The defendant, Lai Lee, is charged with one count of Petit Larceny (PL §155.25), along with one count of Criminal Possession of Stolen Property in the Fifth Degree (PL §165.40) and has filed a motion seeking dismissal of the complaint as facially insufficient.

In order to be facially sufficient, an information must substantially conform to the formal requirements of CPL §100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish 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]). "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])

The requirement of nonhearsay allegations has been described as a "much more demanding standard" than a showing of reasonable cause alone (People v Alejandro, 70 NY2d at 138, quoting 1968 Report of Temp Comm on Rev of Penal Law and Crim Code, Intro Comments); however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt (People v Henderson, 92 NY2d 677, 680 [1999]; People v Hyde, 302 AD2d [*2]101, [1st Dept 2003]). Thus, "[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefore be sufficiently alleged" (People v Sylla, 7 Misc 3d 8, 10 [2d Dept 2005]). Finally, 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" (People v Casey, 95 NY2d 354, 390 [2000]; see also People v Konieczny, 2 NY3d 569 [2004]; People v Jacoby, 304 NY 33, 38-40 [1952]; People v Knapp, 152 Misc 368, 370 [1934], affd 242 App Div 811; People v Allen, 92 NY2d 378, 385 [1998]; People v Miles, 64 NY2d 731, 732-733 [1984]; People v Shea, 68 Misc 2d 271, 272 [1971]; People v Scott, 2005 NY Slip Op 25179 [Crim Ct, NY County [2005]).

In the case at bar, the factual allegations state that:

Store Detective Lauryna Petrauskiene observed the defendant inside the above named store and remove one (1) handbag, one (1) pair of tights and one (1) jacket from a rack and conceal one (1) handbag, one (1) pair of tights and one (1) jacket by placing said items inside defendant's bag and then Store Detective Lauryna Petrauskiene observed the defendant walk past more than one open register and move to another floor in the store in possession of the property and without paying for it. Thereafter, defendant was stopped and Store Detective Lauryna Petrauskiene recovered said items, valued at $944.00, from defendant's bag, property which belonged to the above named store and for which the defendant had no receipt.

Store Detective Lauryna Petrauskiene is a custodian of said property and defendant did not have permission or authority to take or possess the property.

As stated, the defendant in this matter is charged with one count of violating PL §155.25, Petit Larceny, and one count of violating PL §165.40, Criminal Possession of Stolen Property in the Fifth Degree. A person is guilty of Petit Larceny when he or she steals property. (PL §155.25). "A person steals property . . . when, with intent to deprive another of property or to appropriate the same to himself . . .,[he or she] wrongfully takes, obtains or withholds such property from an owner thereof." (PL §155.05[1]). To support the offense charged, "there must be a taking or severance of the goods from the possession of the owner" by depriving ownership or by appropriation. (People v. Alamo, Jr., 34 NY2d 453, 457 [1974]; see also, CPL §155.00[2]). A person deprives an owner of property by withholding it or causing it to be withheld permanently or for some extended period. (CPL §155.00[3]) A person appropriates property of another by exercising control over it permanently or for some extended period. (CPL §155.00[4]).

Defendant contends the complaint is facially insufficient because it fails to allege nonhearsay factual allegations, which, if true, support every element of the crimes charged. Defendant's argument is two-fold. First, defendant argues the allegations that she placed items in a bag, without a description of the type of bag fails to support the charge, inasmuch as, it fails to establish a concealment. Second, defendant argues the allegations that she moved within the store with the items fails to support that she exercised dominion and control wholly inconsistent [*3]with the continued rights of the owner, inasmuch as, the alleged facts fail to establish larcenous conduct supporting the allegation that she did not intend to pay for the items, such as her walking towards the exit or other conduct inconsistent with the continued rights of the owner.

In support of her contention, the defendant relies upon two post-trial decisions, People v Parrett, (90 Misc 2d 541 [Dist Ct Nassau Co 1977]) and People v. Olivio, 52 NY2d 309 [1981]. In Parrett, the defendant was stopped at the top of an escalator after allegedly being observed placing two items in her handbag on the main floor of the store. The court held that until a defendant left the premises there was no proof that the defendant committed larceny, since there was no proof that defendant intended to deprive the owner of the property. (Id at 543). Accordingly, defendant argues that since she did not leave the premises the complaint fails to support that she intended to deprive the owner of the property.

In People v. Olivio, 52 NY2d 309, the Court of Appeals held that a person caught with goods while still inside a store may be convicted of larceny for shoplifting where it is established that he or she exercised dominion and control wholly inconsistent with the rights of the owner, and other elements of the crime are present. (Id at 319). The Olivio court set forth factors that would support a finding that a defendant exercised dominion and control inconsistent with the rights of the owner. These factors include (1) whether the defendant conceals the merchandise in a way deemed an exercise of dominion and control inconsistent with the owner's continued rights, (2) whether there is evidence of larcenous behavior, (3) the proximity to or movement towards one of the exits, (4) possession of secreted goods a few steps from the door or moving in that direction, and (5) possession of a known shoplifting device actually used to conceal merchandise, such as specially designed outer garment or a false bottom carrying case.

It is a sad commentary on our merchandising structure that some large store owners deem it necessary to sequester patrons by floor, requiring that transactions be completed on one floor before traveling to a second floor. These retailers seem oblivious to the clear inconvenience occasioned by causing visits to multiple checkout lines on multiple floors of an establishment where desired accessorizing apparel are distributed throughout the many floors of the store.

This hyper security, which complicates intra-store commerce also presents challenges to the store owner's related claims in a charged crime such as Petit Larceny. The question of when a "taking" has occurred is a primary consideration in evaluating the facial sufficiency of claims supported by non-specific behavior.

The German novelist, poet and scientist, Johann Wolfgang von Goethe (1749-1832) wrote "Behavior is a mirror in which every one displays his image". The image or behavior of a defendant who does not attempt to leave store premises or conceal merchandise in a manner which exercises dominion and control to the exclusion of the owner creates in the first instance, an unacceptable ambiguity when only non-specific behavior is alleged, which does not on it's face rise to the level of a "taking".

If such behavior does not on it's face rise to the level of a "taking" then a defendants insufficiency argument must be seriously considered.

Applying the Olivio factors to the present case, the court finds the allegations fail to provide sufficient facts to support that the defendant exercised dominion and control inconsistent with the owner's continued rights by placing the merchandise in a bag. Other than the accusation [*4]that the defendant placed items in a bag, the allegations fail to provide some other conduct to support the claim that defendant's actions were consistent with that of a shoplifter. (See, Olivio at 319). As stated in Olivio, a shoplifter, unlike customers with implied consent to possess merchandise while shopping, treats merchandise in a manner inconsistent with the implied rights granted to consumers, so much so that the unusual behavior by the defendant would allow the trier of facts to find a taking. (Olivio at 318, see generally, People v. Day, 280 AD 253, 254 [3rd Dept. 1952]; [Stating that a "self-serve store invites the customer both to come on the premises and to take physical possession of merchandise..."]). Although, the items were placed in a "bag" dominion and control is not established since the placement of the merchandise in a bag is not by definition "concealment" . The allegations fail to allege facts, such as the description of the bag or that the security tags were removed, that support the items were concealed or detached from the owner. (See, People v. Alamo, supra, at 457-458); [Stating that mere movement of an item merely tends to support the idea of control and "not necessarily the actions needed to gain possession and control..."])

Given the environmental or Earth movement, as well as the sale by various stores of "earth bags" or "recyclable bags" the placement of items in a bag is becoming common place to the average shopper. Therefore, the placement of an item in "a bag" without more, fails to support a concealment or detachment.

Proof of larcenous behavior and intent can be supported with additional conduct, such as the removal of garment security devices (see, People v. Rembert, 149 Misc 2d 16, 17-18 citing People v. Harrison, 50 NY 518, 523 [1872],[Possession remains with the owner where there remains some physical connection to the property]), or whether the bag was of a type typically used to conceal merchandise, such as a false bottom carrying case or a "booster" bag. (see, People v. Banister, 13 Misc 3d 764, 765 [Crim. Ct. NY Co. 2006]; [Identified a "Booster bag" as an altered shopping bag lined with gray electrical tape utilized to steal merchandise to which security devices are affixed in that the electrical tape prevents store theft detectors from sensing security devices inside the bag.]).

Accordingly, the allegations fail to establish conduct inconsistent with a customer's implied rights while shopping. There is no claim of an abridgement of the shopper's right to free movement asserted here. The allegations do not assert there existed signage preventing customers from moving items from one floor to another floor or decreeing that items must be purchased on the level where displayed. Furthermore, unlike the defendants in Olivio, who were in proximity to or moving toward the exits, Ms. Lee is alleged to have been moving toward a second floor escalator when she was apprehended. The court takes judicial notice that unless a notice to the contrary is posted, the alleged behavior of moving items within a department store is common, inasmuch as, department store customers commonly wait until all shopping or browsing is complete to make a final purchase. For the reasons set forth, defendant's motion to dismiss the accusatory instrument as facially insufficient is granted.

This constitutes the decision and order of the court.

Dated: July 2, 2009_________________________ [*5]

New York, New YorkMarc J. Whiten, JCC