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People v. Thompson

Supreme Court of New York, Second Department

January 24, 2017

The People of the State of New York, Respondent,
v.
Charlene Thompson, Appellant.

          PRESENT:: ELLIOT, J.P., PESCE and ALIOTTA, JJ.

         Appeal 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.

         ORDERED that the judgment of conviction is affirmed.

         The 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 discharge.

         Defendant's 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.

         Since 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 [2014]). 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 [2012]) and need only "contain facts of an evidentiary character' (CPL 100.15 [3]) that establish reasonable cause' to believe that the accused committed the charged offense (CPL 100.40 [4] [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 [1995]; People v Johnson, 66 N.Y.2d 398, 402 n 2 [1985]), requires only that the "articulated, objective facts" and the "reasonable inferences to be drawn therefrom" (People v Mercado, 68 N.Y.2d 874, 877 [1986]) 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 [1980]).

         Penal 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."

         As has 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 [1970] [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]).

         A misdemeanor complaint "should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 N.Y.2d 354, 360 [2000]; 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 [2009]), 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 [2010]).

         Accordingly, the judgment of ...


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