Opinion
No. 2016NY020807.
05-23-2016
The PEOPLE of the State of New York, Plaintiff, v. Joseph RONDON, Defendant.
Cyrus R. Vance, New York County District Attorney, by A.D.A. M. Sylvia Dai, for the People. New York County Defender Services, by April White–Small, Esq., for the Defendant.
Cyrus R. Vance, New York County District Attorney, by A.D.A. M. Sylvia Dai, for the People.
New York County Defender Services, by April White–Small, Esq., for the Defendant.
STEVEN M. STATSINGER, J.
Defendant, charged with Unlicensed General Vendor, New York City Adm.Code § 20–453, and Unlawful Vending in a New York City Park, 56 RCNY § 1–05(b), moves to dismiss for facial insufficiency. The information alleges that defendant was in Peter Minuit Plaza, near Battery Park, selling water taxi tickets and that he did not have a peddler's license. Because the Court rejects defendant's argument that a water taxi ride is a form of entertainment, and hence not a “service,” defendant's motion to dismiss for facial insufficiency is DENIED.
Defendant also moves to suppress certain physical evidence and post-arrest statements. As to that, the Court GRANTS a Dunaway/Huntley/Mapp hearing.
I. FACTUAL BACKGROUND
A. The Allegations
According to the accusatory instrument, on March 29, 2016, a police officer saw the defendant in Peter Minuit Plaza, which is an extension of Battery Park, with flyers advertising a water taxi. Defendant engaged in a conversation about the flyers with six individuals, and sold them a ticket. He did not display either a Department of Consumer Affairs license or a Parks Permit and was unable to produce one when asked.
B. Legal Proceedings
Defendant was arraigned on March 30, 2016, on a misdemeanor information charging him with Unlicensed General Vendor, New York City Adm.Code § 20–453, and Unlawful Vending in a New York City Park, 56 RCNY § 1–05(b). The Court released the defendant and set a motion schedule.
Defendant filed the instant motion on April 6, 2016, and the People responded on April 14. The matter has been sub judice since then.
II. THE INFORMATION
The misdemeanor information, sworn to by Police Officer Juan Virella, provides that:
[On March 29, 2016] I observed the defendant within Peter Minuit Plaza, an extension of Battery Park, in the County of New York, with flyers in his hand advertising a water taxi service. I additionally observed the defendant engaged in conversation with six [6] individuals about the flyers. I saw the defendant hand a water taxi ticket to the above mentioned individuals. I observed that the above mentioned individuals had United States Currency out in their hands to hand to the defendant.
I did not see a Department of Consumer Affairs License around the defendant's neck or displayed on the table, and he was unable to produce such a license. I did not see a valid Parks Permit on the defendant's person, and he was unable to produce such a license.
III. DISCUSSION
Both of the sections under which defendant stands charged forbid the sale of any type of “services” by a person who lacks the necessary permit or license. Defendant's principal argument is that a water taxi ride is not a service; it is a “form of entertainment that is commonly enjoyed by many tourists and residents in New York City.” White–Small Aff. at ¶ 10. To the People, however, a water taxi ride is a service, in that it “takes patrons from one location to another.” Dai Aff. at ¶ 5. The Court agrees with the People.
A. Facial Sufficiency in General
A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518 (2014) ; People v. Alejandro, 70 N.Y.2d 133, 138–39 (1987). Accordingly, a misdemeanor information must set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof.” People v. Kalin, 12 NY3d 225, 228–29 (2009) (citing People v. Henderson, 92 N.Y.2d 677, 679 (1999) and CPL 100.40(1)(c) ). This is known as “the prima facie case requirement.” Kalin, 12N.Y.3d at 229.
The prima facie case requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 115 (1986). Rather, the information need only contain allegations of fact that “give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense.” People v. Casey, 95 N.Y.2d 354, 360 (2000). A court reviewing for facial insufficiency must subject the allegations in the information to a “fair and not overly restrictive or technical reading,” id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15 ; People v. Jackson, 18 NY3d 738 (2012). See also Casey, 95 N.Y.2d at 360. Under this standard, the information here is facially sufficient.
B. The Regulations
Section 1–05(b) of the Title 56 of the Rules of the City of New York forbids the sale or offering for sale of “anything whatsoever,” including “items” or “services,” unless the vendor has a proper permit. New York City Administrative Code § 20–453 renders it unlawful for any person to be a “general vendor” without first having obtained a license from the Department of Consumer Affairs. A “general vendor” is a “person who hawks, peddles, sells, leases or offers to sell or lease, at retail, goods or services [other than food or shoe shine services] ... in a public space.” § 20–452.
C. Water Taxis Provide a “Service”
Neither of these regulations defines the term “services.” However, it is clear that an entertainment experience is not a “service.” New York Skyline, Inc. v. City of New York, 94 A.D.2d 23 (1st Dept.2012). “For instance, a sports fan does not refer to a ball game as being a service.' Similarly, music lovers do not talk about the service' they received when listening to a concert. Nor do theater goers refer to getting a service' when they attend a play or musical.” Id. at 27.
Nevertheless, the Court agrees with the People that the water taxi rides that defendant was selling are not an entertainment experience. Indeed, Skyline itself makes this clear: “Entertainment” is “a public performance designed to divert or amuse.” Id., internal quotation marks omitted. The experience of a water taxi ride might well be different based on the expectation of the passenger. One person might ride a water taxi just for the experience of being on the water, or to experience a unique view of Manhattan's skyline, while another might simply need a ride to work. But the passenger's expectation is of no moment. What matters is that a water taxi company does not design its rides to “divert or amuse.” Id. It designs them to transport passengers from one location to another. A water taxi company therefore provides a transportation service, not a “public performance,” and every rider of a water taxi partakes of that service irrespective of her reason for doing so.
Accordingly, the motion to dismiss the information on this ground is denied.
D. 56 RCNY § 1–05(b) Applies to Entertainment
Finally, the Court would note that, even if it concluded that a water taxi ride was an entertainment experience, and not a “service,” it would still uphold the count charging a violation of 56 RCNY § 1–05(b). That regulation prohibits the sale of “anything whatsoever” and is not limited to “goods” or “services,” in the way that Admin. Code § 20–453 is. Since an entertainment experience is a type of “anything whatsoever,” the sale of an entertainment experience is prohibited by this regulation.
E. Conclusion
Defendant's motion to dismiss for facial insufficiency is denied.
IV. THE MOTION TO SUPRESS
As for defendant's motion to suppress, the Court orders a Dunaway/Mapp/Huntley hearing.
V. CONCLUSION
For the foregoing reasons, defendant's motions to dismiss for facial insufficiency is denied. In addition, the Court orders a Dunaway/Mapp/Huntley hearing.
This constitutes the Decision and Order of the Court.