| People v Campos |
| 2012 NY Slip Op 02267 [93 AD3d 581] |
| March 27, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Kenny Campos, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Nicole Coviello of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J., at suppressionhearing; Bruce Allen, J., at jury trial waiver; Daniel P. FitzGerald, J., at nonjury trial andsentencing), rendered July 20, 2009, as amended August 10, 2009, convicting defendant ofcriminal possession of a weapon in the third degree, and sentencing him, as a second felonyoffender, to a term of three to six years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). Defendant argues that the evidence did not establish theelement of unlawful intent.
Late at night, defendant was screaming angrily in Spanish, a language the sole eyewitnesswas unable to understand. A man in the building occupied by the eyewitness spoke to defendantin Spanish, and defendant directed his angry shouting at this man. Defendant waved a machete inthe air, and waved it at a building across the street. Defendant crossed the street and banged themachete on the gate of a closed store in the building at which he had been gesturing with themachete.
Some weapons are illegal per se, regardless of intent, but a machete is not one of thoseweapons (see Penal Law § 265.01 [1]). Possession of a machete is only criminalwhen the possessor intends to use it unlawfully against another (see Penal Law §265.01 [2]). However, "[t]he possession by any person of any dagger, dirk, stiletto, dangerousknife or any other weapon, instrument, appliance or substance designed, made or adapted for useprimarily as a weapon, is presumptive evidence of intent to use the same unlawfully againstanother" (Penal Law § 265.15 [4]).
The statute does not define the term "dangerous knife," but in context a dangerous knife is aknife that may be "characterized as a weapon" (Matter of Jamie D., 59 NY2d 589, 592[1983]). A knife, such as a machete, that has nonviolent uses "may nonetheless be determined tofall within the statutory prescription when the circumstances of its possession including thebehavior of its possessor demonstrate that the possessor himself considered it a weapon"(id. at 591).
Defendant did not preserve his claim that the court should not have applied the [*2]presumption of intent, and we decline to review it in the interest ofjustice. As an alternative holding, we also reject it on the merits. There was ample evidence that,at the time of the incident, defendant possessed the machete as a weapon. Defendant carried themachete at a time and place where its use for a lawful purpose such as agriculture was highlyunlikely, he brandished it as a weapon, he tried to conceal it from the police, and he told thepolice he carried it as a weapon, albeit for defensive purposes. Similarly, there is no merit todefendant's assertion that his trial counsel rendered ineffective assistance by conceding theapplicability of the presumption.
Even without the presumption, the circumstances support an inference of unlawful intent.Defendant argues that there was no one on the street for defendant to attack. However, the trier offact could have reasonably concluded that defendant intended to use the machete to assault ormenace someone in either or both of the two buildings at which he directed his angry shoutingand actions.
The hearing court properly denied defendant's suppression motion. The combination of aradio run, a statement from an unidentified man in a parked car at the scene, and the officers' ownobservations provided more than enough information to warrant a common-law inquiry (seee.g. Matter of Jamaal C., 19AD3d 144, 145 [2005]). When defendant admitted that the object he had been trying to hidewas a machete, the police lawfully arrested him. To the extent defendant is arguing that thepolice needed proof of unlawful intent in order to arrest defendant for possession of a knife thatis not a per se weapon, we note that the unidentified man told the police that defendant had beenwaving a machete at people.
Defendant's challenge to the voluntariness of his duly executed, open-court jury waiver isunpreserved (see People v Johnson, 51 NY2d 986 [1980]), and we decline to review it inthe interest of justice. As an alternative holding, we find that defendant made a knowing,intelligent and voluntary waiver after an appropriate inquiry (see People v Smith, 6 NY3d 827, 828 [2006], cert denied548 US 905 [2006]). Defendant's mental competency had been established by way of a CPLarticle 730 examination, and there is no reason to doubt his capacity to waive a jury trial.Although there was a delay between the waiver and the trial, there was no change incircumstances that would require the trial court to inquire whether defendant wished his waiverto stand. Concur—Saxe, J.P., Sweeny, Catterson, Renwick and Manzanet-Daniels, JJ.