Recitation, as required by CPLR 2219 [a], of the papers considered in the review of this (these) motion(s): [*2]

PapersNumbered

Def's n/m, AG affirm 1

ED affirm in opp 2

LYNN R. KOTLER, J.:

The defendant is charged with trademark counterfeiting in the third degree in violation of PL § 165.71 and failure to disclose origin of a recording in the second degree in violation of PL § 275.35. He now moves to dismiss the information for facial insufficiency. The People oppose the motion. For the reasons that follow, the motion is granted.

To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged (CPL §§ 100.15[3]; 100.40[1][b]; 70.10). These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses charged (CPL § 100.40[1][c]). An information which fails to satisfy these requirements is jurisdictionally defective (CPL § 170.30 and § 170.35; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d 729 [1986]).

In reviewing an accusatory instrument for facial sufficiency, "[s]o 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 ...," the court should give it "a fair and not overly restrictive or technical reading" (People v. Casey, 95 NY2d 354, 360 [2000]). Moreover, the Court of Appeals has held that at the pleading stage, all that is needed is that the factual allegations are sufficiently evidentiary in character and tend to support the charges (People v Allen, 92 NY2d 378, 385 [1998]).

The information alleges that on June 16, 2011 at 16:15 hours in front of 2676 7th Avenue, New York, New York, the defendant was observed by Police Officer Ray Fuller displaying and offering for sale approximately one hundred and forty movie digital video discs ("DVDs"). PO Fuller states that he saw the defendant standing for approximately five minutes immediately behind a bag on the ground and the above-described merchandise was offered for sale thereon and inside said bag. PO Fuller states that the defendant was the only person who [*3]was uninterruptedly in the immediate proximity to the merchandise unprotected during the entire period of his observation. PO Fuller also saw two people approach the defendant, examine the DVDs and engage in conversation with the defendant.

PO Fuller is informed by Bonnie Peters ("informant"), an authorized representative of the Motion Picture Association of America, that based upon informant's training and experience,

the DVDs fail to disclose the origin of their recordings when said discs bear the following traits: (i) the discs are in DVD-R format as opposed to replicated, (ii) the titles have not been released in DVD format, (iii) the discs do not contain a title, (iv) the discs do not contain a region code, (v) the discs do not contain a studio logo, (vi) the package artwork is photocopied, and (vii) the discs do not contain identifiable origination numbers (IFPI).

PO Fuller examined the DVDs and states that the DVDs seized from the defendant do in fact bear the following traits, contain recorded video, and fail to disclose the origins of their recordings. Finally, PO Fuller is informed by informant that the trademarks "are in use and registered."

The People have also provided an affidavit signed by the informant, which indicates that "Paramount, Dreamworks and Warner Brothers state that the trademark is currently in use and registered at the United States Patent Trademark Office in Washington D.C. This affidavit is valid unless revoked or superseded in writing."

The defendant moves to dismiss the trademark counterfeiting charge, arguing that the information fails to describe the trademarks in question, and relatedly, to allege that the counterfeit trademarks are identical with, or substantially indistinguishable from, the genuine trademarks. The defendant also moves to dismiss the the failure to disclose origin of a recording charge, arguing that the people have failed to allege the necessary elements with respect thereto as well. The People's opposition to this motion consists of one paragraph which does not substantively address any of the defendant's arguments raised in this motion.

Discussion

Trademark Counterfeiting in the Third Degree

Under PL § 165.71, a person is guilty of trademark counterfeiting in the third degree when, with the intent to deceive or defraud some other person or with the intent to evade a lawful restriction on the sale, resale, offering for sale, or distribution of goods, he or she manufactures, distributes, sells, or offers for sale goods which bear a counterfeit trademark, or possesses a trademark knowing it to be counterfeit for the purpose of affixing it to any goods.

Under PL § 165.70 (1), a trademark is defined as any word, name, symbol, or [*4]device, or any combination thereof adopted and used by a person to identify goods made by a person and which distinguish them from those manufactured or sold by others which is in use and which is registered, filed or recorded under the laws of this state or of any other state or is registered in the principal register of the United States patent and trademark office. By virtue of the definition of a trademark, the People must allege as a necessary element of PL § 165.71 that the genuine trademark in relation to the counterfeit mark is active and duly registered (People v. Wu Cheng, 4 Misc 3d 377, 379 [Crim Ct, NY Co 2004]). The term "counterfeit trademark" is defined under PL § 165.70 (2) as "a spurious trademark or an imitation of a trademark that is: (a) used in connection with trafficking in goods; and (b) used in connection with the sale, offering for sale or distribution of goods that are identical with or substantially indistinguishable from a trademark as defined in subdivision one of this section."

Even when viewing the factual allegations in a light most favorable to the People, the complaint is facially insufficient. There is no description of the genuine trademarks contained on the DVDs in the accusatory instrument. There is no description of the counterfeit trademarks or any comparison of them to the genuine trademarks. These are all necessary elements and their absence is fatal to the sufficiency of this accusatory instrument (see also People v. Chen, 30 Misc 3d 1205(A) [Dist Ct. Nass Ct 2011]; People v. Jobe, 20 Misc 3d 1114(A); cf. People v. Guan, 2003 WL 21169478 [App Term 1st Dept 2003]). Simply stating that the defendant was selling 140 DVDs is not enough to establish trademark counterfeiting in the third degree.

Accordingly, the first count, PL § 165.71, is hereby severed and dismissed.

Failure to Disclose Origin of a Recording

Under PL § 265.35, a person is guilty of failure to disclose origin of a recording in the second degree when:

for commercial advantage or private financial gain, he knowingly advertises or offers for sale, resale, or rental, or sells, resells, or rents, or possesses for such purposes, a recording the cover, box, jacket or label does not clearly and conspicuously disclose the actual name and address of the manufacturer or the name of the performer or principal artist. The omission of the actual name and address of the manufacturer, or the omission of the name of the performer or principal artist, or the omission of both, shall constitute the failure to disclose the origin of a recording.

The Court has reviewed the accusatory instrument, and also finds that the second count is facially insufficient. The accusatory instrument lists seven factors identified by the informant, and upon which PO Fuller relied when he examined the DVDs and based his determination that the defendant failed to disclosed the origins of the DVDs' recordings. Those [*5]criteria are repeated below:

the discs are in DVD-R format as opposed to replicated

the titles have not been released in DVD format

the discs do not contain a title

the discs do not contain a region code

the discs do not contain a studio logo

the package artwork is photocopied

the discs do not contain identifiable origination numbers

To sustain the charge of PL § 265.35, the People must allege that the DVDs' cover, box or label did not clearly and conspicuously disclose the actual name and address of the manufacturer or the name of the performer or principal artist. None of the factors identified by the informant and relied upon by PO Fuller relate to either of these necessary elements of PL § 265.35. Otherwise, the complaint is conclusory as to this count and does not contain any facts which would support the charge. Therefore, this count is also facially insufficient and must be dismissed.

Conclusion

In accordance herewith, it is hereby:

ORDERED that the defendant's motion to dismiss for facial insufficiency is granted and the information contained in docket number 2011NY048610 is hereby dismissed.

Any requests for relief not expressly addressed herein have nonetheless been considered and are hereby expressly denied.

This constitutes the decision and order of the Court.

Dated:December 7, 2011So Ordered:

New York, New York

______________________

Hon. Lynn R. Kotler, J.C.C.