The defendants, Justin Vargas and Jonathan Lopez, are charged with Possession of Air Pistol (Administrative Code [AC] 10.131[b][1]) and Possession of Imitation Pistol (AC 10.131[g]). They each move for an order dismissing the accusatory instrument pursuant to Criminal Procedure Law (CPL) 170.30(1)(a) and 170.35(1) for lack of facial sufficiency; and other relief.

FACIAL INSUFFICIENCY

The self-authenticating complaint presents, in pertinent part, the following factual allegations:

Deponent states that [on April 3, 2010, at about 21:50 hours, at the corner of East 123rd Street and Third Avenue, New York County] deponent observed what appeared to be a black pistol, but was actually an air pistol, in the hatchback area of a car in which all three ^[FN1] defendants were seated.

Deponent states that the black air pistol was within the control and dominion of all three defendants because said air pistol was in the common area of the car, to wit, an open hatchback.

Deponent states that deponent observed that the air pistol appeared to be an actual pistol in appearance because of its black color and shape.

It is axiomatic that facial sufficiency is a non-waivable, jurisdictional prerequisite to a valid prosecution. People v Alejandro, 70 NY2d 133 (1987). In order to be facially sufficient, an information, together with any supporting depositions, must meet with three requirements: (1) allege facts of an evidentiary character supporting or tending to support the charges, pursuant to CPL 100.15(3); (2) provide reasonable cause to believe that the defendant committed the offenses charged in the information; and (3) include non-hearsay factual allegations, which, if true, establish every element of the offense charged. See CPL 100.40(1) (a-c). This third requirement is what is referred to as a "prima facie" case. People v McDermott, 160 Misc 2d 769 (Dist Ct, Nassau County 1994). A prima facie case, also referred to as "legally sufficient evidence," means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof. See CPL 70.10[1]).

The defendants each are charged with one count of Possession of Air Pistol (AC 10-131[b][1]), which provides, in pertinent part, that:

[i]t shall be unlawful for any person to sell, offer to sell or have in such person's possession any air pistol or air rifle or similar instrument in which the propelling force is a spring or air, except that the sale of such instruments if accompanied by delivery to a point without the city, and possession for such purpose, shall not be unlawful if such person shall have secured an annual license from the police commissioner of the city authorizing such sale and possession.

The defendants are also charged with one count each of Possession of

Imitation Pistol (AC 10.131[g]), which in pertinent part provides:

1. It shall be unlawful for any person to sell or offer for sell, possess or use or attempt to use or give away, any toy or imitation firearm which substantially duplicates or can reasonably be perceived to be an actual firearm unless: (a) the entire exterior surface of such toy or imitation firearm is colored white, bright red, bright orange, bright yellow, bright green, bright blue, bright pink or bright purple, either singly or as the predominant color in combination with other colors in any pattern ;

(b) such toy or imitation firearm is constructed entirely of transparent or translucent materials which permits unmistakable observation of the imitation or toy firearm's complete contents; and (c) the barrel of such toy or imitation firearm, other than the barrel of any such toy or imitation firearm that is a water gun, is closed with the same material of which the toy or imitation firearm is made for a distance of not less than one-half inch from the front end of said barrel, and; (d) such toy or imitation firearm has legibly stamped thereon, the name of the manufacturer [*2]or some trade name, mark or brand by which the manufacturer can be readily identified; and (e) such toy or imitation or firearm does not have attached thereto a laser pointer, as defined in paragraph one of subdivision a of section 10-134.2 of this code.

Each of the defendants contends that the accusatory does not provide reasonable cause to believe that he possessed the pistol in question, an element of both offenses. The People do not address these motions to dismiss. Defendant Vargas argues that the there are no facts alleged in the accusatory instrument to support the contention that he personally exercised "control and dominion" over the pistol. Neither of these defendants are said to have had actual possession of the pistol. The instrument merely alleges that the pistol was observed in the open hatchback area.

It is unreasonable to conclude that either defendant had constructive possession of the pistol simply because it was theoretically accessible by any occupant. The position in the car of each of the defendants is not specified. Neither of the defendants is alleged to have had actual possession of the car keys or to have been or have admitted to being the owner of the vehicle. It was just this sort of problem that the Legislature sought to eliminate when it enacted the so-called "automobile presumption" of PL §265.15(3). That statute provides a rebuttable evidentiary presumption of possession by every occupant of the vehicle when a firearm or any other enumerated weapon is found inside but not in the actual possession of any one occupant. Id; Matter of Jonathan V., 55 AD3d 273, 276-77 (1st Dept 2008).

Defendant Vargas argues, however, that this presumption does not apply in the instant case because he is charged under a statute of the New York City Administrative Code not the Penal Law. The Court agrees. Nothing in PL §265.15(3) explicitly limits its applicability to the possession of items criminalized in Article 265 or extends its applicability to the NYC Administrative Code. However, the applicability of PL §265.15(3) is limited to the instruments listed in that statute. See People v. Brown, 37 AD2d 623 (1st Dept 1971)(butter knife and starter's pistol "not in the category of weapons to which the statutory presumption applies"). Neither air pistols nor imitation pistols are found on that list.^[FN2] The closest item to an air or imitation pistol covered by the statute is "firearm." PL §265.00(3) restricts that term to "pistol," revolver," "shotgun," "rifle" and "assault weapon." PL §265.00 [*3]does not contain a definition of "firearm." However, the dictionary defines a firearm to be "any weapon from which a shot is fired by the force of an explosion." Webster's New World Dictionary, 3d College ed. PL §265.00 does not define "pistol" and "revolver," but its definition of "rifle," "shotgun" and "assault weapon" all comport with the dictionary definition of firearm. See PL §165.00(11), (12), (21) and (22).

An air pistol, by statutory definition, is a pistol "in which the propelling force is a spring or air." AC 10-131 (b)(1). Therefore, an air pistol is not a firearm, and the automobile presumption is inapplicable as to the count of Possession of Air Pistol. The same logic holds for an imitation pistol; it is self-evident that the presumption does not apply to an imitation pistol because an imitation pistol cannot expel any projectile, let alone one by the force of an explosion.

The accusatory instrument does not establish reasonable cause to believe that these defendants possessed the air rifle in question under the circumstances asserted. Accordingly, the motion of each defendant for an order dismissing the accusatory instrument as facially insufficient is hereby granted. This decision is made without prejudice to any effort by the People to serve and file a facially sufficient accusatory instrument.

Because of the Court's disposition of all counts, the Court has not addressed the defendants' other motions or that of the People.

This opinion shall constitute the decision and order of this court.

Dated: September 21, 2010

New York, New York

_______________________

Hon. Felicia A. Mennin, JCC