The People, Respondent,v.Antonio Aragon, Appellant.BriefN.Y.September 7, 2016To be argued by HAROLD V. FERGUSON, JR. (15 Minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ANTONIO ARAGON, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT HAROLD V. FERGUSON, JR. Of Counsel June,2015 SEYMOUR W. JAMES, JR. Attorney for Defendant- Appellant THE LEGAL AID SOCIETY Criminal Appeals Bureau 199 Water Street, 5th Floor. New York, N.Y. 10038 (212) 577-3548 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................... ii QUESTION PRESENTED ............................................................................. 2 ST A TEMENT OF FACTS ............................................................................. 2 ARGUMENT POINT I THE ACCUSATORY INSTRUMENT CHARG- ING APPELLANT WITH CRIMINAL POSSESSION OF A WEAPON IN THE FOURTH DEGREE WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT FAILED TO ALLEGE SUFFICIENT EVIDENTIARY FACTS TO SUPPORT ITS CONCLUSORY ALLE- GATION THAT APPELLANT POSSESSED "METAL KNUCKLES." C.P.L. §§100.40(4)(B); 170.30(1); P.L. §265.01(1); PEOPLE V. DREYDEN, 15 N.Y.3D 100 (2010); PEOPLE V. ALEJANDRO, 70 N.Y.2D 133 (1987) ...................................... 8 CONCLUSION ............................................................................................. 23 I TABLE OF AUTHORITIES FEDERAL CASES Giordenello v. U.S., 357 U.S. 480 (1958) ..................................................... 13 Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560 (1971) ....................................................................................................... 13 STATE CASES Majewski v. Broadalbin, 91 N.Y.2d 577 (1998) ........................................... 18 People v. Adamkiewiez, 298 N.Y. 176 (1948) ............................................. 17 People v. Alejandro, 70 N.Y.2d 133 (1987) ................................................... 9 People v. Aragon, 44 Misc.3d 140(A) (App. Term: 1st Dept. 2014) ......... 1, 7 People v. Buhagiar, 185 Misc.2d 703 (App. Term: 2nd Dept. 2000) ........... 16 People v. Case, 42 N.Y.2d 98 (1977) ............................................................. 2 People v. Casey, 95 N.Y.2d at 360 ............................................................... 10 People v. Dreyden, 15 N.Y.3d 100 (2010) ............................................ passim People v. Dumas, 68 N.Y.2d 729 (1986) ...................................... 2, 10, 12, 13 People v. Hendricks, 25 N.Y.2d 129 (1969) ................................................. 13 People v. Jackson, 18 N.Y.3d 738 (2012) ....................................................... 9 People v. Jones, 9 N.Y.3d 259 (2007) ............................................................ 2 People v. Kalin, 12 N.Y.3d 225 (2009) .............................................. 2, 12, 21 People v. Munoz, 9 N.Y.2d 51(1961) .......................................................... 17 People v. Owusu, 93 N.Y.2d 398 (1999) ...................................................... 17 11 People v. Persce, 204 N.Y. 397 (1912) ................................................. 4, 7, 17 People v. Singleton, 127 Misc.2d 735 (Crim. Ct. NY Cty. 1985) ................ 18 People v. Talbert, 220 A.D.2d at 843 ........................................................... 16 People v. Visarities, 220 A.D. 657 (1st Dep't. 1927) ............................. 15, 16 People v. Wirchansky, 41 N.Y.2d 130 (1976) .............................................. 13 Rosner v. Metropolitan Prop., 96 N.Y.2d 475 (2001) .................................. 18 STATUTES C.P.L. § 100.05 ................................................................................................ 9 C.P.L. §100.10 (4) ........................................................................................... 9 C.P.L. §100.15 (2) ......................................................................................... 10 C.P.L. §100.15(3) .................................................................................... 10, 12 C.P.L. §100.40 ................................................................................................ 3 C.P.L. § 100.40(b) ........................................................................................... 9 C.P.L. §100.40(4) .......................................................................................... 12 C.P.L. §100.40(4)(b) ................................................................................. 8, 10 C.P.L. §120.20(1) .......................................................................................... 12 C.P.L. § 170.30(1) ............................................................................................ 3 CONSTITUTIONAL PROVISIONS N.Y. Const., Article I, § 6 ............................................................................... 9 U.S. Const., Amendment XIV ........................................................................ 9 111 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------)( THE PEOPLE OF THE ST ATE OF NEW YORK, Respondent, -against- ANTONIO ARAGON, Defendant-Appellant. ---------------------------------------------------------------------)( PRELIMINARY STATEMENT By permission of the Honorable Susan Phillips Read, Associate Judge of the Court of Appeals, dated February 24, 2015, appellant appeals from an Order of the Appellate Term: First Department, dated July 29, 2014, affirming a judgment of the Criminal Court, New York County, rendered on March 14, 2012, convicting appellant, after a guilty plea of disorderly conduct and sentencing him to time served (Quinones, J., at plea and sentence ). 1 See People v. Aragon, 44 Misc.3d 140(A) (App. Term: 1st Dept. 2014). On March 26, 2015, this Court granted appellant leave to appeal as a poor person and assigned Seymour W. James, Jr., of The Legal Aid Society Parenthetical references preceded by "A" are to pages of appellant's appendix. 1 as counsel on the appeal. No stay of execution of judgment has been sought. Appellant has completed his sentence. This Court has jurisdiction to hear this appeal pursuant to C.P.L. §450.90(1 ). First, appellant made a timely motion to dismiss the accusatory instrument in question as jurisdictionally defective that the trial court denied. In any event, since the issue of law raised on this appeal concerns the jurisdictional sufficiency of the factual allegations of the accusatory instrument, which is reversible even if raised for the first time on appeal following a guilty plea. See People v. Kalin, 12 N.Y.3d 225, 228 (2009); People v. Jones, 9 N.Y.3d 259, 262 (2007); People v. Dumas, 68 N.Y.2d 729, 731 (1986); People v. Case, 42 N.Y.2d 98, 100 (1977). QUESTION PRESENTED 1. Whether the accusatory instrument charging appellant with criminal possession of a weapon in the fourth degree was jurisdictionally defective because it failed to allege sufficient evidentiary facts to support its conclusory allegation that appellant possessed "metal knuckles." C.P.L. §§100.40(4)(B); 170.30(1); P.L. §265.01(1); People v. Dreyden, 15 N.Y.3d 100 (2010); People v. Alejandro, 70 N.Y.2d 133 (1987). STATEMENT OF FACTS Under New York County docket number 2011NY044855, appellant was charged with one count of criminal possession of a weapon in the fourth 2 degree (P.L. §265.01(1)) (4-6). In the legal portion of the misdemeanor complaint, Police Officer Victor Charles alleged that on June 18, 2011 "at about 19:20 hours" in the rear of 171 East 109th Street in Manhattan, appellant committed the offense of criminal possession of a weapon in the fourth degree by possessing "metal knuckles" (A5). In the factual position of this complaint, Charles stated that he was informed by Police Officer Carlos Habrahamshon that he had "recovered one set of brass metal knuckles from defendant's right front pants pocket" (A5). On October 28, 2011, defense counsel, in an omnibus motion, moved to dismiss the complaint under C.P.L. §§ 100.40 and 170.30(1) on the ground that the accusatory instrument was "facially insufficient" (A7-32). Counsel argued that a witness' statement in the factual section of a complaint that "merely asserts an ultimate determination or conclusion - - without indicating the underlying factual basis for that conclusion or any supporting evidence for it - - is not 'of an evidentiary character' but is improperly 'conclusory"' (All). Furthermore, counsel arrested that "a mere conclusory statement regarding an element of an offense does not satisfy the jurisdictional 'reasonable cause' standard, which is applicable to both complaints and informations" (All). Continuing, counsel asserted that "an 3 accusatory instrument that asserts allegations alone is insufficient and renders the instrument jurisdictionally defective" (All). Counsel argued that the statements attributed to Officer Habrahamshon were conclusory assertions that did not provide reasonable cause to believe that appellant possessed metal knuckles {Al2). Counsel further noted that with the exception of the single statement regarding the recovery of metal knuckles from appellant's pants pocket, there was no further language in the accusatory instrument regarding the alleged metal knuckles {Al2). In light of this Court's opinion in People v. Dreyden, 15 N.Y.3d 100, 103-104 (2010), counsel argued that the accusatory instrument in this case was jurisdictionally defective (A12-13). Counsel further argued that metal knuckles was one of the per se weapons not defined in the Penal Law and that caselaw did not provide a clear answer on the definition of "metal knuckles" (Al3). Counsel argued that despite this Court's opinion in People v. Persce, 204 N.Y. 397, 403 (1912) regarding the "well-understood character" of certain of the per se weapons contained in P.L. §265.01, courts had subsequently needed to "further clarify exactly what constitutes one of these per se weapons" (A13-14). In addition, counsel noted that the trial 4 courts of New York County were divided over the meanmg of metal knuckles (Al4). Still further, counsel argued that Officer Habrahamson had stated, in conclusory terms, that he had recovered brass metal knuckles from appellant without any reference to his training or experience (Al5). Absent a reference to this officer's training or experience in identifying metal knuckles, counsel contended that there was "nothing in the accusatory instrument demonstrating that Officer Habrahamshon knew how to identify metal knuckles at the time he examined the object" (A15). Still further, counsel asserted that there was no factual basis to support the officer's conclusion that the recovered object was "metal knuckles", "nor any language describing the object recovered or what particular aspects of the object fit any definition of 'metal knuckles"' (Al5). Counsel argued that this Court's specificity requirement in Dreyden would be rendered meaningless as it pertained to alleged per se weapons because it would allow "an officer to simply state an object is what he purports it to be, and be done with it" (A15). Counsel concluded by argumg that the accusatory instrument in question was facially insufficient because it failed to explain or support Officer Harbahamshon's belief that the metal knuckles allegedly in 5 appellant's possession were, in fact, metal knuckles; instead, the accusatory instrument merely stated, "in conclusory language, that the object at issue is metal knuckles" (A15). As a result, since this accusatory instrument failed "to provide reasonable cause to believe that the object in defendant's possession was a per se weapon, and therefore an illegal set of metal knuckles, the accusatory instrument must be dismissed in its entirety" (Al5). The People did not file a formal response to counsel's motion. The court summarily denied the motion (Mennin, J.) It held that the accusatory instrument was facially insufficient2 (A34). On March 14, 2012, appellant appeared in court before Judge Joanne Quinones (A36). The prosecutor offered a plea to disorderly conduct and time served (A37). Defense counsel indicated that appellant wished to plead guilty, waived prosecution by information and formal allocution, and stood ready for sentence (A3 7). Appellant pleaded guilty to disorderly conduct (A38). He waived his right to prosecution by information, and his right to formal allocution (A38). Appellant stated that no one forced him to take the plea, and that no promises had been made to him other than the proposed sentence (A38). Appellant stated that he was pleading guilty because he was 2 Although the Endorsements indicated that a written decision on this matter would be forthcoming, there is no record of a formal written decision in the Criminal Court trial file (A34). 6 in fact guilty, and that he understood that was giving up the right to remain silent, the right to a trial, and the right to have the People prove their case beyond a reasonable doubt (A38). On appeal, the Appellate Term rejected appellant's contention that the accusatory instrument in question was facially insufficient. See People v. Aragon, supra (A2-3). It thus affirmed appellant's conviction (A2). The Appellate Term held that the statement that the police had recovered "one set of brass metal knuckles" was "sufficiently understanding in character to establish reasonable cause to believe that defendant was guilty of the charged offense of fourth-degree criminal possession of a weapon" (A2-3). The Appellate Term referenced this Court's opinion in Persce (A3). It also distinguished the instant case from this Court's opinion in Drey den because a gravity knife is an "escoteric weapon which 'the Penal Law explicitly defines in complicated detail'" "unlike metal knuckles" (A3). On February 24, 2015, the Honorable Susan Phillips Read granted appellant leave to appeal to this Court (Al). 7 ARGUMENT POINT I THE ACCUSATORY INSTRUMENT CHARG- ING APPELLANT WITH CRIMINAL POSSESSION OF A WEAPON IN THE FOURTH DEGREE WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT FAILED TO ALLEGE SUFFICIENT EVIDENTIARY FACTS TO SUPPORT ITS CONCLUSORY ALLE- GATION THAT APPELLANT POSSESSED "METAL KNUCKLES." C.P.L. §§100.40(4)(B); 170.30(1); P.L. §265.01(1); PEOPLE V. DREYDEN, 15 N.Y.3D 100 (2010); PEOPLE V. ALEJANDRO, 70 N.Y.2D 133 (1987). A misdemeanor complaint must allege facts that establish "reasonable cause" to believe that the defendant committed the charged offense. C.P .L. § 100.40( 40(b ). Conclusory allegations fail to establish reasonable cause. Accusatory instruments that do not satisfy these standards are jurisdictionally defective. Here, the accusatory instrument charging appellant with criminal possession of a weapon in the fourth degree was jurisdictionally defective because it merely alleged that appellant possessed "metal knuckles" and that a police officer recovered "a set of brass metal knuckles" from appellant's front pants pocket. These allegations were conclusory in that they failed to provide any physical description of the recovered item, failed to provide any factual basis to support the officer's conclusion that the recovered item was "metal knuckles" and failed to 8 include any language describing what particular aspects of the recovered item fit any description of "metal knuckles." In addition, since the accusatory instrument did not contain any information regarding the officer's training or experience in identifying "metal knuckles", the complaint failed to demonstrate that the officer knew how to identify "metal knuckles" at the time he recovered an object from appellant's pants pocket. Consequently, the accusatory instrument was facially insufficient and jurisdictionally defective. Therefore, the trial court erred when it denied counsel's dismissal motion. The Appellate Term, in tum, likewise erred when it affirmed that decision. Accordingly, this Court must now vacate appellant's judgment of conviction and guilty plea to disorderly conduct and dismiss the accusatory instrument against him. U.S. Const., Amend. XIV; N.Y. Const., Art. I, §6. C.P.L. §100.40(b); People v. Dreyden, 15 N.Y.3d 100 (2010); People v. Alejandro, 70 N.Y.2d 133 (1987). "A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite." People v. Dreyden, 15 N.Y.3d at 103; accord People v. Jackson, 18 N.Y.3d 738, 741 (2012); People v. Alejandro, 70 N.Y.2d at 135-36. The usual instrument filed to obtain jurisdiction over an accused for a misdemeanor offense is a misdemeanor complaint. C.P .L. §§100.05, 100.10 (4). A complaint contains an accusatory portion charging 9 the designated offense, see C.P.L. §100.15 (2), and a factual portion that alleges "facts of an evidentiary character supporting or tending to support the charges," C.P.L. §100.15(3); see People v. Dumas, 68 N.Y.2d 729 ( 1986). The factual portion of the complaint must establish "reasonable cause" to believe that the defendant committed the charged offense. C.P .L. §100.40 (4) (b). In People v. Dreyden, this Court clarified that facial insufficiency defects (other than hearsay defects) are "fundamental" and are not mere "technical matters." 15 N.Y.3d at 103. Earlier, in People v. Casey, which involved a hearsay defect, this Court had noted that allegations in an accusatory instrument should "be given a fair and not overly restrictive or technical reading." 95 N.Y.2d 354, 366 (2000). Dreyden made clear that this often-quoted remark from Casey had the specific precondition that the prosecution is entitled to be subject to that standard only if the accusatory instrument is free from two constitutional problems. It must supply the defendant with adequate notice ( 1) to satisfy the demands of due process, and (2) to ensure against future double jeopardy. See People v. Dreyden, 15 N.Y.3d at 103 (conclusory statement defect "failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy") (emphasis added); People v. Casey, 95 N.Y.2d at 360 10 (employing the qualifying phrase, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense" - before then stating that allegations in an accusatory instrument should, if that threshold is met, "be given a fair and not overly restrictive or technical reading") (emphasis added). Significantly, Dreyden employed an extremely strict analysis of the facial sufficiency requirements in a case involving a misdemeanor complaint. See People v. Dreyden, 15 N.Y.3d at 103-04. This Court held that the reasonable cause requirement was violated even when there were well known statutory criteria for the element (i.e., the definition of a "gravity knife" in P.L. §265.00[5]) and the deponent was a police officer. This Court ruled that the deponent must specifically describe the underlying basis for his or her allegations, including any pertinent training or prior experience. A reviewing court may not simply presume that a deponent has certain kinds of knowledge, or has had certain training, merely based upon his or her type of employment (such as inferring that all police officers would have been trained about the criteria for a "gravity knife"). See People v. Dreyden, 15 N.Y.3d at 103-04 ("An arresting officer should, at the very least, explain briefly, with reference to his training and experience, how he or she formed 11 the belief that the object observed in the defendant's possession was a gravity knife") (emphasis added). Additionally, Dreyden emphasized that the violation of a reasonable cause requirement constitutes a jurisdictional defect. People v. Dreyden, 15 N.Y.3d at 103. Furthermore, Dreyden emphasized that an allegation is not sufficient to establish the requisite element if it is merely conclusory. See People v. Dreyden, 15 N.Y.3d at 103-04; People v. Dumas, 68 N.Y.2d at 731); see also People v. Kalin, 12 N.Y.3d 225, 228-29 (2009) ("standing alone, a conclusory statement . . . does not meet the reasonable cause requirement. Rather, the factual allegations must establish that the basis of the arresting officer's belief ... "). It made clear that the prohibition against conclusory statements must be strictly applied. There are two separate reasons why a misdemeanor complaint must contain non-conclusory allegations. First, the jurisdictional prerequisite is allegations "of an evidentiary character," and conclusory statements are not evidentiary. See C.P.L. §§100.15(3), 100.40(4); People v. Dreyden, 15 N.Y.3d at 103; People v. Kalin, 12 N.Y.3d at 229; People v. Dumas, 68 N.Y.2d at 731. Second, a complaint alone may serve as the basis for issuance of an arrest warrant under C.P.L. §120.20(1). It would be untenable if the prosecution could obtain a warrant solely based upon a 12 conclusory complaint, when it is settled that any warrant issued on that basis would be constitutionally invalid. See Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 563-65 (1971) ("[the] complaint consist[ing] of nothing more than the complainant's conclusion that the individuals named therein perpetrated the offense . . . could not support the independent judgment of a disinterested magistrate"); Giordenello v. U.S., 357 U.S. 480, 485-86 (1958) ("we find this complaint defective in not providing a sufficient basis upon which a finding of probable cause could be made ... . The purpose of the complaint ... is to enable the appropriate magistrate .. . to determine whether the 'probable cause' required to support a warrant exists. . . . He should not accept without question the complainant's mere conclusion"); People v. Hendricks, 25 N.Y.2d 129, 135-37 (1969); People v. Wirchansky, 41 N.Y.2d 130, 135 (1976); see also People v. Dumas, 68 N.Y.2d at 731 ("the misdemeanor complaint alone may serve as the basis for issuing an arrest warrant ... and the requirement for factual allegations of an evidentiary character establishing reasonable cause should be assessed in that light"). The accusatory instrument in this case was facially insufficient to establish reasonable cause to believe that appellant committed the offense of criminal possession of a weapon in the fourth degree. P.L. §265.01(1) 13 provides that a person is guilty of criminal possession of a weapon in the fourth degree when: He or she possesses any firearm, electronic dart gun, electronic, stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or "Kung Fu star". Specifically, appellant was charged under the theory that there was reasonable cause to believe that the appellant was in possession of metal knuckles. An essential element of criminal possession of a weapon in the fourth degree is the officer's ability to conclusively identify the alleged object as metal knuckles. See People v. Dreyden, 15 N.Y.3d at 103-104. In People v. Dreyden, this Court held that a complaint merely stating in conclusory terms that an object recovered from a defendant was a gravity knife was insufficient to meet the reasonable cause prong of the facial sufficiency test. 15 N.Y.3d at 104. This Court held that in order for the accusatory instrument to be facially sufficient, "an arresting officer should, at the very least, explain briefly, with reference to his training and experience, how he or she formed the belief that the object observed in the defendant's possession was a gravity knife". Id at 103-104. 14 The failure to support or explain Police Officer Habrahamshon's belief in identifying the recovered object as metal knuckles was insufficient to meet the reasonable cause prong of the facial sufficiency test. See People v. Dreyden, 15 N.Y.3d at 103-104. In Dreyden, there were "no nonconclusory allegations establishing the basis of the arresting officer's belief that the defendant's knife was [an illegal] knife as defined in the statute- only a conclusory statement that the police officer had observed the defendant in possession of [an illegal] knife and recovered one from him." Id at 102. Officer Habrahamshon's inability to explain how he determined the object to be "metal knuckles" failed to meet the facial sufficiency test under Dreyden. 15 N.Y.3d at 103-104. Dreyden' s requirements are even more necessary to satisfy facial sufficiency standards in the instant case, because unlike the gravity knife issue in Dreyden, there is no statutory definition of "metal knuckles" contained in the Penal Law. "To base a conviction on mere possession, it must clearly appear that the thing possessed answers the descriptions of one of the prohibited instruments or weapons." People v. Visarities, 220 A.D. 657, 658 (1st Dep't. 1927). Approximately half of the prohibited items listed in P.L. §265.01 have corresponding definitions under P.L. §265.00. For example, statutory definitions are provided for "firearm", "electronic 15 dart gun", "gravity knife", "switchblade knife", "metal knuckle knife", "cane sword", and "Kung Fu star". "Metal knuckles" does not have a specific definition in the Penal Law. Moreover, no appellate court has ever provided a specific definition for the term "metal knuckles." The courts of this State have found the need to further clarify and define what exactly constitutes certain per se unlawful weapons contained in P.L. §265.00. For example, in People v. Visarities, the Appellate Division: First Department defined the term bludgeon. See 220 A.D. 657 (1st Dept. 1927). In addition, in People v. Talbert, the Appellate Division: Third Department defined "billy club" as a "heavy wooden stick with a handle grip." 107 A.D.2d 842, 844 (3rd Dept. 1985); see also People v. Buhagiar, 185 Misc.2d 703 (App. Term: 2nd Dept. 2000). Moreover, as to the other undefined per se weapons contained in P.L. §265.00, the Appellate Division: Third Department stated that these items could "seldom be used for any legitimate purpose." People v. Talbert, 220 A.D.2d at 843. That court, however, did not then go on to define "metal knuckles." At best, more than a century ago, this Court, in People v. Persce, referenced "the well-understood character" of brass knuckles and other undefined per se weapons. 204 N.Y. 397, 402 (1912). However, this Court did not define the term "brass knuckles" in Persce. Furthermore, subsequent 16 cases from this Court which mentioned "brass knuckles" did not define this term. See People v. Owusu, 93 N.Y.2d 398 (1999); People v. Munoz, 9 N.Y.2d 51 (1961); People v. Adamkiewiez, 298 N.Y. 176 (1948). Nor has any other appellate court in this State ever defined the terms "brass knuckles" or "metal knuckles." Moreover, even the trial courts have rarely addressed the meaning of the term "metal knuckles." In People v. Laguna, the Criminal Court of the City of New York stated that it had failed to find a statutory definition for "metal knuckles" in P.L. §265.00. See 124 Misc.2d 182, 183 (Crim. Ct. NY Cty. 1984). As a result, that court looked "to the common dictionary definition of metal knuckles." Id. at 183-184. These definitions refer to "metal finger rings" or a "metal device." Id. at 184. As a result, that court found that a leather strip with protruding spikes did not constitute "metal knuckles." Id. The Court, m Laguna properly used the canons of statutory construction by referring to the dictionary to define "metal knuckles". When applying the canons of statutory construction, courts should consider the word in the usual and commonly understood meaning to it and by giving effect to the plain meaning of the word; dictionary definitions may be useful as guideposts in determining the sense with which a word was used in a 17 statute. Statutes §§232, 234, See Majewski v. Broadalbin, 91 N.Y.2d 577, 583 (1998); Rosner v. Metropolitan Prop., 96 N.Y.2d 475 (2001).3 Similarly, in People v. Laurore, the Supreme Court referred to the dictionary definition of brass knuckles in order to determine whether the object in question - - a cat key chain - - constituted metal knuckles under the Penal Law. 30 Misc.3d 1237 (A), 2011WL903184 (Sup. Ct. Rockland Cty. 2011 ). There, the court stated that brass knuckles were "a small metal weapon; worn over the knuckles on the back of the hand." Id. The court then concluded that the object in question qualified as "metal knuckles." Times change. Over time, the understanding of what a term means or what an object is also changes. Today, a wide variety of objects characterized as "brass knuckles" do not meet the dictionary or any other definition of metal knuckles. Indeed, even a cursory review of "brass 3 Conversely, in People v. Singleton, the Criminal Court improperly ignored the canons of statutory construction and held that "Common sense is not exhausted by dictionary definitions. Common sense, in my opinion, dictates that three related factors should be considered when determining whether a particular item constitutes metal knuckles." People v. Singleton, 127 Misc.2d 735, 736 (Crim. Ct. NY Cty. 1985). These factors included whether a blow by a fist wearing the instrument caused metal to come into contact with the victim's body, whether the instrument was designed so that it really could be used offensively against the human body and whether there was any other reasonable use of the object other than to enable the wearer to inflict a blow with a fist covered by metal or pieces of metal. 4 The court also determined that the object qualified as "metal knuckles" under the analysis of the Singleton Court. Id. 18 knuckles" items available for purchase on the leading online retailer Amazon.com demonstrates that there are many "brass knuckle" items that can in no way be considered weapons under the Penal Law. Indeed, these items have become commonplace in the goth and punk communities. Appellant's appendix contains many of these non-weapon "brass knuckles" items. There are a wide variety of "brass knuckle" jewelry items including earrings, bracelets, anklets, eyebrow rings, bellybutton rings, labrets, necklaces, charms, pendants, pins, jewelry parts, and steel barbells (A40-79). By size alone, these items could not be placed on a person's knuckles. Moreover, many of these items are sealed and have no open spaces. There are also a large number of utilitarian "brass knuckle" items including combs, purses, luggage tags, pet identification tags, keychain/bottle openers, piercing tools, soap, cup holders, drink cozies, I-phone cases and earplugs (A80-109). Again, by size alone, many of these items could not be worn on a person's hands. Therefore, they could not be used as weapons. Still further, there are wearable "brass knuckle" fashion items including boots, shoes, belt buckles tie tacks and cufflinks (Al 10-124). Some of these "brass knuckle" items are sealed. Moreover, none of these items could be worn on the hands. Therefore, they could not be considered weapons. Finally, there 19 are automotive "brass knuckle" items such as shift knobs and motorcycle kick pedals. Again, these objects could not be used as weapons (A125-129). Therefore, over time, there has been a proliferation of "brass knuckle" or "metal knuckle" items that are markedly different from the supposed "well-understood character" of brass or metal knuckles. As a result, an accusatory instrument that simply states that the recovered item was "metal knuckles" is conclusory in nature and thus facially insufficient because it fails to allege sufficient evidentiary facts that establish that the item in question was a per se illegal weapon as opposed to one of the myriad legally possessible metal knuckle items available for sale in this State. In the instant case, the statements attributed to Police Officer Habrahamshon are conclusory assertions by him and did not provide the court with reasonable cause to believe that appellant possessed illegal metal knuckles. There was no further language in the accusatory instrument regarding the alleged metal knuckles. Officer Habrahamshon stated in conclusory terms, without reference to any training or experience, that he recovered "brass metal knuckles" from appellant. This conclusory statement failed to satisfy the requirements set forth by this Court in Dreyden and Kalin. Without reference to Officer Habrahamshon' s training or experience in identifying metal knuckles, there was nothing in the accusatory instrument 20 demonstrating that Officer Habrahamshon knew how to identify metal knuckles at the time he examined the object, nor did the accusatory instrument reveal how the officer came to the conclusion that the object was "metal knuckles." Cf. People v. Kalin, 12 N.Y.3d at 229-231 ("the officer in this case presented more in the accusatory instrument than merely stating that he used his experience and training as the foundation in drawing the conclusion that he had discovered illegal drugs. He asserted that he also relied on the packaging ... and that the recovery of a marijuana pipe further supported that belief'). By contrast, in appellant's case, the deponent did not allege that he had any experience regarding metal knuckles and the complaint was thus purely conclusory. Therefore, on this basis alone, appellant must prevail in this case. In addition, there was no factual basis to support Officer Habrahamshon' conclusion that the recovered object was "metal knuckles." There was no language in the accusatory instrument that describes the object recovered or what particular aspects of the object fit the definition of "metal knuckles" defined by either statutory of case law. Indeed, the accusatory instrument provided no physical description of the recovered object in terms of size, color, type of metal. It likewise failed to state that this object was even wearable on a person's hand. If the requirements of Dreyden are not 21 applied to this case, it would effectively allow a police officer to simply state that a purported per se illegal weapon is illegal, based solely on his statement that it is one. Therefore, in the instant case, the accusatory instrument is facially insufficient because it failed to explain or support the officer's belief that the object allegedly in appellant's possession was in fact, metal knuckles. Instead, the accusatory instrument stated only in conclusory language that the object at issue was metal knuckles. This was facially insufficient. Accordingly, because this accusatory instrument failed to provide reasonable cause to believe that the object recovered from appellant's pants pocket was a per se weapon, and therefore an illegal set of "metal knuckles", the Appellate Term erred when it affirmed the trial court's denial of appellant's dismissal motion on facial insufficiency grounds. People v. Dreyden, 15 N.Y.3d at 104. Consequently, since the accusatory instrument is thus jurisdictionally defective, this Court must now reverse the Appellate Term's decision, vacate the judgment of conviction and dismiss the complaint against appellant. 22 CONCLUSION FOR THE ABOVE STATED REASONS, THIS COURT SHOULD REVERSE THE APPELLATE TERM'S DECISION, VACATE THE JUDGMENT OF CONVICTION AND DISMISS THE COMPLAINT AGAINST APPELLANT. Of Counsel June,2015 Respectfully submitted, SEYMOUR W. JAMES, JR. Attorney for Defendant- Appellant 23 STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) HAROLD V. FERGUSON, JR. an attorney duly admitted to the practice of law in this State, does hereby affirm and show: That on June 10, 2015, three copies of the within Brief and Appendix were served upon Hon. Cyrus R. Vance, Jr., District Attorney, New York County, attorney for respondent, at One Hogan Place, New York, New York 10013, the address designated by him for that purpose, by sending true copies of the same in a postpaid, properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Services within the State of New York. Dated: New York, New York June 10, 2015