Criminal Court of City of New York, City of New York, Bronx County
[970 N.Y.S.2d 868] Robert T. Johnson, District Attorney, Bronx County, by Ara K. Ayvazian, Esq., Assistant District Attorney, for the People.
Daniel Ellman, Esq., The Bronx Defenders, for the Defendant.
JOHN H. WILSON, J.
Defendant is charged with one count each of Petit Larceny (PL Sec. 155.25), and Criminal Possession of Stolen Property in the Fifth Degree (PL Sec. 165.40), both Class A misdemeanors.
By motion dated June 4, 2013, Defendant seeks dismissal of the docket pursuant to CPL Sec. 30.30.
The Court has reviewed the Court file, Defendant's motion, and the People's Response dated June 13, 2013. For the reasons stated below, Defendant's motion is denied. The People are charged with 1 day to date in this matter.
STATEMENT OF THE FACTS
Pursuant to the Criminal Court Complaint, on or about February 4, 2013, at approximately 11:53 PM, while inside of 1081 Ogden Avenue, Bronx, New York, complainant Jamai Hoosein states that he observed Defendant " remove two fifty dollar bills from the cash register." The complainant further states that he " is the lawful custodian of said property and the defendant did not have permission or authority to take or possess said property." See, Criminal Court Complaint dated February 5, 2013.
[970 N.Y.S.2d 869] By an undated supporting deposition provided to the Court and the defense on February 7, 2013, the complainant asserts that he " ran back the tape and saw that (Defendant) walk over to register No. 1 take the 100.00 from register." . See, undated supporting deposition, p 1.
The top count of the Criminal Court Complaint is a Class A misdemeanor. Thus, 90 days is the applicable time limit. See, CPL Sec.30.30(1)(c); People v. Cooper, 98 N.Y.2d 541, 543, 750 N.Y.S.2d 258, 779 N.E.2d 1006 (2002) ( " CPL 30.30 time periods are generally calculated based on the most serious offense charged in the accusatory instrument and are measured from the date of commencement of the criminal action." )
Defendant asserts that the People's allegations are deficient, since the complainant " did not personally and directly observe (Defendant) take anything...but rather relied on a video tape that (complainant) viewed after the alleged event occurred." See, Memorandum of Law attached to Defendant's motion dated June 4, 2013, p 6. Further, since these allegations are insufficient, " the prosecution has never produced a valid information in this case and therefore has never been ready for trial." See, Memorandum of Law attached to Defendant's motion dated June 4, 2013, p 8.
The very premise of Defendant's argument is mistaken. The fact that the complainant bases his observations on his review of a video tape does not render his statement insufficient.
Under CPL Sec. 100.15, every accusatory instrument is required to 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, 497 N.E.2d 686 (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 ...