Opinion
No. 2016NY007630.
08-12-2016
The PEOPLE of the State of New York, Plaintiff, v. Robel KINFE, Defendant.
Anthony Mozzi, ADA, N.Y. County, for the People. Benjamin Dell, Esq., Legal Aid Society, for the Defendant.
Anthony Mozzi, ADA, N.Y. County, for the People.
Benjamin Dell, Esq., Legal Aid Society, for the Defendant.
HEIDI C. CESARE, J.
Defendant, charged by information with one count of petit larceny (Penal Law § 155.25 ) and one count of attempted petit larceny (Penal Law § 110/155.25), moves for an order dismissing the information pursuant to CPL 170.30, 170.35 and 100.40. For the reasons stated below, defendant's motion to dismiss the information is DENIED.
In evaluating defendant's motion, the court has considered all submissions by the parties, all documents in the court file, and all relevant cases and statutes.
A. The Allegations
The accusatory instrument sworn out by Detective Steven Jilling, of the NYPD Narcotics Borough Manhattan South, provides as follows:
I am informed by undercover police officer [ ] of the Narcotics Borough Manhattan South that the defendant approached him and stated in substance "I can sell you two rocks for $20" and that the undercover agreed to pay the defendant $20. I am further informed that the defendant then placed a small bag inside the undercover's jacket and stated, in substance, that the bag contained "two rocks inside some synthetic marijuana."
I am informed that the defendant then stated that the undercover should place the money on the table, and that the undercover placed $20 of pre-recorded buy money on the table and walked away from the defendant.
I recovered $20 of pre-recorded buy money from the table where the undercover left it for the defendant. I am custodian of the $20 and the defendant did not have permission or authority to take or possess the money.
I have examined the bag and have determined that it does in fact contain synthetic marijuana based on my professional training as a police officer in the identification of synthetic marijuana, my prior experience as a police officer making arrests, and my observation of the packaging which is characteristic of synthetic marijuana.
I have also examined the bag and know that it does not contain cocaine.
I recovered $20 of pre-recorded buy money from the table where the undercover left it for the defendant. I have examined the additional bags and have determined that they do in fact contain synthetic marijuana, my prior experience as a police officer making arrests, and my observation of the packaging which is characteristic of synthetic marijuana.
B. Facial Sufficiency
To be facially sufficient, an information must contain non-hearsay factual allegations providing reasonable cause to believe that the People can prove every element of the crime charged (CPL 100.40[1][b], [c] ; People v. Alejandro, 70 N.Y.2d 133 [1988] ). A court reviewing for facial sufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from them (People v. Jackson, 18 NY3d 738, 741 [2012] ; see CPL 100.40[1][c] ). Further, "[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" (People v. Casey, 95 N.Y.2d 354, 360 [2000] ).
C. Petit Larceny and Attempted Petit Larceny are sufficiently plead.
A person is guilty of petit larceny when "he steals property" (Penal Law § 155.25 ). A person steals property when, "with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof" (Penal Law § 155.05 ). "Taking" includes exercising dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner's continued rights (People v. Jennings, 69 N.Y.2d 103, 118 [1986] ). A person is guilty of attempted petit larceny when with intent to commit the crime of petit larceny, "he engages in conduct which tends to effect the commission of such crime" (Penal Law § 110.00 ).
Defendant argues that the information should be dismissed because the allegations fail to establish reasonable cause to believe defendant intended to take the money. The court disagrees. Here, the allegations are that defendant pretended to sell "two rocks" of cocaine to an undercover officer in exchange for $20. Defendant accomplished this ruse by putting a small bag containing only synthetic marijuana in the undercover officer's jacket while also instructing the officer to put the $20 "payment" on a table. The undercover placed $20 on the table and walked away. Defendant was arrested before he retrieved the money. The nature of defendant's ruse permits a reasonable inference that defendant's intent was to wrongfully take $20 from the undercover officer.
Further, the fact that the defendant did not physically touch or handle the currency is not fatal to the charge of petit larceny. "Possess" means to have physical possession or otherwise to exercise dominion or control over tangible property (Penal Law § 10.00[8] ). Defendant exercised dominion and control over the money when he convinced the undercover officer to leave the money on the table as payment for the bogus cocaine.
For the foregoing reasons, defendant's motion to dismiss the information for facial insufficiency is denied in its entirety.
D. Conclusions
Defendant's motion to dismiss one count of petit larceny (Penal Law § 155.25 ) and one count of attempted petit larceny (Penal Law § 110/155.25) is denied.
Defendant's motion for a Mapp/Dunaway/Wade pretrial hearing is granted.
Defendant's motion to preclude evidence of unnoticed statement or identification testimony is granted pursuant to CPL 710.30(3).
Defendant's motion for a Sandoval hearing is reserved to the trial part.
Defendant's motion for an extension of time to file additional motions is denied, subject to the provisions of CPL 255.20(3).
This constitutes the decision and order of the court.