Criminal Court of the City of New York, Bronx County, May 29, 2019

The Legal Aid Society, Bronx (Casey Trimble of counsel), for defendant.

Darcel D. Clark, District Attorney, Bronx (Heather Aguilar of counsel), for plaintiff.

By notice of motion to dismiss, filed on January 15, 2019, defendant moves to dismiss count one of the complaint pursuant to Criminal Procedure Law § 210.25 (3).

Upon review of the defendant's moving papers, the People's affirmation in opposition and the relevant documents in the official court file, this court denies the defendant's motion to dismiss count one^[FN*] of the accusatory instrument.

The accusatory instrument, sworn to by Police Officer Robert Pecorella of the 41st Precinct, shield No. 18446, states that on or about May 28, 2018, at approximately 8:20 p.m. at the northeast corner of Lafayette Avenue and Longfellow Avenue, County of the Bronx, State of New York:

"At the above time and place, he observed defendant to have on his person, in his front right pants pocket, one (1) baton (black jack).

"Deponent further states that he further observed defendant to have on his person, in his front right pants pocket, one (1) small ziplock bag containing a dried, green, leafy substance with a distinctive odor.

"Deponent states, that based upon deponent's training and experience, said black jack is designed primarily as a weapon, consisting of a cylindrical shaped stick of less than arm's length made of wood, plastic, or metal with a flexible leather grip used to inflict serious injury upon a person by striking or choking.

"Deponent states, that based upon deponent's training and experience, which includes training in the recognition of controlled substances and marijuana, a dried, green leafy substance with a distinctive{**64 Misc 3d at 646} odor, and their packaging, the aforementioned substances are alleged and believe to be marijuana."

Defendant was issued a desk appearance ticket on May 28, 2018, arraigned on July 25, 2018, by criminal complaint dated July 2, 2018, and charged with criminal possession of a weapon in the fourth degree in violation of Penal Law § 265.01 (1) and unlawful possession of marijuana in violation of Penal Law § 221.05 arising out of the alleged occurrence on May 28, 2018.

The defendant moves this court for an order, dismissing count one of the complaint, criminal possession of a weapon in the fourth degree, Penal Law § 265.01 (1), on the ground that the statute, as it specifically relates to a "black jack" or "baton," violates the Second Amendment to the United States Constitution (US Const Amends II, XIV). The People, by memorandum of law filed March 1, 2019, opposed defendant's motion.

Civil Practice Law and Rules § 1012 (b) (1) and (3) states:

"(b) Notice to attorney-general, city, county, town or village where constitutionality in issue.

"1. When the constitutionality of a statute of the state, or a rule and regulation adopted pursuant thereto is involved in an action to which the state is not a party, the attorney-general, shall be notified and permitted to intervene in support of its constitutionality. . . .

"3. The court having jurisdiction in an action or proceeding in which the constitutionality of a state statute, local law, ordinance, rule or regulation is challenged shall not consider any challenge to the constitutionality of such state statute, local law, ordinance, rule or regulation unless proof of service of the notice required by this subdivision is filed with such court."

CPL 170.35 (1) (c) states:

"1. An information, a simplified information, a prosecutor's information or a misdemeanor complaint, or a count thereof, is defective within the meaning of paragraph (a) of subdivision one of section 170.30 when: . . .

"(c) The statute defining the offense charged is unconstitutional{**64 Misc 3d at 647} or otherwise invalid."

Penal Law § 5.00 states: "The general rule that a penal statute is to be strictly construed does not apply to this chapter, but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of the law."

Penal Law § 265.01 (1) states:

"A person is guilty of criminal possession of a weapon in the fourth degree when:

"(1) He or she possesses any firearm, electronic dart gun, electronic stun gun, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or 'Kung Fu star.' "

As an initial matter, the instant matter does not contemplate an indictment. It is settled that case law pertaining to the sufficiency of allegations in indictments is not generally applicable to cases involving informations. (See People v Alejandro, 70 NY2d 133 [1987].) As such, the court's decision is not based upon facial sufficiency of the motion herein as prescribed by CPL 210.25 (3) but instead the standard as prescribed by CPL 170.35 (1) (c).

Additionally, when the constitutionality of a statute of the State of New York is involved in an action in which the State is not a party, the Office of the Attorney General of the State of New York (hereinafter OAG) must be notified and permitted to intervene in support of its constitutionality pursuant to CPLR 1012 (b) (1). Moreover, CPLR 1012 (b) (3) provides that the court having jurisdiction in an action or proceeding in which the constitutionality of a statute is challenged shall not consider any challenge to the constitutionality of such statute unless proof of service of same upon the OAG is filed with such court.

Here, the defendant has not demonstrated that the OAG was notified of the instant constitutional challenge pursuant to CPLR 1012 (b) (1) and (3). However, this court takes judicial notice of service of the required notice upon the OAG, to wit, the OAG acknowledged receipt of service of same in its letter{**64 Misc 3d at 648} to the NYC Criminal Court Bronx Borough Chief Clerk. (See Matter of Avella v Batt, 33 AD3d 77 [3d Dept 2006] [Court rendered decision upon sua sponte notice to the OAG].) The OAG determined that it will not intervene and requested that the parties notify it of this court's decision regarding the constitutional contentions discussed herein. The court now turns to the merits of the defendant's Second Amendment challenge.

The defendant moves this court for an order dismissing count one, criminal possession of a weapon in the fourth degree, on the ground that the alleged possession of a "black jack" or "baton" is not a crime and prosecution for it violates his right to keep and bear arms under the Second Amendment to the U.S. Constitution for the reasons set forth in District of Columbia v Heller (554 US 570 [2008]) and its progeny.

The defendant points out that in Caetano v Massachusetts (577 US —, 136 S Ct 1027 [2016]) the Supreme Court of the United States invalidated a Massachusetts law prohibiting the possession of stun guns finding that, based upon Heller, the Second Amendment applies to "all instruments that constitute bearable arms including those not in existence at the time of the founding" (affirmation of defendant's counsel at 9). The defendant implies that "mere possession" of a baton should be viewed as bordering on the "frivolous" and a "grave threat to the fundamental right to self-defense" as Justice Alito decried in a Caetano concurring opinion regarding possession of stun guns (affirmation of defendant's counsel at 9). The defendant also notes that in Maloney v Singas (351 F Supp 3d 222 [ED NY 2018] [Singas II]) the U.S. District Court for the Eastern District of New York found that Penal Law § 265.01 as applied to nunchakus is unconstitutional (affirmation of defendant's counsel at 11). The defendant argues that consistent with Singas II, the People have the burden of proving the weapon is not commonly used by law-abiding citizens and anecdotally, that batons are commercially marketed for self-defense, nonlethal and commonly used for that purpose (affirmation of defendant's counsel at [*2]11). The defendant further argues that there is no "meaningful distinction" that can be drawn between cases involving batons and nunchakus because of their close similarity in design; and that since nunchakus cannot be categorically banned, then it stands to reason that batons cannot be categorically banned.

The People oppose defendant's assertions and argue that, historically, concealed weapons have been regulated. The{**64 Misc 3d at 649} People state that Caetano does not prohibit the regulation of batons and pursuant to the holdings in Singas II and People v Persce (204 NY 397 [1912]), batons are uncommon and have a propensity for unlawful use. These factors, according to the People, render Penal Law § 265.01 (1) and (2) constitutional under an intermediate scrutiny review for Second Amendment analysis. The People maintain that the defendant has not met his burden of demonstrating the infirmity of the statute beyond a reasonable doubt and that the New York State Legislature is the appropriate venue for examination of defendant's statutory challenge.

"[A] statute is presumptively constitutional and should be construed in such a manner as to uphold its constitutionality." (Matter of Schultz Mgt. v Board of Stds. & Appeals of City of N.Y., 103 AD2d 687, 689 [1984], affd 64 NY2d 1057 [1985], quoting McKinney's Cons Laws of NY, Book 1, Statutes § 150; see also Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340, 345 [1982].) "[T]he party alleging unconstitutionality [of a statute] has a heavy burden, one of demonstrating the infirmity beyond a reasonable doubt." (Matter of Schultz Mgt. v Board of Stds. & Appeals of City of N.Y., 103 AD2d 687, 689 [1984], affd 64 NY2d 1057 [1985], citing Sgaglione v Levitt, 37 NY2d 507, 515 [1975, Cook, J., dissenting].) Courts have held that "Penal Law § 265.01 (1), like all other legislative enactments, is 'supported by a presumption of validity so strong as to demand of those who attack them a demonstration of invalidity beyond a reasonable doubt, and the courts strike them down only as a last unavoidable result.' " (People v Sosa-Lopez, 54 Misc 3d 545, 547 [Crim Ct, NY County 2016], citing Matter of Van Berkel v Power, 16 NY2d 37, 40 [1965]; see also People v Davis, 43 NY2d 17 [1977], cert denied 435 US 998 [1978].)

In District of Columbia v Heller, the United States Supreme Court held that there is a rebuttable presumption that the "Second Amendment extends, prima facie, to all instruments that constitute bearable arms" not just a small subset. (See District of Columbia v Heller, 554 US 570, 582 [2008] [emphasis added].) The Supreme Court found that the Second Amendment protects the right of citizens to possess bearable arms, especially those primarily used for self-defense even though those devices were (1) not contemplated, (2) not in common use, and (3) not readily adaptable to use in the military at the time the Second Amendment was established. (Id.){**64 Misc 3d at 650}

The decision in Heller did, however, uphold long-standing precedent that the authority granted every citizen under the Second Amendment is not unlimited. (Id. at 595.) The Heller Court averred that there is "no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms . . . [and that] right [is] not unlimited, just as the First Amendment's right of free speech [is] not." (Heller at 595, citing United States v Williams, 553 US 285 [2008].) "Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose." (Id. at 595.)

Subsequent to Heller, Heller II and New York State Rifle & Pistol Assn. v Cuomo, a two-step analytical framework was deemed appropriate in the Second Circuit. (See Heller v District of Columbia, 698 F Supp 2d 179 [2010] [Heller II]; see also New York State Rifle & Pistol Assn., Inc. v Cuomo, 804 F3d 245 [2d Cir 2015].) That analysis calls for a determination as to whether the regulated weapon is a bearable arm, falling within the protective ambit of the Second Amendment; and if so, what level of constitutional scrutiny is appropriate in determining whether the impingement on the protected right may prevail. These cases are predicated, overwhelmingly, upon a right to self-defense rather than a right to possession of a weapon.

This court rejects the defendant's claim that the U.S. Supreme Court decision in Caetano announced an expansion of the scope of the Second Amendment. Specifically, the Caetano decision reveals that the Supreme Court merely held that the conclusions reached by the courts of Massachusetts used rationale specifically rejected by the Court in Heller. (See Caetano, 577 US at —, 136 S Ct at 1028.) In short, Caetano simply does not stand for the blanket proposition that there is a Second Amendment right to the possession of stun guns, batons or any other weapon.

Furthermore, defendant's reliance on Singas II is misplaced. In Maloney v Singas (106 F Supp 3d 300, 313 [ED NY 2015] [Singas I]), the court dismissed the claim of both parties for summary judgment as to the Second Amendment challenge because neither party "offered little more than anecdotal evidence" that chuka sticks were not in common use or used for{**64 Misc 3d at 651} lawful purposes and remitted the matter for further litigation. Subsequently, in Singas II, cited by defendant, the court found that Penal Law § 265.01 was unconstitutional as applied to nunchakus only after statistical data had been analyzed but did not "foreclose the possibility that [the government] could in the future present evidence to support" a different conclusion. (See Singas II, 351 F Supp 3d at 240.)

Here, neither party has offered statistical data regarding the commonality and lawful usage of batons, but the People have at least offered the holding of People v Persce. Persce discusses the dangerous character of batons and reasons that "]c]ertain objects such as firearms . . . , electronic dart guns, gravity and switchblade knives, billies, blackjacks and metal knuckles are clearly used [*3]unlawfully as weapons and can seldom be used for any legitimate purpose." (See People v Talbert, 107 AD2d 842, 843 [3d Dept 1985] [emphasis added]; People v Persce, 204 NY 397, 402 [1912].) This court finds no differing precedent. In fact, New York courts have denied challenges to the term billy as unconstitutionally vague relying upon Penal Law § 5.00 which requires the Penal Law be construed fairly to promote justice and effect the objects of law. (See People v Talbert, 116 Misc 2d 771 [Albany County Ct 1982]; see also People v Ocasio, 28 NY3d 178 [2016] [denying a motion to dismiss for facial insufficiency as to design of billy—metal, extendable striking weapon with a handle grip].)

Additionally, an intermediate scrutiny analysis of the facts as provided by the parties does not afford a finding that possession of batons as proscribed by Penal Law § 265.01 is unconstitutional. The People have offered a sufficient public safety rationale for the ban of batons. Strikingly, the Penal Law exempts the ban on possession of batons for certain members of law enforcement but, in recognition of the dangerousness of the weapon, prohibits possession of batons "when used intentionally to strike another person except in those situations when the use of deadly physical force is authorized by [self-defense]" (Penal Law § 265.20 [b]).

This court finds that the People have met their burden of rebutting the presumption that possession of a baton falls within the ambit of Second Amendment protections and that defendant has not met the heavy burden of demonstrating the infirmity of Penal Law § 265.01 (1) beyond a reasonable doubt. Based on the foregoing, the defendant's motion to dismiss count{**64 Misc 3d at 652} one of criminal possession in the fourth degree on the grounds that Penal Law § 265.01 (1) is unconstitutional and violative of the defendant's right to bear arms pursuant to the Second Amendment of the Constitution is denied.