Opinion
2010NY075260.
Decided January 5, 2011.
Judith Preble, Esq., The Legal Aid Society, New York, New York.
Jennifer Kirkland, Esq., Assistant District Attorney, New York, New York.
Defendant, charged with violations of Penal Law § 165.71, trademark counterfeiting in the third degree and New York City Administrative Code § 20.453, unlicensed general vending, moves to dismiss the information on the ground of facial insufficiency. He also seeks a Sandoval hearing. The court previously ordered Dunaway, Mapp and Huntley hearings.
Officer Andre Reyes signed a complaint dated October 10, 2010, the date defendant was arrested, stating that he was informed by officer Christopher Davis that Davis" . . . observed the defendant display and offer for sale counterfeit Gucci, Coach, Burberry and Louis Vuitton handbags. At the time of the above officer's observations, defendant was not displaying a license issued by the Department of Consumer Affairs and could not produce one when asked."
Continuing, Reyes alleges that Davis saw defendant holding an open shopping bag containing the merchandise and that two people approached defendant, examined the merchandise and engaged him in conversation.
Reyes states that he examined the merchandise and that based on his training and experience, the merchandise bears counterfeit Vuitton, Coach, Burberry and Gucci trademarks. He alleges that the items are ". . . substantially the same as the genuine trademark except that the counterfeit items have poor-quality material, stitching and hardware, and the genuine items have a high quality material, stitching and hardware." He concludes by saying that "An affidavit signed by William Ryan, a representative of the trademark, states that the trademarks are in use and registered."
Officer Davis's supporting deposition states that "I saw defendant display and offer a black bag containing a handbag." Continuing, Davis alleges that "I saw defendant holding an open bag . . . and the above described merchandise was inside. The defendant never put the merchandise down." Finally, he alleges that "I saw 2 people approach the defendant, examine the merchandise and engage in conversation with the defendant."
William Ryan, an investigator and representative of Burberry, Gucci, Vuitton and Coach, submits eight affidavits of authenticity and eight District Attorney's Office Trademark Counterfeiting Manufacturer's Affidavits, one for each of the brands he represents. Each document is identical, except for the brand name. Ryan states that each item is not consistent with the authentic brand item's color, grain, stitching and manufacturing quality and that ". . . the packaging labels and tags are not the same as that affixed to an authentic handbag." Each trademark affidavit states that the trademark is currently in use and is registered with the United States Patent Trademark Office.
Defendant contends that as none of the supporting depositions state that their authors observed defendant displaying or offering for sale any Gucci, Coach, Burberry and Vuitton items, Reyes's allegations are uncorroborated hearsay and are therefore facially insufficient.
Next, defendant asserts that the accusatory instrument is jurisdictionally defective because it fails to describe the allegedly counterfeit trademarks or that the goods in question bore these trademarks. He contends that Ryan's affidavits merely describe the poor quality of the merchandise's workmanship but not the characteristics of the workmanship.
Finally, defendant argues that "The overriding defect in this accusatory instrument is that, [sic] as shown by there are no allegations identifying the merchandise Mr. Ryan examined as that which the complaint alleges the defendant offered for sale. He opines that merely because Mr. Ryan's affidavits were served and filed at defendant's arraignment does not prove that he in fact examined the merchandise referred to in the complaint."
The complaint and the affidavits inform defendant of the nature of the charges against him and the acts constituting them so that he can prepare for trial and protect himself from being tried twice for the same offense. Therefore, the complaint and affidavits form an information that is legally sufficient. ( People v. Casey, 95 NY2d 354, 360; see also People v. Miles, 64 NY2d 731)
Davis's statement, coupled with the allegations in the complaint, that defendant displayed a bag and engaged in conversation with two individuals is a legally sufficient basis for the charge of unlawful general vending. (see People v. Chen, 20 Misc 3d 128(A)) Davis's affidavit recites the elements of the crime and shows that there was probable cause for the arrest.
The complaint alleges that Reyes knows that the merchandise is counterfeit because of his training and experience ( People v. Kalin , 12 NY3d 225 ) The investigator's supporting depositions corroborate Reyes's allegations. Further, the investigator's affidavits show that the trademarks are in use. The Reyes and Ryan documents, read together, constitute a legally sufficient basis for the trademark counterfeiting charge, and no further factual recitation, such as a description of the trademark is necessary; rather, the description of how the counterfeit item differs from authentic merchandise is legally sufficient. ( People v. Sraman, 27 Misc 3d 144(A)
The factual differences between Davis's affidavit and the other affidavits does not render the information insufficient. Defendant's argument goes to the weight of the evidence, a matter to be resolved at trial, not on a motion for facial insufficiency. Because ". . . the prima facie case requirement [for an accusatory instrument] is not the same as the burden of proof required at trial" ( People v. Henderson, 92 NY2d 677, 680), the People are not required to plead the particulars of the evidentiary matters they must prove at trial. ( People v. Miles, id.) There is no requirement for "precise factual symmetry between the complaint and the supporting depositions . . ." ( People v. Palmer, 24 Misc 3d 1218(A)
The branch of the motion for a Sandoval hearing is granted to the extent that the trial court will conduct the hearing prior to trial.
Accordingly, it is
ORDERED that the branch of the motion to dismiss is denied, and it is further
ORDERED that the branch of the motion seeking a Sandoval hearing is granted to the extent that the trial court will conduct the hearing prior to trial.
This constitutes the decision and order of the court.