New Yorkers have become as familiar with the sight of intercity buses departing from the shadows of the Manhattan Bridge as they are with the area's fish markets and fruit stalls. The Chinatown bus business emerged in the 1990s to offer recent immigrants an inexpensive ride around town (see Buses, The Chinatown Express, Economist, Oct. 25, 2007). In the ensuing decades, the old vans ferrying restaurant workers back and forth from Queens have evolved into modern motorcoaches transporting tourists from as far away as Queensland. Where ticket hawkers once shouted "Boston — Ten Dollars" as crowds fought to get a free seat on a rickety bus, plans to build a state-of-the-art terminal to rival the Port Authority are gradually unfolding (see Saki Knafo, Dreams and Desperation on Forsyth Street, New York Times, June 8, 2008, section CY, at 1).

Defendant is charged with fraudulent accosting for selling tickets to a crowd of Chinatown customers, increasingly angered by the absence of a bus. This court previously rendered an oral decision granting defendant's motion to dismiss for facial insufficiency. This opinion serves to explain the basis for the court's prior ruling.

The information alleges that on March 23, 2008, at about 9.30 p.m., on Forsyth Street between East Broadway and Division Streets in Manhattan, defendant, observed selling bus tickets to Philadelphia, was surrounded by a group of approximately 75 to100 people who were stating, "We want our money back. We have been waiting here for three hours. There are no buses." Responding "No refunds," defendant continued selling tickets to additional passengers. According to the accusatory instrument, "there were no buses present."

In order to be sufficient on its face, an information must provide reasonable cause to [*2]believe that the defendant has committed the crime charged and contain nonhearsay allegations that, if true, establish every element of the crime and its commission by the defendant (see CPL 100.40 [1] [b], [c]). 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 of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10 [2]). In assessing the facial sufficiency of an information, the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged.

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 trick, swindle or confidence game" (Penal Law § 165.30 [1]). Fraudulent accosting is in essence "a theft offense aimed primarily at confidence artists who prey upon the gullible" (Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 165.30). Although the statute proscribes three distinct types of chicanery,^[FN1] the gravamen of the offense is fraud. In the absence of evidence of fraudulent intent, a charge of fraudulent accosting cannot be sustained.

Intent, of course, involves the internal workings of the mind and is therefore incapable of direct proof in the absence of an express declaration by the perpetrator or admission by the defendant. Typically, intent must "be inferred from the act itself . . . [or] from the defendant's conduct and the surrounding circumstances" (People v Bracey, 41 NY2d 296, 301 [1977] [internal quotation marks and citations omitted]; see also People v Smith, 79 NY2d 309, 315 [1992]).

Here, the allegations fail to provide reasonable cause to believe that defendant acted with intent to defraud by means of a trick, swindle or confidence game. There is simply nothing in the complaint to support the conclusion that defendant was engaged in any type of scam. Rather, the only inference reasonably drawn from the facts alleged is that defendant, engaged in the lawful sale of bus tickets, merely refused to offer a refund to passengers dissatisfied with their long wait for a very late bus (see People v Casey, 95 NY2d 354, 360 [2000] [allegations of an information "should be given a fair and not overly restrictive or technical reading"]). After all, even after rejecting his customers' demands for their money back, defendant remained on the scene and continued to sell additional tickets. To be sure, that "there were no buses present" demonstrates that no bus had yet arrived when defendant was arrested. But conduct equally compatible with guilt or innocence cannot supply reasonable cause (see People v Carrasquillo, 54 NY2d 248, 254 [1981]). In the absence of an allegation, or reason to believe, that the [*3]promised bus never existed, the information establishes only that defendant's business model was unreceptive to customer complaints.

Accordingly, defendant's motion to dismiss must be granted.^[FN2]