People v. Bautista (Kelvin)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 22, 2020
• Docket: 2020 NYSlipOp 50466(U)
• Status: Published

Opinion

The People of the State of New York, Respondent,

against

Kelvin Bautista, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Sandra Elena Roper, J.), rendered September 5, 2018, convicting him, upon a plea of guilty, of criminal possession of a weapon in the fourth degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Sandra Elena Roper, J.), rendered September 5, 2018, affirmed.

The misdemeanor complaint was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant possessed a switchblade, a per se weapon (see Penal Law § 265.01[1]). The instrument alleges that police saw defendant drop a knife from his pocket and throw it, and that when the officer recovered the knife, he "recognized said knife to be a switchblade in that it pops open and locks into place" (see People v Berrezueta, 55 Misc 3d 143[A], 2017 NY Slip Op 50633[U] [App Term, 1st Dept 2017], affd 31 NY3d 1091 [2018]). Where, as here, the defendant has waived prosecution by information and therefore has assented to the more lenient reasonable cause standard (see People v Dumay, 23 NY3d 518 [2014]; People v Thiam, 34 NY3d 1040, 1044 [2019, DiFiore, Ch. J., concurring]), these legal and factual allegations are sufficient to particularize the crime charged and protect against a constitutional double jeopardy violation (see People v Drayton, 66 Misc 3d 136[A], 2020 NY Slip Op 50025[U] [App Term, 1st Dept 2020]; see also People v Sans, 26 NY3d 13, 17 [2015]).

All concur.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Clerk of the Court

Decision Date: April 22, 2020