[*1]Decided on August 30, 2013

PRESENT: : WESTON, J.P., RIOS and ALIOTTA, JJ
2011-1942 K CR.

Appeal from a judgment of the Criminal Court of the City of New York, KingsCounty (Linda Lopez, J.), rendered May 17, 2011. The judgment convicted defendant,upon his plea of guilty, of criminal possession of a weapon in the fourth degree.

ORDERED that the judgment of conviction is affirmed.

Defendant pleaded guilty to criminal possession of a weapon in the fourth degree(Penal Law § 265.01). The factual portion of the accusatory instrument alleged thatthe complainant, the arresting officer, had seen defendant in possession of a gravity knifeand that, after the officer had recovered the knife, he had tested it and determined that itwas a gravity knife because it opened with centrifugal force and locked automatically inplace.

On appeal, defendant asserts that the Penal Law defines a gravity knife as "any knifewhich has a blade which is released from the handle or sheath thereof by the force ofgravity or the application of centrifugal force which, when released, is locked in place bymeans of a button, spring, lever or other device" (Penal Law § 265.00 [5]) and,thus, that the accusatory instrument in the case at bar is facially insufficient since itcontained no allegation establishing that the knife was "released from the handle orsheath" or locked into place "by means of a button, spring, lever or other device."Defendant further asserts that the accusatory instrument is facially insufficient since itmakes no reference to the arresting officer's training or experience regarding gravityknives.

At the outset, we note that an argument concerning an accusatory instrument's facialsufficiency is jurisdictional (see People v Alejandro, 70 NY2d 133 [1987]).Thus, defendant's claim was not forfeited upon his plea of guilty (see People vDreyden, 15 NY3d 100, 103 [2010]; People v Konieczny, 2 NY3d 569, 573[2004]) and must be reviewed in spite of his failure to raise it in the Criminal Court(see Alejandro, 70 NY2d 133).

While the accusatory instrument was denominated an information, defendant,contrary to his contention, expressly waived his right to be prosecuted by information(cf. People v Kalin, 12 NY3d 225 [2009]; People v Weinberg, 34 NY2d429 [1974]). Under the circumstances, the accusatory instrument's legal sufficiency mustbe evaluated under the standards which govern the legal sufficiency of a misdemeanorcomplaint (cf. People v Kalin, 12 NY3d 225, 228 [2009]; People vCasey, 95 NY2d 354, 359 [2000]). A misdemeanor complaint is sufficient on its face[*2]when it alleges facts of an evidentiary charactersupporting or tending to support the charge (CPL 100.15 [3]) and provides reasonablecause to believe that the defendant committed the offense charged (CPL 100.40 [4] [b];see People v Dumas, 68 NY2d 729, 731 [1986]). "[A]n accusatory instrumentmust be given a reasonable, not overly technical reading" (Konieczny, 2 NY3d at576; see also Casey, 95 NY2d at 360). When the accusatory instrument herein isgiven such a reading, the "fair implication" (Casey, 95 NY2d at 360) of itsaverments supports, or tends to support, the charge of criminal possession of a weapon inthe fourth degree. The arresting officer's conclusion that the object he observed indefendant's possession was, in fact, a gravity knife, was based on his personal handlingand testing of the knife (cf. Dreyden, 15 NY3d 100).

Accordingly, the judgment of conviction is affirmed.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: August 30, 2013