Criminal Court of the City of New York, New York County
the People: Garrett Baldwin, Assistant District AttorneyNew
York County District Attorney's Office
the Defendant: Andrew R. Miller, Of Counsel Law Office of
Miller & Miller, Esqs.
E. HANSHAFT, JUDGE.
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[a] and
170.35[a], as well as for other relief. For the reasons
stated below, the Defendant's motion to dismiss is
Sufficiency in General
accusatory instrument is a non-waivable jurisdictional
prerequisite to a criminal prosecution. (People v.
Case, 42 N.Y.2d 98, 99 ). An information is
sufficient on its face when the three requirements enumerated
in CPL § 100.40 are met: first, the information must
substantially conform to the formal requirements of CPL
100.15 (CPL § 100.40[a]); second, the factual
allegations and any supporting depositions must "provide
reasonable cause to believe the defendant committed the
offense charged" (CPL § 100.40[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 and CPL §
100.40[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
; see also People v. Alejandro, 70 N.Y.2d 133');">70 N.Y.2d 133
). "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). 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 ).
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 ;
see CPL § 100.40[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 ).
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.
Defendant contends that the factual portion of the
Information is insufficient to establish the charges alleged
by the People. PL § 165.30 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 ...