The People, Respondent,v.Elliot Parrilla, Appellant.BriefN.Y.March 30, 2016To be argued by APL-2015-00224 ROBERT S. DEAN (15 minutes requested) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ELLIOT PARRILLA, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street New York, NY 10006 TEL (212) 577-2523 FAX (212) 577-2535 September 2015 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED.. . . . . . . . . . . . . . . . . . . . 3 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . 4 Jury Selection.. . . . . . . . . . . . . . . . . . . . 4 People’s Case at Trial.. . . . . . . . . . . . . . . . 6 Defense Case.. . . . . . . . . . . . . . . . . . . . . 9 Summations and Charge. . . . . . . . . . . . . . . . . 11 Sentence.. . . . . . . . . . . . . . . . . . . . . . . 20 Appeal to the Appellate Division.. . . . . . . . . . . 21 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . 23 POINT I THE COURT'S CHARGE, OVER OBJECTION, THAT TO BE GUILTY OF KNOWINGLY POSSESSING A “GRAVITY KNIFE,” APPELLANT ONLY HAD TO KNOW HE HAD "THE KNIFE" – A COMMON WORKMAN’S TOOL THAT HE BOUGHT LEGALLY AT HOME DEPOT - AND DID NOT HAVE TO KNOW THAT IT HAD THE CHARACTERISTICS OF A GRAVITY KNIFE, MISINTERPRETED THE STATUTE AND DEPRIVED APPELLANT OF DUE PROCESS. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, § 6. . . 23 A. Penal Law § 265.01(1) Requires the People to Prove that Possession is Both Knowing and Voluntary.. . . . . . . . . . . . . . . . 24 B. Knowing and Voluntary Possession of a Weapon Under P.L. §265.01(1) Includes the Awareness that the Object Has the Characteristics of the Prohibited Weapon.. . . . . . . . . . . . . . 27 i C. Whether the Possessor Is Aware that the Object Has the Characteristics of the Prohibited Weapon Is, in the First Instance, a Jury Question.. . . . . . . . . . 31 POINT II THE COURT’S REFUSAL TO DISCHARGE A DELIBERATING JUROR AS “GROSSLY UNQUALIFIED,” AFTER SHE BELATEDLY AND FEARFULLY REPORTED THAT HER LIVING NEAR APPELLANT’S EX-GIRLFRIEND COULD “AFFECT [HER] JUDGMENT,” AND THEREAFTER GAVE NO UNEQUIVOCAL ASSERTION OF IMPARTIALITY, DEPRIVED APPELLANT OF HIS RIGHT TO AN IMPARTIAL JURY. U.S. CONST., AMENDS. V, XIV; N.Y. CONST., ART. 1, §§2, 6... . . . . . . . 37 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . 43 ii TABLE OF AUTHORITIES Federal Cases Irvin v. Dowd, 366 U.S. 717 (1961)......................... 38 Morissette v. United States, 342 U.S. 246 (1952)........... 30 Parker v. Gladden, 385 U.S. 363 (1966)..................... 38 Staples v. United States, 511 U.S. 600 (1994).......... 28, 29 United States v. Irizarry, 509 F. Supp.2d 198 (E.D.N.Y. 2007) ............................................... 21, 31, 32, 33 State Cases People v. Anderson, 70 N.Y.2d 729 (1987)................ 8, 42 People v. Ansare, 96 A.D.2d 96 (4th Dept. 1983)............ 28 People v. Bamfield, 208 A.D.2d 853 (2d Dept.).............. 39 People v. Berrier, 223 A.D.2d 456(1st Dept. 1996).......... 28 People v. Best, 57 A.D.3d 279 (1st Dept. 2008).......... 4, 28 People v. Blyden, 55 N.Y.2d 73 (1982)...................... 40 People v Buford, 69 NY2d 290 (1987)................ 22, 38, 39 People v. Cohen, 57 A.D.2d 790 (1st Dept. 1977)............ 27 People v. Ford, 66 N.Y.2d 428 (1985)................... 24, 26 People v. Herbin, 86 A.D.3d 446 (1st Dept. 2011)........... 12 People v Mejias, 21 NY3d 73 (2013)......................... 22 People v. Munoz, 9 N.Y.2d 51 (1961).................... 29, 33 People v. Neal, 79 AD3d 523 (1st Dept. 2010).............. 28 People v. Persce, 204 N.Y. 397 (1912).................. passim People v. Robinson, 95 N.Y. 2d 179 (2000).................. 27 People v. Rodriguez, 71 N.Y.2d 214 (1988).......... 38, 39, 42 People v. Saunders, 85 N.Y.2d 339 (1995)........... 24, 26, 30 People v. Small, 157 Misc.2d 673 (N.Y.Sup. 1993)........... 29 People v. Thomas, 196 A.D.2d 462 (1st Dept. 1993).......... 38 People v. Visarities, 220 App. Div. 657 (1st Dept. 1927) ................................................... 26, 28, 29 People v. Wood, 58 A.D.3d 242 (1st Dept. 2008)......... 27, 28 iii Federal Statutes U.S. CONST., AMEND. XIV................................. 1, 23 U.S. CONST., AMENDS. V, XIV............................. 2, 37 State Statutes 18 Pa. Cons. Stat. Ann. § 908 (West)....................... 34 C.P.L. §270.35......................................... 20, 38 Cal. Penal Code § 17235 (West)............................. 34 CPL 270.35[1].............................................. 22 N.J. Stat. Ann. § 2C:39-3 (West)........................... 34 N.Y. CONST., ART. 1, §§2, 6............................. 2, 37 N.Y. CONST., ART. I, § 6................................... 23 N.Y. CONST., ART. I, § 6. 23................................ 1 Penal Law § 15.00 (2)...................................... 25 Penal Law § 265.01(1).................................. passim Penal Law § 265.01[1]...................................... 26 Penal Law § 265.02(1)...................................... 24 Penal Law §§ 15.10, 15.00(2)............................... 24 Section 15.10.............................................. 24 Other Authorities Adjudication of Minor Offenses in New York City, 31 Fordham Urb LJ 1157 (2004)..................................... 33, 36 Greenberg, New York Criminal Law, §33.8, p. 1567........... 28 Knives and the Second Amendment, 47 U Mich JL Reform, 167 (2013)..................................................... 36 iv COURT OF APPEALS STATE OF NEW YORK ----------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : ELLIOT PARRILLA, : Defendant-Appellant. : ----------------------------------------X PRELIMINARY STATEMENT By permission of the Honorable Susan Phillips Read, Associate Judge of the Court of Appeals, granted August 17, 2015, this appeal is taken from an order of the Appellate1 Division, First Department. That order, entered December 19, 2013, affirmed with opinion a judgment of the Supreme Court, New York County, rendered July 17, 2012, convicting appellant, after a jury trial, of criminal possession of a weapon in the third degree (P.L. § 265.02[1]), and imposing an indeterminate prison sentence of 2½ to 5 years (Goldberg, J., at Mapp/Huntley/Dunaway hearing, trial and sentence). The issues herein were preserved for appellate review at A. 6-10, 515-516 (POINT I) and A. 601-603, 608(POINT II). On September 10, 2015, this Court assigned Robert S. Dean, Center for Appellate Litigation, as counsel. The order granting leave is set forth in the Appendix at A.1.1 Numbers preceded by “A” refer to the Appendix. 1 No application for a stay has been made. Appellant is incarcerated pursuant to the judgment. He had no co-defendant below. 2 QUESTIONS PRESENTED 1. Whether the court’s charge, over objection, that to be guilty of knowingly possessing a “gravity knife,” appellant only had to know he had “the knife”– a common workman’s tool that he bought legally at Home Depot- and did not have to know that it had the characteristics of a gravity knife, misinterpreted the statute and deprived appellant of due process. 2. Whether the court’s refusal to discharge a deliberating juror as “grossly unqualified,” after she belatedly and fearfully reported that her living near appellant’s ex- girlfriend could “affect [her] judgment,” and thereafter gave no unequivocal assertion of impartiality, deprived appellant of his right to an impartial jury. INTRODUCTION Appellant is serving 2½ to 5 years in prison for simple possession of a “Husky” brand utility knife–- an outwardly unremarkable workman’s tool designed and meant to be pulled open like any normal folding knife-- that he bought legally for work from Home Depot in 2009. The jury was instructed, over objection, that, to find appellant guilty of third-degree weapon possession, it need only find that appellant knew that he possessed a knife, not that he knew the knife had the characteristics of a “gravity knife”–-i.e., that a trained police officer would be able to “flick” the blade out by centrifugal force and lock it into place. Any prospective jurors who, upon questioning, expressed problems with this concept were 3 stricken for cause; nonetheless, the jury found appellant guilty only after protracted deliberations. STATEMENT OF FACTS Jury Selection Just prior to jury selection, the court noted that the prosecutor wished to question the prospective jurors about the law on gravity knives, i.e., that the People had to prove that appellant knew he possessed a knife, but not that he knew that the knife had the characteristics of a “gravity” knife (A. 6). Defense counsel took “exception” to that request. The implement in this case was a box cutter, not something that innocent people would see as a weapon. He acknowledged that People v. Berrier, 223 A.D.2d 456(1st Dept. 1996) supported the People’s position, but argued that Berrier was wrongly decided (A. 6-7). The court responded, “... we will write to the Appellate Division and let them know your view” (A. 7). Counsel argued that it would be more prudent if the court were to just tell the jurors that it would instruct on the law (A. 10). The court disagreed: THE COURT: But right now that [Berrier] is the law. If you have people that are going to say no, I can’t follow just because you have a knife, you are going to have to know it is a gravity knife – we have People v. Best [57 A.D.3d 279], First Department 2008. Defendant must know he possessed a knife but is not required to know that the knife met the definition of a gravity knife. 4 We will leave it at that. You [the prosecutor] can use the language from People versus Best; knowledge that he possessed a knife but not knowledge that it met the definition of a gravity knife. Leave it at that (A. 10). Accordingly, during the first round, the trial assistant told the jurors the law and asked whether they could follow it: As I briefly mentioned, I am going to have to prove in this case that the defendant knew that he possessed a knife. But I don’t have to prove, and the Judge will instruct you further on the law on another point, but I don’t have to prove that he knew that the knife that he possessed fit the legal definition of a gravity knife. Is there anybody here on this jury that would have trouble convicting somebody in which there will be no evidence that he knew that he possessed a knife that fit the legal definition of a gravity knife? (A. 64-65). Four jurors (M*********, S**, C***, S********) indicated discomfort with following such a legal principle; they were all struck for cause (A. 65, 67, 87-88, 92-93, 95). In the second round the prosecutor asked the same question (A. 148-150). Two jurors (B*****, S****) indicated having a problem; both were struck for cause (A. 151, 168-169). In the third and final round, in response to the same inquiry, one juror (D*******) indicated a problem if the item were only “technically” a gravity knife; he too was struck for cause (A. 178, 226). 5 In his opening statement, defense counsel argued, inter alia, that the object was a box cutter, not a gravity knife, and did not open by centrifugal force (A. 253-254). People’s Case at Trial Prior to openings, the prosecutor moved to preclude any evidence that the knife in question was purchased at Home Depot. Counsel responded that appellant would be testifying and he should be able to say he bought the item there. The court ruled that it could be brought out that the object was purchased at a “store,” but not Home Depot; it would re-evaluate whether, if appellant were to testify, he could mention “Home Depot” (A. 232-236). After the People’s first witness, Officer Cregan, testified on direct that the item was a “Husky” brand knife, that he had arrested 10-15 people for possessing Husky knives, and that a Husky knife was a “gravity” knife (A. 259-260), counsel asked to revisit the court’s ruling, in crossing the officer, in light of this testimony (A. 314-317, 322); the prosecutor had opened the door to asking the officer whether “Husky” is a Home Depot brand (A. 314-317). The parties agreed that New York Home Depot stores sold these knives until June 17, 2010, when Home Depot stopped selling them pursuant to a deferred prosecution agreement with Mr. Vance’s office (they were still on sale in New Jersey) (A. 316-318). The court ruled that counsel could ask the officers where they had seen Huskies sold (A. 322). 6 At around 10:40 p.m. on February 3, 2011, Police Officers Brian Cregan and Stephen Hillman, along with Sergeant Robert Kelly, were on plainclothes anti-crime patrol in East Harlem in an unmarked car (A. 260-262, 370-371). As part of a “directed patrol,” they were parked on Lexington Avenue between 122 andnd 123rd Streets when they saw a black four-door Saab parked illegally in a bus stop in front of 1*** Lexington Avenue (A. 262-263, 352, 372-375). According to Cregan, they observed the Saab’s passenger get out of the car, go into 1*** Lexington, exit, and re-enter the car (A. 357); however, while Hillman initially testified like Cregan did on this point (A. 382-383), he acknowledged previously testifying that no one exited the car – someone just left the building and entered the Saab (A. 426- 427). In any event, after 5 to 10 minutes, the Saab pulled out of the bus lane without signaling and went south on Lexington; Cregan, the driver, decided to follow (A. 264, 374-375, 383). They could see that the Saab’s brake lights were not working (A. 268, 384-385). Cregan had Hillman run the plates through the computer system. The car was not stolen, but rather belonged to one Kelly D**z (A. 269-270, 385-386). They pulled the Saab over in front of 3** East 120 Street, between 1 andth st 2 Avenues. Cregan approached the driver’s side, and Hillmannd the passenger’s (A. 271-272, 388-390). As they approached, they 7 detected the distinct odor of marijuana and PCP (A. 352, 389-390). Cregan asked appellant for his license and registration. Initially Cregan testified that appellant failed to produce these (A. 272), but later testified he did not recall whether appellant produced them (A. 297-298). According to Hillman, however, Cregan gave him the registration and insurance card that appellant produced (A. 417); he did not recall previously testifying (as he did) that appellant was arrested in possession of his driver’s license (A. 413-415). Cregan had appellant step out of the car and put his hands on the hood. When Cregan frisked him, he recovered a “Husky” knife from appellant’s right front pants pocket, and gave it to Hillman while placing appellant under arrest (A. 273-277, 397). Hillman tested the knife (People’s Exhibit 3) and decided it was2 a gravity knife, i.e., one whose blade could open with the flick of the wrist and then lock into place (A. 366, 397-399). The exhibit in question is a Husky “Sure-Grip Folding Lock-Back2 Utility Knife.” It is available on Amazon.com for $15.30 new and $11.99 used. With 27 customer reviews, it rates only 3½ stars out of 5. Http://www.amazon.com/Husky-Sure-Grip-Folding-Lock-Back- Utility/dp/B0026SY730. One repeated complaint is about screws getting “loose”-–that “the tiny screw that is supposed to hold the blade in place popped out” leaving the blade loose. Id. Nothing on Amazon.com indicates that the knife flicks out with centrifugal force or is illegal to possess in New York. (Website last viewed August 31, 2015.) The tool is still sold on Homedepot.com for $7.98; nothing on the site indicates that its possession in New York is illegal. The “Knife Type” is described as “Folding.” Http://www.homedepot.com/p/Husky- Folding-Lock-Back-Utility-Knife-21113/100020658. (Website last viewed September 1, 2015.) 8 Hillman demonstrated for the jury how People’s Exhibit 3 flicked open with the blade locking into place (A. N401-403). (The first time Hillman attempted to show the jury, however, the blade “did not come out.” See A. 402, 511.) The officers searched the car but did not find any contraband; moreover, they determined that appellant was not “high” (A. 337-338, 355, 417-418, 419). Appellant had $6 on him (A. 418-419). The trunk was not searched; the center console was (A. 359-361, 419). The passenger, Edwin F******z, was frisked but not arrested (A. 391, 393). No summons was issued (A. 422). People’s Exhibit 3, the Husky tool, is a red-jacketed folding knife with a “Husky” logo on the casing. When the knife is in the closed (folded) position, the only outwardly apparent directions for opening it consist of the word “PRESS” printed on the flat of the exposed portion of the blade (see People’s Exhibit 3). Defense Case Appellant Elliot Parrilla, age 32, bought his “Husky” box cutter (People’s Exhibit 3) at a Home Depot in the Bronx in 2009. “Husky” is a Home Depot brand. At that time appellant was a core driller at the New York C**********n C*****g Corporation, and his foreman had recommended this particular tool to him. He used it to cut sheetrock. It opened (and 9 closed) using two hands, after pressing a release button (A. 452-455). At the time of arrest, appellant was on disability as a result of a motor vehicle accident in May 2009. He was living by himself in the Bronx at 1*** Haight Avenue (A. 455). He had spent the day on February 3, 2011, at the apartment of his ex-girlfriend, Kelly D**z, helping her father tile a floor. One of the tools he used was the Husky. The apartment was located at East 96 Street between 1 and 2 Avenues inth st nd Manhattan (A. 456-457). After he finished that evening, he received a call from his friend, Edwin F******z, asking for a ride home from Manhattan to the Bronx. Appellant left the D**z apartment around 10:00 p.m., using Kelly’s 2001 Saab, and drove to pick up F******z at 1*** Lexington Avenue, between 121 andst 122 (A. 457-460). Before getting in the car, he placed hisnd tool belt, containing his larger tools, in the trunk; he put some smaller tools, including the Husky, inside the front console (A. 458-459). Appellant parked in front of 1*** Lexington – not in the bus lane – and waited about 15 minutes for F******z to come down to the car. He signaled and pulled out of the bus lane. He had not been smoking marijuana or any other drug (A. 459-461, 470- 472). An unmarked police car pulled him over. Officer Cregan approached and asked appellant for his license and registration, 10 which he handed over. Cregan had him step out of the car and frisked him, recovering nothing. After searching the inside of the car, Cregan placed him in cuffs (A. 472-479). Hillman showed him the Husky at the precinct (A. 480-481). At the time of trial, the Husky was not in the same condition as it was on February 3, 2011. There is a silver screw on the handle that can loosen or tighten the blade. He had never used that screw. The paint was now chipped next to that screw, and the blade appears to be looser than when he had last had it. He had never opened up the blade with one hand as Hillman had demonstrated (A. 482-484). Appellant admitted a 2002 conviction for a felony and a 2008 conviction for a violation (A. 484). F******z was deceased at the time of trial (A. 459).3 Summations and Charge Prior to summations, during a pre-charge conference, the trial assistant asked the court to charge, consistent with Berrier, “that the law is that the defendant has to know he possessed a knife but he does not have to know the knife he possessed was a gravity knife” (A. 515). Defense counsel, referencing his argument earlier in the trial, renewed his contention that Berrier should not apply (A. 515). Prior to trial, appellant had admitted to a special information3 alleging a 2002 conviction for fifth-degree narcotics sale (A. 228- 230; see information dated July 21, 2011, in Record on Appeal). The minutes erroneously set the year of conviction as 2005 (A. 229). 11 Rejecting counsel’s argument, the court held that Berrier was binding in the First Department. The court also noted a more recent First Department holding consistent with Berrier, People v. Herbin, 86 A.D.3d 446 (1 Dept. 2011), which upheldst the charge proposed by the People (A. 515-516). The court would charge consistent with Berrier (A. 516). On summation, counsel argued that People’s Exhibit 3 had not functioned as a gravity knife when it was in appellant’s possession. The Husky was no longer in the same condition, and the blade could not flick out in its earlier incarnation (A. 520-521, 534-539). In his summation, the trial assistant reminded the jury that “[i]t is not whether the defendant knew that it was a gravity knife. It is that the defendant knew that he had a knife on him” (A. 546). It did not matter whether the knife was bought at Home Depot (A. 554-555). The court’s charge on the elements of the crime included the following: A person knowingly possesses a gravity knife when that person is aware that he is in possession of a knife. A person does not have to know that the knife is specifically a gravity knife in order to knowingly possess it. The People are only required to prove that the defendant, with respect to the knowledge element, knowingly possessed a knife (A. 573). After the jury started deliberations, it sent out a note (Court Exhibit II) requesting “the actual ‘knife,’ also the 12 definition of a ‘gravity’ knife as defined by law” (A. 578). Shortly thereafter, they sent out another note (Court Exhibit III) asking that “we be able to open the knife and ‘flick’ it” (A. 579); with the parties’ agreement, the court refused the latter request (A. 579-580). The next morning, juror number 4, Melissa M****r, sent out the following note (Court Exhibit IV): “I am concerned one of the locations mentioned in the witnesses’ testimony may affect my judgment in this case due to the proximity to where I live” (A. 592)(emphasis added). In the presence of the parties, but outside the presence of the other jurors, the juror explained that she lived close to 96 Street between 1 and 2 Avenues (the location ofth st nd appellant’s ex-girlfriend’s house)(A. 597). She had thought that she could “separate knowing that,” but she wanted to disclose it because “... I didn’t think it would affect my judgment but it is in my mind ...” (A. 597-598). The court responded: THE COURT: I appreciate that but just because you feel you have been there, in terms of can you just separate that and just judge the testimony? JUROR NUMBER 4: It is just in my mind. It was in my mind when I went home yesterday. So I just don’t want it to cloud my judgment. I am trying not to but it is just something – it was uneasy to think about it. And I tried to process, oh, I thought through it yesterday, but it is still in my mind. 13 THE COURT: It is in your mind that it is a location that you are familiar with? JUROR NUMBER 4: I have walked by there in the past and it is something I just can’t get out of my mind. So I am just disclosing that right now. And I don’t want to waste any time. I don’t know what to do (A. 598)(emphasis added). After she left the courtroom, the court told the trial assistant and defense counsel that it “[didn’t] really see the problem,” as the location in question was just appellant’s ex- girlfriend’s apartment; the location was not relevant “to the crime they are considering” (A. 598-599). The court did not “see how it could cloud her judgment...” (A. 599). Defense counsel responded that, from an “objective” standpoint, he agreed with the court, but “subjectively” the juror was “saying it is still in her mind.” The court should ask her “point blank” whether it would impact her ability to be fair (A. 599-600). Counsel added: MR. WOLK: My concern is when she says she cannot get it out of her mind, is the fact that she can’t get it out of her mind going to interfere with her ability to be fair and impartial (A. 600). The trial assistant countered that no further inquiry of the juror was necessary; “she just expressed that location is on her mind” (A. 601). 14 After the court had the juror’s statements read back, defense counsel stated that, “[w]ith the record as it is I would ask for her to be discharged” (A. 601-602). Counsel added: The concern I have is that, as I am trying to analyze the import of the potential impact of that, it seems to me that there is some kind of either fear issue perhaps or something that could impact her ability, the way she expressed it, to be fair and impartial in this case and to decide the case just on the evidence without having a concern about the defendant having some connection to 96 Street, the areath where she lives. Whether it is rational response to the evidence in this case and what the issues are and what the evidence in this case is, is not the issue. Whether you or I would think that or Mr. Torres would think that, because clearly I don’t think we would, is not the issue. What she expressed is it is an issue for her. She can’t get it out of her mind and it is potentially clouding her judgment in the case. She used the phrase clouding her judgment. That runs counter to her ability to decide the case on the law given by you and the evidence and lack of evidence on the record (A. 602-603)(emphasis added). Although the trial assistant still thought that no further inquiry of the juror was needed, the court decided to bring the juror back in. The lawyers agreed that the court should do all the questioning (A. 603-604). Once the juror was back in the courtroom, the following lengthy colloquy ensued: THE COURT: I understand you say you have concerns that it is near where you 15 currently live or used to live, whatever. A lot of times jurors hear locations during testimony that they have been to or they have heard of or they live nearby. You cannot allow that to affect your judgment in any way and you have to set it aside and decide the case solely on the evidence or lack of evidence presented in the courtroom. JUROR NUMBER 4: Yes. THE COURT: I know you wanted to tell us you had this concern. Can you follow that instruction and just judge the case solely on the evidence or lack of evidence and not allow the fact that you may have lived near to a place mentioned -- JUROR NUMBER 4: It is the proximity. Yeah, it is just the proximity to home, kind of. Like it is – it is clouding my judgment to look at the facts right now so I am just kind of – I just don’t know what else to do. I mean, I am going to – I will try. I just – I don’t know what to do or how to. THE COURT: I don’t want to browbeat you. You can’t have any concerns about the area, that you know it and you have lived there. JUROR NUMBER 4: Okay. THE COURT: Because that can always come back up. You can’t let that influence how you arrive at a verdict here. JUROR NUMBER 4: Okay. THE COURT: That would be improper for anyone to do. JUROR NUMBER 4: Okay. THE COURT: Can you set that aside and decide the case solely on the evidence or lack of evidence presented here? I understand you say it is in your mind. 16 JUROR NUMBER 4: Yeah. THE COURT: But that’s not something, that’s not a fact on which you can render a verdict of guilty or not guilty. Do you understand what I am saying? JUROR NUMBER 4: I understand. It is something – I am sure I never done this before. I am struggling – I don’t know how – THE COURT: I understand it is in your mind. They mentioned a place where you used to live or did live or whatever, but that cannot influence how you view the facts of this case or the verdict that you return in this case. JUROR NUMBER 4: Okay. THE COURT: Do you understand what I am saying? JUROR NUMBER 4: I understand what you are saying, yeah. THE COURT: So we are asking you to separate it because many jurors may have lived near or gone to or work at any of these locations. JUROR NUMBER 4: Uh-huh. THE COURT: It is not something you can use to render a verdict. JUROR NUMBER 4: No. I know I just wanted to – I can’t talk. THE COURT: You wanted to express your mind. JUROR NUMBER 4: It is in my mind, I know. I talk to my husband about everything and I can’t do that. It is really hard. 17 THE COURT: I appreciate you telling us this. Do you understand what I’m saying? It is not a factor that you can consider. JUROR NUMBER 4: Okay. I just wanted to. THE COURT: If the People proved guilt beyond a reasonable doubt, can you follow that? And I understand it is in your mind, but you can’t let it influence the verdict you reach in the case. JUROR NUMBER 4: Okay. Yeah. THE COURT: Can you do that? JUROR NUMBER 4: I want to say yes, it is just in my mind. THE COURT: I understand it is in your mind. JUROR NUMBER 4: Yes. THE COURT: In terms of evaluating the evidence, the fact that you have ever lived in the area or know the area cannot be one of the factors. JUROR NUMBER 4: Okay. Yeah, that I understand. THE COURT: Do you understand what I am saying? JUROR NUMBER 4: Yes. THE COURT: Can you follow that? JUROR NUMBER 4: I can follow that, yeah. THE COURT: Wait again in the other room just once more. JUROR NUMBER 4: Okay. 18 THE COURT: Just relax (A. 604-607) (emphasis added). After the juror left the courtroom once more, the prosecutor argued that the juror said she could be fair (A. 607). Defense counsel disagreed and asked that the juror be discharged: MR. WOLK: I feel constrained and I am making an application for a mistrial. I think she’s brought back, you asked the questions, I don’t think she provided the court with an unequivocal assurance that she would be able to separate out the fact that she lives near the location that was mentioned in this case. She said in the second time around, I am not quoting exactly but it is clouding my judgment to look at the facts when you asked if you can set that aside. She indicated that she is struggling to do that and that it was in her mind. The Court said to her, it is not a factor you can consider. And the Court then asked, can you do that. And I think her response was I want to say yes. Then there was a final time when the Court questioned her and asked the question and she said yes she could, but I don’t think it was – it didn’t rise to the level that it needed to for her to remain an appropriate juror in this case. My application is she be discharged. THE COURT: All right. You oppose? MR. TORRES: Yes, I do. THE COURT: I find that she remains qualified to serve based on her answers here (A. 608). 19 Next, the jury sent in a note (Court Exhibit V), asking for the testimony of Officer Hillman “describing” the knife; the definition of “reasonable doubt;” the definition of “centripical” force; and a clarification as to whether they “have to come to a unanimous decision” (A. 609). The next note (Court Exhibit VI) asked for “a clarification of the charges of the 3 degree,” and the “definition of a ‘gravity’ knife” (A.rd 617). Thereafter, the jury found appellant guilty of the sole count (A. 620). Sentence At sentencing on July 17, 2012, defense counsel orally moved to set aside the verdict based on the court’s refusal to discharge juror #4 as grossly unqualified pursuant to C.P.L. §270.35. Taking the court’s colloquy with her as a whole, she did not provide unambiguous assurances that she could be fair (A. 628-633). The prosecutor countered that the juror had promised she could be fair and impartial (A. 633-634). The court denied counsel’s motion: THE COURT: She was questioned. I observed her demeanor. And I find that the application to discharge her was properly denied and you have your – so the motion to set aside the verdict based upon that is denied as well (A. 634). Counsel further noted that appellant had bought this tool legally for work and had not been aware that it was considered a gravity knife. The idea that one need not be aware that the 20 knife is a gravity knife under the Penal Law is a hard one to accept, not only for appellant but also – as became evident during jury selection – for many lay people (A. 636-637). Indeed, the Home-Depot-brand Husky knife in this case was the same one written about at great length in Judge Weinstein’s decision in United States v. Irizarry, 509 F. Supp.2d 198 (E.D.N.Y. 2007). As noted in that decision, the Husky was a4 top-selling product at Home Depot, with sales of 67,341 in 2006, and over 36,000 in the first half of 2007 (A. 636-638). It was only in 2010 that Home Depot entered into a deferred prosecution agreement with the New York County District Attorney’s Office. Meanwhile, the same knife is still being legally sold in New Jersey (A. 638). The court imposed a sentence of 2½ to 5 years (A. 642). Appeal to the Appellate Division On appeal to the First Department, Mr. Parrilla argued, inter alia, that the court’s charge that, to be guilty of knowing possession, he only had to know that he possessed a “knife,” was error. He also argued that the deliberating juror should have been discharged as “grossly unqualified.” The Appellate Division held, in pertinent part: In Irizarry, Judge Weinstein ruled that criminalizing this work4 tool “would transform thousands of honest mechanics into criminals, subject to arrest at the whim of any police officer.” 509 F.Supp.2d at 199. 21 The court properly instructed the jury that the knowledge element would be satisfied by proof establishing defendant’s knowledge that he possessed a knife in general, and did not require proof of defendant’s knowledge that the knife met the statutory definition of gravity knife (see Neal, 79 AD3d at 524; People v Berrier, 233 AD2d 456 [1st Dept 1996], 1v denied 88 NY2d 876 [1996]). After sufficient inquiry, the court properly determined that a deliberating juror was not “grossly unqualified” (CPL 270.35[1]), and it properly exercised its discretion in declining to discharge the juror, a remedy that would have necessitated a mistrial under the circumstances. The juror expressed a concern about the fact that she lived in the same area where, according to defendant’s testimony, his former girlfriend resided. However, upon further questioning, the juror unequivocally confirmed that she would follow the court’s instructions, and that her proximity to defendant’s ex-girlfriend’s residence would not affect the juror’s evaluation of the evidence. Thus, the record supports the conclusion that there was no basis to disqualify the juror (see People v Mejias, 21 NY3d 73, 79 [2013]; People v Buford, 69 NY2d 290, 298-299 [1987]). Defendant did not preserve his challenges to the manner or sufficiency of the court’s inquiry of the juror (see People v Ocasio, 258 AD2d 303 [1st Dept 1999], lv denied 93 NY2d 975[1999]), and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. The record does not support defendant’s assertions that the court’s manner of questioning was coercive, or that juror displayed fear and anxiety that required further inquiry (A. 3-4). 22 ARGUMENT POINT I THE COURT'S CHARGE, OVER OBJECTION, THAT TO BE GUILTY OF KNOWINGLY POSSESSING A “GRAVITY KNIFE,” APPELLANT ONLY HAD TO KNOW HE HAD "THE KNIFE" – A COMMON WORKMAN’S TOOL THAT HE BOUGHT LEGALLY AT HOME DEPOT - AND DID NOT HAVE TO KNOW THAT IT HAD THE CHARACTERISTICS OF A GRAVITY KNIFE, MISINTERPRETED THE STATUTE AND DEPRIVED APPELLANT OF DUE PROCESS. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, § 6. Mr. Parrilla was convicted and sentenced to 2 ½ to 5 years in prison simply because the jury found he possessed a common workman’s utility knife that he bought legally and openly at Home Depot in 2009. As the jury was charged, it was irrelevant that appellant did not know that the tool had the characteristics of a gravity knife, irrelevant that the tool looked like and was designed to be used as a regular folding knife, and irrelevant that an ordinary user would not know that this tool “flicked out” and thus, in the hands of a trained police officer, could exhibit the characteristics of a gravity knife. The court’s charge misinterpreted the statute. No legislative act or jurisprudence from this Court contemplates such a result. A person is guilty of criminal possession of a weapon in the fourth degree, P.L. § 265.01, when: (1) He or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane 23 sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or "Kung Fu star"; or 2) He possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another.... A person who has previously been convicted of any crime is charged with criminal possession of a weapon in the third degree, a D non-violent felony, and faces an indeterminate prison sentence of up to seven years. Penal Law § 265.02(1). A. Penal Law § 265.01(1) Requires the People to Prove that Possession is Both Knowing and Voluntary. It is settled that, in order to convict a defendant of weapon possession under P.L. § 265.01(1), the People must prove that the defendant’s possession is both “knowing” and “voluntary.” People v. Persce, 204 N.Y. 397, 402 (1912). See also People v. Saunders, 85 N.Y.2d 339 (1995); People v. Ford, 66 N.Y.2d 428, 440 (1985); Penal Law §§ 15.10, 15.00(2); CJI 2d (N.Y.) Penal Law § 265.01(1). The source of the knowing and voluntary possession requirement is Article 15 of the Penal Law. Section 15.10 provides, in relevant part: The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing. If such conduct is all that is required for 24 commission of a particular offense, or if an offense or some material element thereof does not require a culpable mental state on the part of the actor, such offense is one of “strict liability.” But even with respect to offenses of “strict liability,” a voluntary act includes “the possession of property” only “if the actor was aware of his physical possession or control thereof....” Penal Law § 15.00 (2). In sum, even if § 265.01 (1) includes no express element of mental culpability, Article 15 nonetheless requires the possession to be a knowing and voluntary act. Subdivision 2 of P.L. § 15.15 reinforces that the absence of an express mens rea element does not mean that none exists: Although no culpable mental state is expressly designated in a statute defining an offense, a culpable mental state may nevertheless be required for the commission of such offense, or all of the material elements thereof, if the proscribed conduct necessarily involves such a culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability. Here, there is no legislative history clearly indicating the absence of a mens rea requirement -- quite the contrary. McKinney’s Practice Commentary for Article 265 notes that, while some of the weapon-possession statutes expressly require a “knowing” culpable mental state, others are silent (see Donnino, Practice Commentary, McKinney’s Cons. Laws of N.Y., Book 39, Penal Law Article 265, Firearms and Other Dangerous Weapons, at 25 408). But such disparate treatment, the Commentary goes on to say, is largely because all the former Penal Law weapon possession statutes, which, with rare exceptions, did not include an express mental state, were carried verbatim from the former into the present Penal Law statutes, while most of the ones added to the present Penal Law have incorporated the culpable mental state of “knowingly.” Id. Thus, per the Commentary, the absence of an express culpable mental state in § 265.01(1) is the result of drafting history, not legislative design. Furthermore, this State’s case law interpreting § 265.01 over the last 100 years has required possession to be both knowing and voluntary. In People v. Persce, 204 N.Y. at 402, this Court, while upholding the Legislature’s authority to criminalize mere possession of a weapon without intent to use, stated an important caveat: that the possession be a “knowing and voluntary one.” Id. Moreover, in People v. Visarities, 220 App. Div. 657, 658 (1 Dept. 1927), a prosecution for possessionst of a “bludgeon,” the court held that “[p]roof of intent to use is not an ingredient of the crime....Mere possession of the prohibited instrument, known and voluntary, constitutes the offense”(emphasis added). See also, People v. Saunders, 85 N.Y. 2d at 341-342 (“the corpus delicti of weapons possession under Penal Law § 265.01[1] is the voluntary, aware act of the possession of a weapon”); People v. Ford, 66 N.Y. 2d at 440 26 (“Possession third requires only that defendant’s possession be knowing”); People v. Cohen, 57 A.D.2d 790, 791 (1 Dept.st 1977)(court erred in failing to instruct that weapon possession must be “knowing”); CJI 2d(N.Y.) Penal Law § 265.01(1)n.2. This is compelling evidence that the Legislature did not intend § 265.01(1) to lack a mens rea requirement. Despite this case law, the Legislature, although amending the statute a number of times, has never seen fit to legislate away the mens rea requirement. Under principles of statutory construction, the Legislature is presumed familiar with decisional law, and thus its failure to eliminate the judicially recognized mens rea requirement is strong evidence that it accepts that element. E.g., People v. Robinson, 95 N.Y. 2d 179, 184 (2000); McKinney’s Cons. Laws of N.Y., Book 1, Statutes § 191, comment(“The Legislature will be assumed to have known of existing statutes and judicial decisions in enacting amendatory legislation”). B. Knowing and Voluntary Possession of a Weapon Under P.L. §265.01(1) Includes the Awareness that the Object Has the Characteristics of the Prohibited Weapon. In light of the above case law, even the First Department, in People v. Wood, 58 A.D.3d 242 (1 Dept. 2008), recognizedst that, under P.L. §265.01(1), the possession must be both knowing and voluntary. In Wood and a long line of cases, however, the First Department has also held that knowing and voluntary possession 27 of e.g., a gravity knife, need only entail the possessor’s knowledge that he possesses any knife, not the knowledge that it has the characteristics of a gravity knife. Wood, supra, at 249; the court’s seminal case in the area is People v. Berrier, 223 A.D.2d 456 (1 Dept. 1996). See also, People v. Neal, 79st A.D.3d 523 (1 Dept. 2010); People v. Best, 57 A.D.3d 279 (1st st Dept. 2008). The Berrier holding has been criticized as being "of questionable validity.” Greenberg, New York Criminal Law, §33.8, p. 1567, n.12 (3d. ed., Thomson Reuters). In fact, the5 Berrier rule runs counter to the reasoning of Staples v. United States, 511 U.S. 600 (1994). Staples involved a prosecution for unlawful possession of a "machine gun," the definition of which included any fully automatic weapon. The Court held that the government was required to prove, not only that the weapon fired automatically, but also that the defendant knew that the weapon had the characteristics that brought it within the statutory definition of a machine gun, to wit: that it fired automatically. The Court noted "that offenses that require no mens rea generally are disfavored," and that dispensing with mens rea requires clear legislative intent to do so. Id. at 606. Non-mens-rea crimes should be limited to "public welfare" Greenberg notes that none of the cases relied on in Berrier5 (People v. Visarities, 220 App. Div. 657 (1 Dept. 1927); People v.st Persce, 204 N.Y. 397 (1912); People v. Ansare, 96 A.D.2d 96 (4 Dept.th 1983)) addressed the scienter issue raised by the Berrier defendant. 28 or "regulatory" offenses involving possession of outwardly- appearing noxious or injurious objects -- which description does not include firearms -- and limited as well to non-felony offenses with light penalties, not state prison. Id. at 606- 607, 616-618. The Staples holding is consistent with this Court’s jurisprudence. In People v. Persce, 204 N.Y. at 397, this Court held that criminalizing per se weapon possession should be limited to certain weapons based upon their “well-understood character of ... dangerous and foul weapons seldom used for justifiable purposes but ordinarily the effective and illegitimate implements of thugs and brutes.” Id. at 402. In People v. Munoz, 9 N.Y.2d 51 (1961), a prosecution of a minor for simple possession of an ordinary penknife on a public street, the Court ruled that criminalizing per se possession of objects should not apply to “a tool of everyday use,” but be limited “to instruments that are not likely ... to be found in the possession of innocent parties and whose [a]ccidental and innocent possession ... would be extraordinary and unusual.” Id. At 59-60. Accord, People v. Visarities, 220 App. Div. at 658 (“To base a conviction on mere possession it must clearly appear that the thing possessed answers the description of one of the prohibited instruments or weapons.”); People v. Small, 157 Misc.2d 673 (N.Y.Sup. 1993)(same). In other words, this Court has already recognized that, to criminalize mere 29 possession of an object, its inherent “dangerous and foul” nature, Persce at 402, should be apparent to the possessor.6 People v. Saunders, 85 N.Y.2d 339 (1995), is not to the contrary. The issue in Saunders was whether attempted possession of a “firearm” under P.L. §265.01(1) was a cognizable offense, since possession of a firearm was a “strict liability” offense. This Court held that whether the offense was termed one of “strict liability” did not control, as the possession of the firearm still had to be “knowing.” What was important, the Court held, was the defendant’s “requisite underlying awareness” or mental “frame of reference,” which, in that case, presented a clear “danger.” In Saunders, the weapon was a “firearm,” an obviously dangerous object which, under New York Law, could not be innocently possessed with lack of awareness of its inherent character – even if it turned out to be inoperable. Mr. Gonzalez’s case involves neither a “firearm” nor any other outwardly “foul” or “illegitimate” object, Persce, 204 N.Y. at 402, “ordinarily used for criminal and improper purposes,” id. at 403, but a legally-purchased, widely-sold, common workman’s tool.7 See also, Morissette v. United States, 342 U.S. 246, 250 (1952)6 (due process requires proof of some awareness of wrongdoing before the imposition of criminal sanctions). "The Husky is a top selling product at Home Depot. Its New York7 State stores sold 67,341 Huskies in fiscal year 2006 for a total of $587,540.00; from January 2007 through July 2007 it has sold 36,441 Huskies for $294,116.00." One expert has testified "that Husky is a (continued...) 30 C. Whether the Possessor Is Aware that the Object Has the Characteristics of the Prohibited Weapon Is, in the First Instance, a Jury Question. Where a person possesses a firearm or, e.g., metal knuckles, chuka sticks, or “Kung Fu stars,” the “knowing” nature of the possession will likely be obvious. Given their outward appearances, such objects can hardly be innocently possessed. But such objects and other “per se” weapons identified in P.L. §265.01(1) are in stark contrast to the widely available "common utility knives that are neither designed nor manufactured as gravity knives [that] fit the technical definition of a gravity knife because an adept user can open them by the use of centrifugal force. These tools, designed for cutting sheet rock, carpeting and window screens have become popular tools widely circulated in general commerce by large retail stores such as Home Depot. In 2006 alone, one manufacturer sold over 1.7 million nationwide." Report of the Advisory Committee on Criminal Law and Procedure to the Chief Administrator of the Courts of the State of New York, January (...continued)7 Home Depot brand; that identical or nearly identical instruments are sold under a variety of brand names, including Sheffield; and they are sold by other major retailers. The manufacturer of the instrument sold under the Sheffield brand name indicated in a letter submitted to the court that it sold 1,765,091 similar folding lock-back utility knives nationally in 2006.” United States v. Irizarry, 509 F. Supp. 2d 198 203-04 (E.D.N.Y. 2007). 31 2015, page 142 (2015). These tools “are still widely available8 in the tri-state area and throughout most of the country.” Id. In United States v. Irizarry, 509 F. Supp. 2d 198, 203-04 (E.D.N.Y. 2007), the court overturned the conviction of a defendant who was found in possession of a handgun after an officer spotted a Husky utility knife in his pocket that the officer was able to open using centrifugal force. In deciding the officer lacked probable cause to search the defendant, the court stated that "[t]he instrument which defendant had in his possession is a common tool. Its open possession is the equivalent of a carpenter carrying a hammer or an individual in the street carrying a cellular phone. The law cannot define as criminals tens of thousands of mechanics who are required to carry such tools in order to earn a living" Id. at 209. 9 The OCA Advisory Committee has recommended that P.L. §265.15 be8 amended to provide an affirmative defense to criminal possession of a gravity knife if the defendant can show the item is possessed for innocent purposes, such as in connection with his or her employment. Further, given these kind of knives' widespread use and design for innocent uses, State Senator Diane Savino proposed in February 2015 an amendment to 265.02 to move "gravity knife" to the second subsection of the statute, as an item requiring proof of unlawful intent. As of this writing, state bill S3675-2015 (also A4821-2015) has been referred to the Senate Rules Committee. New York Senate Open L e g i s l a t i o n , a v a i l a b l e a t "Support for this conclusion lies in the initial exemption in9 the New York law for the carrying of switchblades for professional or trade purposes. The fact that the exemption was later abolished when it was determined that switchblades have no legitimate purpose demonstrates that New York banned only those items which are (continued...) 32 As in Irizarry, the utility knife here had none of the outward thug-and-brute qualities that would justify equating it with firearms, blackjacks, or “Kung Fu Stars”. The Husky utility knife in this case is an ordinary tool possessed by "tens of thousands of [workers] who are required to carry such tools in order to earn a living." Irizarry, 509 F. Supp. 2d at 209. Nobody disputes that Mr. Parrilla possessed the knife for innocent purposes. Possessing such a knife for innocent purposes could hardly be considered "extraordinary and unusual," as it would be for a true 'per se' weapon. Munoz, 9 N.Y.2d at 59-60. Nothing in its outward appearance would put the possessor on notice of potential regulation, nor was Home Depot required to provide notice to the tens of thousands of customers to whom it had sold the knives that the District Attorney's office began to criminalize in June 2010. 10 (...continued)9 manufactured as weapons." Irizarry, 509 F. Supp. 2d at 210. Importantly, the knife does not obviously operate as a gravity10 knife, as revealed by the fact that even Officer Hillman, demonstrating the knife’s operation for the jury, could not get it to flick out on the first try. While it is possible for a trained police officer to wrist-flick it open with sufficient force and technique, nonetheless, as is evident from the simple directive on the folded tool itself, it is designed to be opened either with two hands or by using a thumb to coax it open by pushing on the blade–just like a regular folding knife. This cuts against the argument that its dangerous character was immediately apparent, as it would be necessary for it to fit the definition of a “per se” weapon and subject its possessor to criminal penalties. See Ian Weinstein, Note, Adjudication of Minor Offenses in New York City, 31 Fordham Urb LJ 1157, 1165 (2004)(“Although I did not think these knives could be operated by centrifugal force, my [Fordham Law School clinical] students quickly (continued...) 33 Mr. Parrilla was sentenced to 2½ to 5 years of incarceration for carrying a Husky utility knife he used for work and which he bought legally at Home Depot. The First Department’s construction of the statute makes criminals of the tens of thousands of people who legally and openly purchased such knives before 2010, leading to consequences never within the contemplation of the Legislature.11 (...continued)10 showed me that any folding knife can be “flipped” or “flicked” open by the right fast motion of the wrist”.) See also, User review of the analogous Husky 2-In-1 Ultra-Thin Combination Knife, September 2007, available at A small sampling of the law governing possession of gravity11 knives in other jurisdictions shows that on the evidence in this record (that he purchased the utility knife at Home Depot and used it for its intended purpose), Mr. Parrilla would most likely not have faced any criminal penalties in any other jurisdiction. For example, New Jersey requires that possession of any weapon, including gravity knives, be possessed “without any explainable lawful purpose.” N.J. Stat. Ann. § 2C:39-3 (West). In Pennsylvania, it is only illegal to be found in possession of a knife “which serves no common lawful purpose,” and even if a knife lacked any such purpose, possession is not illegal “under circumstances . . . negativing any intent or likelihood that the weapon would be used unlawfully.” 18 Pa. Cons. Stat. Ann. § 908 (West). The California Legislature includes gravity knives in the category of switchblade knives, and specifically excludes from this category “a knife that opens with one hand utilizing thumb pressure applied solely to the blade of the knife or a thumb stud attached to the blade, provided that the knife has a detent or other mechanism that provides resistance that must be overcome in opening the blade, or that biases the blade back toward its closed position,” Cal. Penal Code § 17235 (West), a description that would include the Husky tool that Mr. Parrilla bought for work. (See User review of the analogous Husky 2-In-1 Ultra-Thin Combination K n i f e , S e p t e m b e r 2 0 0 7 , a v a i l a b l e a t .) 34 This excessive prosecution of workmans’ tools as “gravity knives” has received extensive notice both outside and within the legal community. See “How a ‘50's Era New York Knife Law Has Landed Thousands in Jail,” New York Village Voice, October 7, 2014, at http://www.villagevoice.com/news/how-a-50s-era-new- york-knife-law-has-landed-thousands-in-jail-6662589; “Help Rid New York of its Unjust ‘Gravity Knife’ Law,” Indefinitely Wild, June 24, 2015, at, http://indefinitelywild.gizmodo.com/help-rid- new-york-of-its-unjust-gravity-knife-law-1713689896; Melissa Grace, “Artist Furious for Being Busted on Weapons Possession over a Pocket Knife He Uses For Work,” http://www.nydailynews.com/new-york/artist-furious-busted- weapons-possession-pocket-knife-work-article-1.155163. Out-of-town tourists have been caught unawares. See Jeb Phillips, Bible-College Student’s Pocketknife Spoils Trip to New Y o r k C i t y , 2 0 1 2 , http://www.dispatch.com/content/stories/local2012/06/12/knife- trouble-in-a-new-york-minute.html. See also cases cited in People v. Anthony Trowells, Slip Opinion, Bx. County Ind. 3015/2013, July 11, 2014 (available at nylawyer.nylj.com/adgifs/decisions14/072414webber.pdf)(inter-est of justice dismissal of “gravity knife” prosecution). One law review article has characterized these prosecutions as “abusive,” and criticizes “the zeal with which New York City enforces its knife laws– with no connection to 35 criminal misuse”. David B. Kopel et al., Knives and the Second Amendment, 47 U Mich JL Reform, 167, 177, 210-211 (2013). Another expresses surprise that such “commonly sold” tools, “routinely carried by many New Yorkers,” carries a one-year jail sentence. Ian Weinstein, Adjudication of Minor Offenses in New York City, 31 Fordham Urb LJ 1157, 1165 (2004). The issue is fully preserved by counsel’s objections to the Berrier charge (A. 6-10, 515-516). Moreover, the error cannot possibly be considered harmless; indeed, the Berrier holding infused the entire trial, from jury selection, through evidentiary rulings, and through deliberations. First, the jury was “knife-qualified” by knocking off, for cause, anyone who would have trouble convicting appellant absent his knowledge that the knife he possessed had the characteristics of a gravity knife. The People sought to bar counsel from eliciting that “Husky” was a Home Depot store brand, and were largely successful. The trial assistant reminded the jury of the Berrier rule on summation, and the court’s charge made it absolutely clear that the People needed to prove that appellant knew he possessed a knife, but not that he knew that the knife had the characteristics of a gravity knife. Even so, the jury had trouble during deliberations: They requested to see the knife, to be allowed to “flick” it as Officer Hillman had done, for re-instruction on the definition of “gravity” knife and “reasonable doubt”, and clarification of whether they had to be 36 unanimous. After deliberating overnight, the jury finally reconciled itself to finding appellant guilty. Accordingly, this Court should reverse and remand for a new trial upon a proper jury instruction. The issue is fully preserved by counsel’s objection to the supplemental charge – a charge clearly key to the jury’s verdict. POINT II THE COURT’S REFUSAL TO DISCHARGE A DELIBERATING JUROR AS “GROSSLY UNQUALIFIED,” AFTER SHE BELATEDLY AND FEARFULLY REPORTED THAT HER LIVING NEAR APPELLANT’S EX- GIRLFRIEND COULD “AFFECT [HER] JUDGMENT,” AND THEREAFTER GAVE NO UNEQUIVOCAL ASSERTION OF IMPARTIALITY, DEPRIVED APPELLANT OF HIS RIGHT TO AN IMPARTIAL JURY. U.S. CONST., AMENDS. V, XIV; N.Y. CONST., ART. 1, §§2, 6. During deliberations, juror number 4 wrote to the court that she was “concerned one of the locations mentioned in the witness’ testimony may affect my judgment in this case,” as she lived near it (A. 592). Thereafter, during lengthy colloquies the court repeatedly told her that she could not let this affect her verdict. The juror nonetheless kept repeating that it was “still in [her] mind” and “I just can’t get [it] out of my mind” (A. 598); that “it is clouding my judgment,” “I am struggling,” and it remained “in her mind” (A. 604-607). Ultimately, after being browbeaten, she finally gave in and stated, in a final line, “I can follow that, yeah” (A. 607). Given the juror’s unrelenting fear and anxiety, albeit the product of an 37 irrational obsession with a tertiary location mentioned in the testimony, the court should have granted counsel’s application that she be discharged as “grossly unqualified.” A criminal defendant has both a federal and state constitutional right to be tried by an unbiased and impartial jury. Irvin v. Dowd, 366 U.S. 717 (1961); People v. Rodriguez, 71 N.Y.2d 214, 218 (1988); People v. Thomas, 196 A.D.2d 462, 465 (1st Dept. 1993). A defendant is denied his right to an impartial jury if any juror is unable to render a verdict solely on the basis of the evidence. Parker v. Gladden, 385 U.S. 363, 366 (1966); People v. Rodriguez, 71 N.Y.2d at 214. To protect this right, C.P.L. § 270.35 provides a mechanism by which a juror may be dismissed during the course of a trial: If at any time after the trial jury has been sworn and before the rendition of its verdict, . . . the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature, but not warranting the declaration of a mistrial, the court must discharge such juror. A seated juror is "grossly unqualified to serve" if, after "a probing and tactful" in camera inquiry, "it becomes obvious that [the] particular juror possess[es] a state of mind which would prevent the rendering of an impartial verdict." People v. Buford, 69 N.Y.2d 290, 298-299 (1987). Thus, where a trial court learns that a seated juror is biased against a defendant, the juror must be discharged unless 38 (1) the trial court makes an on-the-record determination that the juror can render an impartial verdict according to the evidence, uninfluenced by the bias, and (2) the trial court's determination is supported in the record by the juror's answers to the court's inquiries "including unequivocal assurance from the juror that he or she will decide the case solely on the evidence and free from any effect of the bias." Rodriguez, 71 N.Y.2d at 220. In determining whether the juror has provided sufficient assurance that he will be fair and impartial, the court must “carefully consider the juror’s answers and demeanor to ascertain whether her state of mind will affect her deliberations.” Buford, 69 N.Y.2d at 299. Here, the juror felt that her judgment was “clouded” by her discovery that she lived in the same area as appellant’s ex- girlfriend. As the court noted, this location was not relevant to the case, so it should have had no impact on the juror. Contrary to the court’s thinking, however, this fact did not weigh in favor of keeping the juror. Rather, the irrationality of the juror’s palpable fear about what should have been a minor matter – at most – created all the more reason to excuse her as “grossly unqualified.” See People v. Bamfield, 208 A.D.2d 853, 854 (2d Dept.) (juror’s “manner and demeanor” concerning preoccupation with matter irrelevant to case rendered her grossly unqualified). 39 To be sure, the inquiry ended with the juror weakly promising “I can follow that, yeah.” However, looked at in light of the entire record, her final assurance fell short of providing a clear guarantee that she could be fair and impartial. See People v. Blyden, 55 N.Y.2d 73, 78 (1982) ("in considering whether such statements are unequivocal, the juror's testimony should be taken as a whole. 'It is not enough to be able to point to detached language which, alone considered, would seem to meet' the oath's requirements"). Despite the court’s telling the juror, “I don’t want to browbeat you” (A. 605), that is precisely what the court ended up doing. After the juror initially reported that the proximity in question “may affect my judgment in this case” (A. 592), she persistently clung to her fear during the court’s extensive colloquies: ... I thought through it yesterday, but it is still on my mind (A. 598). ’ ’ ’ I have walked by there in the past and it is something I just can’t get out of my mind (A. 598). ’ ’ ’ Like it is – it is clouding my judgment to look at the facts right now.... I will try. I just – I don’t know what to do or how to (A. 604). ’ ’ ’ 40 I understand [what the judge is saying]. It is something – I am sure I never done this before. I am struggling – I don’t know how – (A. 605). ’ ’ ’ It is in my mind, I know (A. 606). ’ ’ ’ I want to say yes [to not letting the location influence her], it is just in my mind (A. 607). Even after the court ultimately cowed her into submission, the juror was still so upset that the court had to tell her, “Just relax” (A. 607). Although in denying counsel’s motion to set aside, the court stated, “I observed her demeanor” (A. 634), the contemporaneous record demonstrates that the court noted at the relevant time that the juror was still upset even after the court’s inquiry. Indeed, it could be said that the court’s evident dismissive attitude towards the reason for the juror’s anxiety, i.e., an irrelevant location – clouded the court’s judgment about the true nature of the juror’s problem. The court’s colloquy with the juror missed the point. The judge tried to stress to the juror that the location was not a factor that the juror should consider, whereas the juror was expressing fear and anxiety about the location regardless of whether her concern made sense or not. 41 Thus, whatever assurance the juror eventually gave, it was not meaningful as it did not address her real problem. See People v. Rodriguez, 71 N.Y.2d at 214 (biased juror browbeaten into saying she would try to be fair). This juror obviously was still frozen in irrational fear and anxiety, uncured by the judge’s questioning, and counsel’s application to excuse her as “grossly unqualified” should have been granted. The court’s error in refusing counsel’s motion to discharge the juror was fully preserved for appellate review (A. 601-603, 608). The Appellate Division’s statement that appellant “did not preserve his challenges to the manner or sufficiency of the court’s inquiry of the juror” (A. 3-4), is hard to understand, as counsel expressed in as diplomatic and respectful way as possible that the court’s inquiry was insufficient to guarantee the juror’s fairness in light of the back-and-forth between her and the trial judge (A. 608). Harmless error analysis is inapplicable to a court’s erroneous failure to discharge a juror. People v. Anderson, 70 N.Y.2d 729 (1987). Accordingly, appellant’s conviction should, therefore, be reversed, and a new trial ordered. 42 CONCLUSION FOR THE REASONS IN POINTS I AND II, THE JUDGMENT SHOULD BE REVERSED AND A NEW TRIAL ORDERED. Respectfully submitted, ROBERT S. DEAN CENTER FOR APPELLATE LITIGATION Attorney for Defendant-Appellant September 10, 2015 43