People fail to Plead Reasonable Cause for Intent – Criminal Possession of a Weapon in the fourth degree dismissed as Legally Insufficient

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Defendant is charged with one count of criminal possession of a weapon in the fourth degree (Penal Law ‘265.01 [2]). A person is guilty of criminal possession of a weapon in the fourth degree when 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.” (Penal Law ‘ 265.01 [2]).

The Court frames the issue: “[t]he questions presented here are whether the allegations — that an officer found a knife on the floor of defendant’s car and that defendant made a statement indicating that he possessed the knife for self-protection — establish reasonable cause to believe (1) that defendant knowingly possessed a “dangerous knife” and (2) that he possessed the knife with the intent to use it unlawfully against another. Defendant contends that the allegations are insufficient to establish reasonable cause to believe that he had the intent to use the knife unlawfully against another.” Pp. 1-2. After reiterating the legal standard for facial insufficient (see Pp. 2), the Court recites the legal standard for Reasonable Cause:

“Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it” Pp. 5. See CPL 70.10 [2]). “Reasonable cause to believe that a person has committed an offense” focuses upon the issue of whether the evidence is of sufficient weight and persuasiveness to establish a reasonable likelihood a defendant committed the offense. Peter Preiser, Practice Commentary, McKinney’s Consolidated Laws of New York Annotated, CPL 70.10)…. The measure of “reasonable cause” is the equivalent of the familiar constitutional standard called “probable cause” (People v. Johnson, 66 NY2d 398, 402, n. 2 [1985]).

For either to exist, the evidence must be strong enough to support a reasonable belief that it is more probable than not that a defendant committed a crime (see People v. Mercado, 68 NY2d 874, 877 [1986]). When “evidence or information which appears reliable discloses facts or circumstances” (CPL 70.10 [b]) which favor equally guilt or innocence the reasonable cause standard is not met (People v. Carrasquillo, 54 NY2d 248, 254 [1981] [“conduct equally compatible with guilt or innocence will not suffice”]).

Although the Court finds that it is clear (by his statements and the surrounding circumstances of its recovery) that the Defendant possessed a knife, it is unclear whether the Defendant possessed the intent to actually use that knife. The defendant indicated that it was dangerous out there and that he needed the knife for self-protection. By establishing possession of a “dangerous knife”, the People are entitled to the statutory presumption that defendant intended to use the knife unlawfully against another. (Penal Law §265.15[4]). The presumption establishes reasonable cause but can be overcome by the defendant. 

New York, is a permissive presumption (People v. McKenzie, 67 NY2d 695, 696 [1986]), which may be extinguished by other facts (see e.g., People v. Edwards, 39 AD3d 1078, 1080 [3rd Dept. 2007] [“bare presumption” outweighed by “competing inference…that the dagger was kept for self-defense, as a means of protection against an intruder”]; People v. Bell, 158 AD2d 697, 698 [2d Dept 1990] [presumption outweighed by other evidence that “kitchen steak knife” was possessed for lawful purpose of self-defense]; People v. Santiago, 61 AD2d 801, 801 [2d Dept 1978] [presumption outweighed by other evidence that baseball bat was possessed with lawful intent]) The presumption, however, must be taken “collectively” with the other “facts and circumstances” of the case in order to determine whether it is “reasonably likely” that defendant possessed the knife with intent to use it unlawfully against another (CPL 70.10 [b]).

Holding: “When facts and circumstances point equally toward guilt and innocence, the reasonable cause standard is not met.” Pp. 5 (citing People v. Carrasquillo, 54 NY2d 248, 254 [1981] [“conduct equally compatible with guilt or innocence will not suffice”]; People v. David, 44 Misc 3d 1212[A] [Crim Ct, New York County 2014] [“when the evidence is in equipoise…there can be no finding of reasonable cause or probable cause”]).

Rebutting the contentions of the prosecutor, the court finds that “[a] defendant charged with criminal possession of a weapon in the fourth degree (Penal Law §265.01 [2]) is nonetheless entitled to be prosecuted by an information which gives reasonable cause to believe that he possessed the knife with intent to use it unlawfully against another.” The prosecutor should have known, looking at the statements from the defendant as a whole that the intent of the defendant from the defendant’s very communication was self-defense and not for some other purpose (if the prosecutor truly were to utilize those statements, in some form or fashion). The fact that one merely possesses a weapon (contrary to what some other interest groups would contend) does not imply that its possession is accompanied by illegal use or intention to illegally use the same weapon. Here, the charge was insufficient because of that logical jump by the people -that this weapon was possessed with the intention to use it illegally against another as opposed to, as stated by the defendant to law enforcement for the purpose of self-defense.

Conclusion: “the court finds that the second element of the offense — possession with the intent to use unlawfully against another — is not sufficiently plead.”

The People v. Spry, 2015NY041954, NYLJ 1202747182146, at 1 (Crim., NY, Decided January 11, 2016)

 

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