Opinion
570497/09.
Decided June 21, 2010.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Marc J. Whiten, J.), rendered June 16, 2009, convicting him, upon a plea of guilty, of disorderly conduct, and imposing sentence.
PRESENT: McKeon, P.J., Schoenfeld, Shulman, JJ.
Judgment of conviction (Marc J. Whiten, J.), rendered June 16, 2009, affirmed.
We find unavailing defendant's challenge to the facial sufficiency of the accusatory instrument charging trademark counterfeiting in the third degree ( see Penal Law § 165.71). The misdemeanor complaint, together with the supporting deposition of a representative of the trademark owner, alleged that at a specified time and location police observed defendant "display and offer for sale 2 bottles of perfume . . . [which] were on a display shelf"; distinguished the "quality" of and "materials" used in the genuine and counterfeit goods; and stated that the allegedly counterfeit "Lacoste" trademark appearing on the perfume bottles is registered and in use. Even accepting defendant's contention that the sufficiency of the accusatory instrument should be evaluated under the standards that apply to a misdemeanor information despite his on the record waiver of the right to be prosecuted by an information ( cf. People v Kalin , 12 NY3d 225 ), we find the factual allegations set forth in the accusatory instrument to be sufficient for pleading purposes to establish a prima facie case that defendant committed the offense of third-degree trademark counterfeiting ( see People v Zhang , 14 Misc 3d 82 , lv denied 8 NY3d 951). At the pleading stage, the sworn allegation that defendant displayed and offered for sale perfume bottles on a "display shelf" is "sufficiently evidentiary in character" to support the sale or offer for sale element of the charged offense ( id., see generally People v Allen, 92 NY2d 378, 385["bare boned" allegation that defendant "did solicit" a marihuana sale held sufficient to support criminal solicitation charge]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.