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People v. Schiavone

Criminal Court of the City of New York, Bronx County

September 18, 2013

The People of the State of New York, Plaintiff,
v.
Mario Schiavone, Defendant.

For the People, Robert T. Johnson, District Attorney, Bronx County, by K. Vance Hynes, Esq., Assistant District Attorney.

For the Defendant, Steven Banks, Esq., the Legal Aid Society, by Robin Frankel, Esq., and Steven Kuza, Esq., John Jay Legal Services, Pace University School of Law.

JOHN H. WILSON, J.

By a superceding information dated April 3, 2013, Defendant is charged with one count of Patronizing a Prostitute in the Third Degree (PL Sec. 230.04), a Class A misdemeanor, and one count of Loitering for the Purpose of Engaging in a Prostitution Offense (PL Sec.240.37), a violation.

By motion dated April 9, 2013, Defendant seeks dismissal of all charges on the docket, asserting that the People's complaint is facially insufficient and dismissal of the Criminal Court Complaint pursuant to CPL Sec. 30.30, asserting that the People have failed to comply with the time limitations imposed upon the prosecution of misdemeanors.

The Court has reviewed the Court file, the superceding information, Defendant's motion, and the People's Response dated May 10, 2013.

For the reasons stated below, the motion to dismiss for facial insufficiency is granted as to the charge of Loitering for the Purpose of Engaging in a Prostitution Offense.

FACTUAL STATEMENT

Pursuant to the superceding information, on or about August 2, 2012 at approximately 11:15 PM, at the intersection of Reeds Mill Lane and Bivona Street, Bronx, New York, the Defendant is alleged to have approached a police officer and asked that officer "to engage in sexual conduct in exchange for a sum of United States currency." See, superceding information dated April 3, 2013. The Defendant is alleged to have stated to the officer "I want sex. I'll give you forty dollars." See, superceding information dated April 3, 2013.

By a Criminal Court complaint dated August 3, 2012, Defendant was initially charged solely with Loitering for the Purpose of Engaging in a Prostitution Offense, however, Patronizing a Prostitute in the Third Degree was added to the docket by the superceding information.

LEGAL ANALYSIS

(A) Defendant's Motion to Dismiss for Facial Sufficiency.

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 (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, ...


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