At a Special term, Part II of the Supreme Court of the

State of New York, held in and for the County of

Nassau, on the of June, 2006

PRESENT:

HON.
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THE PEOPLE OF THE STATE OF NEW YORK
ex rel. ANTHONY TUMBIOLO, DOB 09/26/1955

Petitioner, Petition for a Writ

of Habeas Corpus
- against -

EDWARD REILLY, Sheriff of Nassau County,

Respondent.
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THE PEOPLE OF THE STATE OF NEW YORK, THE SHERIFF OF NASSAU

COUNTY, THE WARDEN OF THE NASSAU COUNTY CORRECTIONAL CENTER, OR ANY

OTHER PERSON HAVING CUSTODY OF THE PERSON OF ANTHONY TUMBIOLO.

WE COMMAND YOU, that you have the body of ANTHONY TUMBIOLO by you

imprisoned and detained, together with the time and cause of such imprisonment and detention, by

whatever name ANTHONY TUMBIOLO shall be called or charged before the Supreme Court of

the state of New York, Special Term, Part II, Mineola, New York on the __ Day of JUNE, 2006 at

9:30 o'clock in the forenoon or as soon thereafter as the matter can be heard to do and receive what

then and there shall be considered concerning the said ANTHONY TUMBIOLO and have you

then and there this writ.

 Sufficient reason appearing therefore, personal service of this writ upon the Sheriff of

Nassau County at the Office of the Sheriff, 240 Old Country Road, Mineola, New York, and upon

the Office of the District Attorney of Nassau County, 99 Main Street, Hempstead, New York at or

before o'clock in the noon on the ___ day of JUNE 2006 shall be deemed due and sufficient

service.

WITNESS, HON. ______________________ of the Justices of the Supreme Court of the

State of New York, the ___ day of JUNE 2006. The within writ is hereby allowed this _____ day

of JUNE 2006.

_______________________________
JUSTICE OF THE SUPREME COURT
OF THE STATE OF NEW YORK
STATE OF NEW YORK
COUNTY OF NASSAU: SUPREME COURT
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THE PEOPLE OF THE STATE OF NEW YORK
ex rel. ANTHONY TUMBIOLO,
VERIFIED PETITION
Relator,
- against -

EDWARD REILLY, Sheriff of Nassau County,

Respondent.
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STATE OF NEW YORK)
) ss.:
COUNTY OF NASSAU )

KEN WOMBLE, being duly sworn deposes and says:

1. I am an attorney, admitted to practice before the Courts of the State of New York and am

associated with Kent V. Moston, Attorney in Chief, Nassau County Legal Aid Society,

counsel assigned to represent the Petitioner herein and is fully familiar with the facts of

this case.

FACTS

2. Petitioner, ANTHONY TUMBIOLO, is presently detained at the Nassau County

Correctional Facility under the custody of the Sheriff, Edward Reilly. He is charged under

docket number 2006 NA 012566 with violating five counts of the Penal Law §265.01,

Possession of a Dangerous Weapon in the Fourth Degree, an A misdemeanor.

3. Petitioner is being illegally detained as a result of a legally defective accusatory

instrument filed against him by the Nassau County District Attorney.

4. No appeal has been taken from any order detaining Petitioner.

5. Upon information and belief, no previous application for the relief sought herein has been
 made.

6. On May 24, 2006, Petitioner was arraigned before the Hon. Judge De Stefano regarding

the aforementioned charges. In addition to the five aforementioned counts, the Petitioner

was also charged with violating one count of Penal Law §265.11, criminal sale of a firearm

in the third degree, a D Felony, and one count of Penal Law §165.45, criminal possession

of stolen property in the fourth degree, an E Felony. Bail was set at $50,000 bond or

$25,000 cash. See Exhibit A. At the time of arraignment, the People failed to file any of

the supporting depositions that are alleged to have been the basis for charging the

Petitioner with five counts of possession of a dangerous weapon in the fourth degree.

7. On May 31, 2006, the People converted both of the felony charges against Petitioner to

misdemeanors pursuant to C.P.L. §180.50. See Exhibit B. The Hon. Judge Ruskin ordered

the conversion of these felony charges by striking the language that was contained within

the pre-existing felony complaint, and writing in the new misdemeanor charges. The

charges were converted from a violation of Penal Law §265.11 to a violation of Penal Law

§265.01 and from a violation of Penal Law §165.45 to a violation of Penal Law §165.40.

The People then requested the dismissal of both charges pursuant to C.P.L. 170.30(1)(f),

and the Hon. Judge Ruskin granted the People’s application.

8. On May 31, 2006, the People filed the supporting depositions of Carmine V. Maiorano and

Hiram Pena, both statements referring to handguns found in the home of Helen M.

Tumbiolo (Petitioner’s mother). See Exhibit C.

9. On May 31, 2006, Petitioner made an application to the Court for relief under C.P.L.

§170.70, for release of relator upon failure to replace a misdemeanor complaint by

 sufficient information. The Honorable Judge Ruskin denied Petitioner’s C.P.L. §170.70

application.

10. On the record, Petitioner moved pursuant to C.P.L. §170.70 and demanded to be released

on his own recognizance. Petitioner, on that date, had been in custody for over five days

and the misdemeanor complaint had not, nor has it yet been converted to a sufficient

accusatory instrument.

11. Additionally, the instant instrument failed to contain non-hearsay and non-conclusory

allegations that Petitioner committed the offense of Possession of a Dangerous Weapon in

the Fourth Degree.

12. C.P.L. §170.70 provides that upon application of a defendant against whom a misdemeanor

complaint is pending in a local criminal court, and who, either at the time of his

arraignment thereon or subsequent thereto, has been committed to the custody of the

sheriff pending disposition of the action, and who has been confined in such custody for a

period of more than five days, not including Sunday, without any information having been

filed in replacement of such misdemeanor complaint, the criminal court must release the

defendant on his own recognizance.

13. C.P.L. §170.30 (1)(a) provides that an information may be dismissed if "it is defective

within the meaning of section 170.35." C.P.L. §170.35 in turn provides that an information

is defective when "it is not sufficient on its face pursuant to the requirements of section

100.40."

I. The Defendant should be released because the misdemeanor complaint filed by the People
has not been replaced with a sufficient information

14. Defendant is charged with violating five counts of Penal Law §265.01, Possession of a
 Dangerous Weapon in the Fourth Degree. See Exhibit A.

15. In the present case, more than five days, not including Sunday, has passed without any

information having been filed in replacement of such misdemeanor complaint.

16. Furthermore, defendant does not waive prosecution by a sufficient information. Nor does

defendant consent to prosecution upon the misdemeanor complaint.

17. Additionally, there is no good cause why such an order of release should not be issued.

II. The Defendant should be released because the accusatory instrument charging the
defendant with Possession of a Dangerous Weapon in the Fourth Degree is jurisdictionally
insufficient.

18. Penal Law §265.01(1):

“A person is guilty of Criminal Possession of a Dangerous Weapon when:

1. He possesses any firearm, electronic dart gun, electronic stun gun, gravity knife,
switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy,
blackjack, bludgeon, metal knuckles, chukka stick, sand bag sandclub, wrist-brace
type slingshot or slungshot, shirken or “Kung Fu star.”

19. The “To Wit” clause of the accusatory instrument for count one claims in relevant part:

At the aforementioned date and time, based on information and belief, that being a
signed deposition by a witness, the defendant was found to be unlawfully in
possession of a handgun. The defendant was not authorized pursuant to law to
possess the handgun due to the fact that his Suffolk County handgun permit was
revoked on December 12, 1995, and possession of said handgun was pursuant to
this permit. The handgun, an Astra, .44 caliber, serial R39425, is listed as being
stolen on the defendant’s Suffolk County handgun license report.

20. The “To Wit” clause of the accusatory instrument for count two claims in relevant part:

At the aforementioned date and time, based on information and belief, that being a
signed deposition by a witness, the defendant was found to be unlawfully in
possession of a handgun. The defendant was not authorized pursuant to law to
possess the handgun due to the fact that his Suffolk County handgun permit was
revoked on December 12, 1995, and possession of said handgun was pursuant to
this permit. The handgun, a Colt, model Official Police, .38 caliber, serial number
639861, is listed as being stolen on the defendant’s Suffolk County handgun license
 report.

21. The “To Wit” clause of the accusatory instrument for count three claims in relevant part:

At the aforementioned date and time, based on information and belief, that being a
signed deposition by a witness, the defendant was found to be unlawfully in
possession of a handgun. The defendant was not authorized pursuant to law to
possess the handgun due to the fact that his Suffolk County handgun permit was
revoked on December 12, 1995, and possession of said handgun was pursuant to
this permit. The handgun, a Ruger, model Speed-Six, .357 caliber, serial number
16096992, is listed as being stolen on the defendant’s Suffolk County handgun
license report.

22. The “To Wit” clause of the accusatory instrument for count four claims in relevant part:

At the aforementioned date and time, based on information and belief, that being a
signed deposition by a witness, the defendant was found to be unlawfully in
possession of a handgun. The defendant was not authorized pursuant to law to
possess the handgun due to the fact that his Suffolk County handgun permit was
revoked on December 12, 1995, and possession of said handgun was pursuant to
this permit. The handgun, model SP101, .357 caliber, serial 57080639, is listed as
being stolen on the defendant’s Suffolk County handgun license report.

23. The “To Wit” clause of the accusatory instrument for count five claims in relevant part:

At the aforementioned date and time, based on information and belief, that being a
signed deposition by a witness, the defendant was found to be unlawfully in
possession of a handgun. The defendant was not authorized pursuant to law to
possess the handgun due to the fact that his Suffolk County handgun permit was
revoked on December 12, 1995, and possession of said handgun was pursuant to
this permit. The handgun, a Smith & Wesson, model 38, .38 caliber, serial
BBA7891, is listed as being stolen on the defendant’s Suffolk County handgun
license report.

A. The accusatory instrument charging the defendant with Possession of a Dangerous

Weapon in the Fourth Degree is jurisdictionally insufficient because the People have failed to
allege that any of the alleged handguns are operable.

24. A sufficient information charging possession of a dangerous weapon in the fourth degree,

if alleging possession of a firearm, must allege that such firearm is, in fact, operable. The

Court of Appeals has held that, “[a]lthough [Penal Law §265.01(1)] is silent on the point, it
 is now accepted that to establish criminal possession of a handgun the People must prove

that the weapon is operable.” People v. Longshore, 86 N.Y.2d 851, 633 N.Y.S.2d 475

(1995); see People v. Grillo, 15 A.D.2d 502, 222 N.Y.S.2d 630 (2d Dept. 1961), affd. 11

N.Y.2d 841, 227 N.Y.S.2d 668 (1962); People v. Lugo, 161 A.D.2d 122, 554 N.Y.S.2d 849

(1st Dept. 1990).

25. In the present case, the People have failed to allege that any of the five handguns that

provide the basis for charging the defendant with five counts of possession of a dangerous

weapon in the fourth degree are operable.

26. Additionally, the People have failed to provide a Scientific Investigation Report

establishing that the handguns the defendant was alleged to have possessed were in fact

operable.

27. Thus, the instant accusatory instrument is insufficient in that it fails to contain non-hearsay

and non-conclusory allegations, which even if true, would satisfy the elements of the

instant charges. Namely, the People have failed to provide any allegation that the

handguns at issue in the present matter were operable, which is “a required element of the

crime of criminal possession of a handgun.” People v. Rowland, 14 A.D.3d 886, 787

N.Y.S.2d 741 (3d Dept. 2005).

28. C.P.L. Section 100.40 provides, in pertinent part, that, in order for an information to be

sufficient "the allegations of the factual part of the information, together with those of any

supporting depositions which may accompany it, provide reasonable cause to believe that

the defendant committed the offense charged in the accusatory part of the information; and,

non-hearsay allegations of the factual part of the information and/or of any supporting
 depositions establish, if true, every element of the offense charged and the defendant's

commission thereof." C.P.L. §100.40(1)(b) and (c).

29. Since the People have failed to file a sufficient information in this case, Petitioner’s

§170.70 application should be granted and the Petitioner released from custody.

B. The accusatory instrument charging the defendant with Possession of a Dangerous

Weapon in the Fourth Degree is jurisdictionally insufficient because the People have failed to
timely provide non-hearsay allegations that would support the charges alleged.

30. In the present case, the People failed to timely produce non-hearsay factual allegations that

would support every element of the crimes charged.

31. At Defendant’s arraignment, the People failed to file any supporting depositions to support the

allegations within the accusatory instruments charging Defendant with five counts of

violating Penal Law §265.01.

32. On May 31, 2006, the People filed the supporting depositions of Carmine V. Maiorano and

Hiram Pena. Arguendo, even if these supporting depositions did provide non-hearsay

allegations that would support every element of the crimes alleged, they would still be

untimely pursuant to C.P.L. §170.70 as they were filed seven days after Defendant had

been arraigned (not including Sunday).

33. Since the People have failed to file a sufficient and timely information in this case,

Petitioner’s §170.70 application should be granted and the Petitioner released from

custody.

C. The accusatory instrument charging the defendant with Possession of a Dangerous

Weapon in the Fourth Degree is jurisdictionally insufficient because the People have failed to
provide non-hearsay allegations that would support the charges alleged.

34. In the present case, the People have filed two supporting depositions, discussed above, to
 support the charge that the Defendant is guilty of violating five counts of Penal Law

§265.01, possession of a dangerous weapon in the fourth degree. The information alleged

in these two supporting depositions does not provide non-hearsay allegations that would

support the present charges.

35. The aforementioned supporting depositions only refer to a single handgun with any specificity,

namely, the handgun alleged under count five. This handgun, described in the supporting

deposition as a “Smith and Wesson Model 38 (SPL) 2” Serial #BBA7891” was allegedly

found in Defendant’s dresser. This does not provide a sufficient basis to support the

allegation that Defendant possessed this handgun illegally.

36. The aforementioned supporting depositions refer to four other handguns that were recovered

from the home of Helen M. Tumbiolo. The other four handguns were alleged to have been

found in various places around the home of Helen M. Tumbiolo, specifically, a suitcase in

the closet of a spare room, a tub in the garage, and in a closet in the basement. The

Defendant was never alleged to have had any dominion over these three areas of the home.

Therefore, the People have failed to allege that Defendant ever had any possession of these

handguns.

37. Since the People have failed to file a sufficient information in this case, Petitioner’s §170.70

application should be granted and the Petitioner released from custody.

D. The Hon. Judge Ruskin’s stated basis for ruling against Petitioner’s §170.70 application
is without merit and against the law.

38. Upon information and belief, the Hon. Judge Ruskin stated on the record that she would not

release Defendant on his own recognizance because he was a danger to the community.

This is not a legally sufficient basis to override the aforementioned myriad bases for
 granting Petitioner’s §170.70 application.

39. Since the People have failed to file a sufficient information in this case, Petitioner’s §170.70

application should be granted and the Petitioner released from custody.

40. In conclusion, Petitioner has been incarcerated at the Nassau County Correctional Center since

May 24, 2006, on the instant facially insufficient accusatory instruments. Pursuant to

C.P.L. §170.70, Petitioner should have been released on his own recognizance on May 31,

2006, in District Court.

WHEREFORE, it is respectfully requested that a writ of habeas corpus be issued directing

Edward Reilly, or whoever has custody of ANTHONY TUMBIOLO, to bring and produce the

Petitioner before this Court for a hearing and determination concerning the detention of said

relator and to show cause why he shall not be released.

_________________________
KEN WOMBLE, ESQ.

Dated: June 1, 2006

Hempstead, NY
 At a Special term, Part II of the Supreme
Court of the State of New York, held in and
for the County of Nassau, on the of
June, 2006

P R E S E N T:

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THE PEOPLE OF THE STATE OF NEW YORK
ex rel. ANTHONY TUMBIOLO,
Relator,

- against -
JUDGMENT

EDWARD REILLY, Sheriff of Nassau County,

Respondent.
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On reading and filing the petition of ANTHONY TUMBIOLO, and on the Writ of

Habeas Corpus allowed on said petition and on JUNE , 2006, ANTHONY TUMBIOLO,

having appeared by his attorney, KENT V. MOSTON, by in support of said petition

and writ and the District Attorney by and deliberations having been had thereon.

It is on the motion of KENT V. MOSTON, ESQ., an attorney assigned for the Relator,

ORDERED, ADJUDGED AND DECREED, that the Relator, ANTHONY TUMBIOLO, be

released from the Nassau County Correctional Center.

ENTER

JUDGE OF SUPREME COURT

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THE PEOPLE OF THE STATE OF NEW YORK
ex rel. ANTHONY TUMBIOLO,

Petitioner,
VERIFICATION

- against -

EDWARD REILLY, Sheriff of Nassau County,

Respondent.
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STATE OF NEW YORK)

) ss.:
COUNTY OF NASSAU )

KEN WOMBLE, being duly sworn deposes and says:

1. Affiant is an attorney and has read the foregoing petition and knows the contents thereof

to be true, except as to matters therein stated to be on information and belief, and as to those

matters, deponent verily believes them to be true.

2. This verification is made by the attorney and not by the relator himself because all of

the materials allegations contained in the petition are within his personal knowledge.

_____________________
KEN WOMBLE, ESQ.

Sworn to before me this

day of JUNE, 2006