People v. Perez (Maximo)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 17, 2019
• Docket: 2019 NYSlipOp 50771(U)
• Status: Published

Opinion

The People of the State of New York, Respondent,

against

Maximo Perez, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Joanne D. Quinones, J.), rendered September 5, 2012, convicting him, upon a plea of guilty, of disorderly conduct, and imposing sentence.

Per Curiam.

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.

I concur I concur I concur
Decision Date: May 17, 2019