Opinion
425328400-0.
Decided February 22, 2006.
Defendant was issued a summons pursuant to section 240.37 of the Penal Law, Loitering for the Purpose of Engaging in a Prostitution Offense. Subsection 2 of this statute states:
Any person who remains or wanders about in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of prostitution or of patronizing a prostitute . . . shall be guilty of a violation. . . .
The back of the summons, where the police officer is required to describe the offense, states:
@ T/P/O Respondent was loitering for the purpose of prostitution.
The document with which Defendant was served is that which is commonly known as a "universal summons." People v. Merlin Cunningham, 188 Misc 2d 184, 727 N.Y.S. 2d 281 (New York County 2001). In order to be facially sufficient, a universal summons must satisfy the requirements applicable to informations, containing non-hearsay allegations of an evidentiary nature that provide reasonable cause to believe that the defendant committed the offense charged, and must establish every element of the offense. Id.
A summons for a violation of section 240.37 of the Penal Law must detail the prohibited conduct by the delineation of specific conduct, in addition to the loitering, which the arresting officer must observe. People v. Farra S., 2004 NY Slip Op. 50482 U, 3 Misc 3d 1107 A (New York County 2004). Conclusory factual allegations are insufficient and render the accusatory instrument defective. People v. A.M., 2001 NY Slip Op 40124 U, 2001 NY Misc. Lexis 528 (New York County 2001).
Several courts have indicated the type of factual information that must be included in a summons for Loitering for the Purpose of Prostitution to render the instrument facially sufficient. Such factors are:
1. The police officer observed the defendant remain or wander about in a public place;
2. The defendant was seen beckoning, stopping or repeatedly attempting to engage motorists or passers-by in conversation;
3. The defendant was observed wandering in a known prostitution location for a period of time; and
4. A description of the type of clothing worn by the individual engaging in such conduct.
People v. Lisa Jackson, 177 Misc 2d 657, 677 N.Y.S. 2d 695 (New York County 1998); People v. Denise L. 159 Misc 2d 1080, 608 N.Y.S. 2d 40 (Queens County 1994).
In addition to the foregoing objective criteria, the summons may be sufficient if the arresting officer indicates a personal knowledge that an offense has been committed based on his or her experience or training. See generally, People v. Smith, 44 NY2d 613, 407 N.Y.S. 2d 462 (1978).
In the instant case, none of the elements that would render this summons facially sufficient are present. The only description appearing on the document is a conclusory statement that Defendant was loitering for the purpose of prostitution, with not a single factual basis indicated for that assumption. Further, none of the behavior mandated by the statute as an element of the offense has been alleged. Consequently, the summons must be dismissed as being facially insufficient to support a charge of Loitering for the Purpose of Engaging in a Prostitution Offense under section 240.37 of the Penal Law.
This constitutes the decision of the court.