Opinion
No. 2015NY052424.
02-02-2016
The PEOPLE of the State of New York v. Domingo WILSON, Defendant.
Hannah Yu, ADA, N.Y. County, for the People. Judith Preble, of couinsel, The Legal Aid Society, for the defendant.
Hannah Yu, ADA, N.Y. County, for the People.
Judith Preble, of couinsel, The Legal Aid Society, for the defendant.
HEIDI C. CESARE, J.
The defendant, charged with trademark counterfeiting in the third degree (Penal Law § 165.71 ), unlicensed general vending (AC 20–453) and unlicensed general vendor fail to wear license (AC 20–461[b] ), moves to dismiss the one count of trademark counterfeiting in the third degree for facial insufficiency (CPL 100.40, 170.30 ). For the reasons stated below defendant's motion to dismiss trademark counterfeiting in the third degree for facial insufficiency is DENIED. The court, however, finds that the accusatory instrument contains uncorroborated hearsay (see CPL 100.40[1] [c] ). The court grants the People leave to cure this defect by filing an appropriate supporting deposition or a superseding information within the applicable time restraints (see CPL 30.30 ). Defendant's remaining motions are addressed below.
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
According to the deponent officer, on or about August 15, 2015 at about 1:50 p.m., at the North West corner of Saint Nicholas Avenue and West 181st Street in New York County the following occurred:
“[Deponent] observed the defendant talking to approximately five people on the sidewalk at the above location, pointing to several handbags which were displayed on a table, and responding to people's questions to the defendant, in substance, “How much?” by pointing at the handbags and engaging in conversation with the individuals.
[Deponent] did not see a Department of Consumer Affairs license around the defendant's neck. Additionally, when [deponent] asked the defendant if he had a license, he responded in substance, No'.
[Deponent] observed the handbags taken from the defendant's table and I observed that one (1) handbag contained a Prada trademark, twenty-three (23) handbags contained a Michael Kors trademark, and three (3) handbags contained a Tory Burch trademark.
[Deponent is] informed by James Ricaurte, a representative of Allegiance Protection Group, Inc., that he has been trained in the examination of Prada, Tony Burch, and Michael Kors goods. I am informed by Mr. Ricaurte that he walked up to the defendant's table and examined the handbags from the defendant and that based on his training and experience, he determined that all of the handbags on the defendant's table were counterfeited Prada, Tory Burch, and Michael Kors goods. I am further informed by Mr. Ricaurte that the Prada, Tory Burch, and Michael Kors trademarks are in use and registered.
[Deponent is] informed by Mr. Ricaurte that, on the counterfeited Prada handbag, the overall quality of the product does not correspond to the imposed high standard of quality of an authentic product.
[Deponent is] informed by Mr. Ricaurte that on the counterfeited Tory Burch handbags, the overall quality of the products does not correspond to the imposed high standard of quality of an authentic product, and that Tory Burch does not sell, offer for sale, or market handbags with plastic encased handles or straps.
[Deponent is] informed by Mr. Ricaurte that on the counterfeited Michael Kors handbags, the overall quality of the products does not correspond to the imposed high standard of quality of an authentic product, and that Michael Kors does not sell, offer for sale, or market handbags with plastic encased handles or straps.”
B. Procedural History
Defendant was arraigned on August 16, 2015 on a three count complaint charging him with one count each of trademark counterfeiting in the third degree (Penal Law § 165.71 ), unlicensed general vending (AC 20–453) and unlicensed general vendor fail to wear license (AC 20–461[b] ). At the arraignment the court set bail; deemed the accusatory instrument an information; set a motion schedule; and adjourned the case to September 8, 2015. On September 8, 2015, the parties appeared before the court and defendant made an application for additional time to file his motions. The court approved a new motion schedule and adjourned the case to October 28, 2015. On or about October 5, 2015, defendant served and filed his omnibus motion. October 28, 2015, the parties appeared before the court and the People requested additional time to respond to defendant's omnibus motion. The court approved the People's application and adjourned the case to December 9, 2015. On December 9, 2015, the parties appeared before the court and the People served and filed their response to defendant's omnibus motion along with the Voluntary Disclosure Form. The court adjourned the case to February 1, 2016 for decision.
C. Count one charging trademark counterfeiting in the third degree (Penal Law § 165.71 ) is facially sufficient.
Defendant contends, principally, that the one count of trademark counterfeiting is facially insufficient because the allegations provide no description of the allegedly counterfeit trademarks. The People contend that an accusatory instrument may rely on allegations that refer to the other aspects of the product to determine whether the trademark affixed to the product is counterfeit.
A person is guilty of trademark counterfeiting 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 ...” (Penal Law § 165.71 ). A “trademark” is defined by Penal Law § 165.70(1) as “any word, name, symbol, or device, or any combination thereof adopted and used by a person” to identify goods made by that person. A “counterfeit trademark” is defined by Penal Law § 165.70(2) as “a spurious or an imitation trademark” used in connection with the trafficking, sale, or distribution of goods that is “identical with or substantially indistinguishable” from a true trademark.
“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” (People v. Smalls, 26 N.Y.3d 1064 [2015] [citations omitted], quoting People v. Case, 42 N.Y.2d 98, 99 [1977] ; see also, People v. Dreyden, 15 N.Y.3d 100, 103 [2010] ). To meet the jurisdictional standard for facial sufficiency, a misdemeanor complaint “need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense” (People v. Dumay, 23 N.Y.3d 518, 522 [2014] ; see People v. Kalin, 12 N.Y.3d 225, 228 [2009] ; People v. Dumas, 68 N.Y.2d 729, 731 [1986] ). Reasonable cause to believe that a person has committed an offense “exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it” (CPL 70.10[2] ). An information, unlike a complaint, must also set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof” (Kalin, 12 N.Y.3d at 228–229, 878 N.Y.S.2d 653, 906 N.E.2d 381, quoting, People v. Henderson, 92 N.Y.2d 677, 679 [1999] [citations omitted]; see also CPL 100.15[3] ; CPL 100.40[1][c] ; CPL 100.40[4][b] ). This is called the “prima facie case requirement” (People v. Jones, 9 N.Y.3d 259, 262 [2007] ).
“This additional showing is required because, unlike a felony complaint, a misdemeanor information ‘is not followed by a preliminary hearing and a Grand Jury proceeding’ and, consequently, there is no pretrial proceeding at which the People are required to present actual evidence demonstrating a prima facie case, as with an indictment following a felony complaint' ” (Kalin at 225, n. 1, 878 N.Y.S.2d 653, 906 N.E.2d 381, quoting, People v. Alejandro, 70 N.Y.2d 133, 138 [1987] ).
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Defendant's present challenge to the facial sufficiency of the accusatory instrument is lacking in merit. The misdemeanor complaint sworn to by the deponent officer along with the three “Affidavits of Authenticity” and the three “Trademark Counterfeiting Manufacturer's Affidavits” signed by a representative of the trademark owners are sufficient to establish reasonable cause to believe defendant committed the offense of trademark counterfeiting in the third degree. At the specified time and place, deponent officer observed defendant talking to approximately five people on the sidewalk and pointing to several handbags displayed on a table. The deponent officer observed defendant pointing at the handbags and engaging in conversation with the individuals when these individuals asked, “How much?” Further, the complaint and supporting affidavits of the trademark representative establish that: the purported “Prada,” “Tory Burch” and “Michael Kors” trademarks affixed to the handbags being sold on the street by defendant were counterfeit based on several features distinguishing the defendant's handbags from genuine trademarked handbags; the purported trademarks were identical to the true trademarks; and the true trademarks, namely “Prada”, “Tory Burch” and “Michael Kors” are registered and in use. These factual allegations, “given a fair and not overly restrictive or technical reading” (People v. Casey, 95 N.Y.2d 354, 360 [2000] ), are sufficient to establish reasonable cause to believe that defendant committed third-degree trademark counterfeiting. (See, People v. Wele, 41 Misc.3d 133[A] [App Term, 1st Dept 2013] )
D. The criminal complaint contains unconverted hearsay.
The criminal complaint contains the following hearsay allegation uncorroborated by any supporting deposition:
“I am informed by Mr. Ricaurte that he walked up to the defendant's table and examined the handbags from the defendant and that based on his training and experience, he determined that all of the handbags on the defendant's table were counterfeited Prada, Tory Burch, and Michael Kors goods.” (Italics added. )
As the criminal complaint contains an uncorroborated hearsay statement, the court finds that the criminal complaint has not been properly converted to an information (CPL 100.40[1][c] ). The court grants the People leave to cure by filing an appropriate supporting deposition or a superseding information within the applicable speedy trial time restraints (see CPL 30. 30).
E. Conclusion and Defendant's remaining motions.
For the foregoing reasons, defendant's motion to dismiss the one count of trademark counterfeiting in the third degree (Penal Law § 165.71 ) for facial insufficiency is denied. The instant complaint, however, contains unconverted hearsay (see CPL 100.40[1][c] ). The People have leave to cure this defect by filing an appropriate supporting deposition or a superseding information within the applicable time restraints (see CPL 30.30 ).
Defendant's remaining motions are deferred until such time as the accusatory instrument is converted to an information.
This constitutes the decision and order of the court.