Decision and Order The defendant is charged with one count of Assault in the Second Degree, in violation of Penal Law (PL) section 120.05(3), two counts of Menacing a Police Officer, in violation of PL section 120.18, and one count of Criminal Possession of a Weapon in the Fourth Degree, in violation of PL section 265.01(1). By omnibus motion dated July 29, 2020, the defendant seeks, among other things, inspection of the grand jury minutes and dismissal of the indictment, suppression of statements and physical evidence, and discovery. Motion to Inspect and Dismiss The defendant’s motion to inspect the Grand Jury minutes is granted. The court has examined the Grand Jury minutes in camera. The People presented evidence to the Grand Jury, in the form of oral testimony and the body camera footage of three officers, that on February 22, 2020, the police were tending to an intoxicated individual at Fulton Street and Jay Street, Brooklyn, New York, when a crowd started to form. The police directed the crowd to stand back several times. The defendant approached the police officers and threatened to slap one of the officers. An officer placed his hands on the defendant’s chest and pushed her. The defendant then moved toward the officers and tased two officers in the thumb and pinky, respectively. The taser was recovered from the defendant’s hand. Based on this evidence, the Grand Jury indicted the defendant on two counts of Menacing a Police Officer, with respect to acts committed against Police Officers Christian Garcia and Artem Prusayev. PL section 120.18 states, [a] person is guilty of menacing a police officer…when he or she intentionally places or attempts to place a police officer…in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, knife, pistol, revolver, rifle, shotgun, machine gun or other firearm, whether operable or not, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer…(emphasis added). A deadly weapon is defined as “any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles” (PL §10.00[12]). The taser at issue here was described by one officer as a “black metal object,” a “spark light” that was “sparking” and by the other officer as something that “appeared to be a flashlight,” emitted a “crackling sound” and felt like a “zap.” This description of the taser fails to meet the definition of a deadly weapon as such is defined in the Penal Law (see id.; see also People v. Shaffer, 66 NY2d 663, 664 [1985] ["The People failed to establish that the gun found at the scene was a 'deadly weapon' --- that is, both operable and loaded with live ammunition…"]). Accordingly, counts two and three of the indictment which charge the defendant with Menacing a Police Officer, in violation of PL section 120.18, are hereby dismissed. In reaching its decision, this court does not mean to suggest that a taser is incapable of causing death or other serious physical injury. This court recognizes that a taser can, in fact, result in death or other serious physical injury and as such, may qualify as a “dangerous instrument” (see PL §10.00[13]). This court’s decision is limited to the finding that a taser does not meet the definition of a deadly weapon, a necessary element for the charge of Menacing a Police Officer. As to the remaining charges, the court finds that the evidence presented was legally sufficient to establish the offenses charged and to sustain the indictment (CPL §§190.65, 210.20, 210.30; People v. Pelchat, 62 NY2d 97 [1984]; People v. Calbud, Inc., 49 NY2d 389 [1980]; People v. Swamp, 84 NY2d 725 [1995]). Notably, the fourth count of the indictment which charges the defendant with Criminal Possession of a Weapon in the Fourth Degree specifically enumerates possession of an “electronic dart gun” or an “electronic stun gun” as proscribed conduct (see PL §265.01[1]). The Court finds that the Assistant District Attorney correctly charged the Grand Jury with respect to the applicable law (People v. Valles, 62 NY2d 36 [1984]). Therefore, no reduction or dismissal of the remaining counts is warranted. Motion for Discovery The defendant’s motion for discovery is granted. The People are directed to provide the defendant with automatic discovery as required by statute (see CPL §§245.10; 245.20). Motion to Preclude Evidence for Failure to Comply with Discovery Requirements The defendant’s motion for preclusion is denied as premature. The defendant has leave to renew any challenges to the People’s Certificate of Compliance once such certificate is filed (see CPL §245.50[4]). Motion to Suppress Physical Evidence The defendant’s motion to suppress physical evidence is granted to the extent that a Mapp hearing is granted. The court further notes that in their response, the People consent to such a hearing. Motion to Suppress Statements The defendant’s motion to suppress statements she allegedly made to law enforcement personnel is granted to the extent that a Huntley/Dunaway hearing is granted. The court further notes that in their response, the People consent to such hearings. Motion to Preclude Prior Convictions and Bad Acts The defendant’s motion to preclude the introduction at trial of evidence of prior convictions or bad acts is granted to the extent that a Sandoval hearing is granted and referred to the trial court. Pursuant to CPL section 245.20(1)(p), the People are directed to serve a complete record of judgments of conviction upon which they seek to cross-examine the defendant should she elect to testify. Motion to Reserve Rights The defendant’s motion seeking the right to make further motions is granted to the extent provided for by CPL section 255.20(3). This constitutes the Decision and Order of the court. Dated: September 23, 2020
