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

PapersNumbered

Def's n/m with E. Deronn Bowen affirmation in support............................................................... 1

Kenya Wells affirmation in response............................................................................................... 2 [*2]

CPLR£2219 (a)

CPL£§ § 170.30 (1)

CPL£§ 170.40 (1)

CPL£§ § 100.15 (3)

CPL£§ 100.40 (1)

CPL£§ 170.30

CPL£§ 100.40

CPL£§ 100.40 (1)

CPL£§ 170.40 (1)

CPL£§ 170.40 (1)

CPL£§ 170.40 (1)

CPL£§ 170.40 (1)

CPL£§ 170.40 (1)

CPL£§ 170.40 (1)

CPL£§ 170.40 (1)

LYNN R. KOTLER, J.:

The defendant is charged with petit larceny in violation of PL § 155.25 and criminal possession of stolen property in the fifth degree in violation of PL § 140.10 [a]. In an omnibus motion, the defendant now moves to dismiss the information on three separate grounds: [1] because he argues the information is facially insufficient (CPL §§ 170.30 [1] [a]; 100.30); [2] pursuant to Personal Property Law Article 7B and NYC Admin Code § 10-106; and [3] in the interest of justice (CPL § 170.40 [1]; People v. Clayton, 41 AD2d 204 [2d Dept 1973]). Although the People have submitted a response to the defendant's motion, this response does not actually address the defendant's requests for relief in this motion.

The motion is decided by the Court as follows.

The information

Police Officer David Bernstein states that he is informed by Sergeant David Cuce ("informant") that informant observed Police officer Joseph Nebbia place a bag containing a laptop worth approximately $110 on the sidewalk in front of 152 Ludlow Street, New York, New York on April 30, 2011 at about 00:50 hours. PO Bernstein is further informed by informant that informant observed the defendant:

(i) walk over to the bag, pick it up and walk away; (ii) hold the bag close to his body; (iii) walk by a marked police car without attempting to return said property; and (iv) open said bag and look inside.

PO Bernstein is further informed by informant that informant stopped defendant and informant recovered the bag containing the laptop.

Facial insufficiency

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 (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 defendant argues that the information is facially insufficient because it does not satisfy the pleading requirements of CPL § 100.40 insofar as the People have not sufficiently alleged every element of the offenses charged. With respect to the charge of petit larceny, the defendant argues that the complaint fails to allege the prerequisite scienter.

Under PL § 155.25, "[a] person is guilty of petit larceny when he steals property." "A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof" (PL § 155.05 [1]). Further, a person "appropriates" the property of another by "exercis[ing] control over it ... permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit" (PL § 155.00 [4]).

As the defendant correctly argues, the accusatory instrument does not allege any facts which would tend to support the element of PL § 155.25 that the defendant intended to deprive another of the bag with the laptop in it. For example, the information is silent as to how long the defendant walked with the bag, whether the bag contained any indications or markings as to whether it belonged to someone else or if it was just simply discarded. Under PL § 155.00 [4], the defendant must have allegedly exercised control over the bag "permanently or for so extended a period or under such circumstances as to acquire the major portion of its benefit." The facts alleged in this information simply do not support the charge (CPL § 100.40 [1] [a-c]; see also People v. Dumas, 68 NY2d 729 [1986]).

Accordingly, the charge of petit larceny is hereby dismissed for facial insufficiency. [*3]

Based upon the same reasoning, the charge of criminal possession of stolen property also fails. Under PL § 165.40 "[a] person is guilty of criminal possession of stolen property in the fifth degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof." Here, the People have failed to allege facts of sufficient evidentiary character which would show that the defendant knew that he possessed stolen property, insofar as the Court has already found that the petit larceny charge is facially insufficient. Therefore, the PL § 165.40 must also be dismissed as facially insufficient.

Even though the Court finds that the accusatory instrument is facially insufficient, it will still reach the defendant's alternative requests for relief.

Motion to dismiss pursuant to Personal Property Law Article 7B and NYC Admin Code § 10-106

The defendant argues in the alternative that the accusatory instrument should be dismissed pursuant to NY Personal Property Law Article 7B and NYC Admin Code § 10-106. The People have not actually addressed this argument at all in their response.

NY Personal Property Law Article 7B § 252 [1] provides as follows:

[A]ny person who finds lost property of the value of twenty dollars or more or comes into possession of property of the value of twenty dollars or more with knowledge that it is lost property or found property shall, within ten days after the finding or acquisition of possession thereof, either return it to the owner or report such finding or acquisition of possession and deposit such property in a police station or police headquarters of the city where the finding occurred or possession was acquired...

NYC Admin Code § 10-106 provides that anyone "who finds any lost money or property of or exceeding the value of ten dollars shall report such finding to and deposit such money or property in a police station house within ten days after the finding thereof."

The defendant argues that his arrest was premature and violated both of these laws because he was arrested in much less time than the ten day grace period provided for under either of these laws. The defendant also points out that while the NY Personal Property Law provides that found property be returned either to the owner or "a police station or police headquarters", and the NYC Admin Code provides the found property be returned to "a police station house", neither of these laws mandates that the defendant deliver found property to a marked NYPD police car, like the defendant is alleged to have walked past while holding the bag which contained the laptop.

Nonetheless, the defendant's arguments are unclear and non-specific as to what power he would have this Court rely on by dismissing this case pursuant to either of these laws. The defendant has failed to identify any provision under the CPL that authorizes this request for relief. Certainly, the prosecution of this defendant is not preempted by either NY Personal Property Law Article 7B or NYC Admin Code § 10-106. Further, neither of these statutes contains a mechanism which [*4]authorizes this particular Court to grant the type of relief that this defendant seeks. This is not a court of unlimited original jurisdiction.

Accordingly, this branch of the defendant's motion is denied.

Clayton motion

The Court has the discretion to dismiss in the interest of justice even when there is no basis for such dismissal as a matter of law. Under CPL § 170.40 (1), "when, even though there may be no basis for dismissal as a matter of law . . . such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant . . . would constitute or result in injustice."

A dismissal in the interests of justice involves a sensitive balance between the individual and the State (People v Clayton, 41 AD2d 204 [2d Dept 1973]). Dismissal in furtherance of justice should be "exercised sparingly" and only in the rare case where there is a "compelling factor" which clearly demonstrates that continued prosecution would be an injustice (People v. MR, 43 AD3d 1188 [2d Dept 2007]; see also People v. Belge, 41 NY2d 60, 62-63 [1976]; People v. Sherman, 35 AD3d 768 [2d Dept 2006]).

A motion to dismiss in the interest of justice should not be used as a substitute for a trial or when the motion merely raises a trial defense (People v Rahmen, 302 AD2d 408 [2d Dept 2003]; People v Lagnese, 236 AD2d 629 [2d Dept 1997]; People v Prunty, 101 Misc 2d 163 [Crim Ct NY Co 1979]).

The statute sets forth ten factors to be considered when determining a motion, pursuant to CPL § 170.40 (1). The factors are as follows:

(a) the seriousness and circumstances of the offense;

(b) the extent of harm caused by the offense;

(c) the evidence of guilt, whether admissible or inadmissible at trial;

(d) the history, character and condition of the defendant;

(e) any exceptionally serious misconduct of law enforcement personnel in the

investigation, arrest and prosecution of the defendant;

(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

(g) the impact of dismissal upon the safety and welfare of the community; [*5]

(h) the impact of dismissal upon the confidence of the public in the criminal justice system;

(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;

(j) any other relevant fact indicating that a judgment of conviction would have no useful purpose.

When decided a motion to dismiss in the interest of justice, it is not necessary to discuss every factor under CPL § 170.40 (1) in a certain order or to weigh each of the factors equally. Rather, the Court must consider the factors individually and collectively (People v Rickert, 58 NY2d 122, 128 [1983]; see also People v. Gragert, 1 Misc 3d 646 [NYC Crim Ct, NY Co 2003]).

As to the seriousness and circumstances of the specific offense occasioned by the offense (CPL § 170.40 [1] [a]) as alleged in the accusatory instrument, this is not the type of offense that is likely to occur repeatedly. Rather, as the allegations suggest, this is the type of bait and sting operation as was seen in People v. Arroyo (12 Misc 3d 1003 [NYC Crim Ct, NY Co 2006]), which the Hon. Matthew Sciarrino, Jr. of the New York City Criminal Court described as "Operation Lucky Bag."

In that case, the defendant Antonio Arroyo was charged with PL § 155.25 and PL § 165.40 after the police had intentionally left an unattended bag on the subway platform which contained an Xbox video game box, a camouflage-print Sprint cellular phone, and cash. After some time, Arroyo took the bag and walked away with it, passing two uniformed police officers. The People contended a commuter told the defendant to turn the property in to the transit authorities, to which the defendant reportedly replied "I'll take my chances." Soon thereafter, while still on the subway platform, the defendant was arrested.

In Arroyo, that defendant also moved to dismiss in the interests of justice. Judge Sciarrino, Jr. granted that motion. An excerpt from his well-reasoned decision follows:

"Operation Lucky Bag" can be viewed as an unfair enticement to commit crime. In order to further fairness and justice, the circumstances at hand compel the court to dismiss all charges against the defendant.

The police should concentrate their noble efforts on behalf of the city on countering real crimes committed every day. They do not need to manipulate a situation where temptation may overcome even people who would normally never think of committing a crime.

This Court agrees with Judge Sciarrino. Further, it is this Court's opinion that the defendant is not likely to repeat the alleged offense given the very improbable chance that the circumstances under [*6]which the defendant is alleged to have found himself at the time he was arrested are not likely to occur again.

As to the extent of the harm caused by the alleged offense (CPL § 170.40 [1] [b]), given that this is a bait and sting operation, there was no real harm caused by this defendant's actions. Arguably, the prosecution of this case does send a message to society, but the exact nature of that message is not entirely clear, even to this Court. Today, we live in a world where real threats, like terrorism, exist. Here, the accusatory instrument alleges that an unmarked bag was left unattended on a street late at night. NYC has an anti-terrorism "If You See Something, Say Something" campaign (http://www.mta.info/mta/security/

, last accessed on 12/15/2011) encouraging New Yorkers to report suspicious activity to the proper authorities. Moreover, although the Court cannot dismiss this case pursuant to NY Personal Property Law Article 7B and NYC Admin Code § 10-106, it bears noting that prosecuting this defendant for not turning over the bag to the NYPD police car, which may not have even had officers in it, is inconsistent with the statutory obligations mandated by our legislature (see infra).

Additionally, dismissal of these charges has no discernible impact on the safety or welfare of the community or the confidence of the public in the criminal justice system (CPL § 170.40 [1] [g] and [1] [h]). Finally, under the CPL § 170.40 (1) (j) catch-all, the Court finds that the charges should be dismissed because they simply do not serve any useful purpose to society

and are inherently unfair.

For all these reasons, the Court must also dismiss this case in the interests of justice.

Conclusion

In accordance herewith, it is hereby:

ORDERED that the defendant's motion is granted only to the following extent: the accusatory instrument is dismissed because it is facially insufficient, and alternatively, in the interests of justice; and it is further

ORDERED that the accusatory instrument, docket number 2011NY031743, is hereby dismissed; and it is further

ORDERED that the defendant's motion is otherwise denied

Any requested relief not expressly addressed by the Court has nonetheless been considered and is hereby denied.

The foregoing is the decision and order of the Court.

Dated:December 15, 2011So Ordered:

New York, New York

______________________

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