Defendant is charged with one count of Prostitution in violation of Penal Law §230.00. She moves for an order dismissing the information as facially insufficient under Criminal Procedure Law §100.40, as well as other forms of relief.

Criminal Procedure Law §100.40 and, by reference, Criminal Procedure Law §100.15 require that factual allegations of an evidentiary character in the information provide reasonable cause to believe the defendant committed the offenses charged and that non-hearsay factual allegations establish a prima facie case that the defendant is guilty. (People v. Allen, 92NY2d 378). While an information must state the crime with which the defendant is charged and the particular facts constituting that crime (People v Hall, 48NY2d 927), the prima facie requirement is not the same as the burden of proof required at trial. (People v Henderson, 92 NY2d 677). So 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 or technical reading. (People v. Casey, 95 NY2d 354).

Penal Law §230.00 is violated when a person agrees to engage in sexual conduct with another person.

The information is comprised of a misdemeanor complaint and a supporting deposition. The complaint accuses the defendant of violating Penal Law §230.00 and provides her with notice that she must defend against a charge that, at a specified time, date and place, she "agreed to engage in Sexual Conduct with UNDERCOVER 7718 shield 7718 of the 10th PCT, to wit: masturbation in exchange for $40.00 U.S. currency." The undercover officer's supporting deposition states that "the defendant agreed to engage in Sexual Conduct with me, to wit, masturbation in exchange for $40.00 United States Currency".

These factual allegations are sufficiently evidentiary in character to satisfy the relevant [*2]CPL requirements and the allegations tend to support the charge. The allegations establish reasonable cause to believe and a prima facie case that the defendant committed the charged crime. "At the pleading stage, nothing more is required." (People v Allen, supra, at 385).

The defendant argues that the information is facially insufficient because "it is just as conceivable as not that the alleged agreement only contemplated voyeuristic activities, and not masturbatory activity that requires one party to touch another." In support of her argument, the defendant cites People v Greene (110 Misc 2d 40) and People v Alvarez (9 Misc 3d 1113[A]). In Greene, the supporting deposition contained language indicating that the agreement was for the defendant to perform an auto-erotic act in an undercover police officer's presence. In Alvarez, which involved a charge of Patronizing a Prostitute in the Fourth Degree (Penal Law 230.03), the supporting deposition contained language indicating that the agreement was for the defendant to perform an auto-erotic act while simply looking at the undercover police officer. In each case, the information contained allegations supporting a conclusion that the agreement called for an activity that did not involve physical contact. The information in the instant case contains no such allegations. To read this information as alleging something other than "masturbatory activity which requires one party to touch another" would be purely speculative and would be contrary to the common understanding of the language used in the accusatory instrument.

The defendant's motion to dismiss for facial insufficiency is denied.

The defendant's motion for Discovery and Inspection is granted to the extent indicated in the People's Response and VDF. The People are reminded of their continuing Brady, Rosario and related responsibilities

The defendant's motions to preclude identification testimony and statements is granted to the extent applicable. The People indicate in their Response that they do not intend to offer any such evidence on their direct case.

The defendant's motion to suppress physical evidence is denied as moot. The People do not intend to offer on their direct case any physical evidence seized from the defendant.

The defendant's Sandoval application is referred to the trial court.

The defendant's Ventimiglia application is referred to the trial court.

The defendant retains all rights to which he is entitled under CPL §255.20.

This constitutes the decision and order of the Court.

Dated: April 4, 2006___________________________

New York, New YorkJudge of the Criminal Court