By written stipulation of the parties at a court-ordered pre-trial disclosure conference, the Court has reviewed the minutes of the grand jury presentation in order to evaluate the sufficiency of the evidence and legal instructions. Defendant is charged with one count of third degree criminal possession of a weapon [Penal Law § 265.02(1)] and Unlawful Possession of Marijuana [Penal Law §221.05].

In asking the court to review the grand jury minutes, defense counsel asserts (1) that there was insufficient proof of defendant's identity as the person previously convicted of another crime in Virginia ; (2) that the device seized from defendant's car at the US border crossing was not a prohibited billy club; (3) that the legal instruction on the standard of proof was insufficient; and (4) that there was insufficient proof that the substance found on a seized 'grinder' in the trunk of the car was in fact marijuana.

The People introduced in evidence a certified copy of a conviction of Jamie Lee Phillips, with the same birth date, and a listed address at the Onondaga Indian Nation in Central New York. The certificate of conviction also bears that person's social security number. When interviewing this defendant in connection with the pending charges, Trooper Harris was shown three different forms of identification for this defendant, Jamie L. Phillips: a New York learner's permit (with photo), a social security card, and an "Oneida" Nations Reservation identification card (transcript, page 20). Given the identical names, the fact that social security information was available to the police officer from both the prior conviction defendant and the present defendant, and the fact that both men had native American tribal identification, the court finds that there was more than sufficient evidence to give the grand jury reasonable cause to believe that the person previously convicted in Virginia was the same individual charged here.

Count one of the indictment charges defendant under Penal Law §265.02(1) with possession of a billy club. This crime is identical to possession of a "billy" as proscribed in Penal Law §265.01(1), with the additional element of a previous criminal conviction. The term 'billy' is [*2]not defined in the Penal Law. Although it is also possible to charge a person, under Penal Law §265.01(2) with possession of "any deadly instrument or weapon with intent to use the same unlawfully against another," that crime, distinct from strict liability for mere possession of a billy, is not charged here.

The US Customs Officer who first noted the device in defendant's car, and who testified in the grand jury proceeding, described the device as a collapsible baton. He said that it had a cylindrical handle with foam covering, and had two internal collapsible sections, each about 6 to 8 inches long, made of steel tubing which could be extended and locked into place with the flick of a wrist. He described it as a striking weapon, which he had seen demonstrated in his training as a federal law enforcement agent. Some such batons are issued to immigration officers as secondary weapons, Hyde testified. He also said that it is a non-lethal weapon intended to disable someone rather than to inflict injury, though it is capable of misuse in such a way as to be lethal in a blow to the head or neck. Collapsible batons are not included in the list of weapons whose mere possession is prohibited in Penal Law § 265.01(1).

In the article at 11 A.L.R.4th 1272 the author collects and discusses various cases from around the country, under the heading, "What Constitutes a 'Bludgeon,' 'Blackjack,' or 'Billy' within the meaning of Criminal Possession Statute." Several New York cases collected there bear mention here, along with one California case.

In People v. Talbert, 107 AD2d 842 (3 Dept 1985) the court examined the question of what qualifies as a billy club. In that case the court was considering a wooden stick or club observed on the floor of a car with four occupants. The car was stopped for speeding. The court found that the wooden stick was neither a billy, since it was not in the list of inherently dangerous items, not a dangerous or deadly instrument or weapon, since there was no allegation that defendant intended to use it against anyone else. The court further stated, "In our view, based on the manner in which the statute is set forth, the term 'billy' must be strictly interpreted to mean a heavy wooden stick with a handle grip which, from its appearance, is designed to be used to strike an individual and not for other lawful purposes. An object which can be used as a billy but which does not fit the strict definition may still be a prohibited weapon under subdivision (2) of section 265.01 of the Penal Law if there exists the requisite intent to use the object unlawfully against another." 107 AD2d 842, 844.

In People v. Houghton, 86 Misc 2d 925 (Fulton County Ct 1976) the court found defendant not guilty in a bench trial for possession of a billy club. There the device in question was a miniature bat, 12 inches long weighing 6 ½ ounces made by defendant's brother-in-law in an industrial arts class. The court noted that the People failed to prove that the device had any of the characteristics of a "billy club."

In People v. Braunhut, 101 Misc 2d 684 (Crim Ct New York City, Queens Co 1979), the court considered a 'spring whip,' made of a cylindrical housing approximately seven inches long, serving as a handgrip, inside of which are several spring lengths which, with the flick of a wrist, can be extended out from the handle into a 17 inch long device. The fully-extended device is tapered, with the handle portion having the widest diameter. The entire spring whip, except for the handle, is flexible. The tapered end had a small rounded cap, whose purpose was to lessen the potential for injury from use of the weapon. The spring whip weighed between eight and ten ounces. The court found that this was not a bludgeon or billy, and that its purpose was defensive [*3]rather than offensive, making it different from the category of 'per se' weapons. No information before this court suggests that the device found in Mr. Phillips' trunk was a spring whip. The case is merely mentioned here because the device itself has some apparent similarities to the collapsible baton.

In People v. Mercer, 49 Cal. Rptr. 728 (Appellate Department, Superior Court, Los Angeles County 1995), the court held that a collapsible baton, under the circumstances in which police found defendant holding it, was a 'billy' within the meaning of a statute prohibiting possession of a billy. The court noted that the baton was not, as such, mentioned in the list of prohibited weapons. The California statute, unlike New York's, also prohibits possession of an instrument of a kind commonly known as a billy. This language allowed the court to give an inclusive reading to the California statute, unavailable in New York under the Talbert decision.

In giving legal instruction to the grand jury, the prosecutor gave a dictionary definition of a 'billy club' as 'a short stick or club, especially a police officer's club.' This was unintentionally misleading in two respects. First, there was no testimony to show that a collapsible baton was equivalent to a police officer's club. Second, in light of the appellate decision in Talbert, it was inappropriate to give an instruction which allowed consideration of any sort of device defined differently from the language used by the Talbert court.

This court finds that the collapsible baton seized from defendant does not fall within the Talbert definition of a billy. From a policy standpoint it might make sense for there to be a prohibition against possession of such a device, though the California court in Mercer heard testimony that the device is also used by practitioners of martial arts. Any such declaration must come either from the state legislature, or from an appellate court by way of judicial interpretation of the statute. This court is bound by the appellate holding in Talbert. Since the device was not a billy, its possession was not unlawful, and the first count must be dismissed.

In light of this determination, the court need not reach the question of the legal instruction on the standard of proof. If the court were to reach that issue it would have found the legal instructions sufficient and proper.

With respect to the proof that vegetative matter found on the grinder was marijuana, the cases have made clear that for grand jury purposes a known field test administered by an officer trained and experienced in detecting and testing for marijuana, when producing a positive result, is legally sufficient proof to sustain the count of an indictment. People v. Swamp, 84 NY2d 725 (1995).

Since the only count as to which there was sufficient proof is a violation, not a crime, pursuant to CPL §210.20(1-a) the indictment is dismissed, and the prosecutor is directed to file a local court prosecutor's information charging unlawful possession of marijuana, if he so chooses. Pursuant to CPL §210.20(6), the effectiveness of this order is stayed for thirty days, unless waived by the People, during which time they are directed to elect one of the three options provided. The securing order is continued in the mean time. So ordered.

Enter.

Date: April 1, 2005____________________________________

KATHLEEN M. ROGERS

Acting Judge of County Court