Opinion
No. 2014QN067140.
07-15-2015
The PEOPLE of the State of New York v. Ajhanni SEWELL, Defendant.
Seymour W. James, Jr., Legal Aid Society, by Megumi Saito, Attorney for defendant. ADA Kathryn O'Neill, Attorney for the People.
Seymour W. James, Jr., Legal Aid Society, by Megumi Saito, Attorney for defendant.
ADA Kathryn O'Neill, Attorney for the People.
ALTHEA E. DRYSDALE, J.
The defendant is charged with Attempted Petit Larceny (Penal Law ["PL"] § 110/155.25 ). The accusatory instrument alleges that on or about August 26, 2014, between 5:43 p.m. and 6:01 p.m., inside of 131–35 Avery Avenue (Home Depot) in Queens, New York, Police Officer Julio Hernandez was:
informed by complainant, Darryl Morgan, who is the store security officer for Home Depot, that at the above-mentioned date, time and place of occurrence he observed the defendant, Ajhanni Sewell, remove multiple items from the store shelves, place said items into a Home Depot bucket and enter the men's bathroom. Deponent further states that he is informed by the complainant that he observed an unapprehended male exit the bathroom with a red and black duffle bag and attempt to walk past all final points of sale.
Deponent is further informed by the complainant that the unapprehended male fled the above mentioned location
Deponent is further informed by the complainant that he stopped the unapprehended male at the exit of the store and recovered said items from said male's duffle bag and identified the merchandise as property of Home Depot.
Deponent is further informed by the complainant that he is the legal custodian of the above-mentioned merchandise, and that the defendant and unapprehended male did not have permission or authority to take, remove, use or otherwise exercise control over said property without paying for it.
The defendant has moved for dismissal of the accusatory instrument on the grounds that the factual averments fail to establish that the defendant had the requisite intent and was a knowing participant in the alleged crime. He argues that the factual averments fail to establish that the defendant was observed transferring merchandise to the unapprehended assailant. The People have informed the Court that they do not intend to respond to the defendant's motion.
An information is facially sufficient if it contains facts of an evidentiary character providing reasonable cause to believe the defendant committed the offense charged and tending to support every element of the charges and defendant's commission thereof (see Criminal Procedure Law ["CPL"] 100.15 [3 ]; People v. Casey, 95 N.Y.2d 354, 359 [2000] ). Reliance on a conclusory factual allegation to support any element of a charge will render the accusatory instrument defective and facially insufficient (People v. Dumas, 68 N.Y.2d 729 [1986] ). The required nonconclusory evidentiary allegations must be contained within the four corners of the instrument itself or in an annexed supporting deposition (People v.. Thomas, 4 NY3d 143, 146 [2005] ). An information which fails to satisfy these requirements is jurisdictionally defective ( CPL 100.40(1) ; People v. Dumas, 68 N.Y.2d 729 [1986] ). However, the accusatory instrument should be given "a fair and not overly restrictive or technical reading" where the factual allegations prevent a defendant from being tried twice for the same offense (People v. Casey, 95 N.Y.2d 354, 390 [2000] ).
A person is guilty of Attempted Petit Larceny when he or she, with intent to steal property, engages in conduct which tends to effect the stealing of property (see PL § § 110.00, 155.25 ). "Property means any money, personal property, real property, computer data, computer program, thing in action, evidence of debt or contract, or any article, substance or thing of value, including any gas, steam, water or electricity, which is provided for a charge or compensation" (PL § 155.00[1] ). "A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof" (PL § 155.05 ). This includes larceny by trick and obtaining property by false pretenses ( Penal Law § 155.05[2][a] ).
In this case, however, the accusatory instrument contains no factual averments from which the Court may infer that the defendant acted with the requisite mental state to aid his alleged co-actor (the unapprehended male) in the attempted larceny. In order to establish accessorial liability, "the People must prove beyond a reasonable doubt that the accused acted with the mental culpability necessary to commit the crime charged and that, in furtherance thereof, he solicited, requested, commanded, importuned, or intentionally aided the principal to commit such crime" (People v.. Chardon, 83 AD3d 954, 956–957 [2d Dept.2011] ). There are no acts which are attributed to the defendant from which the Court may infer any mental state, let alone that of an intent to take property from Home Depot.
While the accusatory instrument arguably sets forth facts which constitute a prima facie case against the alleged co-actor, the defendant is alleged to have been merely present in the bathroom with Home Depot merchandise, while another person subsequently attempted to remove Home Depot merchandise from the store past all points of purchase. This cannot establish accessorial liability without more. "[M]ere presence at the scene of a crime, even with knowledge that the crime is taking place, or mere association with a perpetrator of a crime, is not enough for accessorial liability (People v. Chardon, 83 AD3d at 957 ).
Accordingly, the charge of Attempted Petit Larceny is facially insufficient. Dismissal of the accusatory instrument, however, would not be an appropriate remedy where, as here, the People may be able to amend or supercede (see CPL 170.35(1) ; 140.45; 100.50; People v. Gonzales, 184 Misc.2d 262, 264 [App Term, 1st Dept], lv. denied, 95 N.Y.2d 835 [2000] ). The People may, if they wish, move to supercede or otherwise cure the defect in the charging instrument within the remainder of the speedy trial period, analyzed by the Court below.
SPEEDY TRIAL
The People are required to be ready for trial within sixty days of the commencement of an action where, as here, the only charge is a class B misdemeanor, punishable by a sentence of no more than three months (CPL 30.30[1][c] ). Turning to the particular adjournments in this case the Court makes the following findings.
On November 25, 2014, the defendant did not appear for his arraignment. A bench warrant was ordered and stayed. The Court adjourned this matter to December 5, 2014, for the defendant's appearance. This adjournment is excludable (CPL 30.30[4][c][i] )
On December 5, 2014, the defendant appeared but the Court adjourned this matter to January 26, 2015 for the People to file a supporting deposition. The People filed the supporting deposition of Darryl Morgan and a certificate of readiness on January 7, 2015. However, the People could not have been ready on January 7, 2015, because the complaint was facially insufficient. Therefore, the entire adjournment, fifty two (52) days, from December 5, 2014 to January 26, 2015, is chargeable to the People.
On January 26, 2015, the Court adjourned this matter to March 23, 2015 for open file discovery and a hearing. The adjournment is excludable as a period of delay for discovery by stipulation (see People v. Thomas, 26 Misc.3d 144[A] [App Term 2d, 11th and 13th Jud Dists 2010] ).
On March 23, 2015, open file discovery was served and filed. The Court adjourned this matter to May 19, 2015 for trial. No time is charged to the People, as they are entitled to a reasonable period of time to prepare for hearings or trial. CPL § 30.30[4][a] ; People v. Reed, 19 AD3d 312, 315 [1st Dept], lv. denied, 5 NY3d 832 [2005] ).
On May 13, 2015, the defendant filed the instant motion, so on May 19, 2015, the Court set a deadline for the People's response and adjourned the matter to July 20, 2015, for decision. The period of delay resulting from a defendant's pretrial motion and the time during which it is under consideration by the court is excludable (see People v. Worley, 66 N.Y.2d 523, 527 [1985] ; see also CPL 30.30[4][a] ).
Therefore, in total, the People are charged with fifty two (52) days and have not exceeded the speedy trial limit of sixty (60) days. Therefore, in the event that the People are in possession of additional facts which were not set forth in the accusatory instrument, the dismissal of the accusatory instrument is stayed for eight (8) days to provide them with an opportunity to file a facially sufficient superseding information. Should they fail to do so within this period, the accusatory instrument will be dismissed and sealed.
The foregoing constitutes the opinion, decision, and order of the court.