Opinion
No. 2010NY021779.
2010-07-16
The PEOPLE of the State of New York v. Youssouf MANGANE, Defendant.
Steven Banks, Esq., (Marcia Seckler, of Counsel), for Defendant. Cyrus R. Vance, Jr., District Attorney, New York County (Robert Wainwright, of Counsel), for People.
Steven Banks, Esq., (Marcia Seckler, of Counsel), for Defendant. Cyrus R. Vance, Jr., District Attorney, New York County (Robert Wainwright, of Counsel), for People.
FELICIA A. MENNIN, J.
The defendant, Youssouf Mangane, is charged with one count of Trademark Counterfeiting in the Third Degree (Penal Law [“PL”] § 165.71). He moves for an order (1) dismissing the accusatory instrument as facially insufficient pursuant to Criminal Procedure Law (“CPL”) 170.30(1)(a), 100.15(3), and 100.40(1)(a) and (c); (2) suppressing tangible evidence unlawfully obtained by the police; (3) suppressing any and all evidence which is the fruit of an unlawful seizure of the defendant's person; (4) precluding the introduction of statements alleged made by the defendant and identification testimony timely notice of which has not been given; (5) precluding the use of any prior criminal history of the defendant in either the People's case in chief or to impeach his testimony at trial; and (6) compelling a bill of particulars and discovery, pursuant to CPL 200.90 and CPL 240.20, respectively; (7) compelling to People to fulfill their continuing obligation to provide exculpatory material pursuant to Brady v. Maryland, 373 U.S. 83 (1963); and (8) reserving for him the right to make further motions.The People oppose the defendant's motions to dismiss and suppress evidence. They have indicated that they will serve and file a Voluntary Disclosure Form (“VDF”) containing a bill of particulars and certain discovery information off-calendar, and oppose any further discover requests as beyond the scope of the discovery statutes. They ask that the defendant's motion to preclude impeachment of him by his prior criminal history be referred to the trial court for decision. In their own right, the People move for an order compelling the defendant to provide reciprocal discovery.
FACIAL INSUFFICIENCY
The complaint charges the defendant with a single count of Trademark Counterfeiting in the Third Degree. The factual allegations of the complaint read as follows, in relevant part:
Deponent [Police Officer John Lupkovich] states that On March 20, 2010, at about 12:35p.m. in New York County ... [he] observed the defendant offer to sell handbags to numerous individuals .... [that deponent] recovered four (4) Louis Vuitton handbags from the above mentioned location.
Deponent ... examined the above described handbags and that said handbags bore a trademark substantially indistinguishable from a legitimate Louis Vuitton trademark. Said trademarks appearing on handbags [deponent] examined are counterfeit trademarks based on information and belief, the source of which is as follows: (I) informant's training and experience in the identification of counterfeit handbags.
Deponent is informed by William Ryan, a representative of the Louis Vuitton trademark, that informant Ryan inspected the handbags and said inspection revealed that the bags were indeed counterfeit, based upon information and belief, the source of which is as follows: the Louis Vuitton handbags (1) were poorly made, out of low quality materials and hardware, (2) lacked authenticity indicators, (3) the grain did not have the correct effect, (4) the quality of the stitching was poor, and (5) the packaging, label and tags are not the same as that affixed to genuine bags.
Deponent is further informed by Mr. Ryan that the Louis Vuitton trademark is in use and registered.
The defendant grounds his motion to dismiss on the assertion that the accusatory instrument fails to establish a prima facie case that the handbags in question bore a counterfeit of the actual trademark of Louis Vuitton. There is merit to the defendant's contention.
Trademark Counterfeiting in the Third Degree, pursuant to PL § 165.71, provides:
A person is guilty of trademark counterfeiting in the third degree when, with the intent to deceive or defraud some other person or with the intent to evade a lawful restriction on the sale, resale, offering for sale, or distribution of goods, he or she manufactures, distributes, sells, or offers for sale goods which bear a counterfeit trademark, or possesses a trademark knowing it to be counterfeit for the purpose of affixing it to any goods.
PL § 165.70(1) defines, in relevant part, the term “trademark” as:
....any word, name, symbol, or device, or any combination thereof adopted and used by a person to identify goods made by a person and which distinguish them from those manufactured or sold by others which is in use and which is registered, filed or recorded under the laws of this state or of any other state or is registered in the principal register of the United States patent and trademark office....
PL § 165.70(2) defines “counterfeit trademark” as ... a spurious trademark or an imitation of a trademark that is: (a) used in connection with trafficking in goods; and (b) used in connection with the sale, offering for sale or distribution of goods that are identical with or substantially indistinguishable from a trademark as defined in subdivision one of this section.
An accusatory instrument charging Trademark Counterfeiting in the Third Degree must identify and distinguish “the characteristics of the genuine and counterfeit trademarks.” People v. Guan, WL 21169478 (App Term, 1st Dept 2003) (unreported); People v. Cheng, 4 Misc.3d 377, 379 (Crim Ct, N.Y. County 2004). There must be a “clear description” of the trademark, whether it is “a word, name or symbol or device.” Id; cf People v. Thiam, 189 Misc.2d 810 (Crim Ct, N.Y. County 2001); People v. Ensley, 183 Misc.2d 141, 142 (Crim Ct, N.Y. County 1999).
In the instant matter, the complaint and the supporting deposition refer to the trademark of Louis Vuitton but do not go so far as to identify or describe that trademark. Compare, the situation in People v. Fong, 17 Misc.3d 1103(A)(Crim Ct, N.Y. County 2007)(unreported), in which this Court denied a motion to dismiss for facial insufficiency because the Sony Corporation's trademark, “SONY,” was alleged to have been affixed to the items in question, and People v. Heping Liu, Docket No. 2008NY079289 (Crim Ct, N.Y. County March 10, 2009)(unpublished), which was also held to be facially sufficient because the complaint clearly stated that the alleged counterfeit handbags were labeled with the words “Dolce & Gabbana” and that the trademark was registered and in use. It is true that the complaint in the instant matter details the inferior workmanship of the handbags and the features which distinguish them from actual Louis Vuitton handbags. Such distinctions, standing alone, however, merely “may instead indicate that the items are being offered as a cheaper imitation instead of the genuine product.” People v. Wu Cheng, 4 Misc.3d at 380–01; see People v. Burke, NYLJ, April 11, 1994, at 31, col 5 (Sup Ct, Bronx County 1994).
Accordingly, the defendant's motion for an order dismissing the accusatory instrument as facially insufficient is hereby granted.
Because of the Court's decision, the Court has not address the defendant's other motions or that of the People.
This opinion constitutes the decision and order of the Court.