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 ...