Opinion
Case No. 20110109
12-09-2021
The PEOPLE of the State of New York v. Kyle T. DREXLER, Defendant.
Sandra Doorley, District Attorney, Monroe County (Jacqueline Moyer, of Counsel), for plaintiff. Timothy P. Donaher, Public Defender, Monroe County (Francis Strazzeri ), of Counsel), for defendant.
Sandra Doorley, District Attorney, Monroe County (Jacqueline Moyer, of Counsel), for plaintiff.
Timothy P. Donaher, Public Defender, Monroe County (Francis Strazzeri ), of Counsel), for defendant.
Thomas J. DiSalvo, J.
Facts of the Case.
The defendant was charged with petit larceny in violation of P.L. § 155.25 on October 12, 2020. It was alleged in the complaint by Officer Frate of the Webster Police Department that the defendant
"... did enter a 2018 Jeep Cherokee ... owned by Kent J. Scott ... and took several items without permission to do so. When the defendant entered Kent J. Scott's Vehicle, he took a Roblox gift card with $30.00 on it, a pair of Oakley Sunglasses valued at $200.00, a bottle of Diddy Unforgivable Cologne valued at $50.00 and $50.00 in cash/change. The total value of the items the defendant took was $330.00."
Attached to the complaint was a supporting deposition, affirmed under penalty of perjury, by the victim of the theft, making the accusatory instrument an information, wherein it stated in pertinent part as follows:
"I Kent J. Scott ... work at Costanzas Meats.... On October 12th 2020 around 2:16 P.M. our CCTV footage showed a white Volkswagen Passat owned by a male named Kyle T. Drexler ... pull into the parking lot of the store. The video then shows Kyle exit the vehicle and begin walking around the building checking all the entrances of the store for unlocked doors and looking into the windows. After he found no doors open he checked our delivery truck to see if than was unlocked. Kyle then checked all of the employees cars to see if they were unlocked. When Kyle got to my car, a Jeep Cherokee ..., he was able to make entry and stole multiple items.
The deponent then listed the same items set out by the officer in the complaint.
... I do not know who Kyle is and have never met him before."
The defense attorney filed omnibus motions, wherein, among other forms of relief, requested that the accusatory instrument charging the defendant with petit larceny be dismissed on the ground that it was facially insufficient, pursuant of CPL §§ 170.30 (1) (a), 170.35(1)(a), 100.40(1)(b) and 100.40(1) (c).
Legal Analysis
The basis of defense counsel's argument is that the accusatory instrument, which is an information fails to contain non-hearsay allegations of an evidentiary nature regarding every element of the offense charged. CPL § 100.40 (1) states that
"An information, or a count thereof, is sufficient on its face when:
(a) It substantially conforms to the requirements prescribed in section 100.15; and
(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and
(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof."
The defense argues that the deponent "does not state the basis [of] his allegation that Kyle Drexler is the owner of the Passat, nor does he provide a non-hearsay basis for his identification of Mr. Drexler, a person he does not know and has never met." In other words nowhere in the deposition does it allege how the identity of the defendant was known by the deponent.
"The prima facie case requirement does not necessitate that the information allege facts that would prove a defendant's identity beyond a reasonable doubt. People v. Jennings , 69 NY2d 103, 115, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). But, nevertheless, there must be a reasonable basis for concluding that the defendant before the court is the person who committed the charged offense or offenses. See, e.g., People v. DeFreitas, ––– Misc.3d ––––, 2015 WL 1897624 (Crim Ct NY County 2015)." ( People v. Garcia , 48 Misc 3d 1204(A), 2015 NY Slip Op. 50955(U), *2 [2015])
The allegations in the supporting deposition that it was Kyle Drexler that exited the Passat, that walked around the building checking doors and peering into windows, that checked the delivery truck door, that got into the deponent's car and that stole the items listed were all conclusory allegations. The court in Garcia held that "... where the fact at issue is a conclusion that derives solely from another fact or facts that have not been alleged, that fact is a "conclusory allegation...." The allegations in the supporting deposition herein that the individual observed by the deponent was Kyle Drexler are not supported by any other facts that have not been alleged and are by definition conclusory in nature.
CPL § 100.15 (3) in setting out the required form and content of an information states that "The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges." It has been helt that "The phrase ‘factual allegations of an evidentiary character’ means nonconclusory descriptions of what the deponent personally observed, heard or experienced. See People v. Dumas , 68 NY2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986)." ( People v. Concepcion , 36 Misc 3d 551,553, 945 N.Y.S.2d 543,546 [2012] ) There is no credible reason to doubt that the complainant observed some male individual act first in a furtive manner and then in an illegal manner. However, the failure to provide a basis for the identification of the defendant fails to provide "... reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information" as required by CPL § 100.40(1) (b).
Conclusion
The information charging the defendant with petit larceny is facially insufficient since it fails to conform to the requirements of CPL §§ 100.15 (3) and 100.40(1). Therefor the motion to dismiss the said information herein for facial insufficiency is hereby granted in accordance with CPL §§ 170.30 and 170.35(1)(a). This constitutes the decision and order of this court.