Shari L. Stein, for Defendant
Iris Das, Kings County District Attorney's Office, for the People
SHERYL L. PARKER, J.S.C
The defendant was indicted for attempted assault in the first degree (P.L. 110/120.10), attempted assault in the second degree (P.L. 100/120.05), criminal possession of a weapon in the second degree (P.L. 265.03) [COUNT 3], criminal possession of a weapon in the second degree (P.L. 265.03[B]) [COUNT 4], criminal possession of a weapon in the second degree (P.L. 265.03) [COUNT 5], reckless endangerment in the first degree (P.L. 120.25) and reckless endangerment in the second degree (P.L. 120.20).
Since it is undisputed that the defendant was 15 years of age at the time of the commission of these offenses, the jurisdiction of this court is contingent upon the three weapons counts, viz., counts three, four and five, being juvenile offender offenses.
The defendant has filed a Notice of Motion and accompanying Affidavit, dated September 30, 2013, seeking to dismiss the indictment pursuant to C.P.L. 210.20[a] and 210.25, on the grounds that the indictment is defective.
The People have responded by an Affirmation in Opposition and Memorandum of Law with an Exhibit, dated October 21, 2013.
It is the defense contention that the indictment is defective in that the third, fourth and fifth counts fail to allege an element of the crime, viz., that the weapon was possessed on "school grounds" as defined in P.L. 200.00; that such allegation is required by P.L. 30.00 , the provision which defines a juvenile offender.
Section 30.00  of the Penal Law provides for criminal responsibility if a 15-year-old violates P.L. 265.03 "...where such...firearm is possessed on school grounds, as that phrase is defined in (P.L. 220.00 )". Although the grand jury was charged as to the provisions of P.L. 30.00  and P.L. 220.00 , the counts as set forth in the indictment do not allege that possession took place on "school grounds". It is the defense position that such failure warrants dismissal of the three weapons counts as defective since possession on school grounds constitutes an element of the crime.
The defense argument fails for two reasons:
Pursuant to P.L. 30.00 , a defendant 14 or 15 years of age is precluded from raising the "defense of infancy" when charged with the offense of possession of a weapon under P.L. 256.03, where such weapon is possessed on "school grounds, " as defined in P.L. 220.00. It is the burden of the defendant to raise this defense at which time the People must disprove it beyond a reasonable doubt (see P.L. 25.00).  Accordingly, it is not the responsibility of the People to prove this defense in the first instance because it is not an element of the crime.
Additional support for the foregoing is found in the distinction between a proviso and an exception. Exceptions to statutes must be affirmatively negatived by the prosecution whereas provisos are matters of defense (People v. Devinney, 227 NY 397 ). An exception must be pleaded in an indictment, that is, the pertinent count must allege that the crime is not within an exception contained within the statute defining the offense (People v. First Meridian Planning Corp., 201 A.D.2d 145 [3rd Dept 1994], affd other grds, 86 N.Y.2d 608).
Statutory provisions that are found outside the statute at issue are provisos that the defendant may raise in defense and not an exception that must be pleaded and proved by the prosecution (see People v. LoBianco, 2 Misc.3d 419 [NYC Crim. Ct., Kings, , 2003]). The definition of ...