SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
December 15, 2010
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (William L. McGuire, Jr., J.), rendered February 19, 2009.
People v. Phillips (Ricardo)
Decided on December 15, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: GOLIA, J.P., PESCE and STEINHARDT, JJ
The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the fourth degree.
ORDERED that the judgment of conviction is affirmed.
On May 25, 2007, the People filed a superseding information charging defendant with unlawful possession of marihuana (Penal Law § 221.05), criminal possession of a weapon in the fourth degree (Penal Law § 265.01 ), failure to obey stop signs or yield signs (Vehicle and Traffic Law § 1172 [A]) and aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511  [a]). Defendant pleaded guilty to criminal possession of a weapon in the fourth degree. On appeal, defendant contends that the superseding information was jurisdictionally defective with respect to the count of criminal possession of a weapon in the fourth degree since it failed to contain facts establishing every element of the crime. More specifically, defendant asserts that the superseding information did not allege any facts indicating that the weapon was operable at the time defendant possessed it.
In order to be facially sufficient, an information, together with any supporting deposition "accompanying or filed in connection with an information" (CPL 100.20), must allege, among other things, non-hearsay facts of an evidentiary nature establishing, if true, each element of the offense charged and the defendant's commission thereof (CPL 100.15 ; 100.40 ; see People v Kalin, 12 NY3d 225, 228-229 ; People v Jones, 9 NY3d 259, 261 ; People v Allen, 92 NY2d 378, 385 ; People v Dumas, 68 NY2d 729, 731 ). The factual allegations in an information must give a defendant sufficient notice to prepare a defense and prevent him from being tried twice (see People v Casey, 95 NY2d 354, 360 ). Conclusory allegations alone are insufficient and render the accusatory instrument defective (see Dumas, 68 NY2d 729).
A person is guilty of criminal possession of a weapon in the fourth degree when "[h]e or she possesses any firearm . . ." (Penal Law § 265.01 ). A required element of the crime is that the firearm must be operable (see People v Longshore, 86 NY2d 851, 852 ; People v Connelly, 54 AD3d 348 ; People v Lewis, 39 AD3d 565 ), which fact may be established by a ballistics examination report of the firearm which the defendant allegedly possessed (see People v Zapata-Lopez, 238 AD2d 618 ; People v Rodriguez, 235 AD2d 504 ).
In the case at bar, a ballistics examination report, sworn to by the
examining officer, was filed with the court. The report asserted that
the firearm in question was operable. Since the superseding
information, together with the ballistics report filed in connection
therewith, established, if true, every element of the offense charged
criminal possession of a weapon in the fourth degree - - and
defendant's commission thereof (CPL 100.15 ; 100.40 ), the
superseding information was legally sufficient (see Matter of Alex B.,
189 AD2d 813 ). Accordingly, the judgment of conviction is
Golia, J.P., Pesce and Steinhardt, JJ., concur. Decision Date: December 15, 2010
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