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.

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.