The People v. Alexis Ocasio , 28 N.Y.3d 178 ( 2016 )

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 134
The People &c.,
Appellant,
v.
Alexis Ocasio,
Respondent.
Marianne Stracquadanio, for appellant.
Paul A. Paterson, for respondent.
STEIN, J.:
Defendant was charged with one count of criminal
possession of a weapon in the fourth degree (see Penal Law §
265.01 [1]). The accusatory instrument alleged that a police
officer observed defendant with a "rubber gripped, metal,
extendable baton (billy club)" in his rear pants pocket. The
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officer averred -- based on his training and experience -- that
"said baton device is designed primarily as a weapon, consisting
of a tubular, metal body with a rubber grip and extendable
feature and used to inflict serious injury upon a person by
striking or choking." Defendant moved to dismiss the accusatory
instrument as facially insufficient. Criminal Court granted
defendant's motion, concluding that the allegations describing
the object possessed by defendant were insufficient to charge him
with possessing a billy within the meaning of Penal Law § 265.01
(1). The Appellate Term affirmed (48 Misc 3d 127[A] [App Term,
First Dept 2015]). A Judge of this Court granted the People
leave to appeal (26 NY3d 970 [2015]), and we now reverse.
To be facially sufficient, the factual allegations of a
complaint or information, together with those of any supporting
depositions, must "provide reasonable cause to believe that the
defendant committed the offense charged" in the instrument (CPL
100.40 [1] [b], [4] [b]; see People v Kalin, 12 NY3d 225, 228
[2009]). A misdemeanor information must also contain
"[n]on-hearsay allegations . . . [which] establish, if true,
every element of the offense charged and the defendant's
commission thereof" (CPL 100.40 [1] [c]; see People v Smalls, 26
NY3d 1064, 1066 [2015]). We have oft stated that, "'[s]o long as
the factual allegations of an information give an accused notice
sufficient to prepare a defense and are adequately detailed to
prevent a defendant from being tried twice for the same offense,
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they should be given a fair and not overly restrictive or
technical reading'" (Smalls, 26 NY3d at 1066-1067, quoting People
v Casey, 95 NY2d 354, 360 [2000]).
Here, defendant argues that the accusatory instrument
is facially insufficient because the object described therein
does not constitute a "billy" under Penal Law § 265.01 (1). More
specifically, he contends that the accusatory instrument
describes the object as being "metal" and "extendable," whereas,
in his view, the statutory term "billy" refers only to short,
wooden clubs of a fixed length.
The starting point for our analysis is the statutory
language in question (see People v Golo, 26 NY3d 358, 361
[2015]). Under Penal Law § 265.01 (1), a person commits the
offense of criminal possession of a weapon in the fourth degree
when he or she possesses a "billy." The legislative prohibition
on billies was enacted in 1866 (see L 1866, ch 716).1 At that
time, "billies" or "billy clubs" were generally comprised of
wood. The Penal Law does not define the term "billy," wooden or
otherwise, but we recognized, over a century ago, that the
weapons prohibited by section 265.01 (1), including billies, had
a "well-understood character" (People v Persce, 204 NY 397, 402
1
In 1866, the relevant statute did not criminalize mere
possession of the listed weapons (see L 1866, ch 716). The
Legislature amended the statute in 1905 to make possession of the
enumerated weapons, including a "billy," a strict liability
offense (see L 1905, ch 92 § 2).
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[1912]). As commonly occurs with weaponry, however,
technological advances throughout the years have resulted in
modifications to the traditional wooden billy. Today, such
weapons, often referred to as "batons," may be comprised of metal
or synthetic materials, and variations include either fixed
length or "extendable" instruments. The issue before us on this
appeal distills to whether the "well-understood character" (id.)
of a "billy," as used in Penal Law § 265.01 (1), encompasses an
extendable, metal baton.
Because the Penal Law contains no definition of
"billy," we must give the term its "ordinary" and "commonly
understood" meaning (People v Versaggi, 83 NY2d 123, 129 [1994];
see People v Morales, 20 NY3d 240, 247 [2012]; People v Quinto,
18 NY3d 409, 417 [2012]). In determining the meaning of
statutory language, we "have regarded dictionary definitions as
useful guideposts" (Yaniveth R. v LTD Realty Co., 27 NY3d 186,
192 [2016]; see e.g. Versaggi, 83 NY2d at 129). To that end, a
billy has been defined as a "small bludgeon that may be carried
in the pocket; a club; especially a policeman's club" (Black's
Law Dictionary, at 213 [4th ed 1951]). Although some
dictionaries note that a billy is usually a wooden instrument
(see e.g. Merriam-Webster's Collegiate Dictionary [11th ed 2003],
at 122), the definitions are not limited thereto, and dictionary
definitions generally recognize that the term "baton" is
synonymous with the word "billy" or "billy club" (see e.g.
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Webster's Unabridged Dictionary, at 207 [2d ed 2001]; Merriam-
Webster, http://www.merriam-webster.com/dictionary/billy%20club
[accessed Oct. 11, 2016]).
Notably, case law in this state has recognized that the
terms "nightstick" and "baton" may be interchangeable with the
term "billy" (see People v Talbert, 107 AD2d 842, 843 [3d Dept
1985] [defining billy as a "heavy wooden stick with a handle grip
which, from its appearance, is designed to be used to strike an
individual and not for other lawful purposes" but recognizing
that "a policeman's nightstick or billy club is clearly a
billy"]; People v Schoonmaker, 40 AD2d 1066, 1066-1067 [3d Dept
1972] [policeman's club, referred to as a "baton," "fits any
standard definition of the term 'billy'"]). Likewise, courts in
other jurisdictions have held, when interpreting criminal
statutes, that a modern-day collapsible, metal baton falls within
the common definition of a billy (see Shahit v City of Detroit
Police Officer Tosqui, 2005 WL 1345413, at *14-15, 2005 US Dist
LEXIS 44942, *47-48 [ED Mich June 1, 2005] [collecting
definitions], affd sub nom Shahit v Tosqui 192 Fed Appx 382 [6th
Cir 2006]; People v Mercer, 42 Cal App 4th Supp 1, 5, 49 Cal Rptr
2d 728, 730 [Cal App Dept Super Ct 1995]).
As the People point out, Penal Law § 265.20 (b) also
lends support to their position that a "baton" may qualify as a
type of billy under Penal Law § 265.01 (1). This statute was
amended in 1979 in response to an Appellate Division decision
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equating a police "baton" to a "billy" (L 1979, ch 667; see
Memorandum in Support, Bill Jacket, L 1979, ch 667; Schoonmaker,
40 AD2d at 1066-1067). Concerned that the carrying of batons by
auxiliary police officers would violate Penal Law § 265.01 (1),
the Legislature enacted section 265.20 (b) to create an
exception, which states, in relevant part, that the prohibition
against possessing a billy set forth in section 265.01 "shall not
apply to possession of that type of billy commonly known as a
'police baton'" of specified dimensions if possessed by auxiliary
police officers in certain cities (Penal Law § 265.20 [b]
[emphasis added]; see Memorandum in Support, Bill Jacket, L 1979,
ch 667). While we are mindful that Penal Law § 265.01 (1) should
be interpreted narrowly in light of the absence of an intent
element, this language in section 265.20 (b) -- which must be
harmonized and interpreted consistently with Penal Law § 265.01
-- plainly demonstrates that the Legislature considered "batons"
that are designed as weapons to be a "type of billy" (Penal Law §
265.20 [b]; see generally McKinney's Cons Laws of NY, Book 1,
Statutes § 97).2
2
To the extent the dissent implies that the Legislature's
failure to enact a 2008 proposed amendment adding "collapsible
batons" to Penal Law § 265.01 (1) supports its position that the
existing prohibition on "billies" does not include collapsible
batons, we note that "inaction by the Legislature is inconclusive
in determining legislative intent" (Matter of New York State
Assn. of Life Underwriters v New York State Banking Dept., 83
NY2d 353, 363 [1994]; Clark v Cuomo, 66 NY2d 185, 190-191 [1985])
and such inaction is susceptible to varying interpretations. In
any event, more recently proposed legislation arguably suggests
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The common thread, consistent with the general
understanding of the term, is that a "billy" is a cylindrical or
rounded, rigid, club or baton with a handle grip which, from its
appearance and inherent characteristics, is designed to be used
as a striking weapon and not for other lawful purposes.3 Such a
definition or description does not hinge on the type of material
of which the billy is comprised, as is plain from the absence of
any statutory language limiting the term "billy" to a specific
material. Indeed, although the Legislature has banned some
weapons made of a specific material, it has not done so with the
"billy." For example, Penal Law § 265.01 (1) initially
prohibited only "metal" knuckles, but was later amended to also
that at least some of the members of the Legislature interpret
the prohibition on "billies" to include "collapsible batons";
that legislation would amend Penal Law § 265.20 (b) to expressly
permit auxiliary police officers to carry "collapsible batons" by
exempting them from application of the prohibition on billies in
Penal Law § 265.01 (1) (see 2015 NY Senate Bill S1142; 2015 NY
Assembly Bill A59).
3
Contrary to the dissent's assertion, this definition does
not render superfluous the inclusion of the terms blackjack,
bludgeon, and sandclub in Penal Law § 265.01 (1). While an in-
depth discussion of the definitions of such weapons is outside of
the scope of our holding in this case, it suffices to note that
such instruments have defining characteristics that distinguish
them from billies (see generally People v McPherson, 220 NY 123,
125 [1917] [a bludgeon has one heavier or thicker end]; see
People v Guevara, 86 Misc. 2d 1044, 1045 [Bronx County, Crim Ct
1976] [a blackjack has a characteristically flexible handle]; see
also Black's Law Dictionary, at 1507 [4th ed 1951] [a sandbag is
defined as "[a] tube of strong, flexible material filled with
sand" (emphasis added)]).
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ban "plastic" knuckles -- an amendment made necessary by the
Legislature's original qualification of the term "knuckles" as
being comprised of "metal." Absent such an amendment, an
interpretation of "metal" knuckles as including "plastic" would
conflict with the plain language of the statute. By comparison,
the Legislature has never prohibited only "wooden" billies -- or,
as the dissent suggests, "wooden club[s]" (dis op., at 5) --
signaling that its intended definition is not confined to objects
made out of a particular material, as defendant would have us
hold. Unquestionably, a billy made of metal or other synthetic
material remains a billy under the statute in accordance with the
ordinary meaning of the term. In so concluding, we do not read
the relevant statute "broadly" (dis op., at 6 n 2) but, rather,
give effect to the plain meaning of the statutory language, as
the term "billy" is commonly understood.
Similarly, the collapsible or extendable nature of the
instrument described in the accusatory instrument does not
meaningfully change the essence, functionality, or inherent
characteristics of the object such that the baton should be
considered a weapon separate and distinct from a billy.
Initially, we note that the common definitions of the term
"billy" do not specifically require that the instrument be of
fixed length, as the dissent assumes. Moreover, to conclude that
the mere fact that a billy is collapsible or extendible renders
it a different weapon altogether would produce an absurd result
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whereby, absent a specific statutory amendment, minor
modifications to an instrument that do not alter its general
characteristics, purpose, or primary use and function as a weapon
-- modifications which incidentally may, as here, actually render
a weapon more dangerous or easily concealed -- would insulate the
possessor from criminal liability (see People v Garson, 6 NY3d
604, 614 [2006] ["we must interpret a statute so as to avoid an
unreasonable or absurd application of the law" (internal
quotations omitted)]).
In our view, the foregoing leads to the conclusion that
the only plausible interpretation of the term "billy" encompasses
a collapsible metal baton (see People v Green, 68 NY2d 151, 153
[1986] [noting that, while the interpretation of a criminal
statute that is more favorable to defendant should be adopted
where there are two plausible constructions, "the core question
always remains that of legislative intent"]). Our conclusion in
this regard does not rest -- as the dissent suggests -- on
whether or not law enforcement personnel has chosen to use this
particular type of instrument. Rather, our determination follows
from the common understanding of the term "billy" and our view
that the baton at issue here fits comfortably within the
definition thereof. Therefore, we hold that the accusatory
instrument alleging that defendant possessed a metal, extendable
striking weapon with a handle grip, was sufficient to charge him
with possessing a "billy" under Penal Law § 265.01 (1) so as to
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provide sufficient notice for him to prepare a defense and to
protect him from multiple prosecutions. Defendant raises no
preserved constitutional challenge to Penal Law § 265.01 (1) as
so interpreted.4
Accordingly, the order of the Appellate Term should be
reversed and defendant's motion to dismiss the accusatory
instrument denied.
4
For that reason, any challenge based on the void for
vagueness doctrine (see generally People v Cruz, 48 NY2d 419, 423
[1979]), addressed by the dissent, is not properly before us.
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People v Alexis Ocasio
No. 134
RIVERA, J.(dissenting):
The People equate a modern-day, rubber-gripped, metal
extendable baton with a centuries-old solid wooden club of fixed
length known as a "billy" for purposes of criminal liability
under Penal Law § 265.01 (1). While both billies and extendable
batons have been used as police batons at different points in
history, they are distinct objects. As unpersuasive as the
People's argument that, in the absence of a legislative
definition, we may transmute the term "billy," whose definition
has remained stable since the 1850s, into "police baton," is the
majority's conclusion that the Legislature intended the billy to
include batons, regardless of functional design and construction.
The Legislature has not amended the statute to permit this
expansive definition, despite opportunity to do so, and faced
with a statute which creates a category of weapons that are per
se illegal to possess, we must narrowly construe its terms.
Therefore, I dissent and would affirm the dismissal of the
accusatory instrument.
Penal Law § 265.01 (1), provides:
"A person is guilty of criminal possession of
a weapon in the fourth degree when: (1) [such
person] possesses any firearm, electronic dart
gun, electronic stun gun, gravity knife,
switchblade knife, pilum ballistic knife,
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metal knuckle knife, cane sword, billy,
blackjack, bludgeon, plastic knuckles, metal
knuckles, chuka stick, sand bag, sandclub,
wrist-brace type slingshot or slungshot,
shirken or 'Kung Fu star'" (Penal Law § 265.01
[1]).
The statute imposes strict liability, and those prosecuted must
be aware of physically possessing one of the listed weapons for
the People to establish guilt, without proof of criminal intent
or knowledge of the weapon's legal status (see People v Parilla,
27 NY3d 400, 404 [2016]). The billy is not defined in the
statute, leaving it to the courts to determine its ordinary
meaning (Taniguchi v Kan Pac. Saipan, Ltd., 132 S. Ct. 1997, 2002
[2012]). Given the per se nature of the crime and that a
defendant's intent is immaterial, as a matter of fundamental
fairness it is incumbent upon us to read Penal Law § 265.01 (1)
narrowly, limiting application to objects which bear the
essential characteristics of those weapons specifically
identified by the Legislature. A criminal statute must provide
people a reasonable opportunity to understand what conduct it
prohibits (see Hill v Colorado, 530 U.S. 703 [2000]). "There can be
no doubt that a deprivation of the right of fair warning can
result not only from vague statutory language but also from an
unforeseeable and retroactive judicial expansion of narrow and
precise statutory language" (Bouie v City of Columbia, 378 U.S.
347, 352 [1964]). Furthermore, "due process bars courts from
applying a novel construction of a criminal statute to conduct
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that neither the statute nor any prior judicial decision has
fairly disclosed to be within its scope" (United States v Lanier,
520 U.S. 259, 266 [1997]). Thus, to place a defendant on notice of
the potential exposure to criminal sanction, it must be clear
that the object described in the accusatory instrument is the
same as the statutorily proscribed weapon (People v Cruz, 48 NY2d
419, 423–24 [1979]).
In People v Persce (204 NY 397 [1912]), this Court
upheld the Legislature's authority to impose per se liability for
possession of certain specified items, including the billy,
stating that their "well-understood character" justified the
Legislature "in regarding them as dangerous and foul weapons
seldom used for justifiable purposes but ordinarily the effective
and illegitimate implements of thugs and brutes in carrying out
their unlawful purposes" (id. at 402). The Court assumed the
legislative understanding of these weapons' character was
informed by the common knowledge of their appearance and
instrumentality (id.). Here, the parties concur that a billy was
recognized at the time of its inclusion in the predecessor
statute to Penal Law § 265.01 in 1866 [L 1866, ch 716 § 1] as a
solid wooden club, of fixed dimension and proportions, and that
this was the term's meaning for well over a century.
Yet the accusatory instrument described the object
possessed by defendant as a "rubber-gripped, metal, extendable
baton (billy club)," which the police officer-deponent asserted
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"is designed primarily as a weapon, consisting of a tubular metal
body with a rubber grip and extendable feature and used to
inflict serious injury upon a person by striking or choking."
This description includes none of the essential distinguishing
physical characteristics of a "billy" as defined at the time the
statute was passed. Moreover, the allegation that the metal
baton may be used to strike, choke or inflict serious injury -- a
fact commonly shared with a multitude of objects not listed in
Penal Law § 265.01 (1) -- is an allegation regarding a possible
function of an object and not its inherent physical
characteristics, and thus is not a factual allegation identifying
the object as a billy.
Nevertheless, the majority adopts a wholesale re-
envisioning of a billy as a rubber-gripped, metal, expandable
baton with a telescoping tube and locking mechanism, on the basis
that some dictionary definitions equate a baton with a billy. To
the extent the majority relies on modern dictionary definitions
for guidance, it does so selectively, for, as the majority
recognizes (see maj at 4), there are recent dictionary editions
that refer to the historic description of the billy as a wooden
club, further establishing these aspects of its "well-understood
character" (Persce at 402).1 A historical illustration of these
1
The American Heritage Dictionary defines "billy" as "a
billy club," which is defined as a "short wooden club, especially
a police officer's club" (The American Heritage Dictionary [3d ed
1993]). Webster's Third New International Dictionary defines a
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recognized characteristics is the definition contained in a
contemporary dictionary from when the billy was first prohibited,
which described it as "a watchman's club," with "club" defined as
a "heavy staff or piece of wood, usually tapering in form, and
wielded with the hand" (An American Dictionary of the English
Language [1864]). There is no reason to discard this
longstanding definition of a wooden club, which retains its
prominence today, in order to impose broad liability under Penal
Law § 265.01 (1).
Furthermore, the language in Penal Law § 265.20 (b)
does not support the notion that a billy includes a metal
extendable police baton. The Legislature amended Penal Law §
265.20 (b) in 1979 in order to exempt certain auxiliary police
officers from liability under Penal Law § 265.01 for "possession
of that type of billy commonly known as a 'police baton' which is
twenty-four to twenty-six inches in length and no more than one
and one quarter inches in thickness" (Penal Law § 265.20 [b]).
The specificity of this description clearly indicates that the
Legislature was referring to the traditional wooden billy, of
fixed dimension and carried by police officers since the middle
of the 19th Century. While the Legislature specifically defined
a particular type of police baton to be a type of billy, it does
"billy" as "a heavy, usually wooden weapon for delivering blows,
especially a policeman's club" (Webster's Third New International
Dictionary [1971]).
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not follow that any baton used by the police, without regard to
its physical characteristics, is a billy. This is a simple but
crucial distinction.
Despite the specificity of Penal Law § 265.01 (1) and
the long understood common definition of the billy as a wooden
club of fixed length, the majority concludes that a rubber-
gripped, metal, extendable baton of indeterminate length and
thickness with a locking mechanism is now the proscribed
"billy."2 However, the majority's "common thread" between the
two -- "that a 'billy' is a club or baton with a handle grip
which, from its appearance and inherent characteristics, is
designed to be used as a striking weapon and not for other lawful
purposes" (maj at 7) -- is simply another means of defining the
object beyond the common understanding of the definition both at
2
The majority argues that because the Legislature has in
the past banned weapons made of a specific material, but not the
billy, it must have intended that the billy be defined broadly
(maj at 7-8). Quite the opposite. The fact that the Legislature
found it necessary to update Penal Law § 265.01 (1) to add
plastic knuckles confirms that the statute is not to be read
broadly and instead applies only to those specifically described
weapons listed. Similarly, the Legislature has had ample
opportunity to amend the statute to include a police baton made
of materials unimagined in the 1800s, but has not done so. For
example, in 2007, the State Senate did in fact pass an amendment
to add "collapsible batons" to the statute, but the amendment did
not pass the Assembly (see 2007 Bill Text NY SB 7415). Contrary
to the majority's assertion (maj op at 6 n 2), the 2015 proposed
amendment to Penal Law § 265.20 (b) reaffirms that the billy
considered synonymous with a police baton has a distinctive
character: 24 to 26 inches in length and no more than one and
one-quarter inches thick.
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the time the statute was enacted and at present. Moreover, the
differences between billies and the class of baton described in
the accusatory instrument give them distinct advantages and
disadvantages. For example, while a billy has a set length and
can be cumbersome to carry, an extendable baton is lighter and
fits more easily on a police officer's belt. Even the majority
recognizes that these differences between a billy and an
extendable baton can render the latter more dangerous as it is
easily concealable (maj op 9). The differences are, of course,
important as the statute enumerates many similar striking weapons
with handle grips, meaning that accepting the majority's
definition makes the inclusion of blackjack, bludgeon, and
sandclub alongside billy redundant, thus violating the rule
against superfluities (see Hibbs v Winn, 542 U.S. 88, 101 [2004]).
Indeed, as defendant notes, as recently as 2013 the People argued
that a nearly identical object was a "bludgeon" (see People v
Lopresti, Crim Ct, Bronx County, Nov 21, 2013, Docket No.
2012BX053605, slip op at 1, 9).3
While the statute is not ambiguous, a broad
interpretation of the term "billy" injects uncertainty into our
penal law and deprives defendants of notice and fair warning as
to what weapons, created through technological advances in design
3
The majority states that these "instruments have defining
characteristics that distinguish them from billies" (maj op 7 n
3). We concur, but maintain that our colleagues definition of
"billy" would make these distinctions superfluous.
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and construction, are now within the scope of Penal Law § 265.01.
Confusion will certainly lead to claims of statutory ambiguity
and for the application of the rule of lenity, which provides "if
two constructions of a criminal statute are plausible, the one
more favorable to the defendant should be adopted" (People v
Green, 68 NY2d 151, 153 [1986]). We can avoid this outcome by
adhering to the well-established understanding of the billy and
recognizing that it does not include the object described in the
accusatory instrument.
It bears noting that the majority's assertion that a
possessor could escape criminal liability for a slightly
modified, more dangerous weapon is beside the point because the
object either is or is not a billy. Moreover, this appeal does
not involve a minor cosmetic change to a billy; here we are
presented with an object dramatically different in its physical
characteristics. Regardless, whether a metal extendable baton
should be added to Penal Law § 265.01 (1) because it is more
dangerous than a solid wooden billy club is a policy matter
beyond the scope of our judicial authority (United Steelworkers
of Am., AFL-CIO-CLC v Weber, 443 U.S. 193, 221 [1979] [it is an
oft-stated principle that the judiciary's "duty is to construe
rather than rewrite legislation"]; Morissette v United States,
342 U.S. 246, 263 [1952] [the judiciary "should not enlarge the
reach of enacted crimes by constituting them from anything less
than the incriminating components contemplated by the words used
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in the statute"]).4 If this recent tool of law enforcement is to
be treated as a per se weapon, imposing criminal liability
without proof of intent, that decision must be made by the
legislature. As is obvious from the statute's exclusion of other
dangerous weapons, the legislature chooses which weapons are per
se illegal under Penal Law § 265.01 (1), and which weapons
require the People to establish a defendant's possession was with
the intent to use unlawfully, as provided under Penal Law §
265.01 (2).
For these reasons, I would affirm the order below
dismissing the accusatory instrument as facially insufficient.
* * * * * * * * * * * * * * * * *
Order reversed and defendant's motion to dismiss the accusatory
instrument denied. Opinion by Judge Stein. Judges Abdus-Salaam,
Fahey and Garcia concur. Judge Rivera dissents and votes to
affirm in an opinion in which Chief Judge DiFiore and Judge
Pigott concur.
Decided November 1, 2016
4
For example, when the Legislature decided to add plastic
knuckles to Penal Law § 265.01, they did so because they could be
taken through metal detectors.
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