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The PEOPLE of the State of New York, Plaintiff, v. Maurice NIX, Defendant.

No. 2012BX062379.

Decided: March 07, 2013

Robert T. Johnson, District Attorney, Bronx County, by David Grigoryan, Esq., Assistant District Attorney, for the People. Steven Banks, Esq., Legal Aid Society, by Maxwell Gould, Esq., for the Defendant.

Defendant is charged with one count of Permits for Possession or Purchase of Rifles or Shotguns (AC Sec. 10–303).1 Under AC Sec. 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 pre-trial 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.


Pursuant to the Criminal Court Complaint dated October 27, 2012, on or about October 26, 2012, at approximately 5:40 PM, 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 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 October 27, 2012, p 2.


Under CPL Sec. 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 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986).

Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay 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 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (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 N.Y.2d 103, 115, 512 N.Y.S.2d 652, 504 N.E.2d 1079 (1986).

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

Under AC Sec. 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 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.

PL Sec. 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, “the 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 A.D.2d 1089, 1090, 482 N.Y.S.2d 629 (4th Dept, 1984), citing People v. Lemmons, 40 N.Y.2d 505, 510, 387 N.Y.S.2d 97, 354 N.E.2d 836 (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 October 27, 2012, p 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, 469 N.Y.S.2d 571 (S Ct, Kings Cty, 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 A.D.2d 665, 487 N.Y.S.2d 584 (2d Dept, 1985), app den, 65 N.Y.2d 986, 494 N.Y.S.2d 1056, 484 N.E.2d 686 (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 A.D. 98, 101, 103 N.Y.S.2d 603 (1st Dept, 1951) (citation omitted), aff, 303 N.Y. 673, 102 N.E.2d 834 (1951). To a defendant seated “directly behind that portion of the front bench seat under which the sawed-off shotgun and revolver were secreted ․ under 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 A.D.2d 1046, 1046–1047, 480 N.Y.S.2d 954 (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 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 PL Sec. 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 A.D.2d 665, 487 N.Y.S.2d 584 (2d Dept, 1985), app den, 65 N.Y.2d 986, 494 N.Y.S.2d 1056, 484 N.E.2d 686 (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 (PL Sec. 265.15(3) is) unconstitutional as applied.” See, Wilt, 105 A.D.2d at 1090, 482 N.Y.S.2d 629, citing Leary v. United States, 395 U.S. 6, 33, 89 S.Ct. 1532, 23 L.Ed.2d 57 (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 (PL Sec. 10.00(8)) ․ (w)hile this 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 was indeed in (defendant's) possession.” See, People v. Porter, 133 Misc.2d 584, 586, 507 N.Y.S.2d 572 (S Ct, N.Y. Cty, 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, 507 N.Y.S.2d 572 (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 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, 711 N.Y.S.2d 283 (Crim Ct, Kings Cty, 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, 711 N.Y.S.2d 283. (Citation omitted). See, also, People v. Gore, 143 Misc.2d 106, 109, 540 N.Y.S.2d 147 (Crim Ct, Kings Cty, 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 superceding information or prosecutor's information.” See, People v. Evangelista, 1 Misc.3d 873, 874, 771 N.Y.S.2d 791(Crim Ct Bx Cty 2003).


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 pre-trial hearing at which the issue 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 has been reviewed and rejected by this Court as being not applicable, or without merit.

This shall constitute the opinion, decision, and order of the Court.


1.  Defendant was initially charged with Criminal Possession of a Weapon in the Third Degree (PL Sec. 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 drivers 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.