Lead Opinion
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 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], 2015 NY Slip Op 50929[U] [App Term, 1st 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, 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]).
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).
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” (1 Black’s Law Dictionary 213 [4th ed 1951]). Although some dictionaries note that a billy is usually a wooden instrument
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, 843-844 [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, *15, 2005 US Dist LEXIS 44942, *47-48 [ED Mich, June 1, 2005, No. 04-71538] [collecting definitions], affd, 192 Fed Appx 382 [6th Cir 2006]; People v Mercer, 42 Cal App 4th Supp 1, 5, 49 Cal Rptr 2d 728, 730 [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 equating a police “baton” to a “billy” (L 1979, ch 667; see Mem 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 Mem 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
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.
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 extendable renders it a different weapon altogether would produce an absurd result 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 quotation marks 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, extend
Accordingly, the order of the Appellate Term should be reversed and defendant’s motion to dismiss the accusatory instrument denied.
. 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).
. 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 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).
. 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 [Crim Ct, Bronx County 1976] [a blackjack has a characteristically flexible handle]; see also 2 Black’s Law Dictionary 1507 [4th ed 1951] [a sandbag is defined as “(a) tube of strong, flexible material filled with sand” (emphasis added)]).
. 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.
Dissenting Opinion
(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, 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 ‘Rung Fu star.’ ”
The statute imposes strict liability, and those prosecuted must be aware of physically possessing one of the listed weapons for
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 “is
Nevertheless, the majority adopts a wholesale re-envisioning of a billy as a rubber-gripped, metal, extendable 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 majority op at 181-182), 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).
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-
Despite the specificity of Penal Law § 265.20 (b) 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.”
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 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 (Steelworkers v Weber, 443 US 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 US 246, 263 [1952] [the judiciary “should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contem
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.
. 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 86 [3d ed 1994]). Webster’s Third New International Dictionary defines a “billy” as “a heavy, usu[ally] wooden weapon for delivering blows . . . especially] ... a policeman’s club” (Webster’s Third New International Dictionary 216 [1971]).
. 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 (majority op at 183-184). 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 NY Senate Bill S7415). Contrary to the majority’s assertion (majority op at 183 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 IV4 inches thick.
. The majority states that these “instruments have defining characteristics that distinguish them from billies” (majority op at 183 n 3). We concur, but maintain that our colleagues definition of “billy” would make these distinctions superfluous.
. For example, when the legislature decided to add plastic knuckles to Penal Law § 265.01, it did so because they could be taken through metal detectors.
