OPINION OF THE COURT Defendant stands charged with one count of Penal Law §265.01(2) (Criminal Possession of a Weapon in the Fourth Degree). The defendant now moves by omnibus motion for an order: (1) dismissing the accusatory instrument as facially insufficient pursuant to CPL §§100.40 and 170.30; (2) for a Bill of Particulars and discovery; (3) precluding the admission of unnoticed statements pursuant to CPL §710.30; (4) suppressing statements made by defendant or, in the alternative, granting a Huntley/Dunaway hearing; (5) suppressing tangible evidence recovered from defendant or, alternatively, granting a Mapp/Dunaway hearing; and (6) precluding at trial the use of the defendant’s prior criminal history or prior uncharged criminal, vicious, or immoral conduct. FACIAL SUFFICIENCY“The procedural requirements for the factual portion of a local criminal court information are, simply: that it state facts of an evidentiary character supporting or tending to support the charges, that the allegations of the factual part together with those of any supporting depositions provide reasonable cause to believe that the defendant committed the offense charged and that the non-hearsay allegations of the information and supporting depositions establish, if true, every element of the offense charged and the defendant’s commission thereof” (People v. Casey, 95 NY2d 354, 360 [2000] [internal quotations omitted; CPL §100.40[1]; see, CPL 100.15[3]).“A court reviewing for facial sufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from them” (People v. Oldham, 54 Misc 3d 303, 305 — 06 [Crim Ct, New York County 2016] [internal quotations omitted]; see CPL §100.40 [1][c]). Furthermore, “[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, they should be given a fair and not overly restrictive or technical reading” (People v. Casey, 95 NY2d 354, 360 [2000]).PL §265.01(2) provides that “a person is guilty of criminal possession of a weapon in the fourth degree when [h]e or she possesses any dagger, dangerous knife, dirk, machete, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another” (PL §265.01[2]).In the accusatory instrument, Detective Daniel Wadolowski avers that at about 2:25 P.M. on August 14, 2018, in front of 250 West 135th Street, he “recovered a pen knife from the defendant’s front right pants pocket.”Defendant argues that the penknife at issue here does not fall within the ambit of PL §265.01(2) as it is not a “dangerous knife.” The term “dangerous knife” has no statutory definition, but the Court of Appeals has defined it as a knife that may be “characterized as a weapon” (Matter of Jamie D., 59 NY2d 589, 592 [1983]). Accordingly, a knife “primarily designed and intended for use as a utensil” falls outside the scope of PL §265.01 unless the knife: (i) has been converted into a weapon by some physical modification; or (ii) “the circumstances of the possession, including the possessor’s behavior, demonstrate that the possessor considered the knife to be a weapon rather than a utensil” (Id. at 593). The Court finds that, based on the bare allegations here, defendant’s penknife does not fall into either of these categories.The People do not allege that the penknife has been modified such that it falls within PL §25.01. Rather, they argue that because “the blade of this knife is disguised as a benign writing utensil [it follows that] the primary purpose of this knife is for concealment and [the knife's] dangerous nature is apparent from [this] purpose.” The Court finds that argument unavailing (See In re Patrick L., 244 AD2d 244, 245 [1st Dept 1997] [noting that a penknife is a "utilitarian object" which is "often carried for lawful purposes"]; People v. Rivera, 182 Misc 2d 244, 245 [Crim Ct, New York County 1999] [allegations that knife with four-inch blade was concealed by pen insufficient to establish knife was "dangerous knife" or a "weapon" under PL §265.01]).The Court is also unconvinced by the People’s argument that the circumstances of defendant’s possession of the pen knife suggest that he considered it to be a weapon. In fact, the case on which the People rely, People v. Richards, supports the opposite conclusion. In that case, the arresting officer found “an unsheathed and unwrapped knife with a blade of approximately three inches” in defendant’s back pocket. The Richards court noted, however, that the weapons possession charge was only sustained because defendant told the arresting officer that the knife was for his protection against drug dealers who were “out to get him” (People v. Richards, 22 Misc 3d 798, 802 [Crim Ct, New York County 2008]). Here, no such statement was made, and there is therefore “no proof that defendant himself considered the knife to be a weapon, no evidence that the knife was a dangerous knife, and, therefore, no presumption of unlawful intent (Id.).Finally, the People argue that, pursuant to PL §265.15(4), the Court may infer defendant’s intent to use the penknife unlawfully. That statute provides that “[t]he possession by any person of any dagger, dirk, stiletto, dangerous knife or any other weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another” (Penal Law §265.15[4]). As discussed, supra, however, the penknife here does not qualify as a “dangerous knife” (People v. Rivera, 182 Misc 2d 244, 245 [Crim Ct, New York County 1999] [concealment of a knife within a pen "without more, will not permit the application of the statutory presumption of intent"]). Moreover, the People’s reliance on People v. Monero, 184 Misc 2d 764, 765 (Crim Ct, New York County 2000) is misplaced, as that case involved a dagger, which is specifically included in PL §265.15(4), rather than a penknife, which is not included in that statute.In light of the foregoing, the Court finds that “[t]he complaint fails to allege any facts which would lead to the inference that the knife which is the subject of the weapon possession charge is intended for use primarily as a weapon.” (People v. Rivera, 182 Misc 2d 244, 245 [Crim Ct, New York County 1999]). Accordingly, defendant’s motion to dismiss the accusatory instrument as facially insufficient is granted and the remainder of defendant’s motion is therefore moot.Accordingly, it isORDERED that defendant’s motion to dismiss the accusatory instrument as facially insufficient is GRANTED.This constitutes the Decision and Order of the Court.Dated: November 26, 2018New York, New York
