PEOPLE v. PEREZ (2019)

Supreme Court, Appellate Term, New York,

The PEOPLE of the State of New York, Respondent, v. Maximo PEREZ, Defendant-Appellant.

570219 /15

Decided: May 17, 2019

PRESENT: Shulman, P.J., Gonzalez, Edmead, JJ.

Judgment of conviction (Joanne D. Quinones, J.), rendered September 5, 2012, reversed, on the law, and the accusatory instrument dismissed.

The accusatory instrument was jurisdictionally defective. A required element of the crime of criminal possession of a firearm (Penal Law § 265.01[1]) is that such weapon be operable (see People v. Longshore, 86 NY2d 851, 852 [1995]; Matter of Rodney J., 83 NY2d 503 [1994]). Absent from the accusatory instrument and supporting depositions are any allegations that the “unloaded” gun recovered from “inside of a safety deposit box” belonging to defendant was operable. Since the instrument fails to allege an element of the offense charged, it is jurisdictionally defective and must be dismissed (see People v. Kalin, 12 NY3d 225, 228-229 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

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