May 28, 2013
The PEOPLE of the State of New York,
Jameson JOSEPH, Defendant. No. 2013BX004068.
This decision has been referenced in a table in the New York Supplement.
Robert T. Johnson, District Attorney, Bronx County, by Ara K. Ayvazian, Esq., Assistant District Attorney, for the People.
David J. Druckman, Esq., for the Defendant.
JOHN H. WILSON, J.
Defendant is charged with one count of Criminal Possession of Stolen Property in the Fifth Degree (PL Sec. 165.40), a Class A misdemeanor.
By omnibus motion dated March 27, 2013, Defendant seeks the following: dismissal of the sole charge, asserting that the People's complaint is facially insufficient; and suppression of all physical evidence seized and statements made to law enforcement personnel, as well as evidence of any prior bad acts.
The Court has reviewed the Court file, Defendant's motion, and the People's Response dated April 3, 2013. For the reasons stated below, the motion to dismiss is granted to the extent of ordering the People to provide a superceding information to the Court and defense within 30 days of the date of publication of this decision to the parties.
If the People successfully supercede the complaint, the motion for pre-trial hearings is granted, to the extent of ordering a hearing to determine if there was probable cause for Defendant's arrest; whether statements were taken and whether physical evidence was seized in violation of Defendant's rights under the United States and New York Constitutions.
The motion for a pre-trial hearing regarding whether or not the People can use any prior bad acts or immoral conduct against the Defendant is referred to the trial court.
Pursuant to the Criminal Court complaint dated January 19, 2013, on January 13, 2013, at 3:15 PM, at 3983 Barnes Avenue, Bronx, NY, Defendant was observed by Police Officer Robert Konner to be in possession of " one (1) Dell Computer Monitor." See, Criminal Court complaint dated January 19, 2013, p1.
The Defendant is alleged to have told the officer that " a person ... was selling the monitor ... I got him to get it off for 30 it was a Dell Monitor. The Monitor was put in my room as a TV." See, Criminal Court complaint dated January 19, 2013, p1. Further, the purported owner of the Dell Monitor did not give defendant " permission or authority to take, use, remove, possess, or exercise authority over said Monitor." See, Criminal Court complaint dated January 19, 2013, p2.
The alleged owner of the Dell Monitor provided a supporting deposition in verification of the charges. That document is dated February 1, 2013.
LEGAL ANALYSIS RE: FACIAL SUFFICIENCY
CPL Sec. 100.15 provides that every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319 (1986).
Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927 (1987).
On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court Complaint are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt.
See, People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S.2d 652 (1986).
Applying these principles to the instant matter, the factual allegations contained in the misdemeanor complaint before this Court are not sufficient. However, under the circumstances of this case, the People will be given 30 days from the date of publication of this decision to supercede the complaint.
Under PL Sec. 165.40, " a person is guilty of criminal possession of stolen property in the fifth degree when he knowingly possesses stolen property, with intent to benefit himself ..." PL Sec. 10 .00(8) defines the term " possess" as " to have physical possession or otherwise exercise dominion or control over tangible property." This term covers both actual and constructive possession. See, People v. Sierra, 45 N.Y.2d 56, 60, 407 N.Y.S.2d 669 (1978).
" A sine qua non of criminal possession of stolen property is that the defendant knowingly possess the stolen property. Accordingly, the defendant must have been aware that he possessed the property in issue and that it was stolen property." See, Donnino, William C., Commentary to PL Sec. 165.40, McKinney's Book 39, 1999, p447, citing PL Sec. 15.02(2) (emphasis added).
In large part, the People rely upon a statement made by the Defendant at the time of his arrest to maintain the charge. However, their reliance upon this statement is misplaced.
Under CPL Sec. 60.50, " a person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed." 
Known as the " confession corroboration rule," " This section sets forth the ancient principle that a person cannot be convicted solely on the strength of his or her own statement." See, Preiser, Practice Commentary, McKinney's Book 11A, p211.
For example, in People v. Booden, 69 N.Y.2d 185, 518 N.Y.S.2d 87 (1987), a prosecution for driving while intoxicated, the fact that there were no observable circumstances to show the cause of an accident was sufficient to corroborate the admission of an intoxicated person ... that he had been operating the vehicle. The Court explained that the circumstances may have been capable of innocent explanation, but they nonetheless supported an inference that a crime had been committed ... Defendant's admission was the key that explained those circumstances and established defendant's connection to the criminal act.' ( 69 N.Y.2d at 188.) " See, Preiser, Practice Commentary, McKinney's Book 11A, p211.
The burden to establish corroboration of a confession is slight. All that is required is " some proof, of whatever weight that a crime was committed by someone."
See, People v. Chico, 90 N.Y.2d 585, 589, 665 N.Y.S.2d 5 (1997).
In People v. Suber, 19 N.Y.3d 247, 252, 946 N.Y.S.2d 552 (2012), the Court of Appeals held that " CPL Sec. 100.40(1) does not mandate corroboration of an admission in an information." Therefore, " corroboration of a defendant's admission is not a component of the prima facie case requirement for an information." 19 N.Y.3d at 557. However, neither this rule, nor the confession corroboration rule is satisfied by the allegations presented here.
In the instant case, Defendant stated that " a person ... was selling the monitor ... I got him to get it off for 30 it was a Dell Monitor. The Monitor was put in my room as a TV." See, Criminal Court complaint dated January 19, 2013, p1. Yet, this statement is not an admission of culpability. Though the owner of the Monitor asserts that he did not give the Defendant permission or authority to possess the Monitor, there is nothing in Defendant's statement to indicate that Defendant knew or was aware that he could not possess the monitor. The mere fact that he bought a Monitor for 30 dollars does not establish one way or another that Defendant knew or should have known that the property was stolen.
Since the defendant's statement is not an admission, and does not support the allegation that Defendant possessed the Monitor knowing that it was stolen, the information before the Court is facially insufficient. However, under the circumstances of this case, the People will be given the opportunity to supercede the Criminal Court complaint.
In People v. Camacho, 185 Misc.2d 31, 711 N.Y.S.2d 283 (Crim Ct, Kings Cty, 2000), the court ruled that where a complaint is found to be facially insufficient, curing the defect " is imperative, because ... the court's jurisdiction is no longer assured. The People should be allowed a reasonable period of time, to be determined by the court depending upon the particular factual circumstances of the case, to (correct the defect)." 185 Misc.2d at 36. (Citation omitted).
In many instances, " the lower court, when evaluating insufficiency must also consider whether amendment, supersession, replacement or supplementation and conversion is still possible."
See, People v. Gore, 143 Misc.2d 106, 109, 540 N.Y.S.2d 147 (Crim Ct, Kings Cty, 1989), citing Dumas.
In this case, it should be a simple matter for the People to correct the defect, and state the necessary additional facts in their information. Therefore, the People will be given the opportunity to cure this error by " either filing a superceding information or prosecutor's information." See, People v. Evangelista, 1 Misc.3d 873, 874, 771 N.Y.S.2d 791(Crim Ct Bx Cty 2003).
Thus, the People have 30 days from the date of publication of this decision to provide a superceding information, or a prosecutor's information, regarding the sole count of the Criminal Court complaint.
OTHER RELIEF REQUESTED
Defendant has moved for suppression of any statements allegedly made to law enforcement personnel, and any physical evidence seized. If the People successfully supercede the complaint, this motion is granted to the extent of ordering a pre-trial hearing at which the issue of whether or not Defendant's statement is admissible, whether or not the identification procedure was legally conducted, and whether or not there was probable cause for the Defendants' arrests will be considered.
Defendant also seeks suppression of any prior bad acts or immoral conduct. A hearing to determine whether or not any evidence of prior bad acts or immoral conduct by the Defendant is admissible will be conducted by the trial judge, prior to any trial of this matter.
All other arguments and requests for any additional hearings and relief that have been advanced by the Defendant has been reviewed and rejected by this Court as being not applicable, or without merit.
This shall constitute the opinion, decision, and order of the Court.