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People v. Perez

Criminal Court of the City of New York, New York County

February 22, 2018

The People of the State of New York, Plaintiff,
v.
Manuel Perez, Defendant.

          For the People: Garrett Baldwin, Assistant District AttorneyNew York County District Attorney's Office

          For the Defendant: Andrew R. Miller, Of Counsel Law Office of Miller & Miller, Esqs.

          JOSH E. HANSHAFT, JUDGE.

         The Defendant, Manuel Perez is charged with one count of Fraudulent Accosting, PL § 165.30, one count of Criminal Possession of Stolen Property in the Fifth Degree, PL § 165.40 and one count of Petit Larceny, PL § 155.25. The Defendant moves for dismissal of the Information as facially insufficient pursuant to CPL §§ 170.30[1][a] and 170.35[1][a], as well as for other relief. For the reasons stated below, the Defendant's motion to dismiss is granted.

         Facial Sufficiency in General

         An accusatory instrument is a non-waivable jurisdictional prerequisite to a criminal prosecution. (People v. Case, 42 N.Y.2d 98, 99 [1977]). An information is sufficient on its face when the three requirements enumerated in CPL § 100.40[1] are met: first, the information must substantially conform to the formal requirements of CPL 100.15 (CPL § 100.40[1][a]); second, the factual allegations and any supporting depositions must "provide reasonable cause to believe the defendant committed the offense charged" (CPL § 100.40[1][b]); and third, the non-hearsay allegations, if true, must establish every element of the offense charged and the defendant's commission thereof (CPL §§ 100.15[3] and CPL § 100.40[1][c]; see People v. Dumas, 68 N.Y.2d 729');">68 N.Y.2d 729');">68 N.Y.2d 729');">68 N.Y.2d 729 [1986]; see also People v. Alejandro, 70 N.Y.2d 133');">70 N.Y.2d 133 [1987]). "Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person ordinary intelligence, judgment and experience that is reasonably likely that such offense was committed and that such person committed the offense [ ]" (CPL § 70.10[2]). Mere conclusory allegations will render the instrument defective (People v. Dumas, 68 N.Y.2d 729');">68 N.Y.2d 729');">68 N.Y.2d 729');">68 N.Y.2d 729 [1986]).

         A court reviewing for facial sufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from them (People v. Jackson, 18 N.Y.3d 738, 741 [2012]; see CPL § 100.40[1][c]). Further, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive and technical reading" (People v. Casey, 95 N.Y.2d 354, 360 [2000]).

         The Accusatory Instrument

         The factual portion of this accusatory instrument, sworn by the deponent officer Anthony Assent states that on September 6, 2017 at 333 Avenue of the Americas, at about 6:29 p.m.:

I am informed by undercover police officer 084, that the defendant approached him and stated in substance "Are you waiting for someone? Do you want one bag for sixty or two for one hundred?" I am further informed by undercover police officer 084 that the undercover then gave the defendant $60 for a bag containing what appeared to be cocaine. The undercover believed it was cocaine based on his professional training as a police officer, experience making drug arrests and his observation of the substance, which was a white powder and packaged in a small clear plastic bag.
I know that the substance is not cocaine based on a field test I conducted that tested negative for the presence of cocaine. From my training and experience, I know that the defendant's actions are of a kind commonly used to defraud people of money through trick or swindle. I am a custodian of the $60 and defendant did not have permission or authority to take or possess the money.

         Discussion

         The Defendant contends that the factual portion of the Information is insufficient to establish the charges alleged by the People. PL § 165.30[1] provides that:

A person is guilty of fraudulent accosting when he accosts a person in a public place with intent to defraud him of money or other property by means of a ...

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