STATE OF NEW YORK COUNTY OF ERIE ELMA TOWN COURT -------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK -againstAFFIRMATION IN SUPPORT OF MOTION TO DISMISS
CASE # 1xxxxxxxx Defendant -------------------------------------------------------------------X
J. John Sebastian, an attorney admitted to practice in the State of New York, who is the attorney of record for the accused hereby affirms under penalties of perjury, pursuant to CPLR 2106, that the facts set forth herein are true: 1. I am the attorney attorney for the accused herein. I make this affirmation in support of the within motion. 2. The sources of my information and belief are a review of the court file, representations by The People, and my own investigation. SUMMARY OF ARGUMENT The information is facially defective which must lead to the dismissal of the charges because the People fail to allege the required element of “operability” of the subject weapon. This facial deficiency is jurisdictional, non-waivable, and can be raised at any time. Moreover, the Peoples announcement of “readiness” was illusory because they were not in fact ready and therefore the charges must be dismissed pursuant to CPL § 30.30. ARGUMENT POINT I
THE CRIMINAL MINAL POSSESSION OF A WEAPON 4TH DEGREE PORTION OF THE INFORMATION IS DEFECTIVE "An information is facially sufficient if it contains facts of an evidentiary character tending to support the charges. Criminal Procedure Law ยง 100.15(3); People v. Dumas, 68 N.Y.2d 729, 497 N.E.2d 686, 506 N.Y.S.2d 319 (1986). Furthermore, the information must contain non-hearsay allegations which, if true, establish every element of the offense charged and defendant's commission thereof. CPL ยง 100.40(1)(b),(2). An information which fails to satisfy these requirements is fatally defective. People v. Alejandro, 70 N.Y.2d 133, 139, 511 N.E.2d 71, 517 N.Y.S.2d 927 (1980). People v. Guzman, 2004NY Slip Op 24486, 3 (N.Y. Misc. 2004) Penal Law ยง 265.01 (1) states in pertinent part that "A person is guilty of criminal possession of a weapon in the fourth degree when: (1) He or she possesses any firearm... But there is another element to criminal possession of a weapon in the fourth degree which is not listed in the statute. The Court of Appeals has held that "to establish a violation of Penal Law ยง 265.01 (4), the People must establish that the defendant possessed an operable rifle or shotgun" (People v Longshore, 86 N.Y.2d 851, 852 [1995]). The Third Department has reaffirmed this holding in stating that "[o]perability is a required element of the crime of criminal possession of a handgun, rifle or shotgun." (People v Rowland, 14 A.D.3d 886, 887 [3d Dept 2005].) Not only is the burden on the People to prove operability of the weapon, but since proof of operability is an essential element of the crime of possession of a weapon, operability must be pleaded with nonhearsay allegations. (See Matter of Rodney J., 83 N.Y.2d 503, 507 [1994]; People v Shaffer, 66 N.Y.2d 663 [1985]; People v Grillo, 15 A.D.2d 502 [2d Dept 1961], affd 11 N.Y.2d 841 [1962].)
Herein, the People charge the defendant with a violation of 265.01 sub 1 NYSPL but make no
allegation of “operability”. (Ex “A”) Attached Herein. Since the within accusatory instrument fails to allege every element of the crime of criminal possession of a weapon in the fourth degree, it fails to satisfy the prima facie case requirement. This failure to allege every element (not simply every statutory element) of the offense charged is a jurisdictional defect which can be raised at any time. Accordingly, defendant's motion to dismiss should be granted.
POINT II
THE PEOPLE WERE NEVER READY FOR TRIAL DESPITE THEIR ANNOUNCEMENT OF READY. THIS ACTION MUST BE DISMISSED PURSUANT TO CPL § 30.30 13.
The people must do much more than merely announce trial readiness in order to
conform to the requirements of CPL § 30.30. Readiness turns on a 2 prong test: (1) there must be a communication of readiness by the People which appears on the trial court's record, and (2) the prosecutor must make his statement of readiness when the People are in fact ready to proceed. See, People v. Kendzia, 64 N.Y.2d 331, 476 N.E.2d 287, 486 N.Y.S.2d 888 (1985). Here the people have failed in the second prong of Kendzia , in that they never had before them a facially sufficient information. Despite announcing readiness, the people were never in fact ready because the “misdemeanor/violation information” was jurisdictionally defective. Consequently, defendant’s right to a speedy trial has been violated, and under CPL § 30.30 and both charges must be dismissed.
WHEREFORE, your deponent respectfully requests this Court to grant the relief sought herein and such other and further relief as to this Court may seem just and proper. Dated: Buffalo, New York August 19th 2013
Respectfully Submitted,
s/ ____________________________ J John Sebastian Esq. 70 Niagara Street Buffalo NY 14202 716-362-1146