Opinion
No. 2012NY012145.
2012-07-18
The PEOPLE of the State of New York v. Rashad ALSAIDI, Defendant.
ADA Natalie Anderson, District Attorney, New York County, New York, for The People of the State of New York. Robert Bickel, Esq., The Legal Aid Society, New York, for defendant.
ADA Natalie Anderson, District Attorney, New York County, New York, for The People of the State of New York. Robert Bickel, Esq., The Legal Aid Society, New York, for defendant.
LYNN R. KOTLER, J.
Recitation, as required by CPLR 2219[a], of the papers considered in the review of this (these) motion(s):
+-----------------------------------------------------+ ¦Papers ¦Numbered¦ +--------------------------------------------+--------¦ ¦Def's n/m, Robert Bickel affirm ¦1 ¦ +--------------------------------------------+--------¦ ¦People's Natalie Anderson affirm in response¦2 ¦ +-----------------------------------------------------+
LYNN R. KOTLER, J.:
The defendant is charged with criminal nuisance in the second degree (PL § 240.45[2] ) and unlawful possession, transportation and sale of untaxed cigarettes (TL § 1814[b] ). He now moves to dismiss the information on the ground that it is facially insufficient pursuant to CPL § 100.40 and § 170.30. The defendant also moves for an order: [1] suppressing physical evidence; [2] suppressing testimony regarding any noticed statements made by him; [3] compelling a bill of particulars; [4] compelling discovery; [5] precluding at trial the use of the defendant's prior criminal history or prior uncharged conduct; and [6] a Sandoval hearing. The People oppose the motion.
For the reasons that follow, the defendant's motion must be granted.
To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged (CPL §§ 100.15[3]; 100.40[1][b]; 70.10). These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses (CPL § 100.40[1] [c] ). An information which fails to satisfy these requirements is jurisdictionally defective (CPL § 170.30 and § 170.35; People v. Alejandro, 70 N.Y.2d 133 [1987];People v. Dumas, 68 N.Y.2d 729 [1986] ).
In reviewing an accusatory instrument for facial sufficiency, “[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 ...,” the court should give it “a fair and not overly restrictive or technical reading” (People v. Casey, 95 N.Y.2d 354, 360 [2000] ). Moreover, the Court of Appeals has held that at the pleading stage, all that is needed is that the factual allegations are sufficiently evidentiary in character and tend to support the charges (People v. Allen, 92 N.Y.2d 378, 385 [1998] ).
The People allege that on February 9, 2012, at about 1700 hours inside of 237 East 115th Street, New York, New York, an undercover observed co-defendant Rasheed Alnormiri offer a pack of Newport Cigarettes for a sum of U.S. Currency to the undercover. Alnomiri then sold the Newport Cigarettes for $8.00, and the cigarettes did not have a tax stamp on it. The People further allege that defendant Rashad Alsaidi stated to Detective Donald Duernberger “I am the manager of the store, you didn't find any cigarettes.”
Criminal nuisance in the second degree
PL § 240.45[2] provides that “[a] person is guilty of criminal nuisance in the second degree when [h]e knowingly conducts or maintains any premises, place or resort where persons gather for purposes of engaging in unlawful conduct.
The defendant argues that a single allegation of unlawful conduct does not establish that the subject premises was a premises where persons gather for purposes of engaging in unlawful conduct. The defendant relies on case law which interpreted the predecessor statute to PL § 240.45[2], the former PL § 1533. Section 1533 of the former Penal Law was headed, Permitting use of building for nuisance' and provided: [a] person who: 1.[l]ets, or permits to be used, a building, or portion of a building, knowing that it is intended to be used for committing or maintaining a public nuisance; or, 2.[o]pens or maintains a place where any narcotic drug is unlawfully used; [i]s guilty of a misdemeanor.'
The defendant cites People v. Fiedler, 31 N.Y.2d 176 (1972), wherein the Court of Appeals held that a single incident of smoking marijuana on the premises was not enough to establish that the premises was conducted or maintained where persons gather for purposes of engaging in lawful conduct. In Fiedler, the defendant, Leslie A. Fiedler, a writer and university professor, resided with his wife and their children in a house in Buffalo, New York. Six police officers conducted a search of the home pursuant to a warrant and found marijuana and observed several of the children smoking marijuana. Defendant Fiedler allegedly made inculpatory statements to the police officers, to wit: Yes, This is my home. I want to raise my children to be individuals.” The Fiedler Court wrote:
From a history of the statute it is clear beyond cavil that its thrust was to a Building maintained for the purpose there specified. Proscribed were the creation and subsequent maintenance of facilities for the accommodation of narcotics users, who might resort thereto with some degree of regularity. The word maintains' (which, interestingly enough, became conducts or maintains' in the new Penal Law, Infra) suggests this interpretation and excludes the notion that an isolated misuse is sufficient to stigmatize the premises. It was never contemplated that criminal taint would attach to a family home should members of the family on one occasion smoke marijuana or hashish there.
The defendant also cites cases that interpret the modern PL § 240.45[2] to require more than a single incident of illegal conduct (People v. Galluci, 62 A.D.2d 1129 [4th Dept 1978] [PL § 240.45[2] charge properly dismissed when the alleged incident was a single stag party; “The offense of nuisance” generally refers to acts of continuing duration or to a continuing condition]; People v. Robinson, 25 Misc.3d 1229(A) [NY Sup Ct, N.Y. Co 2009] [dismissed PL § 240.46, criminal nuisance in the first degree charge, where the “defendant engaged in a single sale of narcotics with an undercover officer in her home, [because] it is legally insufficient to prove that defendant was maintaining a place for illegal purposes”]; and People v. Daguiar, 166 Misc.2d 123 [NYC Crim Ct 1994] [dismissed PL § 240.45[1] charge because “one distinguishing element of nuisance is that it requires a continuing condition as opposed to an isolated act that more properly falls under Disorderly Conduct (internal citation omitted) ]”).
According to the Fiedler Court's analysis of the predecessor statute to PL § 240.45[2], as well as how the term “conducts or maintains” is commonly understood, it is clear that a single incident of unlawful conduct is not enough to sustain a charge under PL § 240.45[2]. To hold otherwise would open up a Pandora's Box and would be in contravention to the legislative purpose of PL § 240.45. Accordingly, this charge must be dismissed as facially insufficient.
Unlawful possession, transportation and sale of untaxed cigarettes
The defendant also argues that the TL 1814[b] charge is facially insufficient because the information does not allege that the defendant “possessed or transported for the purpose of sale unlawfully stamped cigarettes nor did he sell or offer to sell unlawfully stamped cigarettes.”
TL § 1814[b] states in relevant part:
Any person, other than an agent licensed by the commissioner, who possesses or transports for the purpose of sale any unstamped or unlawfully stamped packages of cigarettes subject to tax imposed by section four hundred seventy-one of this chapter, or who sells or offers for sale unstamped or unlawfully stamped packages of cigarettes in violation of the provisions of article twenty of this chapter shall be guilty of a misdemeanor.
The only allegation concerning the defendant in the accusatory instrument is that the defendant stated to Detective Donald Duernberger: “I am the manager of the store, you didn't find any cigarettes.” This is not enough to establish a connection between defendant Alsaidi and the sale of the Newport Cigarettes. The defendant is not alleged to have been present during the sale of the cigarettes nor are there any facts which would establish that he possessed or transported the cigarettes. Indeed, as the defendant correctly points out, the information does not even allege that the co-defendant was an employee of the store that Defendant Alsaidi claims to manage, according to his statement. Accordingly, this charge must also be dismissed as to defendant Rashad Alsaidi, only.
In light of the Court's disposition of the defendant's motion to dismiss, the remaining requests for relief are denied as moot.
Conclusion
In accordance herewith, it is hereby:
ORDERED that the defendant's motion to dismiss is granted; and it is further
ORDERED that count one of the information is dismissed; and it is further
ORDERED that count two of the information is severed and dismissed as to defendant Rashad Alsaidi, only.
Any requested relief not expressly addressed by the Court has nonetheless been considered and is hereby denied.
The foregoing is the decision and order of the Court.
So Ordered.