Defendant is charged with Prostitution (Penal Law §230.00). She moves for an order dismissing the information as facially insufficient under Criminal Procedure Law §100.40.

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 less stringent than 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.

A person is guilty of the crime of Prostitution when such person engages or agrees or offers to engage in sexual conduct with another person for a fee.

The information accuses defendant of committing the offense of Prostitution in violation of PL 230.00 and alleges that defendant "engaged, agreed, and offered to engage in sexual conduct with another person for a fee". The information further alleges that defendant "agreed [*2]to engage in Sexual Conduct with Under Cover, shield No.28670 of the MSVES, to wit: sexual intercourse in exchange for $35.00 U.S. currency".

Defendant argues that the use of the conjunctive "and" rather than the disjunctive "or" requires that "any supporting fact allegations must allege that defendant actually participated in sexual conduct with another person". This argument is without merit.

Where the use of the conjunctive "and" rather than the disjunctive "or" in an accusatory instrument charges more than the People are required to prove under the statute, the People are not bound to prove all the acts alleged. It is sufficient if the People prove only what is required under the statute. People v Charles, 61 NY2d 321. The crime of Prostitution is committed by any one of three acts: (1) defendant engages in sexual conduct with another person for a fee or (2) defendant agrees to engage in sexual conduct with another person for a fee or (3) defendant offers to engage in sexual conduct with another person for a fee. The factual allegations in the information support the "agreed to engage in sexual conduct" portion of the statute. Proof of this allegation would be sufficient to establish that defendant committed the crime of Prostitution. There is no legal requirement that the People also establish that defendant engaged in sexual conduct with another person for a fee or that defendant offered to engage in such sexual conduct.

Defendant's further argument that the "agreed" language in the accusatory instrument is insufficient in the absence of further details is likewise without merit. See People v Hilo, 4 Misc 3d 132(A) (App Term, 2d Dept).

Defendant's motion to dismiss on facial sufficiency grounds is denied.

This constitutes the decision and order of the Court.

Dated: February 28, 2008___________________________

New York, New YorkJudge of the Criminal Court