DECISION OF THE COURT The defendant filed a motion with the court on November 12, 2019, seeking dismissal of the accusatory instrument as facially insufficient and reservation of rights. On November 25, 2019, the People filed an affirmation in opposition to defendant’s motion. As background, the court arraigned the defendant on July 1, 2019 on the charges of criminal possession of a weapon in the 3rd degree in violation of Penal Law §265.02(1) a class D felony and criminal possession of a weapon in the fourth degree in violation of Penal Law §265.01(1) a class A misdemeanor. Upon arraignment, the felony charge was reduced to criminal possession of a weapon in the fourth degree in violation of Penal Law §265.01(1), a class A misdemeanor, and dismissed upon the motion of the People. Now, upon consideration of the papers submitted in support of the defendant’s motion, and the District Attorney’s response thereto, after due deliberation, the court determines the motion as follows: 1. Dismissal of criminal possession of a weapon as facially insufficient Pursuant to CPL §170.30(1)(a), a defendant may move to dismiss an information on the ground that it is defective within the meaning of §170.35. Pursuant to CPL §170.35(1)(a), an information is defective when it does not conform to the requirements of section 100.40. CPL §100.40(1) provides that an information is sufficient on its face when: (a) It substantially conforms to the requirements prescribed in section 100.15; and (b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the instrument; and (c) Non-hearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, every element of the offense charged and the defendant’s commission thereof. The defendant moves to dismiss the charge of criminal possession of a weapon in the fourth degree as facially insufficient upon the ground that the accusatory instrument does not contain the requisite factual description of each element of the crime alleged. Specifically, the defendant asserts the Rome City patrolman who filed the accusatory instrument did not supply a supporting deposition nor provide any facts pertaining to the stun gun except for the color of such weapon. The defendant further sets forth that although the statute does not address whether a gun must be operable, case law has long established that a required element in proving a charge of criminal possession of a weapon is that the device in question must be proven to be operable. Thus, the defendant argues that this element should be extended to stun guns and the underlying charge dismissed as all elements of the crime are not accounted for. The People oppose the motion to dismiss and argue that although there are no factual allegations regarding whether the stun gun is operable, the accusatory instrument provides sufficient notice to the defendant and is “so detailed as to prevent the defendant from being charged twice for the same offense.” The People further acknowledge that although case law exists requiring allegations of operability, this element is limited in nature and is not applicable to the possession of stun guns. In reliance upon this argument, the People cite to pattern jury instructions pertaining to criminal possession of a weapon in the fourth degree and argue that based upon those instructions, the element of operability of a weapon is limited to firearms and knives. The court will note the misdemeanor information affirmed by Patrolman Zonnevylle states that “On Sunday, June 30, 2019, at approximately 8:16 PM the defendant, Austin T. Johnson, possessed a pink electric stun gun. This incident occurred in the 100 block of East Garden Street, City of Rome, State of New York. The applicable statute sets forth that a person is guilty of criminal possession of a weapon in the fourth degree (A Misdemeanor) when they “possess any firearm, electric dart gun, electric stun gun, gravity knife, switchblade knife, pilum ballistic knife, mental knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, mental knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or “Kung Fu Star” (Penal Law§265.01(1)). Furthermore, the definition of an electric stun gun is “any devise designed primarily as a weapon, the purpose of which is to stun, cause mental disorientation, knock out or paralyze a person by passing a high voltage electrical shock to such person” (Penal Law §265.00, subd. 15-c). Defendant argues that, upon an individual being charged with criminal possession of a “firearm”, it is necessary to demonstrate the weapon is “operable”. The court finds that this analysis is correct, as it has most recently been held in People v. Habeeb, 177 AD3d 1271 [4th Dept 2019]) that a defendant was guilty of criminal possession of a weapon in the second degree upon establishing a pistol which the defendant possessed was loaded and operable. Furthermore, in New York “operability is a required element of the crime of criminal possession of a handgun, rifle or shotgun” (People v. Rowland, 14 AD 3d 886 [3rd Dept 2016]; see People v. Longshore, 86 NY2d 851 [1995]). Turning to whether these principles apply to the possession of a stun gun, the court finds in the affirmative. While it is alleged the defendant possessed an electronic stun gun, the information lacks any facts that the devise is operable in any form or fashion. The patrolman identifies the object allegedly possessed by the defendant as a “stun gun” but the only further description as to the devise is the color and the document is silent as to whether it can be utilized to emit an electronic shock. As to applicable case law to support this finding, it has been held that upon a defendant being “charged with possession of an electronic stun gun, whether pursuant to the Penal Law, or the Administrative Code, a jurisdictionally valid information must contain factual allegations that the stun gun was operable” (People v. Dang, 172 Misc. 2d 274 [Crim Ct, Kings County 1997]) The court will note, however, that no formal lab analysis or ballistics report for a stun gun is required for facial sufficiency purposes. Furthermore, it has been held that a misdemeanor information charging a defendant with fourth degree possession of a weapon was not defective based upon lack of operability as it was “established by sworn allegations that police test-fired the gun at the time it was recovered from the defendant” (People v. Rivera, 54 Misc 3d 129(A) [1st Dept 2016]). Also, upon testing a device, operability can be found when there is an indication of high voltage electric current and may be established by circumstantial evidence (People v. Lynch, 145 Misc2d 354 [Crim Ct, Kings County 1989]. The court finds that while the misdemeanor information filed herein indicates the defendant allegedly possessed a “pink electronic stun gun”, there are no additional facts, as required by case law, to support the required element of operability. (People v. Morel, 157 Misc2d 94 [Crim Ct, Kings County 1993]. In addition, the court finds that the information does not articulate that the device allegedly possessed by the defendant was operable with the ability to emit any type of high voltage current with the capability to stun, cause mental disorientation, knock out or paralyze a person. Lastly, the court finds the People’s argument that the element of operability is strictly limited to firearms is without merit. The court will note that the requirement of operability has not only been extended to include stun guns but also to weapons such as crossbows, as it has been found there is no functional distinction between a firearm and this type of weapon. (People v. Aquart, 171 Misc2d 114 [Crim Ct, Bronx County 1997]). As such the court finds that the information is insufficient, in that the facts contained therein do not establish reasonable cause to believe the defendant committed the crime charged. Thus, the motion made by the defendant is GRANTED and the underlying charges filed herein are dismissed accordingly. 2. Reservation of rights Pursuant to CPL §255.20(3), the court must entertain and decide on its merits any motion which defendant could not reasonably have made as otherwise required by CPL §255(1), and allows the court to consider any such motion at any time prior to sentence, for good cause shown. As the CPL specifically provides for the relief requested by the defendant, defendant’s motion for an order allowing that relief is denied as unnecessary. This constitutes the Decision and the Order of the court and the parties and counsel shall appear before the court on January 6, 2020 at 2:00 PM for a report to address the remaining docket pending against the defendant. Dated: December 23, 2019
