Opinion
2015-2499 Q CR
03-01-2019
The PEOPLE of the State of New York, Respondent, v. Miguel PEREZ, Appellant.
New York City Legal Aid Society (Shahar Azoulay of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi and Jonathan K. Yi of counsel), for respondent.
New York City Legal Aid Society (Shahar Azoulay of counsel), for appellant.
Queens County District Attorney (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi and Jonathan K. Yi of counsel), for respondent.
PRESENT: : DAVID ELLIOT, J.P., MICHELLE WESTON, BERNICE D. SIEGAL, JJ
ORDERED that the judgments of conviction are affirmed.
Under Criminal Court docket number 2015QN037220, defendant was charged in an accusatory instrument with criminal possession of a forged instrument in the third degree ( Penal Law § 170.20 ), and disorderly conduct in violation of 21 NYCRR 1050.7 (j). The accusatory instrument, executed by a police officer, alleged, among other things, that he had observed defendant, who had been located in a subway station, standing in front of the station's mezzanine turnstiles blocking free movement into the station for approximately 10 minutes. As defendant stood at the turnstiles, the officer observed defendant swipe "a quantity" of metrocards. The instrument further alleged that the police officer is a legal custodian of the New York City Transit Authority and the subway station mezzanine and that defendant did not have permission or authority to block the free movement of pedestrian traffic going in and out of the station.
Under Criminal Court docket number 2015QN033507, defendant was charged, in a separate accusatory instrument, as result of an incident that had occurred several weeks later, with the unauthorized sale of certain transportation services ( Penal Law § 165.16 [1 ] ) and unlawful receipt of fare for providing access to transit authority facilities ( 21 NYCRR 1050.4 [c] ). This accusatory instrument, executed by a different police officer, alleged that that officer had observed defendant, who had been located in a subway station, receive a sum of United States currency from an unidentified individual and, in exchange, defendant immediately thereafter swiped an unlimited New York City Transit metrocard through a turnstile in order to allow the unidentified individual to enter the subway station without paying the lawful fare, and without defendant entering the subway station beyond the turnstile. The instrument further alleged that the police officer is a legal custodian of the New York City Transit Authority and the subway station, and that defendant did not have permission or authority to sell metrocard swipes and allow individuals to avoid paying the lawful subway fare.
In each action, after waiving prosecution by information, defendant pleaded guilty to the uncharged offense of disorderly conduct in violation of Penal Law § 240.20. The court sentenced defendant, in the first action, to time served, and, in the second action, to a conditional discharge and to perform three days of community service. On appeal, defendant challenges the facial sufficiency of both of the counts contained in each accusatory instrument. Defendant further contends that, if the count charging him with the NYCRR violation is the only jurisdictionally sufficient count contained in each accusatory instrument, that count could not support the plea to disorderly conduct in violation of Penal Law § 240.20, which is an uncharged violation that potentially subjected him to a more severe sentence than could be imposed under either of the charged NYCRR violations.
"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" ( People v. Case , 42 N.Y.2d 98, 99, 396 N.Y.S.2d 841, 365 N.E.2d 872 [1977] ; see also People v. Dumay , 23 N.Y.3d 518, 522, 992 N.Y.S.2d 672, 16 N.E.3d 1150 [2014] ; People v. Dreyden , 15 N.Y.3d 100, 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010] ). Thus, the facial insufficiency of an accusatory instrument constitutes a jurisdictional defect which is not forfeited by a defendant's guilty plea (see Dreyden , 15 N.Y.3d at 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 ; People v. Konieczny , 2 N.Y.3d 569, 573, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ). Here, since defendant expressly waived his right to be prosecuted by information, the counts of the accusatory instruments must be evaluated under the standard that governs a misdemeanor complaint (see Dumay , 23 N.Y.3d at 524, 992 N.Y.S.2d 672, 16 N.E.3d 1150 ; see also CPL 100.15, 100.40 [4 ]; People v. Dumas , 68 N.Y.2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ). "So long as the factual allegations of an [accusatory instrument] 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, they should be given a fair and not overly restrictive or technical reading" ( People v. Casey , 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ; see Konieczny , 2 N.Y.3d at 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 ).
With respect to the count contained in the first accusatory instrument charging defendant with criminal possession of a forged instrument in the third degree in violation of Penal Law § 170.20, that statute provides the following:
"A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument."
Ths forgery statute has been used to successfully prosecute defendants for unlawfully selling swipes on a doctored metrocard (see e.g. People v. Mattocks , 12 N.Y.3d 326, 880 N.Y.S.2d 888, 908 N.E.2d 878 [2009] ; People v. Polgar , 54 Misc. 3d 131[A], 2017 N.Y. Slip Op. 50026[U], 2017 WL 124541 [App. Term, 1st Dept. 2017] ; People v. Hunter , 53 Misc. 3d 143[A], 2016 N.Y. Slip Op. 51558[U], 2016 WL 6273929 [App. Term, 1st Dept. 2016] ; People v. Solyhanzadeh , 24 Misc. 3d 1221[A], 2009 N.Y. Slip Op. 51538[U], 2009 WL 2138928 [Crim. Ct., N.Y. County 2009] ). A "doctored farecard" is defined in Penal Law § 165.16 (3) (c) as "a farecard that has been bent or manipulated or altered so as to facilitate a person's access to transportation services without paying the lawful charge." Here, the accusatory instrument alleged that three of the metrocards which the transit officer had recovered from the top of a pile of trash located in a trash can, after having observed defendant throw "a quantity" of metrocards into that trash can, were bent and altered, thereby establishing that they constituted forged instruments. Thus, for pleading purposes, it is reasonable to infer that defendant had been in possession of those metrocards when the officer observed defendant swipe "a quantity" of metrocards at the turnstiles. Consequently, this count was facially sufficient, since the accusatory instrument alleged facts of an evidentiary character supporting or tending to support the charge (see CPL 100.15 [3 ] ) and provided reasonable cause to believe that defendant had committed the offenses (see CPL 100.40 [4 ] [b] ). As the accusatory instrument contained a facially sufficient higher grade offense, i.e, a class A misdemeanor, there is no impediment to defendant's guilty plea to an uncharged lesser grade offense (see People v. Mason , 62 Misc. 3d 75, 92 N.Y.S.3d 531 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2019] ). Accordingly, the judgment of conviction under Criminal Court docket number 2015QN037220 is affirmed.
Defendant correctly contends that the count contained in the second accusatory instrument charging him with the unauthorized sale of certain transportation services in violation of Penal Law § 165.16 (1) was facially insufficient since the accusatory instrument did not set forth that the public notice requirement contained in Penal Law § 165.16 (1) had been complied with. The relevant portion of that statute provides the following:
"A person is guilty of unauthorized sale of certain transportation services when, with intent to avoid payment by another person to the metropolitan transportation authority, New York city transit authority or a subsidiary or affiliate of either such authority of the lawful charge for transportation services on a railroad, subway, bus or mass transit service operated by either such authority or a subsidiary or affiliate thereof, he or she, in exchange for value, sells access to such transportation services to such person, without authorization, through the use of an unlimited farecard or doctored farecard. This section shall apply only to such sales that occur in a transportation facility, as such term is defined in subdivision two of section 240.00 of this chapter, operated by such metropolitan transportation authority, New York city transit authority or subsidiary or affiliate of such authority, when public notice of the prohibitions of its section and the exemptions thereto appears on the face of the farecard or is conspicuously posted in transportation facilities operated by such metropolitan transportation authority, New York city transit authority or such subsidiary or affiliate of such authority " (emphasis added).
Consequently, this count was facially insufficient because the accusatory instrument failed to allege facts of an evidentiary character supporting or tending to support the charge (see CPL 100.15 [3 ] ) and provide reasonable cause to believe that defendant had committed the offense charged (see CPL 100.40 [4 ] [b] ).
The remaining count contained in this accusatory instrument charged defendant with violating 21 NYCRR 1050.4 (c), which provides as follows:
"Except for employees of the authority acting within the scope of their employment or other expressly authorized agents of the authority, no person shall sell, provide, copy, reproduce or produce, or create any version of any fare media or otherwise authorize access to
or use of the facilities, conveyances or services of the authority without the written permission of a representative of the authority duly authorized by the authority to
grant such right to others."
It has been held that a defendant who swipes another person into the subway system for money clearly violates the purpose and plain language of 21 NYCRR 1050.4 (c) (see People v. Smith , 100 N.Y.2d 571, 764 N.Y.S.2d 381, 796 N.E.2d 472 [2003] ; People v. Jones , 56 Misc. 3d 128[A], 2017 N.Y. Slip Op. 50826[U], 2017 WL 2682175 [App. Term, 1st Dept. 2017] ). Thus, contrary to defendant's contention, that count was facially sufficient since the accusatory instrument alleged evidentiary facts sufficient to support the allegation that defendant had received money in exchange for providing access to transit authority facilities (see People v. Jones , 56 Misc. 3d 128[A], 2017 N.Y. Slip Op. 50827[U], 2017 WL 2682178 [App. Term, 1st Dept. 2017] ).
Defendant's second contention raised on appeal is that the charged NYCRR 1050.4 (c) violation could not support his plea to the uncharged disorderly conduct charge in violation of Penal Law § 240.20 since the latter offense potentially subjected him to a more severe sentence than could be imposed under the NYCRR violation. Penal Law § 55.10 (3) (a) provides that "[a]ny offense defined outside [of the Penal Law] which is not expressly designated a violation shall be deemed a violation if ... [n]otwithstanding any other designation specified in the law or ordinance defining it, a sentence to a term of imprisonment which is not in excess of fifteen days is provided therein, or the only sentence provided therein is a fine." 21 NYCRR 1050.10 provides that any person committing one or more violations of the Rules Governing the Conduct and Safety of the Public in the Use of the Facilities of the New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority "shall be subject either to: (a) criminal prosecution in the criminal court of the City of New York, which court may impose a fine not to exceed $25 or a term of imprisonment for not longer than 10 days, or both; or (b) civil penalties imposed by the transit adjudication bureau in an amount not to exceed $100 per violation." Consequently, the charged NYCRR 1050.4 (c) offense is deemed a violation, the same grade of offense as disorderly conduct in violation of Penal Law § 240.20 to which defendant pleaded guilty. We find that there is no impediment to a defendant pleading guilty to an uncharged offense in satisfaction of an equal grade offense that has been sufficiently pleaded in the accusatory instrument, even if that uncharged offense potentially subjects the defendant to a more severe sentence than could be imposed under the charged offense (see Penal Law § 70.15 [4 ] ). Accordingly, the judgment of conviction under Criminal Court docket number 2015QN033507 is affirmed.
We note that, in People v. Mason, 62 Misc. 3d 75, 92 N.Y.S.3d 531 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2019], this court did not pass upon this issue.
ELLIOT, J.P., WESTON and SIEGAL, JJ., concur.