Opinion
No. 2011CN010203.
2012-05-22
The PEOPLE of the State of New York, v. Rodney WATTS, Defendant.
MICHELLE A. ARMSTRONG, J.
The defendant stands charged by Information with one count of Fraudulent Accosting pursuant to PL § 165.30(1). The complaint and supporting depositions filed therewith allege that on or about December 20, 2011, at about 7:10 p.m. inside of 1335 Avenue of the Americas in the County and State of New York the defendant committed the above indicated offense in that:
Deponent [Police Officer Patrick Zarate] is informed by Police Officer Joseph Tan [Informant] ... that defendant offered to sell four [4] tickets to the Book of Mormon performance for $800.00 in United States Currency. Deponent is further informed by [I]nformant that defendant provided [I]nformant with ticket numbers for said performance and agreed to sell the tickets to [I]nformant at the above-stated location.
Deponent [Police Officer Patrick Zarate] states that [he] observed defendant inside the above-mentioned location at the time of the agreed upon ticket sale. Deponent is further informed by informant that defendant stated in substance to informant: I'M HERE TO MEET FOR THE TICKETS.
Deponent is further informed by Book of Mormon Manager, Emily Hare [Second Informant], that the ticket numbers [I]nformant provided to [the Second Informant] are counterfeit in that the ticket numbers do not correspond to genuine tickets for a Book of Mormon performance.
The defendant now moves to dismiss the instant Information as facially insufficient pursuant to CPL §§ 170.30(1) and 170.35. Specifically the defendant posits that the Information is jurisdictionally defective because the “public place” element of the Fraudulent Accosting statute is unsupported by the evidentiary allegations contained therein; and completely devoid of any allegations to establish that the defendant “accosted” any person with intent to defraud. The People contend that the address indicated in the complaint, though not mentioned in the pleadings, is a hotel; and therefore qualifies as a public place under the statute. However, the People neglected to respond to the crux of defendant's argument regarding the requisite element of accosting under the same statute.
ANALYSIS:
To be sufficient on its face, a misdemeanor information must contain non-hearsay factual allegations providing reasonable cause to believe that the defendant committed the offense(s) charged; and which establish, if true, every element of the offense(s) charged (CPL §§ 100.15[3]; 100.40[1][b] and [c]. The reasonable cause standard is met by allegations of an evidentiary nature that disclose facts or circumstances which, collectively, bear such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense(s) was committed and that defendant committed it (CPL § 70.10[2] ). An information which fails to satisfy this prima facie case requirement is jurisdictionally defective. (CPL §§ 170.30 and 170.35; People v. Alejandro, 70 N.Y.2d 133 [1987];People v. Dumas, 68 NY3d 729 [1986] ).
This court recognizes that a prima facie case requirement is not the same as the burden of proof, beyond a reasonable doubt, required at trial. People v. Henderson, 92 N.Y.2d 677, 680, 685 N.Y.S.2d 409, 708 N.E.2d 165 (1999).In reviewing an accusatory instrument for facial insufficiency, “[s]o long as the factual allegations of an information 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; [it] 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). Moreover, the Court of Appeals, in People v. Allen (99 N.Y.2d 378, 385 [1998] ), held that at the pleading stage, all that is required are factual allegations that are sufficiently evidentiary in character and which tend to support the charges. In assessing the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorable to the People. However, the court is not required to abandon common sense or the significance of the alleged conduct. See People v. Gibble, 2 Misc.3d 510, 512, 773 N.Y.S.2d 499 (Crim Ct. N.Y. County 2003).
This Court finds the Information is facially insufficient to establish reasonable cause that the defendant committed the crime charged. For the reasons indicated below defendant's motion to dismiss is GRANTED in its entirety.
Penal Law § 165.30(1) provides that:
A person is guilty of fraudulent accosting when he accosts a person in a public place with intent to defraud him of money or other property by means of a trick, swindle, or confidence game.
It is well settled that the specific intent to defraud may be established by circumstantial evidence, and may be implied from defendant's conduct and/or surrounding circumstances”. See People v. White, 101 A.D.2d 1037, 1039, 472 N.Y.S.2d 730 (2d Dept 1984); People v. Carey, 103 A.D.2d 934, 479 N.Y.S.2d 789 (3d Dept 1984); People v. Ford, 88 A.D.2d 859, 861, 451 N.Y.S.2d 753 (1st Dept 1982); People v. Mellish, 4 Misc.3d 1013[A], 791 N.Y.S.2d 872 (Crim Ct. N.Y. County 2004); cf. People v. Simmons, 2 Misc.3d 728, 774 N.Y.S.2d 284 (Crim Ct. N.Y. County 2003). Moreover, the statute contains a presumption of intent to defraud, in the form of a rebuttable inference, where a person, either at the time he accosts another in public or at some subsequent time or some other place, makes statements to the victim or engages in conduct with respect to the victim commonly made or performed in perpetration of a known type of confidence game. See PL 165.30(2). Whereas here, defendant allegedly offered to sell 4 tickets to a Book of Mormon performance in exchange for United States Currency, and such tickets were counterfeit as determined by the manager of the purported event, the Information contains sufficient facts of an evidentiary nature to establish the requisite mens rea of intent to defraud by means of trick or swindle.
The more challenging question, left unanswered by the statute, is the legal definition of the term “accost” as used therein. Defendant cites the sole case in New York, People v. Tanner (153 Misc.2d 742, 582 N.Y.S.2d 641 (Crim Ct. N.Y. County 1992), which discusses the meaning of “accost” in support of his contention that the pleadings fail to establish this necessary element of the charged offense. The offense of Fraudulent Accosting contains four essential elements: (1) accosting another person, (2) in a public place, (3) with intent to defraud the other person of money or property, and (4) by trick, swindle, or confidence game. See Jury Charges in N.Y. Criminal Cases § 35.08 (H. Leventhal ed.1989). To accost means to approach and speak to another person without first being spoken to. See 2 CJI ( N.Y.) PL § 165.30; Jury Charges in a Criminal Case § 35.09. (H. Leventhal ed.1989); see also People v. Tanner, supra.
In Tanner, the defendant was charged with Fraudulent Accosting pursuant to PL § 165.30 and related counts. In that case, the deponent-police officer observed the defendant seated behind a table upon which he displayed counterfeit sweatshirts bearing the “HardRock Café” insignia. The defendant moved to dismiss the accusatory instrument on grounds that it failed to allege that defendant Tanner accosted anyone. The Tanner Court reasoned that the complaint failed to indicate that defendant Tanner approached anyone, called out to potential customers or made any effort to initiate contact with any passersby; and further that such passive behavior (sitting behind a table with counterfeit items on display for sale), without more, does not constitute accosting as intended by the Legislature. Rather, in dismissing the accusatory instrument as facially insufficient, the Tanner Court held that the accosting element in PL § 165.30 requires that the defendant, minimally, take some affirmative action to make contact with the victim for the purpose of involving that individual in the scam. The Tanner Court further recognized that to hold otherwise would be to ignore the plain language of the statute and would render the Legislature's use of the word “accosting” meaningless. See People v. Tanner, 153 Misc.2d at 746, 582 N.Y.S.2d 641.
This Court finds the reasoning and holding of the Tanner Court persuasive and substantially adopts same in holding that an essential element of the Fraudulent Accosting statute is that the defendant “accosts” another individual in a public place with the requisite mens rea, intent to defraud, as defined by the statute. While this Court recognizes that the standard jury charge definition of “accost,” cited supra, requires proof beyond a reasonable doubt that a perpetrator approach and speak to another individual without first being spoken to, this Court declines to require that the People establish, at the pleading stage, that defendant spoke to deponent-police officer first. To impose such a prima facie case requirement would necessarily negate the possibility and/or circumstance in which a perpetrator's intent to defraud is formed during an encounter with another person, chance or otherwise. In fact, the language included in the presumption of intent to defraud pursuant to PL 165.30(2) specifically recognizes and embraces numerous swindles in which the initial approach, ostensibly innocent from a conversational standpoint, lays the groundwork for execution and consummation of a confidence game at another time and place. See McKinney's Cons Law of NY, Book 39, PL § 165.30, Practice Commentaries (Donnino, W)(statements made to advance the confidence game include those made at the initial contact and those made at some subsequent time or place). Hence, this Court opines that to establish, prima facie, that a defendant accosted another person under the statute, the accusatory instrument must contain factual allegations of an evidentiary nature which demonstrate that the defendant took some affirmative action to make contact with another person(s) for the purpose of involving such person(s) in a scam, trick, swindle, or confidence game.
In this regard, the facts alleged in the instant accusatory instrument are distinguishable from the allegations contained in the Tanner complaint wherein defendant is alleged to have been sitting passively behind a table with counterfeit sweatshirts displayed on a table in front of him. In this case, the accusatory instrument includes defendant's alleged statement to Police Officer Tan that, “I'M HERE TO MEET FOR THE TICKETS.” Based on defendant's statement alone, this Court may reasonably infer that there had been some prior encounter between the defendant and Officer Tan, and the reason for defendant's presence at the location was to meet with Officer Tan in furtherance of the alleged scam to sell counterfeit tickets for an event in exchange for money. This Court finds, for pleading purposes, such alleged conduct satisfies the requisite accosting element: to wit, the defendant took affirmative action to contact and meet with Officer Tan by agreeing to meet, subsequently appearing at the meeting location, approaching Officer Tan at the meeting location, and stating “I'm here to meet for the tickets.”
The defendant next contends that the “public place” element of the Fraudulent Accosting statute is unsupported by any evidentiary allegations. This Court agrees.
Penal Law § 240.00(1) defines “public place” as a place which the public or a substantial group of persons has access, and includes, but is not limited to hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments not designed for actual residence. Clearly, an essential element of the charged offense is that the alleged accosting occur in a public place. See PL § 165.30; 6 N.Y. Practice Commentaries, Criminal Law § 15.22 (People must prove that at least the initial “accosting” occurred in a “public place” or the Fraudulent Accosting statute is inapplicable). In this case, the Information alleges only that the offense occurred “inside of 1335 Avenue of America's.” The People failed to plead any facts indicating the type of structure located at the address provided; the section or part of the structure where it is alleged the offense occurred; or any details from which this Court could infer the requisite public place element. As the instant Information is devoid of any facts demonstrating reasonable cause that the charged offense occurred in a public place, this Court finds the Information jurisdictionally defective.
Accordingly, for the foregoing reasons, it is hereby ordered that the defendant's motion dismiss on grounds of facial insufficiency is GRANTED in its entirety.
The foregoing constitutes the opinion, decision, and order of the Court.