The opinion of the court was delivered by: Sondra K. Pardes, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The defendant was originally charged by way of a District Court Information, filed on January 23, 2008, with violating Penal Law §240.25 (Harassment in the First Degree). The defendant is now charged, by way of a superceding Prosecutors Information filed on January 25, 2008 , with violating Penal Law §120.14 (1) (Menacing in the Second Degree), (Count One) and two counts of Penal Law §265.01(1), (Criminal Possession of a Weapon) (Counts Two and Three). (The District Court Information was dismissed on January 25, 2008 and the counts on the superceding Prosecutor's Information were renumbered Counts "Two, Three and Four". The court has referred to the counts in the Prosecutors Information as Count Two, Three and Four notwithstanding the fact that the motion papers refer to Count One, Two and Three).
The defendant now moves to dismiss the Prosecutor's Information as facially insufficient and jurisdictionally defective and for other omnibus relief. The defendant's motion is determined as follows.
First and foremost the defendant asserts that this court lacks jurisdiction to hear this case because the defendant was under the age of sixteen at the time of the alleged offenses.
The Prosecutor's Information presents the following accusatory allegations:
Count 2: During the period of time from November 2007 and
January 16, 2008, the defendant ELVIS GOMEZ-REYES, did repeatedly and intentionally engage in a course of conduct which placed the complainant/victim in reasonable fear of physical injury. On December 5, 2007, the arrestee did threaten to stab the complainant with a silver switch blade knife, and on January 10, 2008, the complainant/ victim was walking on the street when approached by the defendant who challenged the complainant/victim to a fight while removing a black folding knife from his waistband, in Freeport, in the County of Nassau, State of New York.
Count 3: ELVIS GOMEZ-REYES, on December 5, 2008 (sic), Freeport, in the County of Nassau, State of New York, did possess a silver switchblade knife.
Count 4: ELVIS GOMEZ-REYES, on January 10, 2008, in Freeport, in the County of Nassau, State of new York, did possess a black switchblade knife.
The supporting deposition of the complainant, Ronald Abreu, reads as follows:
I sat with Detective Martin and P.O. Zimmor at my house to discuss some of the ongoing problems with a couple of MS-13 members. On December 5 while in School, I was approached by a person who I know to be Elvis "Vampire" of Freeport. He lives at 30 Wallace Street on the 1st Floor to the left of Entrance. Elvis pulled out a silver switchblade knife and came at me threatening to stab me but one of his friends stopped him. I reported this to the school and the police were called but Elvis ran from the building before the police came.In November 2007, I had a fight with another MS-13 kid named Aldo Buezo, who kept calling me and my brother Robert different names and started to say him his friends were going to "jump" us so I became afraid. In November I had a fight with Aldo and he called the police and we both got orders of protection against each other. After that I didn't see Aldo in school anymore.
Since Aldo hasn't been in school, Elvis has be (sic) constantly after me.
On January 3, 2008 at about 3 p.m. my brother Robert and I were walking on S. Main Street near La Mia Pizzeria when Aldo and five other MS-13 kids who I don't know, came up to us and challenged us to a fight. My brother and I attempted to walk away and as I had my back to the group I got jumped from behind and I tried fighting back but I got kicked in the face. My brother got a bloody lip. The next day my school nurse told me to go to the eye doctor but we didn't because we ...