Legal Aid Society, New York City (Peter Barta of counsel), for defendant.
Robert M. Morgenthau, District Attorney of New York County, New York City (Che Arguello of counsel), for plaintiff.
Cynthia S. Kern, J.
Defendant Mbaye Thiam is charged with trademark counterfeiting
in the third degree under Penal Law § 165.71. He moves to dismiss the accusatory instrument on the ground that it is facially insufficient because it fails to describe the trademarks, fails to allege that the allegedly counterfeit trademarks are substantially indistinguishable from the genuine trademarks and fails to establish that the trademarks are currently registered.D efendant also seeks suppression of all physical evidence or alternatively a Mapp/Dunaway hearing, suppression of all statements or a voluntariness hearing, a Sandoval hearing, preservation of all recorded police communications, discovery and a bill of particulars. For the reasons stated below, defendant's motion to dismiss is denied.
The accusatory instrument charges that on July 1, 2001, at about 17:30 hours at 52nd Street and Park Avenue, Officer Brian Cirone, shield No. 8058 of the Patrol Boro Manhattan South Task Force, observed the defendant display and offer for sale more than 10 counterfeit Oakley sunglasses and Kate Spade handbags. The supporting depositions state that the Oakley sunglasses and Kate Spade handbags offered for sale contain counterfeit trademarks which are substantially the same as the genuine trademarks except that the genuine Kate Spade trademark has the Kate Spade logo sewn onto the handbag while the counterfeit Kate Spade trademark has the Kate Spade logo glued onto the handbag and the genuine Oakley trademark has the Oakley trademark printed on the sunglasses so it cannot be removed while the counterfeit Oakley trademark can be easily removed from the Oakley sunglasses. There are also supporting depositions in which representatives of the Kate Spade and Oakley trademarks state that the trademarks are currently registered and in use.
A misdemeanor accusatory instrument is sufficient on its face when it contains both an accusatory part designating the offenses charged and a factual part providing reasonable cause to believe that the defendant committed the crime charged in the accusatory part of the information. (CPL 100.15 , ; 100.40  [c]; People v Alejandro, 70 N.Y.2d 133 ; People v Dumas, 68 N.Y.2d 729 .) The allegations of the factual part of the information must contain nonhearsay allegations of an evidentiary nature that establish, if true, every element of the offense charged and the defendant's commission thereof. (CPL 100.40  [b], [c].) To be facially sufficient, an information only needs to establish a prima facie case. (Alejandro, supra; see People v Ensley, 183 Misc.2d 141 [Crim Ct, N.Y. County 1999].) " A valid and sufficient accusatory instrument is
a nonwaivable jurisdictional prerequisite to a criminal prosecution." (People v Simon, 145 Misc.2d 518, 520 [Crim Ct, N.Y. County 1989]; see People v Case, 42 N.Y.2d 98 .)
The defendant is charged with trademark counterfeiting in the third degree under Penal Law § 165.71. Pursuant to Penal Law § 165.71, a person is guilty of trademark counterfeiting in the third degree when " with the intent to deceive or defraud some other person or with the intent to evade a lawful restriction on the sale, resale, offering for sale, or distribution of goods, he or she manufactures, distributes, sells, or offers for sale goods which bear a counterfeit trademark, or possess a trademark knowing it to be counterfeit for the purpose of affixing it to any goods." A " trademark" is defined by Penal Law § 165.70 (1) as " any word, name, symbol, or device, or any combination thereof adopted and used by a person" to identify goods made by that person. A " counterfeit" trademark is defined by Penal Law § 165.70 (2) (b) as " an imitation of a trademark" that is used in connection with the trafficking, sale, or distribution of goods " that are identical with or substantially indistinguishable from a trademark."
Defendant initially argues that the accusatory instrument is facially insufficient because it does not describe the trademarks that are alleged to have been copied. For an information to sufficiently state a charge of trademark counterfeiting, it must identify by name or description the actual trademark which has allegedly been imitated. (See Ensley, supra at 143; People v Cisse,171 Misc.2d 185 [Crim Ct, Queens County 1996].) An accusatory instrument is facially insufficient where " there was no naming or describing of any trademark and no statement from the owner of the trademark that the [item] in question contained any word, name, symbol, or device that was the registered trademark." (Ensley, supra at 144; Cisse, supra at 187.) In the instant case, the accusatory instrument sufficiently names and describes the trademarks that were allegedly infringed--the Kate Spade trademark and the Oakley trademark. The complaint specifically states that the handbags contained a counterfeit Kate Spade trademark and that the sunglasses contained a counterfeit Oakley ...