothe, 16 N.Y.3d 195 (2011); People v. Economakis, 10 N.Y.3d 542 (2008); People v. Santi, 3 N.Y.3d 234 (2004) (“Legislative intent drives judicial interpretations in matters of statutory construction”); People v. Finnegan, 85 N.Y.2d 53 (1995) (“The governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used. Equally settled, however, is the principle that courts are not to legislate under the guise of interpretation ”). “The clearest indicator of legislative intent is the statutory text.” See People v. Zimmerman, 9 N.Y.3d 421 (2007). “[L]egislative history cannot supply something that is just not in the statute.” See People v. Miller, 18 N.Y.3d 704 (2012); People v. Hedgeman, 70 N.Y.2d 533 (1987) (“Words which define or delimit the reach of statutory provisions may not be disregarded as superfluous, but must be given meaning and effect.”). Respondent mischaracterizes appellant's statutory construction argument as antithetical to technological developments not in existence at the time of the writing of the statute, R.B. 21. To the contrary, however, appellant does not argue that V.T.L. §397 only prohibited the use of technology that existed in 1933. Rather, appellant explains, based on settled principles of statutory construction laid out by this Court time and time again, that the definition of "equip" in the statute 7 must hone to the definition of the term as conceived by the Legislature, meaning statutory interpretation must be placed within the context of the technology existing at the time the original statute took effect. See Brown v. Gardner, 513 U.S. 115 (1994); People v. Litto, 8 N.Y.3d 692; People v. Hedgeman, 70 N.Y.2d 533; Appellant's Initial Brief, pp. 13, 23-24. As Respondent concedes, R.B. 11, 30, that the Legislature did not intend to criminalize the simple possession of a device capable of picking up and transmitting on police frequencies is evidenced by its use of the term "equip" rather than "possess" or "use." As Respondent further concedes, R.B. 11, the Legislature never intended to prohibit someone from walking down the street or sitting in their living room from listening to a police scanner as a hobby. Rather, the Legislature intended to prohibit someone from "equipping" their car with the police scanner to enable them to evade the police in the commission of a crime. The motor vehicle was the intended target of V.T.L. §397, not the person. See People v. Case, 48 N.Y.2d 95 (1977) (The words of a statute may not be cast in isolation. Finding that the word "interference" in P.L. §195.05 was modified by the word "physical," this Court opined, "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."). 8 When the Legislature sought to prohibit the mere use of a portable device, such as a cell phone, in a moving vehicle, it was capable of doing so directly and unambiguously: V.T.L. §1225-d provides, in pertinent part, that “no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion.” For purposes of the statute, a “portable electronic device” includes a hand-held mobile telephone, personal digital assistant (PDA), hand-held device with mobile data access, laptop computer, pager, broadband personal communication device, two-way messaging device, electronic game, or portable computing device, or any other electronic device when used to input, write, send, receive, or read text for present or future communication, and "using” this device means “holding [it] while viewing, taking or transmitting images, playing games, or, for the purpose of present or future communication: performing a command or request to access a world wide web page, composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving e-mail, text messages, instant messages, or other electronic data.” Moreover, “[a] person who holds a portable electronic device in a conspicuous manner while operating a motor vehicle ... is presumed to be using such device ... [and] [t]he presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not using the device within the meaning of this section,” V.T.L. §1225-d (4). 9 Furthermore, P.L. §140.40 2 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. It contemplates prohibiting only devices capable of intercepting police messages which could obviously thwart the successful apprehension of criminals while in the process of violating the law. In order to outlaw the use of a portable device in the motor vehicle, a device that was not necessarily tethered to the car in some way, it was necessary to adopt a new statute since V.T.L. §397 was not intended to criminalize such use. V.T.L. §397 was amended in 1966, when the term “automobile” was replaced with the words “motor vehicle,” L.1948, ch. 183; L.1966, ch. 620. Since transistor radios and other portable devices were readily available in 1966, making walkie talkies and the like foreseeable, the Legislature could easily have included portable devices in the statute and/or replaced the words “equip a motor vehicle” with “has access in a motor vehicle,” to give it the meaning Respondent ascribes to 2 P.L. §140.40 states as follows: Unlawful possession of radio devices—As used in this section, the term 'radio device' 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. 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. 10 it. Yet the Legislature chose not to include portable devices within the purview of the statute, as it did with V.T.L. §1225-d (4), as well as P.L. §140.40. The decision not to include portable devices in V.T.L. §397 evidenced the Legislature's intent to exclude such devices from the reach of the statute. See People v. Booth, 16 N.Y.3d 195 (While the Legislature amended P.L. §176.05, it failed to amend the substantive offense provisions containing the core requirements of the statute. Thus, the Legislature plainly failed to criminalize the conduct at issue, and the statutory infirmity cannot be overlooked, nor can it be remedied through statutory interpretation. It is well settled “that courts are not to legislate under the guise of interpretation." If a deficiency is to be corrected, it must be done through legislative action, as the Legislature is better equipped to correct any deficiencies that might exist.). Where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded (i.e., the “expressio unius est exclusio alterius” maxim). See Morales v. County of Nassau, 94 N.Y.2d 218 (1999). “The failure of the Legislature to include a matter within a particular statute is an indication that its exclusion was intended.” See, e.g., People v. Williams, 16 N.Y.3d 480 (2011); People v. Tychanski, 78 N.Y.2d 909 (1991). 11 Under the guise of allowing the statute to grow with technological advances, R.B. 10, 19-21, 34, 43, Respondent is asking this Court "to legislate under the guise of interpretation," which this Court may not do. E.g., People v. Miller, 18 N.Y.3d 704 (2012); People v. Booth, 16 N.Y.3d 195. If the Legislature did not intend "equip" to mean some connection or tether between the motor vehicle and the police scanner, then the Legislature would have prohibited the use of the scanner in the motor vehicle or would have prohibited access to the scanner with intent to use the scanner, as it did in P.L. §140.40. It chose not to prohibit such conduct but rather to prohibit equipping the motor vehicle. People v. Gilbert, 41 Mich. 191 (Mich. 1982) ("Technological advances cannot enlarge the meaning of the terms and prohibitions or extend the intended scope of the statute. Then the Court would be legislating."). This Court must allow the Legislature to bring the statute in line with contemporary realities, if that is indeed the intent of the Legislature. Citing to U.S. v. Rodriguez, 41 F. Supp. 79 (E.D.N.Y. 1994), Respondent argues that "equip" does not require a physical attachment, R.B. 17-18. However, the examples Respondent uses to support their argument that items can equip each other even when not attached are items that must, in fact, ultimately be attached to the other item to actually function: a silencer and a gun, a saw with various blades, and a vacuum with different suction tools. Here, the police scanner in Mr. 12 Andujar's pocket was not designed or intended to be attached in any way to the vehicle. Respondent next misstates the purpose of V.T.L. §397 to fit their argument. The statute was not enacted "to prohibit people from accessing police frequencies in private vehicles," as Respondent contends, R.B. 10, but rather, to discourage those with criminal intent from accessing these communications from their vehicle, that is, to prohibit people from equipping their cars with devices that access police frequencies to utilize the police frequencies to commit crime and hamper detection. People v. McGee, 97 Misc.2d 360. The vehicle was the central focus of the statute and to effect its purpose, the Legislature created a specific prohibition against specially preparing and/or equipping a vehicle with a police scanner. Respondent misses the mark in attempting to distinguish cases such as People v. Gilbert, 414 Mich. 191, People v. Moore, 92 Misc.2d 807 (Broome County Ct. 1978), and People v. Faude, 88 Misc.2d 434 (Erie County Ct. 1976), on the grounds that those cases addressed whether the "precise, technical definitions of devices at issue" in V.T.L. §397, that is, "a radio receiving set capable of receiving signals on the frequencies allocated for police use," applied to radar detectors. The cases hold that V.T.L. §397 does not apply to radar detectors. Respondent reasons that the device in V.T.L. §397 "is carefully and narrowly defined. Thus, it is not a general term that must be read to encompass future 13 technological advancements," R.B. 22 n. 11 What Respondent ignores, however, is that V.T.L. §397 also "carefully and narrowly" defines the relation between the motor vehicle and the police scanner at issue in the statute. That relation is not defined generally. Indeed, not all radio receiving sets are prohibited by V.T.L. §397; rather, only those radio receivers that "equip" the motor vehicle are prohibited by the statute. By arguing, in the alternative, that even if this Court were to adopt Mr. Andujar's reading of V.T.L. §397, defendant would still be in violation of the statute, R.B. 42-44, Respondent continues to overlook entirely the purpose behind V.T.L. §397 as well as its historical perspective and the legislative intent behind the statute. Even if the portable police scanner at issue here could potentially be charged by a car battery or heard through a car stereo system using a particular cable or device does not mean that the scanner was adapted for use in a motor vehicle or that the motor vehicle was equipped with the scanner. By again reading out the word "equip" from the statute, Respondent reaches an absurd result by positing that anyone who enters a vehicle with a smart phone with a police scanner app could be prosecuted under V.T.L. §397. Furthermore, when Respondent posits generally that the police scanner in Mr. Andujar's pocket could possibly be connected by a particular cable to a motor vehicle's stereo system, R.B. 42, Respondent does not even suggest that the 14 portable radio here was designed to be used in this way. In any event, Respondent's argument fails because the accusatory instrument in this case did not allege that Mr. Andujar was using the police scanner in this way. Finally, Respondent ignores the Rule of Lenity applicable to statutory construction, that requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them. Although “[c]ourts must construe clear and unambiguous statutes as enacted and may not resort to interpretative contrivances to broaden the scope and application of statutes,” see People v. Laing, 79 N.Y.2d 166 (1992), nor may courts "engage in strained interpretations to extend criminal liability beyond the fair scope of the statutory mandate." Criminal statutes should not be construed "to create penal liability from what is not plainly written, to make out a crime by implication or to stretch a statute to fit the facts.” See People v. Hedgeman, 70 N.Y.2d 533; McKinney's Cons Laws of NY, Book 1, Statutes 276; People v. Gottlieb, 36 N.Y.2d 629 (1975); People v. Vidaurrazaga, 100 A.D.3d 664 (2d Dept. 2012); People v. Dewall, 15 A.D.3d 498 (2d Dept. 2005) (citing pertinent Court of Appeals decisions on the rule of lenity); see also U.S. v. Santos, 553 U.S. 507 (2008) (“Under a long line of our decisions, the tie must go to the defendant. The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them”); People v. Ayala, 75 N.Y.2d 422 (1990); People v. Green, 68 N.Y.2d 151 (1986); People v. Gilbert, 41 Mich. 191, 15 211 (Supreme Court of Michigan explained that penal statutes must be strictly construed, and that if a statute is ambiguous, the ambiguity must be resolved in favor of lenity. Relying upon the rule of lenity and other rules of statutory construction, the Gilbert Court determined that a radar detector was not a radio receiving set within the meaning of the statute prohibiting "equipping" a vehicle with a radio receiving set that received police frequencies.) CONCLUSION FOR THE REASONS ADVANCED HEREIN AND IN APPELLANT’S MAIN BRIEF, THE ORDER OF THE APPELLATE TERM SHOULD BE REVERSED AND THE INFORMATION DISMISSED. Respectfully Submitted, SEYMOUR W. JAMES, JR. KAREN M. KALIKOW Attorneys for Defendant-Appellant October 17, 2016