Defendant is charged in an information with one count of Loitering for Prostitution (Penal Law § 240.37 [2]). She has moved for an order dismissing the information for facial insufficiency as well for Constitutional infirmities.

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).

The accusatory instrument in this case provides the defendant with notice that she must defend against a charge that on February 21, 2008, at approximately 1:12a.m., she remained and wandered about 301 Park Avenue for about 20 minutes. During that time she engaged in conversations with three people who were passing by that location. The information further [*2]alleges that this location is frequented by people engaged in prostitution, that defendant was in the street and was not waiting at a bus stop or taxi stand, that the observing officer has effected or assisted in over 80 prostitution arrests and has received specialized instruction in this field from the New York City Police Department. These factual allegations are sufficiently evidentiary in character to satisfy the relevant CPL requirements and the allegations tend to support the Penal Law charge. These allegations establish reasonable cause to believe and a prima facie case that the defendant committed the crime of Loitering for Prostitution. "At the pleading stage, nothing more is required." (People v Allen, supra, at 385).

Accordingly, the defendant's motion to dismiss on facial sufficiency grounds is hereby denied.

Defendant also argues that the information should be dismissed "since it is unconstitutional on its face and as applied and is unconstitutionally vague". Defendant's constitutional arguments concerning the subject statute have been considered and rejected by the Court of Appeals. See People v Smith, 44 NY2d 613 (1978). Defendant argues that the statute is unconstitutional as applied because "the police officer's unfettered discretion based on speculation and innuendo led to a blatantly unlawful arrest". As already noted, the Court of Appeals rejected a vagueness challenge to this statute because it found that the statute did not vest unfettered discretion in the police. Furthermore, the decision to arrest defendant was premised on a number of observable facts combined with the knowledge, training and experience of the police witness. The arrest was not based on "speculation and innuendo".

Defendant's motion to dismiss on constitutional grounds is denied.

This constitutes the decision and order of the Court.

Dated:___________________________

New York, New YorkJudge of the Criminal Court