Opinion
No. 15–237334.
03-02-2016
PEOPLE of the State of New York, v. Kenneth LOVE, Defendant.
P. David Soares, Esq., Albany County District Attorney, Albany, NY, Davia A. McDonald, Esq., Assistant District Attorney, Rebecca M. Bauscher, Esq., Schenectady, NY, Attorney for Defendant.
P. David Soares, Esq., Albany County District Attorney, Albany, NY, Davia A. McDonald, Esq., Assistant District Attorney, Rebecca M. Bauscher, Esq., Schenectady, NY, Attorney for Defendant.
RACHEL L. KRETSER, J.
The defendant, Kenneth Love, is charged with loitering, a violation, in violation of Penal Law § 240.35(2). By notice of motion filed on January 8, 2016, through his attorney, Rebecca M. Bauscher, Esq., defendant moves for omnibus relief. The People have responded through the affirmation in opposition of Davia A. McDonald, Esq. The matter now comes before the court for a decision.
Motion to Dismiss
Defendant moves for an order, pursuant to CPL §§ 170.30(1)(a) and 170.35(1)(a) dismissing the information which charges defendant with loitering [Penal Law § 240.35(2) ], on the grounds that the information is facially insufficient and defective.
An information is sufficient on its face when it (1) substantially conforms to the requirements of CPL § 100.15, (2) sets forth allegations which “provide reasonable cause to believe the defendant committed the offense charged” and (3) contains non-hearsay allegations which “establish, if true, every element of the offense charged and the defendant's commission thereof.” CPL § 100.40(1) ; People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927 (1987). This third requirement is a/k/a the “prima facie case” requirement. The Alejandro Court further held that failure to comply with the prima facie case requirement is a jurisdictional defect.
Penal Law § 240.35(2) states in pertinent part that “[a] person is guilty of loitering when he [l]oiters or remains in a public place for the purpose of gambling with ... dice.”
The Court notes that “the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial.” People v. Henderson, 92 N.Y.2d 677 (1999). “So 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 (2000).
Here, the factual portion of the information states, in pertinent part, as follows: “I did observe the defendant loiter and remain in front of 264 Second Street, on the sidewalk for the purpose of gambling with dice (gambling paraphernalia).” Much of the stated “facts” are conclusory in nature. There are no facts establishing that defendant staked or risked anything of value, or that any specific gambling paraphernalia were present at the scene, from which the Court may infer wagering. See Victor M., 9 NY3d 84, 87 (2007) ; People v. Rollins, 125 AD3d 1540, 1541 (4th Dept 2015) ; People v. Hawkins, 1 Misc.3d 905(A) (N.Y.C Crim Ct 2003). Upon review of the information herein, this Court finds that the information is insufficient on its face, pursuant to CPL §§ 100.15, 100.40. Accordingly, the defendant's motion to dismiss is granted.
Other Motions
All motions not granted herein are hereby denied. This opinion shall constitute the Decision and Order of the Court.