Robert Soe, defendant pro se.

Howard O'Rourke, Village Prosecutor, Valley Stream, for plaintiff.

OPINION OF THE COURT

ROBERT G. BOGLE, J.

[1070] In a case of first impression, the court has been requested to rule on the standard of proof for both the level of intent and voluntary acts needed for legal sufficiency of a simplified infraction under the Vehicle and Traffic Law of New York State. Accordingly, the motion of the defendant to dismiss the simplified traffic information is determined as hereby provided.

Facts

The defendant, Robert Soe, is charged with failure to stop at a stop sign, a traffic infraction under section 1172 of the Vehicle and Traffic Law. The facts of the case are essentially without dispute. The defendant was visiting a friend in Valley Stream, New York, Nassau County, where he was staying after surgery. On April 26, 2005, he drove a few miles away to Franklin Square to visit his daughter. On his way back to his friend's house in Valley Stream, he began to feel uncomfortable and pulled over to the side of the road. Three days earlier, the defendant had been given a prescription for four different medications, including Wellbutrin XL, a medicine known for blackouts and seizures. After the defendant had rested for 20 minutes, he continued on his trip back to his friend's house. At approximately 8:57 P.M., the defendant's vehicle was observed, by the police patrolman, traveling through a stop sign at the corner of Hendrickson and East avenues in the Incorporated Village of Valley Stream, Nassau County, New York. The defendant was issued a simplified traffic infraction for failure to stop at a stop sign under Vehicle and Traffic Law § 1172.

The defendant claims that he was unaware that he had gone through the stop sign. He also claims that he experienced a "blackout" or "seizure" that resulted in his momentary lack of consciousness. The defendant was also unfamiliar with the area as he was a temporary visitor.

After the incident, the defendant revisited his doctor who informed him that the use of Wellbutrin XL, plus the other prescription drugs he consumed, could have resulted in both blackouts and/or seizures. Therefore, the doctor readjusted the medicine, and no further complications occurred.

Lastly, the defendant notes that, in 26 years of driving, this is the first occurrence where a ticket has been issued.

The Law

In order for this vehicle and traffic infraction to be dismissed, we must examine, as we do in all criminal actions, if the elements [1071] have or have not been satisfied. (People v Zapletova, 191 Misc 2d 48 [Just Ct, Greene County 2002].) This includes the most elementary of aspects of criminal law, and includes what, if any, mental intent is necessary (mens rea) and if the voluntary acts of the defendant were sufficient (actus reas).

As a general rule, mental intent is usually determined by the language of the statute such as "intentionally," "knowingly," "recklessly" and "criminal negligence." (Penal Law § 15.05; People v Chessman, 75 AD2d 187 [2d Dept 1980].) If the statute is silent, then proof of a mental state can be presented if logically the offense would require a mental state. (People v Patterson, 185 Misc 2d 519 [Crim Ct, Bronx County 2000].) However, a court should interpret the statute in a reasonable manner. (Matter of Statewide Roofing v Eastern Suffolk Bd. of Coop. Educ. Servs., First Supervisory Dist. of Suffolk County, 173 Misc 2d 514 [Sup Ct, Suffolk County 1997].) Also, a court should not read into a statute that which could not reasonably be found. (Matter of New York Life Ins. Co. v State Tax Commn., 80 AD2d 675 [3d Dept 1981], affd 55 NY2d 758 [1981].)

The statute under which the defendant is charged reads in relevant part: "Except when directed to proceed by a police officer, every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop sign" (Vehicle and Traffic Law § 1172 [a]). For over 75 years, this statute has remained unchanged and continuous under each generation of the Vehicle and Traffic Law.

Interestingly, there are no cases of record that define the mental intent of a traffic infraction where a moving violation is charged, at least not since the New York State Vehicle and Traffic Law was restructured and put into effect on October 1, 1960 (L 1959, ch 775), thus superceding the previous law originally enacted in 1929. However, several cases decided under the original Vehicle and Traffic Law of 1929 could shed some light for interpretation.

In People v Baxter (32 NYS2d 320 [Utica City Ct 1941], affd 178 Misc 625 [Oneida County Ct 1942]), a city court judge held in a parking violation case that "[i]ntent, while often an essential element of a crime, is not an element of the offense here charged. This is a traffic infraction rather than a crime." (Baxter, supra at 323.) In People v Janoske (206 Misc 155 [Broome County Ct 1954]), the County Court held, in a case charging improperly passing a stopped school bus, that the People are not required to establish criminal intent on the part of the defendant, [1072] so long as the prosecution satisfactorily proves that it was a bona fide school bus displaying its flashing red lights, and the bus driver did not grant permission for the defendant's vehicle to proceed.

While Baxter and Janoske provide us with some guidance, both cases concern the Vehicle and Traffic Law of 1929, and there are no cases concerning the current 1960 law. However, such cases may have continued authority if, as in the case at bar, the new Vehicle and Traffic Law essentially mirrors its pre-1960 counterpart. There, the 1960 law would be viewed as an uninterrupted continuation of the 1929 law. General City Law § 95 supports this interpretation and reads as follows:

"Effect of the repeal of a statute by another statute substantially re-enacting the former

"The provisions of a law repealing a prior law, which are substantial re-enactments of provisions of the prior law, shall be construed as a continuation of such provisions of such prior law, modified or amended according to the language employed, and not as new enactments."

In a case similar to the case at bar, a trial judge held that, due to the fact the Environmental Conservation Law was substantially a reenactment of the old Conservation Law, it is to be construed as simply a continuation of prior law and not a new enactment and should be interpreted accordingly. (People v Heath, 77 Misc 2d 215 [Schuyler County Ct 1974].)

Therefore, due to the identical nature of both the Vehicle and Traffic Laws of 1929 and 1960, it is clear no intent is required for the traffic infraction of failure to stop at a stop sign under Vehicle and Traffic Law § 1172.

As intent is not at issue here, the next question to be addressed is did the physical actions (actus reas) of the defendant satisfy the requirements for a sufficient traffic infraction.

For criminal liability, there must be, at minimum, a voluntary act. (People v Carlo, 46 AD2d 764 [1st Dept 1974].) As a general rule, a "voluntary act" means a bodily movement performed consciously as a result of effort or determination (Penal Law § 15.00 [2].)

The definition of a "voluntary act" excludes reflex actions or bodily movements performed during unconsciousness, hypnosis, amnesia or similar mental states. (People v Hager, 124 Misc 2d 123 [Nassau County Ct 1984]; see also Matter of National El. Indus. v New York State Tax Commn., 49 NY2d 538 [1980].)

[1073] While an act may be criminal without intent or knowledge, an involuntary act is not criminal. (Penal Law § 15.10; People v Marzulli, 76 Misc 2d 971 [App Term, 2d Dept 1973].) To sustain a crime or violation, it is an absolute necessity that there at least be some form of voluntary act or omission. (People v Shaughnessy, 66 Misc 2d 19 [Nassau Dist Ct 1971].)

In the instant case, it is clear the defendant suffered from unforeseen seizures and blackouts, resulting in his failure to stop at the stop sign. There is sufficient medical evidence and testimony to establish that the defendant was unconscious and his action of passing through the stop sign was an involuntary act. Thus, as a result of the involuntariness of the defendant's actions, the People have failed to satisfy the statutory requirements for the charges in the instant case.

Accordingly, the motion to dismiss the simplified traffic infraction is granted in its entirety.

James P. Kelley, Wappingers Falls, and D. James O'Neil for appellant.

Michael Coccoma, District Attorney of Otsego County, Cooperstown (Brian D. Burns of counsel), for respondent.

Judges SIMONS, TITONE, HANCOCK, JR., and SMITH concur with Chief Judge KAYE; Judge BELLACOSA dissents and votes to affirm for the reasons stated in the opinion by then-Justice Howard A. Levine at the Appellate Division (184 AD2d 24); Judge LEVINE taking no part.

[499] Chief Judge KAYE.

Penal Law § 220.18 (5) makes it a felony to "knowingly and unlawfully possess * * * six hundred twenty-five milligrams of a hallucinogen." The question of statutory interpretation before us is whether "knowingly" applies to the weight of the controlled substance. We conclude that it does and that the trial evidence was insufficient to satisfy that mental culpability element.

A subsidiary issue concerns the denial of defendant's request to represent himself at trial. We agree with defendant that the trial court's basis for denying the application was improper, and that the issue was not waived in a subsequent letter to the trial court or in his jurisdictional statement to this Court.

I.

Viewed in a light most favorable to the People (People v Contes, 60 N.Y.2d 620, 621), the trial evidence revealed that on October 2, 1990 defendant asked his friend David Hopkins to order and receive a shipment of hallucinogenic mushrooms on his behalf. Hopkins agreed, and adhering to defendant's instructions placed a call to their mutual friend Scott in San Francisco and requested the "usual shipment." Tipped off to the transaction, on October 5 State Police Investigator Douglas Vredenburgh located the package at a Federal Express warehouse in Binghamton. The package was opened (pursuant to a search warrant) and resealed after its contents were verified. The investigator then borrowed a Federal Express [500] uniform and van and delivered the package to Hopkins, the addressee, who was arrested upon signing for it.

Hopkins explained that the package was for defendant and agreed to participate in a supervised delivery to him. In a telephone call recorded by the police, Hopkins notified defendant that he got the package, reporting a "shit load of mushrooms in there." Defendant responded, "I know, don't say nothing." At another point Hopkins referred to the shipment containing two pounds. The men agreed to meet later that evening at the firehouse in West Oneonta.

At the meeting, after a brief conversation, Hopkins handed defendant a substitute package stuffed with newspaper. Moments after taking possession, defendant was arrested. He was later indicted for attempted criminal possession of a controlled substance in the second degree.

In pretrial letters to the Trial Judge, defendant expressed dissatisfaction with his assigned attorney and requested permission to represent himself. The Judge held a hearing, questioning defendant on his knowledge of the law and trial procedure. Defendant, who had three years of college and had previously stood trial for another offense, provided answers that were reasonably accurate for a layperson.^[1] Nevertheless, the court denied the request, concluding that defendant was "not sufficiently qualified to represent [him]self in this charge that faces life imprisonment." In a subsequent letter dated May 13, 1991, defendant thanked the Judge for taking time to determine whether he was capable of representing himself, expressing confidence that he would get a fair trial and the hope that, with his attorney's help, he would soon earn his freedom.

The case proceeded to trial, where the evidence summarized above was adduced. Additionally, the police chemist testified that the total weight of the mushrooms in Hopkins' package was 932.8 grams (about two pounds), and that a 140-gram sample of the package contents contained 796 milligrams of psilocybin, a hallucinogen (Penal Law § 220.00 [9]; Public Health Law § 3306 [schedule I] [d] [19]). He did not know, however, the process by which psilocybin appears in mushrooms, whether naturally, by injection or some other means. [501] Nor was there any evidence as to how much psilocybin would typically appear in two pounds of mushrooms.

At the close of the People's case, defendant moved to dismiss for insufficient proof that he knew the level of psilocybin in the mushrooms, and also requested a charge-down to seventh degree attempted criminal possession, which has no weight element. Both applications were denied, defendant was convicted as charged, and he was sentenced as a second felony offender to 10 years-to-life.

The Appellate Division affirmed. The court held that a defendant must know the nature of the substance possessed, and acknowledged that the weight of the controlled substance is an element of the crime. The court declined, however, to read the statute as requiring that a defendant have actual knowledge of the weight. Instead, the court held that "the term `knowingly' should be construed to refer only to the element of possession and not to the weight requirement." (184 AD2d 24, 27.)

Finding ample evidence that defendant intended and attempted to possess psilocybin while knowing the nature of the substance, and that the weight of the psilocybin ultimately proved to be more than 625 milligrams, the Appellate Division sustained the conviction. Similarly, because there was no reasonable view of the evidence that the weight of the psilocybin in the mushrooms was less than 625 milligrams, the court rejected the argument that the trial court erred in refusing the charge-down.

Finally, the Appellate Division concluded that, by virtue of his May 13 letter, defendant waived any objection with respect to the denial of his request to proceed pro se.

We now reverse.

II.

Although the present case involves an attempt, analysis begins with the elements of the completed crime, second degree criminal possession of a controlled substance. Penal Law § 220.18 (5) provides:

"A person is guilty of criminal possession of a controlled substance in the second degree when he knowingly and unlawfully possesses: * * *

"5. six hundred twenty-five milligrams of a hallucinogen."

[502] It is undisputed that the knowledge requirement of the statute applies to the element of possession (see also, Penal Law § 15.00 [2]), and that defendant must also have "actual knowledge of the nature of the possessed substance" (People v Reisman, 29 N.Y.2d 278, 285). At issue is whether defendant must similarly know the weight of the material possessed. That is a question of statutory interpretation, as to which the Court's role is clear: our purpose is not to pass on the wisdom of the statute or any of its requirements, but rather to implement the will of the Legislature as expressed in its enactment (People v Smith, 79 N.Y.2d 309, 311).

In effectuating legislative intent, we look first of course to the statutory language. Read in context, it seems evident that "knowingly" does apply to the weight element. Indeed, given that a defendant's awareness must extend not only to the fact of possessing something ("knowingly * * * possesses") but also to the nature of the material possessed ("knowingly * * * possesses * * * a hallucinogen"), any other reading would be strained. Inasmuch as the knowledge requirement carries through to the end of the sentence (see, People v Reisman, 29 NY2d, at 285), eliminating it from the intervening element — weight — would rob the statute of its obvious meaning. We conclude, therefore, that there is a mens rea element associated with the weight of the drug.

That reading is fortified by two rules of construction ordained by the Legislature itself. First, a "statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability" (Penal Law § 15.15 [2]). If any material element of an offense lacks a mens rea requirement, it is a strict liability crime (Penal Law § 15.10). Conversely, a crime is one of "mental culpability" only when a mental state "is required with respect to every material element of an offense" (id.).

By ruling that a defendant need not have knowledge of the weight, the Appellate Division in effect held, to that extent, that second degree criminal possession is a strict liability crime (see, Penal Law § 15.10). That is an erroneous statutory construction unless a legislative intent to achieve that result is "clearly indicat[ed]" (Penal Law § 15.15 [2]).

In a similar vein, the Legislature has provided in Penal Law § 15.15 (1):

"Construction of statutes with respect to culpability requirements. [503]

"1. When the commission of an offense defined in this chapter, or some element of an offense, requires a particular culpable mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms `intentionally,' `knowingly,' `recklessly' or `criminal negligence,' or by use of terms, such as `with intent to defraud' and `knowing it to be false,' describing a specific kind of intent or knowledge. When one and only one of such terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears." (Emphasis added.)

Accordingly, if a single mens rea is set forth, as here,^[2] it presumptively applies to all elements of the offense unless a contrary legislative intent is plain.

We discern no "clear" legislative intent to make the weight of a drug a strict liability element, as is required before we can construe the statute in that manner (Penal Law § 15.15 [1], [2]). Moreover, the over-all structure of the drug possession laws supports the view that a defendant must have some knowledge of the weight.

There are six degrees of criminal possession of a controlled substance, graded in severity from a class A misdemeanor (Penal Law § 220.03 [seventh degree]) up to an A-I felony (Penal Law § 220.21 [first degree]). The definition of each begins identically: "A person is guilty of criminal possession of a controlled substance in the ______ degree when he knowingly and unlawfully possesses * * *." The primary distinctions between one grade or another relate to the type and weight of the controlled substance, and in some instances the existence of an intent to sell (e.g., Penal Law § 220.16 [1]) or intent to sell combined with a prior drug conviction (e.g., Penal Law § 220.09 [13]).

Taking hallucinogens as an example, knowing and unlawful possession of any amount, even a trace (see, People v Mizell, 72 N.Y.2d 651, 655) is seventh degree possession (Penal Law § 220.03); 25 milligrams or more, fourth degree (Penal Law § 220.09 [6]); 125 milligrams or more, third degree (Penal Law § 220.16 [10]; and 625 milligrams, second degree (Penal Law § 220.18 [5]). [504] The maximum penalty for these crimes ranges from one-year incarceration to a life sentence, yet the only statutory difference relates to the weight of the drugs. To ascribe to the Legislature an intent to mete out drastic differences in punishment without a basis in culpability would be inconsistent with notions of individual responsibility and proportionality prevailing in the Penal Law (see, e.g., Penal Law § 1.05 [4]).

Our cases, too, have suggested that knowledge of the weight is an element. In People v Scarborough (49 N.Y.2d 364, 374), for example, a case involving a similarly worded criminal sale of a controlled substance statute (see, Penal Law § 220.41), we concluded "that there is no substance to defendant Scarborough's claim of insufficiency of proof on the issue of her knowledge of the weight or the nature of the contents of the glassine envelopes which she delivered to the buyer" (emphasis added).

Similarly, in People v Reisman (29 N.Y.2d 278, 287, supra), defendant — like defendant here — requested a charge-down to an offense that did not require possession of a specified amount. We rejected the claim that the trial court's failure to deliver the charge was error, first noting that the "weight of the contraband in the carton was uncontradicted" (id., at 287). If defendant's knowledge of the weight were not an element, and the only issue were the objective weight of the substance, that would have been sufficient to dispose of the claim, as it was for the Appellate Division here (184 AD2d, at 28). But we continued:

"Moreover, the nature of the case and its circumstances depended entirely on a commercial-like shipment of the large quantity. The case could stand or fall on that proof and no other. Consequently, under no view of the facts, because there was no basis in any of the evidence, could the jury find the accused innocent of the higher crime and yet guilty of the misdemeanor which required no minimum quantity" (29 NY2d, at 287).

In the charge-down context, the Court's reference to the nature and circumstances of the case could only have been an allusion to defendant's knowledge of the weight.

In sum, the plain language of the statute, rules of construction, the format of the drug possession laws and our cases all lead to the conclusion that the Appellate Division erred in [505] holding that there is no mens rea requirement associated with the weight of a controlled substance.

III.

The People's contrary argument is based in part on a concern that it would be "prohibitively difficult," if not impossible, to secure convictions if they were required to prove that a defendant had knowledge of the weight. We disagree.

Often there will be evidence from which the requisite knowledge may be deduced, such as negotiations concerning weight, potency or price (see, e.g., People v Acosta, 80 N.Y.2d 665, 668, n 1, and 672-673). Similarly, for controlled substances measured on an "aggregate weight" basis (see, e.g, Penal Law § 220.06 [2]), knowledge of the weight may be inferred from defendant's handling of the material, because the weight of the entire mixture, including cutting agents, is counted (see generally, Rosenblatt, New York's New Drug Laws and Sentencing Statutes, at 45-48 [1973]; Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law art 220, at 9 [comparing aggregate and pure weight statutes]).

By contrast, that same inference may be unavailable for controlled substances measured by "pure" weight, like psilocybin. The effective doses of these drugs may be minuscule, and they are customarily combined with other substances to facilitate handling and use. In these circumstances it may indeed be difficult to show defendant's knowledge of the weight. Although we cannot simply read the knowledge requirement out of the statute, these "compelling practical considerations" may inform our interpretation of that element (see, People v Mizell, 72 NY2d, at 654).

The Legislature has decided that persons who illegally possess larger quantities of controlled substances should be punished more severely; their conduct is more repugnant and presents a greater threat to society. Because drug possession is not a strict liability crime, however, an individual is not deserving of enhanced punishment unless he or she is aware that the amount possessed is greater. A purpose of the knowledge requirement, then, is to avoid overpenalizing someone who unwittingly possesses a larger amount of a controlled substance than anticipated.

That legislative purpose can be satisfied, among other ways, with evidence that the pure weight of the controlled substance [506] possessed by defendant is typical for the particular form in which the drug appears. This correlation between the pure weight typically found, and the pure weight actually possessed, substantially reduces the possibility that a person will unjustly be convicted for a more serious crime.

To illustrate: a person may knowingly possess 50 doses of LSD on blotter paper but, understandably, have no awareness what the pure LSD weighs; upon chemical analysis it is determined that defendant actually possessed 2.5 milligrams. If there is evidence that a typical dose of LSD weighs .05 milligrams (see, Chapman v United States, 500 US 453, 457), the jury could conclude, within the meaning of the statute, that defendant knowingly possessed more than 1 milligram, and convict of fourth degree possession (Penal Law § 220.09 [5] [1 mg or more]). If, however, because of some manufacturing defect unknown to defendant those 50 doses weighed 10 milligrams, defendant should not be convicted of more serious third degree possession (Penal Law § 220.16 [9] [5 mg or more]).

There may of course be other ways of proving defendant's knowledge within the meaning of the statute. Our purpose today, however, is not to survey all of the permissible methods but to clarify that the statute does in fact contain a weight-related mental culpability element.

IV.

With the foregoing principles in mind, we consider whether there was sufficient evidence to convict defendant of attempted second degree possession, an A-II felony.

Certainly there was sufficient evidence from which the jury could conclude, beyond a reasonable doubt, that defendant attempted and intended to possess a two-pound box of hallucinogenic mushrooms. It is also undisputed that, upon testing, the mushrooms in the particular box defendant attempted to possess — the one sent to Hopkins by Scott — contained more than 650 milligrams of psilocybin. The issue we must decide, however, is whether sufficient evidence was presented at trial from which it could be inferred that defendant had the requisite knowledge of the weight.

We disagree with the People's suggestion that the evidence of defendant's knowing attempt to possess two pounds of mushrooms, without more, could satisfy their burden of proof. The controlled substance here is psilocybin; had defendant [507] ordered a specific quantity of that drug, plainly that would satisfy the knowledge element. But defendant attempted to possess two pounds of mushrooms, only a small portion of which was pure psilocybin.

Although in these circumstances defendant could properly be convicted of attempting to possess the amount of psilocybin that would typically appear in two pounds of hallucinogenic mushrooms, there was no evidence linking psilocybin weight to mushroom weight. Indeed, there was no evidence indicating whether psilocybin grows naturally or is injected into the mushrooms, or of the usual dose of the drug — matters not within the ken of the typical juror. We thus conclude on this record that there was insufficient evidence to satisfy the knowledge requirement within the meaning of the statute.

That deficiency does not absolve defendant of all criminal liability. There is sufficient evidence to sustain a conviction for the lesser-included offense of attempted criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), which does not have a weight element.

V.

Finally, we briefly consider whether the trial court had a proper basis for denying defendant's request to represent himself.

A criminal defendant may be permitted to proceed pro se if the request is timely and unequivocal, there has been a knowing and intelligent waiver of the right to counsel, and defendant has not engaged in conduct that would interfere with a fair and orderly trial (People v McIntyre, 36 N.Y.2d 10, 17). Although the trial court in the present case perceived defendant's legal skills to be wanting, and therefore denied the motion for defendant's "own protection," that was not a proper ground for decision. What we said in People v Davis (49 N.Y.2d 114, 120), applies equally here:

"To accept a defendant's lack of knowledge of legal principles and rules of law or his unfamiliarity with courtroom procedures as the ground for concluding that he is not qualified to represent himself would in effect be to eviscerate the constitutional right of self-representation; such limitations could confidently be said to exist in nearly every criminal case in which the defendant had not received legal training. This, however, appears to [508] have been the rationale for the court's ruling in this case; nothing intimates that the trial court's evaluation of this defendant as not capable or qualified to represent himself was because of any mental incompetence or illiteracy."

On this appeal, the People do not defend the trial court's decision on the merits, instead arguing that the issue is not properly before us because (i) it was not identified in defendant's rule 500.2 jurisdictional statement (22 NYCRR 500.2) and (ii) it was effectively waived in defendant's May 13 letter. Neither argument has merit.

Rule 500.2 (c) expressly provides that "inclusion and identification of issues shall not be binding on counsel for brief writing or oral argument purposes." The issue-identification requirement is for subject matter indexing and calendaring (id.). Nor can defendant's May 13 letter be read as a waiver of legal issues with respect to the propriety of the trial court's denial of the motion.

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed with leave to the People to institute such proceedings as they deem appropriate respecting the lesser-included offense of attempted criminal possession of a controlled substance in the seventh degree.

Order reversed, etc.

[1] Defendant knew, for instance, what a peremptory challenge was; the sentence he faced; the definition of an accomplice; that an indictment was not evidence; that the People had the burden of proof; that the reasonable doubt standard was operative; and the function of an objection.

[2] "Unlawfully" is not a term of mental culpability but means "in violation of article thirty-three of the public health law" (Penal Law § 220.00 [2]).

Joseph O. Holmes and Philip L. Weinstein for appellant.

Robert M. Morgenthau, District Attorney (Nancy J. Dunn and Norman Barclay of counsel), for respondent.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur.

[625] BELLACOSA, J.

Defendant, acting as a "stall" in a pickpocketing ploy on the steps of the Metropolitan Museum of Art on Fifth Avenue in Manhattan on July 5, 1987, feigned illness and grabbed the "mark's" arm while the "dip" lifted the wallet, containing a credit card, from the "mark's" purse and slipped it to the defendant. The victim, holding on to her purse, grappled with defendant and regained possession of the wallet. Defendant then fled. She was pursued by bystanders and was quickly apprehended and arrested by a nearby police officer.

Defendant was convicted after a jury trial of grand larceny in the fourth degree (Penal Law § 155.30 [4] [stealing property consisting of a credit card]) and criminal possession of stolen [626] property in the fourth degree (Penal Law § 165.45 [2] [possession of stolen property consisting of a credit card]). The trial court overruled defendant's objection to its instruction to the jury that "a person who steals a credit card need not even be aware of the precise nature of what [she] has stolen to be charged with the full consequences of [her] criminal act". The Appellate Division affirmed and a Judge of this Court granted leave to appeal.

Defendant argues that the evidence of the possession count was insufficient because the People failed to prove that she knew the stolen wallet contained a credit card. We agree with the courts below and affirm the order of the Appellate Division upholding the conviction.

Penal Law § 165.45 (2) provides, in part, that a person is guilty of criminal possession of stolen property "when [she] knowingly possesses stolen property, with intent to benefit [herself] or a person other than an owner thereof or to impede the recovery by an owner thereof, and when: * * * 2. The property consists of a credit card" (emphasis supplied). The offense at issue thus plainly contains two culpable mental states — "knowingly" which is tied to the possession of stolen property, and "intent" which modifies "to benefit" or "to impede" (Penal Law §§ 15.10, 15.15). Neither of these culpable mental states, by law or syntax, relates to any of the several aggravating factors tacked onto the definition of the offense (compare, People v Register, 60 N.Y.2d 270, 276, 278, cert denied 466 US 953). The unmistakable effect and location of the adverb "knowingly" is to pinpoint the primary culpable mental state component only on the criminal possessory act. That culpable mental state does not also arc over to the particular aggravating characterization of the property stolen — here, a credit card.

The statute, in its traditional composition, forbids defendants from knowingly possessing stolen property, adding that the criminal possession be accompanied by an unlawful intent to benefit the wrongdoer or to impede recovery. The degree of the crime is elevated if the stolen property is a credit card or one of several other things. The People must prove defendant knew the property was stolen but are not required to prove that she was cognizant of the precise and usually varying nature of the property she possessed in order to support an indictment and sustain a conviction for the full consequences of the criminal act, i.e., at the highest degree of crime committed. [627] "Knowledge of the existence of a specific article is not required if the defendant unlawfully acquires possession of a container [wallet] in which the article [credit card] is thereafter found" (3 Wharton's Criminal Law § 360, at 320 [Torcia 14th ed 1980]; see also, People v Timmons, 124 Misc 2d 766, 767 [Sup Ct, NY County]; see also, People v Boyajian, 148 AD2d 740, 741-742, lv denied 74 N.Y.2d 661; People v Burgin, 135 AD2d 1106, lv denied 71 N.Y.2d 893; People v Magee, 98 AD2d 874).

Our interpretation is consistent with the statutory interpretation in several of the cited lower court cases and is further buttressed by the Legislature's ensuing amendments to Penal Law § 165.45, which did not disturb that extant interpretation (see, L 1990, ch 450, § 2; L 1987, ch 556, § 11; L 1986, ch 515, § 5; see also, Lucenti v Cayuga Apts., 48 N.Y.2d 530, 541; Matter of Trosk v Cohen, 262 N.Y. 430, 435-436).

Defendant concedes that aggravating factors — such as the value of the property stolen — are factors to which a culpable mental state does not ordinarily attach. She contends, nevertheless, that the character of credit card stolen property is so integral to this offense that a culpable mental state must be judicially incorporated. The theory is that this particular factor elevating her possession to a felony range is so unique and different that it cannot be sustained without a culpable mental state element being added. Defendant is incorrect. This credit card factor is not essentially different in kind or effect from a host of other aggravating factors, and her proffered distinction or uniqueness does not warrant judicial engraftment of a culpable mental state that the Legislature chose not to insert in the statute as to any of the listed aggravating factors in Penal Law § 165.45 (2).

That the Legislature declined to attach any culpable mental state to this aggravating circumstance is not unusual. The Penal Law is replete with offenses which contain aggravating factors which elevate the degree of criminal responsibility without coupling a requirement of proof of a culpable mental state (see, e.g., Penal Law §§ 140.30, 155.42, 160.15, 165.54). If the Legislature had intended that the People must prove a culpable mental state in relation to the aggravating factor, it could have done so simply by direct expression, and by proper placement in the particular provision, as it has done elsewhere (see, e.g., Penal Law § 220.21 [criminal possession of a controlled substance in the first degree requires knowing [628] possession of a narcotic]; see also, Penal Law § 165.17 [unlawful use of a credit card requires display of a card known to be revoked or canceled, in course of obtaining or attempting to obtain property or service]).

Some legislative history and context are also useful here. The Legislature in 1969 forbade criminal possession of stolen property particularly consisting of a credit card (Penal Law § 165.45 [2]) — as well as grand larceny of a credit card (Penal Law § 155.30 [4]) — to combat growing credit card theft and abuse. It decided to elevate theft and possession of stolen credit cards to felony grade to combat the then growing and now worse problem of credit card theft and forgery (Governor's Mem, 1969 NY Legis Ann, at 543; Mem of Senator Dunne, 1969 NY Legis Ann, at 43-44). A thief who gains possession of stolen property, especially credit cards, does so in anticipation of its fungible or utilitarian value or character and not ordinarily with prior knowledge of its precise nature, value or character because that is typically unknowable until the theft is completed. This is especially so when one considers how and where credit cards are carried by people and the locations where the crimes are usually committed. To read into the statute by judicial concoction a culpable mental state element of coextensive knowledge of the precise character of the stolen property would sap the statute of its intended purpose, so it is not surprising that the Legislature refrained from such a vain exercise. Inasmuch as the Legislature did not protect professional pickpockets from the full consequences of their criminal acts by adding the extra ingredient of a specific culpable mental state as to the credit card aggravating circumstance, we certainly should not do so contrary to the plain expression of its enactment. Such syntactical and creative interpretation would contradict the special legislative effort to deal with credit card abuse and theft.

Defendant also contends that the statutory presumption embodied in Penal Law § 165.55 (3), which presumption imposes knowledge of theft on a person who possesses two or more stolen credit cards, leads also to the conclusion that knowledge of the credit card character of the stolen property is an element of Penal Law § 165.45 (2). However, that precise statutory presumptive attribution of knowledge that the property is stolen does not create an additional presumption of knowledge also that the stolen property consists of credit cards. Moreover, it certainly does not, by further leap and operation of law, incorporate into Penal Law § 165.45 (2) a [629] culpable mental state element of knowledge of the credit card nature of the possessed stolen property in relation to that aggravating circumstance, which often happens to be the ultimate object of the Fagin-like flimflam.

The courts below properly determined that the People are not required to prove that defendant was cognizant that the stolen property she possessed was a credit card because the statute imposes no such burden. Rather, the correct burden, satisfied by the evidence and instruction to the jury, was only that she knowingly possessed stolen property which, in fact, consisted of a credit card, and which she intended for her own benefit.

Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.

[629] Steven Banks, Legal Aid Society (Maxwell Gould of counsel), for defendant. Robert T. Johnson, District Attorney (David Grigoryan of counsel), for plaintiff.

OPINION OF THE COURT

JOHN H. WILSON, J.

Defendant is charged with one count of permits for possession or purchase of rifles or shotguns (Administrative Code of City of NY § 10-303).^[1] Under Administrative Code § 10-310, this charge is a violation.

By omnibus motion dated January 7, 2013, defendant seeks dismissal of the sole charge, asserting that the People's complaint is facially insufficient, and suppression of all physical evidence seized by law enforcement personnel.

The court has reviewed the court file, defendant's motion, and the People's response dated January 25, 2013. For the reasons stated below, the motion to dismiss is granted to the extent of ordering the People to provide a superceding information to the court and defense within 30 days of the publication of this decision to the parties.

If the People do supercede the complaint successfully, then the motion for pretrial hearings is granted to the extent of ordering a hearing to determine if there was probable cause for defendant's arrest and whether or not the physical evidence seized was taken in violation of defendant's rights under the United States and New York Constitutions.

Statement of the Facts

Pursuant to the criminal court complaint dated October 27, 2012, on or about October 26, 2012, at approximately 5:40 p.m., Police Officer Sean McGuire observed defendant seated in the front passenger seat of a Honda Accord stopped outside of 1852 Archer Street, Bronx, New York. The officer states that "he [630] observed in the custody and control of the defendant ... in the trunk of said vehicle with the butt of the item exposed causing the trunk to remain partially open, one (1) pump action 12 gauge shotgun."^[2]

The complaint also alleges that "said shotgun was defaced in that the section of said shotgun where the serial number exited [sic] had been concealed so that said serial number was unreadable." (See criminal court complaint dated Oct. 27, 2012 at 2.)

Legal Analysis

Under CPL 100.15, every accusatory instrument is required to contain two elements: (1) an accusatory portion designating the offense charged, and (2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. (See People v Dumas, 68 NY2d 729 [1986].)

Further, under CPL 100.40, a misdemeanor information is facially sufficient if the nonhearsay facts stated in said information establish each and every element of the offense charged, as well as the defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case and is sufficient. (See People v Alejandro, 70 NY2d 133 [1987].)

On a motion to dismiss, this court's review is limited to whether or not the People's allegations as stated in the criminal court complaint are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. (See People v Jennings, 69 NY2d 103, 115 [1986].)

Applying these principles to the instant matter, the factual allegations contained in the complaint before this court are not sufficient.

Under Administrative Code § 10-303, "it shall be unlawful for any person to have in his or her possession any rifle or shotgun unless said person is the holder of a permit for the possession and purchase of rifles and shotguns."

At the outset of our analysis, it must be noted that the complaint does not include any statement regarding whether or [631] not defendant, or the driver of the vehicle, is the holder of any permit for the possession of rifles or shotguns. On this basis alone, then, the complaint must be superceded. However, a more significant issue is presented by the People's insufficient allegations.

Penal Law § 265.15 (3) states that "[t]he presence in an automobile ... of any ... defaced rifle or shotgun ... is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found."

Known as the automobile presumption, "[t]he statutory presumption establishes a prima facie case against defendant, which presumption he may rebut by offering evidence." Generally, "the presumption will remain in the case for the jury to weigh even if contrary proof is offered, [but] it may be nullified if the contrary evidence is strong enough to make the presumption incredible." (See People v Wilt, 105 AD2d 1089, 1090 [4th Dept 1984], citing People v Lemmons, 40 NY2d 505, 510 [1976].)

The People allege that "said shotgun was defaced in that the section of said shotgun where the serial number exited [sic] had been concealed so that said serial number was unreadable." (See criminal court complaint dated Oct. 27, 2012 at 2.) Thus, on this basis, the automobile presumption can be applied to the weapon recovered here. However, the finding of the presence of this element does not conclude our analysis.

The presumption has been applied to the driver of an automobile when a gun was discovered in the glove compartment (see People v Wade, 122 Misc 2d 50 [Sup Ct, Kings County 1983]); to a gun recovered from between a defendant's feet on the floor of the driver's side of an automobile (see People v Sanchez, 110 AD2d 665 [2d Dept 1985], lv denied 65 NY2d 986 [1985]); to a gun which lay on the back ledge of an automobile in which a defendant was seated, "within the immediate control and reach of the [defendant] and his companions" (see People v Russo, 278 App Div 98, 101 [1st Dept 1951] [internal quotation marks and citation omitted], affd 303 NY 673 [1951]); and to a defendant seated "directly behind that portion of the front bench seat under which the sawed-off shotgun and revolver were secreted ... [since] [u]nder these circumstances, it is surely rational to infer that defendant had both the ability and intent to exercise dominion and control over the weapons" (see People v Davis, 104 AD2d 1046, 1046-1047 [2d Dept 1984]).

In each of the cases cited above, it was reasonable on the face of the allegations to infer that the defendant knew that a [632] weapon was present in the vehicle. This court has been unable to locate any case where the presumption has been applied to a weapon located in the trunk of a vehicle without a prima facie showing that the defendant knew, or reasonably should have known, that said weapon was there.

"Under Penal Law § 15.00 (2); § 15.10 the mental culpability required for a crime of possession is, at the very least, awareness of the possession." (See People v Sanchez, 110 AD2d 665, 665 [1985] [citations omitted].) Where "there is no `rational connection' between the discovery of the gun in the trunk and defendant's presumed possession," "the statutory presumption of [Penal Law § 265.15 (3) is] unconstitutional as applied." (See Wilt, 105 AD2d at 1090, citing Leary v United States, 395 US 6, 33 [1969].)

"The People reason that the defendant['s] presence in the car constitutes dominion and control over, and hence possession of, the vehicle and its contents (Penal Law § 10.00 [8]) ...

"While the argument is appealing, it must fail because it rests upon an impermissible elision between two separate and distinct elements necessary to sustain a charge of criminal possession. In order to prove the charge there must first be evidence of possession, whether actual or constructive, personal or accessorial. Second, there must be evidence of scienter, that is, actual knowledge ... that the gun indeed was in [defendant's] possession." (See People v Porter, 133 Misc 2d 584, 586 [Sup Ct, NY County 1986] [citations omitted].)

Porter states the test for satisfaction of the automobile presumption: "whether the nexus or connection between the accused and the contraband is sufficient for a rational conclusion that he or she in fact exercised dominion or control over it." (133 Misc 2d at 589 [citations omitted].)

In the instant complaint, the People's allegations fail to provide prima facie evidence of the defendant's knowing commission of the alleged crime. On the face of the complaint, there is no inference possible that this defendant had knowledge of the defaced shotgun in the trunk. There is only a bald statement that the defendant was seated in the front passenger seat of a motor vehicle and that the officer observed "in the trunk of said vehicle with the butt of the item exposed causing the trunk to remain partially open, one (1) pump action 12 gauge [633] shotgun." Nothing connects defendant to the contraband, other than his mere presence in the vehicle.^[3]

Thus, the allegations made herein are facially insufficient. However, in this case, the People will be given the opportunity to supercede the criminal court complaint.

In People v Camacho (185 Misc 2d 31 [Crim Ct, Kings County 2000]), the court ruled that where a complaint is found to be facially insufficient, curing the defect "is imperative, because... the court's jurisdiction is no longer assured. The People should be allowed a reasonable period of time, to be determined by the court depending upon the particular factual circumstances of the case, to [correct the defect]." (185 Misc 2d at 36 [citation omitted]; see also People v Gore, 143 Misc 2d 106, 109 [Crim Ct, Kings County 1989] ["the lower court when evaluating insufficiency must also consider whether amendment, supersession, replacement or supplementation and conversion is still possible" (citing Dumas)].)

Under the circumstances of this case, it should be a simple matter for the People to correct the defect and state the necessary additional facts in their information. Therefore, the People have 30 days from the date of publication of this decision to cure this error by "either filing a superseding information or prosecutor's information." (See People v Evangelista, 1 Misc 3d 873, 874 [Crim Ct, Bronx County 2003].)

Other Relief Requested

Defendant has moved for suppression of any physical evidence recovered from the trunk of the vehicle at the time of his arrest. If the People successfully supercede the complaint, this motion is granted to the extent of ordering a pretrial hearing at which the issues of whether or not the physical evidence seized was legally obtained and whether or not there was probable cause for the defendant's arrest will be considered.

All other arguments and requests for any additional hearings and relief that have been advanced by the defendant have been reviewed and rejected by this court as being not applicable or without merit.

[1] Defendant was initially charged with criminal possession of a weapon in the third degree (Penal Law § 265.02 [3]), a class D felony; however, that charge was withdrawn by the People on December 12, 2012.

[2] Another separately charged individual was reportedly in the driver's seat of the subject vehicle.

[3] The fact that the "butt of the item [was] exposed causing the trunk to remain partially open" does not establish that defendant knew that the trunk was partially open or had viewed the contents of the trunk.