Henry I. Weil, New York City, for defendant.
Robert M. Morgenthau, District Attorney of New York County, New York City (Kimberly Whiteman of counsel), for plaintiff.
Neil E. Ross, J.
The defendant is charged in an information with prostitution, in violation of Penal Law § 230.00. In an omnibus motion, she moves to dismiss the information on the ground that it is not sufficient on its face.
The information is a preprinted form. On top, it provides blank spaces for the name of the defendant and the deponent, and the date, time and place of the offense. In the center is the
accusatory part that states the elements of the offense as set forth in the statute. Also in the center of the form is the factual part of the instrument that states " Deponent states that while deponent was acting as an undercover officer the defendant agreed to engage in sexual conduct with the deponent, which was a) fellatio, b) sexual intercourse, c) masturbation with informant, in exchange for ---------------------- U.S . Currency." The form instructs the deponent to " circle one" form of sexual conduct.
At the bottom of the form is the form notice described in CPL 100.30 (1) (d), and a space for the deponent's signature and the date.
The deponent here is Undercover Officer No. 7137 of " MNVES," who alleges that the offense took place at 5:05 P.M . on March 1, 2001 at 37 East 64th Street, room 508. The undercover officer circled " sexual intercourse" in the center of the form, wrote $700 in the space provided for the amount of currency, and signed and dated the form at the bottom.
The defendant argues that the information is not sufficient on its face because it alleges in conclusory language that she " agreed" to engage in sexual conduct without specifying how she manifested her assent. The People answer in general terms that the information is sufficient on its face.
The requirements for the factual part of an information are set forth in CPL 100.40. The information must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charge (CPL 100.40  [a]; 100.15 ). In addition, together with the allegations in any supporting depositions, it must provide reasonable cause to believe that the defendant committed the offense charged, and set forth nonhearsay allegations that establish, if true, every element of the offense charged and the defendant's commission of it (CPL 100.40  [b], [c]). This motion is addressed principally to the first requirement.
A person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee (Penal Law § 230.00). Therefore, as relevant to this motion, the factual part of the information must allege facts of an evidentiary nature demonstrating reasonable cause to believe, and establishing prima facie, that the defendant agreed to engage in sexual conduct in return for a fee.
The leading case on the requirement of evidentiary facts is People v Dumas (68 N.Y.2d 729 ), ...