PRESENT:: ELLIOT, J.P., PESCE and ALIOTTA, JJ.
from a judgment of the Criminal Court of the City of New
York, Richmond County (Alan J. Meyer, J.), rendered August 8,
2013. The judgment convicted defendant, upon her plea of
guilty, of possession of burglar's tools.
that the judgment of conviction is affirmed.
People charged defendant with possession of burglar's
tools (Penal Law § 140.35) and unlawful possession of
marihuana (Penal Law § 221.05), alleging that, while in
the Staten Island Mall, a retail shopping center, defendant
possessed a bag that had been lined with aluminum foil and
tape to avoid the detection of metal merchandise tags by
store security devices. Defendant subsequently waived her
right to be prosecuted by information, pleaded guilty to
possession of burglar's tools in satisfaction of the
accusatory instrument, and was sentenced to a conditional
sole argument on appeal is that the accusatory instrument was
facially insufficient to state the offense absent facts
sufficient to allege defendant's intent to use the bag to
commit a theft.
defendant waived prosecution by information, the standards of
facial sufficiency review are those applicable to a complaint
(People v Dumay, 23 N.Y.3d 518, 524 ). A local
criminal court complaint "is one of the simplest forms
of an accusatory instrument" (People v Suber,
19 N.Y.3d 247, 250-251 ) and need only "contain
facts of an evidentiary character' (CPL 100.15 ) that
establish reasonable cause' to believe that the accused
committed the charged offense (CPL 100.40  [b])"
(Suber, 19 N.Y.3d at 251). Reasonable cause, which
is equivalent to probable cause to arrest (see People v
Maldonado, 86 N.Y.2d 631, 635 ; People v
Johnson, 66 N.Y.2d 398, 402 n 2 ), requires only
that the "articulated, objective facts" and the
"reasonable inferences to be drawn therefrom"
(People v Mercado, 68 N.Y.2d 874, 877 )
suffice to "lead a reasonable person who possesses the
same expertise as the officer to conclude, under the
circumstances, that a crime [was]... committed"
(People v McRay, 51 N.Y.2d 594, 602 ).
Law § 140.35 provides that a person is guilty of
possession of burglar's tools where he or she possesses:
"any tool, instrument or other article adapted, designed
or commonly used for committing or facilitating offenses
involving... larceny by a physical taking... under
circumstances evincing an intent to use or knowledge that
some person intends to use the same in the commission of an
offense of such character."
long been the rule, "such things as screwdrivers or
lengths of wire are not in and of themselves burglar's
tools' and no presumption of intent may arise from mere
possession of such instruments. However an intent to possess
such instruments for an unlawful purpose may be established
by circumstantial evidence" (People v Borrero,
26 N.Y.2d 430, 434  [internal citation omitted]). In
People v Banister (13 Misc.3d 764, 770-771 [Crim Ct,
NY County 2006]), confronted with the issue of whether a
"booster bag" (a shopping bag lined with grey
electrical tape) may be construed as a burglar's tool,
the court concluded that "a shopping bag... specially
altered for the purpose of committing a larceny by being
lined with electrical tape, and... possessed under
circumstances evincing an intent to use it in the commission
of a theft... constitutes a burglar's tool as defined by
Penal Law § 140.35" (see also People v Lai
Lee, 24 Misc.3d 1233');">24 Misc.3d 1233 [A], 2009 NY Slip Op 51717[U], *4
[Crim Ct, NY County 2009] [characterizing a "booster
bag" as "typically" employed to conceal
anti-theft tags on merchandise from detection by store
security devices]). We similarly conclude that, at least for
pleading purposes, the allegation in the complaint that, in a
shopping mall, defendant possessed a bag "lined with
aluminum foil and tape in a manner to deflect the use of
metal detectors" to detect "security devices on
clothing when they are placed in said... bag, "
suffices to allege the offense. An ordinary bag is not, in
and of itself, a "burglar's tool, " and thus no
presumption of intent to posses it for an unlawful purpose
may arise from its mere possession (see Borrero, 26
N.Y.2d at 434). Consequently, circumstantial evidence to
establish that intent is required (see id.). Here,
an intent to use the bag, an otherwise innocuous article, for
an unlawful purpose was established by the allegations in the
complaint that the bag had been possessed in a shopping mall
after having been specially modified in a fashion recognized
as intended to facilitate a "larceny by a physical
taking" (Penal Law § 140.35; see People v
Rourke, 44 Misc.3d 133');">44 Misc.3d 133 [A], 2014 NY Slip Op 51150[U], *2
[App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).
misdemeanor complaint "should be given a fair and not
overly restrictive or technical reading" (People v
Casey, 95 N.Y.2d 354, 360 ; People v
Acevedo, 51 Misc.3d 137');">51 Misc.3d 137 [A], 2016 NY Slip Op 50573[U],
*2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]),
and applying the principles of reason and common sense that
govern review of the sufficiency of pleadings (People
Davis, 13 N.Y.3d 17, 31 ), we find that the
offense was "sufficiently alleged so that the defendant
can prepare... for trial, and... not be tried again for the
same offense" (People v Adekoya, 50 Misc.3d 99,
102 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015];
see People v Dreyden, 15 N.Y.3d 100, 103 ).
the judgment of ...