appeals from a judgment of the Criminal Court of the City of
New York, New York County (Ann E. Scherzer, J.), rendered
January 8, 2014, convicting him, upon his plea of guilty, of
disorderly conduct and imposing sentence.
PRESENT: Schoenfeld, J.P., Ling-Cohan, Gonzalez, JJ.
of conviction (Ann E. Scherzer, J.), rendered January 8,
2014, reversed, on the law, accusatory instrument dismissed,
and surcharge and fees remitted.
accusatory instrument was jurisdictionally defective, since
the misdemeanor complaint and supporting deposition failed to
allege "facts of an evidentiary character" (CPL
100.15) demonstrating "reasonable cause" to
believe (CPL 100.40[b]) that defendant was guilty of
patronizing a prostitute in the third degree (see Penal Law
§ 230.04), the sole charge contained therein. The
single-sentence, conclusory, factual allegation that, at 2:25
a.m. on October 17, 2013, at a particular street location,
"defendant offered [a police officer] $15 in exchange
for manual stimulation, " is insufficient to establish
the "sexual conduct" element of the charged crime
(see Penal Law § 230.02[b][c]; Penal Law
§ 130.00), inasmuch as the term "manual
stimulation, " without more, is reasonably susceptible
to non-sexual conduct (see People v Sidarah, 41
Misc.3d 17 [App Term, 1st Dept 2013]; see also People v
Pashkoff, 53 Misc.3d 151');">53 Misc.3d 151 [A], 2016 NY Slip Op 51696[U]
[App Term, 1st Dept 2016]; compare People v Saleh,
40 Misc.3d 1211[A], 2013 NY Slip Op 51152[U] [Crim. Ct.,
Bronx County 2013][defendant asked the officer "to
engage in sexual conduct to wit oral sex in exchange for
giving (the officer) $15.00 U.S. currency"]; People
v Bah, 180 Misc.2d 39');">180 Misc.2d 39 [Crim. Ct., New York County 1999]
[defendant "agreed to engage in sexual conduct with the
informant, which was... sexual intercourse..., for $30.00
U.S. Currency"] ; People v Kenrick, 162 Misc.2d
75 [Crim. Ct., New York County 1994] [defendant asked the
officer to "engage in sexual conduct, to wit;
intercourse, with him in return for $10.00 in U.S.
dissent fails to distinguish People v Sidarah, 41
Misc.3d 17 or People v Pashkoff, 53 Misc.3d 151');">53 Misc.3d 151 (A),
which both clearly support dismissal in this case.
of the foregoing, we reach no other issue.
Lizbeth Gonzalez, Dissenting Opinion.
person is guilty of the misdemeanor of patronizing a
prostitute in the third degree (see Penal Law § 230.04)
when "[h]e or she solicits or requests another person to
engage in sexual conduct with him or her in return for a
fee" (Penal Law § 230.02[c]). The underlying
accusatory instrument recites that, on October 17, 2013
"at about 2:25 a.m., on the south west corner of Bethune
Street & Greenwich Street, " defendant offered
Police Officer Meredith Briggs "$15 in exchange for
manual stimulation." Giving these allegations "a
fair and not overly restrictive or technical reading"
(People v Casey, 95 N.Y.2d 354, 360 ), and
"drawing reasonable inferences from all the facts set
forth in the accusatory instrument" (People v
Jackson, 18 N.Y.3d 738, 747 ), the factfinder
could certainly infer that when, in the middle of the night
on a West Village street corner, defendant offered a woman
money in return for "manual stimulation, " he did
so with the desire and expectation of sexual conduct.
defendant's strained argument the "manual
stimulation" he sought could refer to a "foot rub,
therapeutic massage, chiropractic adjustment, personal
training - even an energetic match of thumb wrestling"
fails "as a matter of common sense and reasonable
pleading" (People v Davis, 13 N.Y.3d 17, 31
). That the human imagination might conjure up possible
innocent behavior that falls within the ambit of "manual
stimulation" is not the test for determining the facial
sufficiency of an accusatory instrument. The prima facie case
requirement of an information is not the same as the burden
of proof beyond a reasonable doubt required at trial, nor
does it rise to the level of legally sufficient evidence that
is necessary to survive a motion to dismiss based on the
proof presented at trial (see People v Smalls, 26
N.Y.3d 1064, 1066 ). Since the factual allegations
contained in the instrument give defendant notice sufficient
to prepare a defense and are adequately detailed to prevent
him from being tried twice for the same offense, they should
be given a fair and not overly restrictive or technical
reading (see People v Casey, 95 N.Y.2d at 360). Any
challenge to these allegations, including defendant's
contention that he ...