The defendant, Peng Fong, is charged with a violation of Penal Law §165.71(Trademark Counterfeiting in the Third Degree), and Administrative Code §20.453 (Unlicensed General Vendor). Defendant is charged with a single count of the above offenses.

The defendant has moved by omnibus motion for the following: (1) Dismissal for Facial Insufficiency of the charge of Trademark Counterfeiting in the Third Degree; (2) Preclusion of any statement or identification of defendant; (3) Mapp/Dunawayhearing(4) Sandoval Hearing; (5) Bill of Particulars; and(6)Discovery.

The Court has reviewed the Defendant's motion papers, the People's response and all relevant statutes and case law and, for the reasons discussed hereafter, denies the Defendant's motion for dismissal based on the grounds of facial insufficiency.

The defendant's omnibus motion is decided as follows:

The defendant is charged with Trademark Counterfeiting in

the Third Degree PL § 165.71).

The accusatory instrument, in pertinent part, charges [*2]defendant with the commission of the aforementioned crime on June 26, 2007, at about 14:50 hours at in front of 230 Canal Street in the County of New York, State of New York under the following circumstances:

Deponent states that based on the supporting deposition made by Police Officer David Perez, shield No.29497, defendant displayed and offered for sale more than 10 Sony DVDs. Police Officer David Perez examined the above named merchandise and based on his training and experience, the merchandise bears a counterfeit SONY trademark. It is substantially the same as the genuine trademark except that the counterfeit has: poor quality artwork has no studio logo on packaging and the movie is currently on theatrical release, and the genuine trademark has: professional quality artwork has studio logo on disc or packaging.

An affidavit of the representative of the trademark, states that the trademark is in use and registered.

An information is facially sufficient if it contains nonhearsay factual allegations of an evidentiary character which establish, if true, every element of the offense charged and defendant's commission thereof (CPL §§100.15[3] and 100.40[1]); See People v. Dumas, 68 NY2d 729 (1986); See also People v. Alejandro, 70 NY2d 133 (1987). Where the factual allegations contained in an information "give an accused sufficient notice 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". See People v. Casey, 95 NY2d 354, 390 (2000); See also People v. Konieczny, 2 NY3d 569 (2004).

Defendant here challenges the facial sufficiency of the accusatory instrument. Confronted with a similar issue, the Appellate Division 1st Department in People v. Guan ^[FN1] citing People v. Thiam ^[FN2] defined the elements required in an accusatory instrument for the above charge. In order to charge a defendant with trademark counterfeiting in the third degree, the complaint must contain the following:

First, the accusatory instrument must allege that at a specified time and location defendant "display[ed] and offer[ed] [*3]for sale" counterfeit trademark items. In the case at bar, the complaint alleged, in substance, that on June 26, 2007, at about 14:50 hours at in front of 230 Canal Street in the County of New York, State of New York the police observed defendant display and offer for sale more than 10 SONY DVDs. The first requirement is therefore met in this case.

Second, the complaint must identify by name or description the actual trademark which has allegedly been imitated. See, People v. Ensley,183 Misc 2d 141 (1999); see also People v. Guan, Supra.

Here, the accusatory instrument specifically states the merchandise bears a counterfeit SONY trademark. It is substantially the same as the genuine trademark except that the counterfeit has "poor quality artwork [and] has no studio logo on packaging" while the genuine trademark has "professional quality artwork [and] has studio logo on disc or packaging".

It is important to analyze the argument raised by defendant pertaining to this particular condition. In support of defendant's motion, defendant cited People v. Niang ^[FN3] and People v. Wu Chang ^[FN4] where the accusatory instruments were dismissed for facial insufficiency based upon the lack of description of the Rolex trademark in the latter case and the GUCCI trademark in the second case. Those trademarks are represented by particular symbols which identify them. The failure of the accusatory instruments in those matters to describe and identify the trademark symbols in detail represented a fatal flaw therein, rendering those complaints facially insufficient.

In the case at bar, the trademark for the SONY corporation is symbolized not by an artist's designed symbol, but rather by the four capital letters "SONY". The reference to those capitalized letters is sufficient therefore to identify the trademark. The type of trademark designs in the Niang and Wu Chang cases are inapplicable to the analysis of the trademark in the instant case.

Finally, the accusatory instrument must show that the trademark alleged to be infringed is currently registered. See PL §165.70(1); See, People v. Cisse, 171 Misc 2d 185 (1996); See also People v. Ensley, 183 Misc 2d 141 (1999).

In the present case, the file contains a sworn affidavit of Mr. James Andrade, an authorized representative of SONY as well as other trademarks, which states that the trademark is currently in use and registered at the US Patent Trademark Office. The last requirement is therefore satisfied. [*4]

Accordingly, since the complaint met all the legal requirements in support of the charge of Trademark Counterfeiting in the Third Degree, defendant's motion to dismiss for facial insufficiency is denied.

The defendant asks the court to preclude any statement or identification testimony for which proper notice has not been given.

The People are required to give advance notice to the defendant of their intention to introduce at trial any potentially suppressible statements made by the defendant to a public servant (CPL § 710.30[1]). Such notice must be served within fifteen days after arraignment and before trial (CPL § 710.30[2]). A failure to give the required notice before trial mandates exclusion of the statement. See People v Briggs, 38 NY2d 319(1975).

The Voluntary Disclosure Form shows that the People do not intend to offer any statement or identification testimony at trial. Therefore, defendant's motion to preclude statement and identification testimony is premature. Further motions may be renewed in the event the People attempt to offer unnoticed statement or identification testimony.

New York, NYMarc J. Whiten, JCC

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