## Facts

- Maurice Nix was seated in the front passenger seat of a Honda Accord in the Bronx, New York.
- A police officer approached the vehicle and observed the butt of a pump-action 12-gauge shotgun protruding from the trunk, preventing the trunk from closing completely.
- The officer alleged the shotgun’s serial number had been deliberately defaced so it was unreadable.
- Another individual was in the driver’s seat.
- Nix was arrested and initially charged with a felony weapons-possession count, which the People later withdrew.
- The remaining charge alleged a violation of New York City Administrative Code § 10-303 (possession or purchase of a rifle or shotgun in New York City without the required permit), punishable as a violation under Administrative Code § 10-310.
- Nix moved to dismiss the remaining count as facially insufficient and also sought suppression of the physical evidence.

## Issues

1. Whether the complaint satisfied CPL §§ 100.15 and 100.40 by alleging nonhearsay, evidentiary facts establishing each element of Administrative Code § 10-303 and Nix’s commission of that offense.
2. Whether the complaint’s assertion that the shotgun was in Nix’s “custody and control,” based on its presence in the trunk while Nix sat in the passenger seat, adequately pleaded possession (actual or constructive) rather than a legal conclusion.
3. Whether the People could rely at the pleading stage on the Penal Law “automobile presumption” (that occupants may be presumed to possess a weapon found in a vehicle) to supply missing factual allegations for an Administrative Code § 10-303 permit charge, including the “no permit” element.

## Decision

- The court held the accusatory instrument was facially insufficient as pleaded.
- The motion to dismiss was granted to the extent the People were ordered to file and serve a superseding information within 30 days to cure the pleading defects.
- The court ruled that if the People filed a facially sufficient superseding information, Nix would be entitled to hearings on whether there was probable cause for his arrest and whether the shotgun should be suppressed as unlawfully seized.

## Legal Principles

- Under CPL § 100.15, an accusatory instrument must contain (1) an accusatory portion designating the offense and (2) a factual portion stating evidentiary facts supporting the charge.
- Under CPL § 100.40(1), the factual allegations must provide reasonable cause and, if true, establish every element of the offense and the defendant’s commission of it.
- A bare assertion that a weapon was in a defendant’s “custody and control” is a conclusion; facial sufficiency requires facts showing how the defendant exercised dominion or control (or otherwise possessed the item) under the charged statute.
- For an Administrative Code § 10-303 charge, the pleading must support both (a) possession of the rifle/shotgun in New York City and (b) the absence of the required permit; the “no permit” element cannot be left to assumption.
- A statutory presumption concerning weapons found in an automobile may assist proof, but it does not relieve the People of the obligation to plead a prima facie case with evidentiary facts in the accusatory instrument.

## Conclusion

In *People v. Nix*, the Bronx Criminal Court found that the complaint charging a New York City rifle/shotgun permit violation did not plead sufficient evidentiary facts to show that Nix possessed the shotgun found protruding from the trunk or that he lacked the required permit, and it required the People to file a superseding information within 30 days, with probable-cause and suppression hearings to follow only if the pleading defects were cured.


People v. Nix, 960 N.Y.S.2d 299 (2013)