Opinion
2011KN074543.
Decided October 27, 2011.
For the People, Charles J. Hynes, District Attorney, Kings County, by Cindy Espinosa, Esq., Assistant District Attorney.
For the Defendant, Michael L. Brown II, Esq., Brooklyn Defender Services.
Defendant is charged with one count each of Petit Larceny (PL Sec. 155.25), and Criminal Possession of Stolen Property in the Fifth Degree (PL Sec. 165.40), both Class A misdemeanors.
By motion dated September 26, 2011, Defendant, seeks dismissal of the Criminal Court complaint as facially insufficient, and release pursuant to CPL Sec. 170.70, based upon the facial insufficiency of the People's allegations. Since the Defendant was incarcerated in this matter, making time of the essence, on October 21, 2011, the court orally denied Defendant's motion. In its oral decision, the Court indicated that a written decision would be provided to the parties. This decision follows.
The Court has reviewed the Court file, Defendant's motion, and the People's Response dated October 21, 2011. For the reasons stated below, the motion is denied in its entirety.
FACTUAL STATEMENT
Pursuant to the Criminal Court Complaint, on or about September 17, 2011 at approximately 12:15 PM at 523 Prospect Place, Brooklyn, NY, Defendant is alleged to have been observed by the complainant "inside of informant's truck and that twenty-five dollars in United States Currency was missing." Further, complainant "asked Defendant about the money, Defendant handed informant a sum of United States currency but not the twenty five dollars and that informant observed more United States currency inside of Defendant's jacket pocket."
Complainant also asserts that he "is the owner of the twenty five dollars United States Currency and that Defendant did not have permission or authority to take it."
At arraignment, the People filed and served a supporting deposition, signed by the complainant. The complaint was then deemed an information, and bail was set. Defendant remained incarcerated in this matter, unable to post bail.
On October 21, 2011, after the oral denial of Defendant's motion to dismiss, Defendant plead guilty to Petit Larceny, and was sentenced to 30 days incarceration. With the Court's permission, Defendant specifically did not waive prosecution by information, so that he may maintain an appeal of the denial of his facial sufficiency motion.
LEGAL ANALYSIS
(A) FACIAL SUFFICIENCY
Under CPL Sec. 100.15, every accusatory instrument is required to contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986).
Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987).
On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court information are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 NY2d 103, 115, 512 NYS2d 652 (1986). "Accusatory instruments are to be accorded a fair and not overly restrictive or technical reading' and will be upheld so long as they serve the fundamental purposes of providing the accused notice sufficient to prepare a defense' and in a form sufficiently detailed' to prevent a subsequent retrial for the same offense." See, People v. Prevete , 10 Misc 3d 78 , 79, 809 NYS2d 777 (App Term, 9th and 10th Dists, 2005) (Citations omitted).
Applying these principles to the instant matter, the factual allegations contained in the information before this Court are facially sufficient.
Under PL Sec. 155.25, a person is guilty of petit larceny "when he steals property." Further, under PL Sec. 155.00(1), "a person steals property . . . when, with intent to deprive another of property . . . he wrongfully takes, obtains or withholds such property from an owner thereof."
Under PL Sec. 165.40, "a person is guilty of criminal possession of stolen property in the fifth degree when he knowingly possesses stolen property, with intent to benefit himself . . . "
Defendant asserts that "the mere allegation from someone missing money that another individual who has money (which is fungible) took it is simply insufficient." See, Defendant's motion dated September 26, 2011, p 3 para 4. Yet, this is not the sum total of the allegations contained in the Criminal Court complaint. In fact, Defendant is alleged to have been inside the complainant's truck, and that after the complainant observed the Defendant in the truck, a sum of United States currency was missing.
The complainant goes on to allege that he saw the Defendant in possession of a sum of money in excess of the sum missing from his truck, and he did not give Defendant permission and authority to take any money from the subject vehicle.
Defendant calls it a "fundamental flaw . . . that there is no allegation that (Defendant) did not have permission or authority to be inside the truck or that (complainant) saw (Defendant) take said money." See, Defendant's motion dated September 26, 2011, p 3 para 4. However, there is no necessity for the People to make either of these allegations. Defendant could have had permission and authority to be in the truck, but not to take any money from the vehicle.
Further, there is no need for Defendant to have been observed actually taking the money to be charged with Petit Larceny. "(F)or pleading purposes, the requisite mental state may be alleged on the basis of a logical implication of the act itself or upon the surrounding circumstances." See, Prevete, 10 Misc 3d at 80. "Moreover, proof of states of mind, such as guilty knowledge or intent, absent a confession, are normally based on circumstantial evidence." 10 Misc 3d at 79 (citations omitted). See, also, People v. Choi, 18 Misc 3d 1122(A), 856 NYS2d 501 (Crim Ct, NY Cty, 2008) ("Court is not required to turn a blind eye to compelling circumstantial evidence while engaged in a facial sufficiency review.") citing Prevete.
Therefore, Defendant's motion to dismiss for facial insufficiency is denied.
(B) CPL Sec. 170.70
Defendant asserts that if the People's complaint is facially insufficient, he should be released pursuant to CPL Sec. 170.70, claiming that defendant "has now been in the custody of the sheriff . . . for a period of more than five (5) days without any valid information being filed." See, Defendant's motion dated September 26, 2011, p 9.
Since the information before the Court is facially sufficient, the motion to release the Defendant pursuant to CPL Sec. 170.70 is moot. However, even if we were to reach this issue, this Court can find no authority to support the invocation of CPL Sec. 170.70 under these circumstances.
As noted above, at the arraignment of this matter, a supporting deposition signed by the complainant was filed with the Court and served on defense counsel, thus curing the hearsay present on the face of the complaint. This is all that is required by CPL Sec. 170.70. If the now-converted complaint is facially insufficient, "replacement of one accusatory instrument which is defective by another involving the same crime does not affect time computations . . . the fact that a superceding instrument is filed does not automatically render the entire period prior thereto as includable." See, People v. Odoms, 143 Misc 2d 503, 504, 541 NYS2d 720 (Crim Ct, Kings Cty, 1989). See, also, People v. Camacho, 185 Misc 2d 31, 36, 711 NYS2d 283 (Crim Ct, Kings Cty, 2000) ("People should be allowed a reasonable period of time, to be determined by the court depending upon the particular factual circumstances of the case, to (correct the defect) . . . (a)ny period of time beyond such reasonable period of time is chargeable to the People pursuant to CPL Sec. 30.30.")
Therefore, that branch of Defendant's motions requesting release pursuant to CPL Sec. 170.70 is denied.
All other arguments advanced by Defendant, have been reviewed and rejected by this court as being without merit.
This shall constitute the opinion, decision, and order of the Court.