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. REPLY 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 December 2015 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . 1 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I THE COURT’S CHARGE, OVER OBJECTION, THAT TO BE GUILTY OF KNOWINGLY POSSESSING A “GRAVITY KNIFE,” APPELLANT DID NOT HAVE TO KNOW THAT HIS WORKMAN’S TOOL 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. 1,§6.. . . . . . 1 A. Appellant’s “Husky”-brand utility knife is a common workman’s tool meant to be opened like any other store-sold folding knife, and openable with a wrist-flick only by specially trained NYPD officers... . . . . . 1 B. As the People concede, Penal Law Article 15 requires that possession be knowing and voluntary - - regardless of whether the statute is classified as one of “strict liability.” .. . . . . . . . . . . . . . . . 5 POINT II THE COURT’S REFUSAL TO DISCHARGE A DELIBERATING JUROR AS “GROSSLY UNQUALIFIED” DEPRIVED APPELLANT OF HIS RIGHT TO AN IMPARTIAL JURY. U.S. CONST., AMENDS. V, XIV; N.Y. CONST., ART. 1,§§2,6.. . . . . . . . . . . . . . . . . . . . . 10 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . 12 i TABLE OF AUTHORITIES Federal Cases Staples v. United States, 511 U.S. 600 (1994)............... 8 State Cases Matter of Michael Grudge M., 80 A.D.3d 614 (2d Dept. 2011).. 9 People v. Brannon, 16 N.Y.3d 596 (2011)..................... 9 People v. M & H Used Auto Parts & Cars, Inc., 22 A.D.3d 135 (2d Dept. 2005)............................................. 8 People v. Marrero, 69 N.Y.2d 382 (1987)..................... 8 People v. Miranda, 19 N.Y.3d 912 (2012)..................... 9 People v. Persce, 204 N.Y. 397 (1912).................... 5, 6 People v. Santi, 3 N.Y.3d 234 (2004)........................ 8 People v. Saunders, 85 N.Y.2d 339 [1995].................... 6 People v. Wood, 58 A.D.3d 242 (1st Dept. 2008), lv. den. 12 N.Y.3d 823 (2009)........................................ 6, 7 Federal Statutes U.S. CONST., AMEND. XIV..................................... 1 U.S. CONST., AMENDS. V, XIV............................. 1, 10 State Statutes N.Y. CONST., ART. 1,§§2,6............................... 1, 10 N.Y. CONST., ART. 1,§6...................................... 1 ii 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 This brief is submitted in reply to Respondent’s Brief (“RB”), which appellate counsel received on December 2, 2015. ARGUMENT POINT I THE COURT’S CHARGE, OVER OBJECTION, THAT TO BE GUILTY OF KNOWINGLY POSSESSING A “GRAVITY KNIFE,” APPELLANT DID NOT HAVE TO KNOW THAT HIS WORKMAN’S TOOL 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. 1,§6. A. Appellant’s “Husky”-brand utility knife is a common workman’s tool meant to be opened like any other store-sold folding knife, and openable with a wrist-flick only by specially trained NYPD officers. Preliminarily, we note that appellant’s and the People’s briefs present divergent views as to the appearance - - benign 1 or sinister - - of the tool in question, People’s Exhibit 3, the so-called gravity knife. Unfortunately, although Exhibit 3 came into evidence, no photo of it did. Appellant therefore urges the Court to obtain and examine People’s 3 well prior to the date of oral argument. This examination would clarify many things. As both parties agree, People’s 3 is the red-jacketed “Folding Lock-Back” utility knife pictured in the Home Depot’s on-line shopping page. http://www/homedepot.com/p/Husky- Folding-Lock-Back-Utility-Knife-21113/100020658. We agree on little else. As noted in our main brief, nothing on the web suggests this tool opens with a wrist-flick or in a manner other than as a regular folding knife - - as the very name “Folding Lock-Back” indicates. (The “lock-back” feature is necessary so that the blade cannot fold back into the user’s hand.) When the tool is in its folded (closed) position, the only apparent instruction revealed is the word “PRESS” on its blade (or “tang”)(AB: 33). Yet, the knife is actually unfolded simply by using two hands (A. 454). Once the blade is unfolded, it can be seen that a button next to the word “PRESS” is the mechanism to replace, as needed, the box- cutting part of the tool. As noted in our main brief, nothing in the Amazon.com (as opposed to Home Depot) page indicates, 2 even in fine print, that the product does not ship to, or is illegal in, New York State (AB:8). (The Home Depot page has fine print that the product does not ship to New York, but nothing to indicate it cannot be brought into New York.) In their 1950's-era history lesson of the legislative ban on true gravity knives, the People seek to create a mental image of People’s Exhibit 3 as the kind of outwardly sinister weapon used by warring street gangs of the West Side Story era (RB: 20-23, 40). One glance at People’s 3, however, evokes an object more likely to be confused with a Boy Scout or Swiss Army knife. Any Jets or Sharks gang member who had brandished such an object would have been ridiculed and forever banished to the East Side. True gravity knives - - the ones now “mostly relegated to the antiques section on E-Bay - - were outwardly sinister1 objects whose purpose was obvious to any bearer. See https://en.wikipedia.org/wiki/Gravity_knife. The Luftwaffe Fallschirmjager-Messer , for example, could never be mistaken2 See “How a ‘50s Era New York Knife Law Has Landed Thousands1 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. True gravity knives originally came into vogue for World War2 II paratroopers “to cut off their parachutes when tangled in a tree o r i n s i m i l a r s i t u a t i o n s . ” https://en.wikipedia.org/wiki/Gravity_knife#Paratrooper_Knife. Any parachutist wielding People’s 3, however, would remain stuck in the (continued...) 3 for anything other than a weapon. Id. Wikipedia also recognizes the irony of appellant’s particular situation: Importantly, in a few jurisdictions, such as Colorado and New York City, courts have periodically attempted to classify ordinary lock-blade folding knives with a blade that may be opened by centrifugal force (normally, using a flicking motion of the wrist) as a gravity knife, thus making the knife’s owner subject to the same criminal penalties imposed for illegal possession of a gravity knife. Id. (Emphasis added.) As Wikipedia notes, such prosecutions are currently limited to New York City. Depending upon how this Court rules, suburbanites and upstaters could soon be sharing the experience. The People argue that “there is no basis in the record for defendant’s assertion that the gravity knife in defendant’s possession was ‘legally’ purchased or sold in 2009" (RB: 37, n.17). Yet that is precisely what appellant testified to (A. 453). And the record reveals that these utility knives were sold in New York State Home Depot stores until June 2010, when Mr. Vance’s office reached a deferred prosecution agreement with Home Depot (A. 316-318). Of course, appellant’s jury never considered the questions of how appellant used the tool (...continued)2 trees - - unless they were lucky enough to also be a specially trained New York City police officer. 4 or the circumstances under which he bought it, since under the court’s charge those questions were irrelevant. B. As the People concede, Penal Law Article 15 requires that possession be knowing and voluntary - - regardless of whether the statute is classified as one of “strict liability.” As explained in appellant’s main brief, Article 15 of the Penal Law requires that the People prove appellant’s possession of the utility knife knowing and voluntary, regardless of whether P.L. §265.01(1) is termed a crime of “strict liability” (AB: 24-27). And indeed, in their own brief, the People concede that Article 15 provides, as a corollary to the requirement that possession be “voluntary”, the residual scienter requirement that it be “knowing” (RB: 11) - - or as they also put it, “aware” (RB: 28-29). Where we part company is whether voluntary and knowing possession includes the very minimal requirement of “awareness” that the object possessed has the essential characteristics of the prohibited weapon - - in this case simply that the utility knife wrist-flicks open and then locks into place. For the reasons stated by this Court in People v. Persce, 204 N.Y. 397, 402 (1912) and the other cases cited in our brief (AB: 27-30), criminalizing per se weapon possession should be (and in fact is) limited to objects based upon their 5 “well-understood character of ... dangerous and foul weapons seldom used for justifiable purposes but ordinarily the effective and illegitimate implements of thugs and brutes.” Persce at 402. Such outwardly and objectively “dangerous and foul” weapons clearly include the other objects listed in P.L. 265.01 (1), e.g., firearms (whether loaded or unloaded, see People v. Saunders, 85 N.Y.2d 339 [1995]), stun guns, switchblades, metal knuckles, chuka sticks, slingshots, “Kung Fu stars,” and of course, classic 1950s-era gravity knives. Rarely, if ever, would the voluntary, aware, nature of the possession of such objects trouble a jury – - if indeed, the issue were even raised at trial. 3 The People argue that the “theoretical rigidity” of their interpretation may be mitigated by the exercise of prosecutorial discretion (RB:33, n.15). To be sure, artists who use such tools to cut canvases might have their charges dismissed after they have been “put through the system” and spent the night in jail. See Melissa Grace, “Artist Furious But see People v. Wood, 58 A.D.3d 242 (1st Dept. 2008), lv.3 den. 12 N.Y.3d 823 (2009), where the object in question was a cigarette lighter with a secret button that converted it into a switchblade. Even the First Department agreed that the jury had to be charged that, to be guilty, the defendant needed to know that he had more than a cigarette lighter in his possession. Notably, Wood was wrongly decided under the People’s analysis. 6 for Being Busted on Weapon 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. Others, like out-of-town bible students, may get off, after months of court appearances, with community service, a fine, and collateral consequences. See Jeb Phillips, “Bible-College Student’s Pocketknife Spoils Trip to New York City,” http://www./dispatch.com/content/stories/local2012/06/12/Knif e-trouble-in-a-new-york-minute.html. Presumably, “maintenance workers, plumbers, coffee shop employees” would get similar4 prosecutorial beneficence, that is, unless they had any criminal conviction anytime in their past, in which case they would face up to 3 1/2 to 7 years in state prison. The People argue that P.L. §265.01(1) is a “public welfare offense,” even while they acknowledge that such statutes “generally impose only ‘light penalties’ such as fines or short periods of incarceration, and convictions for violations Campbell, “How a ‘50s Era New York Knife Law Has Landed4 Thousands in Jail,” supra. Workers would do no better with the NYPD. It has been noted that, “The racial breakdown of [gravity knife] stops is also striking.” NYPD data on stops reveals that, “Only 35 percent of white suspects found with knives - - virtually any of which might meet the NYPD’s ecumenical definition - - are arrested, while 56 percent of black and Hispanic suspects are ultimately booked.” Id. 7 of such statutes entail relatively little social stigma” (RB: 30-31). This contention is “unreasonable.” See People v. Santi, 3 N.Y.3d 234, 242 (2004). Indeed, the Supreme Court in Staples v. United States, 511 U.S. 600 (1994), noted that “public welfare” or “regulatory” offenses are limited to non- felony offenses with light penalties. Id. at 606-607, 616- 618. However, even a one-year jail sentence for a misdemeanor cannot be considered “light” or devoid of social stigma, let alone collateral consequences. Moreover, public welfare offenses without a mens rea requirement require at least that the defendant know that he or she is dealing with dangerous or deleterious objects - - a category that could not include store-sold folding knives. Staples at 608. See also, People v. M & H Used Auto Parts & Cars, Inc., 22 A.D.3d 135, 144 (2d Dept. 2005). Contrary to what the People seek to suggest in their brief, Penal Law Article 15's minimal scienter requirement of “knowledge” or “awareness,” as applied to P.L. 265.01(1), is perfectly consistent with both legislative intent and the concept of “strict liability.” The People’s case citations and insinuations notwithstanding, appellant’s argument is quite modest. He is not arguing: C That an intent element be grafted onto the statute. Cf., People v. Marrero, 69 N.Y.2d 382, 386 (1987). 8 C That, to be guilty, appellant had to consider People’s 3 a weapon. Matter of Michael Grudge M., 80 A.D.3d 614, 614-615 (2d Dept. 2011). C That simple possession of People’s 3 would not constitute reasonable suspicion to stop, or probable cause to arrest. People v. Miranda, 19 N.Y.3d 912 (2012); People v. Brannon, 16 N.Y.3d 596, 599 (2011). C That one has to plead knowing or voluntary possession in a misdemeanor complaint or information. People v. Sans, 26 N.Y.3d 13 (2015). C That it is a defense, per se, that People’s 3 is used for business or sport or any other legitimate purpose, or that it is possessed in good faith (RB: 21-22). C That appellant had to know what he possessed is called a “gravity knife,” or that he had to know it was illegal to possess it, or that he had to know it met the statutory definition of P.L. 265.00(5). Rather, mere “possession” of the object is rendered illegal under §265.01(1); however, under Penal Law Article 15 the “possession” must be voluntary and knowing, and that means that the possessor must be aware of the essential thug-like characteristic of the object, i.e., that it is capable of being wrist-flicked open and locking into place. 9 POINT II THE COURT’S REFUSAL TO DISCHARGE A DELIBERATING JUROR AS “GROSSLY UNQUALIFIED” DEPRIVED APPELLANT OF HIS RIGHT TO AN IMPARTIAL JURY. U.S. CONST., AMENDS. V, XIV; N.Y. CONST., ART. 1,§§2,6. For the most part, appellant will rely on the argument in his main brief that the court erred in refusing to discharge juror number 4. However, we feel compelled to respond to two of respondent’s arguments. Respondent argues that the juror, when brought into the courtroom, stated that she “didn’t think” her proximity to the premises in question “would affect her judgment” (RB: 53-54), and that consequently “the court could not reasonably have concluded - - much less have been ‘convinced’ - - that there was anything to ‘prevent’ her from rendering an impartial verdict” (RB: 54). This particular argument misinterprets the record. What happened when the juror was first called into the courtroom was this: THE COURT: So what is the location you are talking about? JUROR NUMBER 4: 96th in between First and Second. I live in that or close to that area so I didn’t think it would affect my judgment but it is in my mind of it just being so close to where I live. And I have been there in the past, haven’t been there since this trial began but I have been in that block so I just - - I thought I could separate knowing that but I just wanted to disclose that, that it was a concern of mine, 10 because I can’t talk to anybody else so I just wanted to bring it up (A. 597-598) (emphasis added). Of course, after that exchange, the juror repeatedly asserted 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). Any reasonable interpretation of the juror’s use of words, “and so I didn’t think it would affect my judgment” (A.587), is that, while she had hoped earlier in the trial that it would not affect her judgment, that hope turned out to be incorrect and it was indeed affecting her judgment. “Didn’t” in this context actually referred to the past tense, not the present one. The People’s interpretation to the contrary is manifestly untenable. The People also argue that any claim that the court’s inquiry was insufficient to assure her impartiality is unpreserved (RB: 55-56). This is simply hard to square with counsel’s insistence that the court’s inquiry was inadequate to ensure the juror’s continuing fitness to serve (A. 608). He had noted, in his earlier insistence that the juror be further questioned, that the juror had “some kind of...fear issue” (A.602), and that whether the juror’s concerns were “rational” was not the point (A. 602). Whatever the juror’s problem was, it was real to 11 her and was clouding her judgment (A. 602-603). The issue is as preserved as humanly possible. CONCLUSION FOR THE REASONS STATED HEREIN AND IN APPELLANT’S MAIN BRIEF, THE JUDGMENT SHOULD BE REVERSED AND A NEW TRIAL ORDERED. Respectfully submitted, ROBERT S. DEAN Attorney for Defendant- Appellant. December 15, 2015 12