In an accusatory instrument filed on October 18, 2011, the defendant, Christian Gonzalez, is charged with violating 21 NYCRR 1050.4(c), Payment of Fare and Access to Authority Facilities. Defendant Gonzalez now moves for: (1) dismissal for the instant matter on the grounds that the complaint filed against him is facially insufficient; (2) precluding the People from introducing at trial any evidence of defendant's prior convictions or bad acts should the accusatory instrument not be dismissed; and (3) such additional relief as the Court deems just and proper.

In determining the instant motion, this Court has considered the Defendant's moving papers dated April 16, 2012; the People's opposing papers dated May 24, 2012; and papers on file with the Court.

The following is the decision and order of the Court.

I.Statement of facts

A review of the Court's file indicates that the defendant was arrested on October 18, 2011 by a New York City Police Officer inside the East 161st Street and River Avenue Subway Station, Bronx County, New York. According to the Accusatory Instrument, it is alleged that the Police Officer gave the defendant "two (2) dollars United States Currency and in exchange defendant swiped his metro-card" allowing the Police Officer through the turnstile. See [*2]Complaint. Defendant was arraigned on October 18, 2011 in Bronx County Criminal Court, AR-3 and charged with violating 21 NYCRR §1050.4(c), Payment of Fare and Access to Authority Facilities, a violation under New York State Law.

II.Motion to Dismiss the Accusatory Instrument for Facial Insufficiency

The defendant moves for dismissal of the accusatory instrument for facial insufficiency pursuant to NY C.P.L. §§100.40, 170.30, and 170.35. Additionally, the defendant moves to preclude the People from filing a superseding complaint on the grounds that more than 30 days have elapsed since the defendant's arraignment and therefore are time barred pursuant to NY C.P.L. §30.30(1)(d).

In relevant part, the complaint in this matter states:

Deponent states that, at the above time and place, a subway station, defendant approached deponent and stated in sum and substance: DO YOU NEED A SWIPE. IT'S TWO DOLLARS.

Deponent further states that she gave the defendant two (2) dollars United States Currency and in exchange defendant swiped his metro-card through through [sic] the computerized turnstile at which point deponent entered beyond the turnstile to the [sic] which is an area enclosed by the turnstile and gates in a manner designed to exclude those who do not pay the required fare.

Deponent states that she is a New York City Police Officer and as such is a lawful custodian of the above location and that the defendant is not an employee of the New York City Transit Authority and the defendant did not have permission or authority to allow anyone access to the subway system in exchange for a sum of United States Currency.

See Complaint.

It is well-settled law that, in order to be facially sufficient, an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged, as well as contain non-hearsay allegations that establish, if true, every element of the crime/s charged. NY C.P.L. §§100.15(3) and 100.40(1)(b)(c); People v Dumas, 68 NY2d 729, 497 N.E.2d 686 (1986) Further, an accusatory instrument must establish reasonable cause to believe that the defendant committed the crimes charged. Id. Lastly, in determining whether an accusatory instrument is facially sufficient, a 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." People v. Barona, 862 N.Y.S.2d 816, 2008 NY Slip Op. 50814 (U) (Crim Ct NY Co 2008).

These well-settled principles are not in dispute. Instead, the defendant alleges that the accusatory instrument, as written, is facially insufficient because it fails to set forth the type of MetroCard the defendant is alleged to have used. See Defendant's Notice of Motion dated April 16, 2012 at ¶10. The defendant contends that such information is necessary for conversion since 21 NYCRR §1050.4(c), does not criminalize providing swipes on a Pay-Per-Ride MetroCard. Id. The People oppose the defendant's motion to dismiss, arguing that the statute criminalizes any unauthorized sale of a MetroCard and further states that the accusatory [*3]instrument, as written, is facially sufficient. See People's Affirmation dated May 24, 2012 at 3-4.

This Court agrees with the People's position and finds that the plain reading of 21 NYCRR §1050.4(c) contradicts the defendants assertions and instead criminalizes the unauthorized sale of any MetroCard, regardless of whether it is a Pay-Per-Ride MetroCard or an Unlimited MetroCard. Specifically, 21 NYCRR §1050.4(c) provides, in relevant part:

Except for employees of the [New York City Transit Authority "NYCTA"] acting within the scope of their employment or other expressly authorized agents ... no person shall sell, copy, reproduce, or create any version of any fare media or otherwise authorize access to or use of the facilities, conveyances or services of the [NYCTA] without ... written permission.

21 NYCRR §1050.4(c) (emphasis supplied).

New York rules of statutory construction require that "if the legislative intent is clear no attempt at construction should or will be made, and that rules of construction for a statute are to be invoked only where its language leaves its purpose and intent uncertain." McKinney's Cons Laws of NY, Book 1, Statutes sec. 76. As such, the New York Court of Appeals has repeatedly held that courts should confine their attention to the plain reading of a statute where there is no ambiguity contained within. See eg Zaldin v. Concord Hotel, 48 NY2d 107, 113, 421 N.Y.S.2d 858 (1979)(where a statute is free from ambiguity, a court must apply the language as written); Kamhi v. Planning Board of Yorktown, 59 NY2d 385, 465 N.Y.S.2d 865 (1983) (same); Riegert Apartments Corp v. Planning Bd of Clarkstown, 57 NY2d 206, 455 N.Y.S.2d 558 (1982)(same).

In the statute at issue before the court, the language clearly criminalizes the sale of any MetroCard and does not differentiate between Pay-Per-Ride MetroCards and Unlimited MetroCards. 21 NYCRR §1050.4(c). Here, the accusatory instrument alleges that the defendant offered to sell, and did in fact sell, access to the New York City subway system in exchange for United States Currency, without permission from the NYCTA. See Complaint. As such, because the accusatory instrument in the instant matter, when viewed in the light most favorable to the People, establishes, if true, each of the elements of the crime charged, it is therefore facially sufficient. See Barona, 19 Misc 3d 1122(A), 862 N.Y.S.2d 816.

This interpretation is consistent with the case law that has addressed 21 NYCRR §1050.4(c) in various contexts. Specifically, the Court of Appeals in People v. Smith reversed the dismissal of an accusatory instrument and reinstated the charges against several defendants on facts almost identical to the instant case. See People v. Smith, 100 NY2d 571, 764 N.Y.S.2d 381 (2003). Although the Smith decisiondealt with the constitutionality of the statute on the grounds of vagueness, its findings are still applicable to the instant case. In Smith, the defendants were charged in an accusatory instrument with "accepting money to swipe' a farecard to allow commuters through a turnstile into New York City's subway system." Id. at 573. In finding that the accusatory instrument was not unconstitutionally vague and should be re-instated, the court held that the "defendants — who were observed swiping others into the subway system for money never entering themselves — clearly violated the purpose and plain language of the rule." Id. Notably, the Court did not require the type of MetroCard used by the defendants to be articulated in the accusatory instrument in order to sustain the charges. Id. Similarly, in a decision that held that the unauthorized sale of a MetroCard did not constitute the crime of Petit Larceny, the Court of Appeals most recently stated in People v. Hightower that 21 NYCRR §1050.4(c) makes it "illegal for a person who is not authorized by the NYCTA to sell access to its services to do so." 18 NY3d 249, FN2; 938 N.Y.S.2d 500 (2011). Again, the Court [*4]did not differentiate between Pay-Per-Ride MetroCards and Unlimited MetroCards. Id. Lastly, also in the context of finding that the actions of selling swipes did not constitute the crime of Petit Larceny, the Court in People v. Dingle, stated that "the sale of a full-fare Pay-Per-Ride MetroCard may support charges of loitering and illegal access to transit authority facilities." 20 Misc 3d 379, 381, 857 N.Y.S.2d 904, 906 (Crim Court NY Co 2008). To the extent that the defendant contends that People v. Harris, which is cited in People v. Verastegui, makes a distinction between Unlimited and Pay-Per-Ride MetroCards, this Court declines to follow this unreported and non-binding decision. See Defendant's Motion at ¶10. It should be noted that the defendant in Verastegui did not challenge the legal sufficiency of the charge pertaining to 21 NYCRR 1054(c), but instead sought to dismiss the Petit Larceny and related charges. Verastegui, 8 Misc 3d 1026(a), FN1, 806 N.Y.S.2d 447 (Crim Ct Kings Co 2005). In any event, the court in Verastegui distinguished the Harris decision in that it expressly states that the Harris court dismissed the Petit Larceny charge because there was no factual allegation in the accusatory instrument regarding the illegality of the defendant's conduct, since the People failed to address whether the defendant received compensation for swiping others into the NYCTA subway system. Id. at 4-5. In the case at bar, such language is clearly contained in the accusatory instrument. See Complaint.

Accordingly, the defendant's motion to dismiss the complaint on the grounds of facial insufficiency is denied. Additionally, since the accusatory instrument is facially sufficient the defendant's motion pursuant to NY C.P.L. §30.30(1)(d) is now rendered moot as the People were converted and announced ready at the defendant's arraignment.

III.Motion Pursuant to Ventimiglia and Sandoval

The defendant moves to preclude the People from introducing at trial any evidence of Mr. Gonzalez's prior convictions or bad acts. That portion of defendant's request is denied, as premature, with leave to renew.

It is ordered, however, pursuant to NY C.P.L. §240.43, immediately prior to the commencement of the trial in this matter, the prosecutor shall notify the defendant of all specific instances of a defendant's prior uncharged criminal, vicious or immoral conduct of which the prosecutor has knowledge and which the prosecutor intends to use at trial either on its direct case or for purposes of impeaching the credibility of the defendant. Thereafter, defendant may renew its motion to preclude such evidence at trial, as appropriate.

This constitutes the Decision and Order of the Court.

Dated: June 12, 2012

SO ORDERED:

_________________________

HON. GIA L. MORRIS