July 15, 2013
The PEOPLE of the State of New York,
Yasin SALEH, Defendant. No. 2012BX003216.
This decision has been referenced in a table in the New York Supplement.
For the People, Robert T. Johnson, District Attorney, Bronx County, by K. Vance Hynes, Esq., Assistant District Attorney.
For the Defendant, Mark Sedlander, Esq., Bronx Defenders.
JOHN H. WILSON, J.
Defendant is charged with one count of Attempted Patronizing a Prostitute in the Third Degree (PL Sec. 110/230.04), a Class B misdemeanor, and one count of Loitering for the Purpose of Engaging in a Prostitution Offense (PL Sec.240.37), a violation.
By motion dated February 24, 2013, Defendant seeks dismissal of the charge of Attempted Patronizing a Prostitute in the Third Degree, asserting that the charge is not legally cognizable.
The Court has reviewed the Court file, Defendant's motion, and the People's Response dated March 13, 2013.
For the reasons stated below, the motion to dismiss the charge of Attempted Patronizing a Prostitute in the Third Degree is granted.
Pursuant to the Criminal Court complaint, on or about January 15, 2012 at approximately 12:05 AM, at the intersection of Southern Boulevard and East 172nd Street, Bronx, New York, the Defendant is alleged to have approached a police officer and asked that officer " to engage in sexual conduct to wit oral sex in exchange for giving (the officer) $15.00 U.S. currency." See, Criminal Court complaint dated January 15, 2012. The Defendant is alleged to have stated to the officer " I want head. I got $15.00." See, Criminal Court complaint dated January 15, 2012.
Defendant was initially charged with Patronizing a Prostitute in the Third Degree (PL Sec. 230.04), a Class A misdemeanor, however, on December 20, 2012, the People reduced that charge to the Attempt.
Under Penal Law Section 230.04, " a person is guilty of patronizing a prostitute in the third degree when he or she patronizes a prostitute." Penal Law Section 230.02(1) describes the act of patronizing a prostitute as follows;
(a) Pursuant to a prior understanding, he pays a fee to another person as compensation for such person or a third person having engaged in sexual conduct with him; or
(b) He pays or agrees to pay a fee to another person pursuant to an understanding that in return therefor such person or a third person will engage in sexual conduct with him; or
(c) He solicits or requests another person to engage in sexual conduct with him in return for a fee.
There is no dispute that the conduct alleged in the Criminal Court complaint is facially sufficient to support the charge of Patronizing a Prostitute in the Third Degree under PL Sec. 230.04, as the Defendant's alleged conduct would constitute a solicitation or request for another person to engage in sexual conduct with him in return for a fee, as described above in PL Sec. 230.02(1)(c).
Further, Defendant does not assert any deficiency in the charge of Loitering for the Purpose of Engaging in a Prostitution Offense.
Instead, Defendant asserts that it is a legal impossibility for the People to reduce the Patronizing charge to the Attempt, since the attempt to patronize a prostitute " is not a legally cognizable offense ... the definition of Patronizing a Prostitute pursuant to PL Sec. 230.02 includes not only the payment or agreement to pay a fee to another person in exchange for sexual conduct, but also the attempt to pay and the attempt to reach an agreement to pay another person for sexual conduct." See, Defendant's Memorandum of Law dated February 24, 2013, p 6, para 4.
PL Sec. 110 defines an attempt to commit a crime as " with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime." To prove the attempt to commit a crime, the People must establish " that the defendant acted with a specific intent ... (and) that the defendant acted to carry out his intent ... the act ... must carry the project forward within dangerous proximity to the criminal end to be attained." ‘ See, People v. Bracey, 41 N.Y.2d 296, 299-300, 392 N.Y.S.2d 412 (1977), citing People v. Werblow, 241 N.Y. 55, 61, 148 NE 786 (1925).
In large part, Defendant bases his analysis on the Practice Commentary to PL Sec. 230.00, which states that " in essence, (PL Sec. 230.02) makes it an offense for a person to hire or attempt to hire a prostitute."
See, Donnino, Supplemental Practice Commentary, PL Sec. 230.00 (emphasis added). Defendant finds further support for his position in People v. Lupinos, 176 Misc.2d 852, 854, 674 N.Y.S.2d 582 (Crim Ct, Richmond Cty, 1998), where a Court of concurrent jurisdiction ruled that " if the crime is defined in the nature of an attempt, although the statute does not contain the word attempt, an attempt to commit such a crime is nonexistent."
In Lupinos, the Court noted that where the statutory definition of a crime " explicitly includes an attempt" to commit that crime, it is not possible to reduce that crime to an attempt. " (T)here can be no attempt to commit a crime which is itself a mere attempt to do an act." 176 Misc.2d at 853.
See, People v. Howlett, 76 Misc.2d 801, 351 N.Y.S.2d 289 (App Term, 1st Dept, 1973) (Crime of Resisting Arrest includes the attempt to resist arrest in its statutory definition); People v. Schmidt, 76 Misc.2d 976, 352 N.Y.S.2d 399 (Crim Ct, Bx Cty, 1974) (Obstructing Governmental Administration cannot be reduced to the attempt; statutory language includes the word " attempt" ); People v. Diaz, 146 Misc.2d 260, 550 N.Y.S.2d 543 (Crim Ct, Bx Cty, 1990) (defendant cannot attempt to intimidate a witness since crime of Intimidating a Witness in the Third Degree contains the attempt within its express terms); People v. Sajous, 173 Misc.2d 55, 661 N.Y.S.2d 488 (Dist Ct, Nassau Cty, 1997) (defendant cannot attempt to tamper with a witness since crime of Tampering with a Witness in the Third Degree contains the attempt within its express terms).
The Lupinos Court stated that where the statutory definition of the essence' of this crime embraces an attempt to commit the prohibited act (the reduction) deprived (the court) of jurisdiction for the prosecution has charged the defendants with an attempt to commit attempt, a hypothetical and nonexistent crime." 176 Misc.2d at 855, citing People v. Jelke, 1 N.Y.2d 321, 330, 152 N.Y.S.2d 479 (1956).
In People v. Jerome, Docket No. 2012BX067337 (Michels, JCC), an unpublished opinion dated March 18, 2013, another Court of concurrent jurisdiction denied the People's motion to reduce a charge of Patronizing a Prostitute in the Third Degree to the attempt. " While a defendant may plead guilty to a hypothetical crime, he cannot be tried for, or convicted of, a crime which is legally impossible to commit." Jerome, p 2 (citations omitted).
The well-reasoned analysis in Jerome is based on the statutory definition of solicitation given in PL Sec. 100.00, which states that " a person is guilty of criminal solicitation in the fifth degree when, with intent that another person engage in conduct constituting a crime, he solicits, requests, commands, importunes or otherwise attempts to cause such person to engage in such conduct" (emphasis added.). " Because a crime of solicitation need not rise to the level of an Article 110 attempt to warrant the imposition of penalties, it defies logic to reduce' a solicitation crime to an attempted solicitation' crime." Jerome, p. 4.
The Jerome Court also noted other cases where the reduction to the attempt was denied, among which include People v. Lynn, 115 Misc.2d 76, 454 N.Y.S.2d 585 (App Term, 2d and 11th Dist, 1982) (" there is no such crime as attempted jostling; although not expressly containing the word attempt,' jostling is defined in the nature of an attempt." ) and People v. Pignatello, 15 Misc.3d 833, 833 N.Y.S.2d 882 (S Ct, Bx Cty, 2007) (defendant cannot be prosecuted for attempted receiving of unlawful gratuities since completed crime embraces the attempt). Jerome, p 4-5.
In both Lynn and Pignatello, while the statute did not include the word " attempt," the definition of the crime included the concept of the attempt to commit the crime.
Similarly, in the present case, the People reduced the charge of Patronizing a Prostitute in the Third Degree to the attempt, when the definition of the word " solicitation" already includes the attempt. In doing so, this Court agrees with the reasoning of both the Lupinos and Jerome Courts, and holds that the People's reduction of the charge to the attempt to patronize a prostitute, is a reduction to an attempt to commit an attempt, a nonexistent crime.
Thus, Defendant's motion to dismiss the charge of Attempted Patronizing a Prostitute in the Third Degree is granted.
This shall constitute the opinion, decision, and order of the Court.