By motion dated July 25, 2013, defendant moves for dismissal of the accusatory instrument charging him with Criminal Trespass in the Third Degree (Penal Law § 140.10), Unlawful Solicitation of Ground Transportation Services At An Airport (Vehicle and Traffic Law § 1220-b) and Trespass (Penal Law § 140.05) on the ground that it is facially insufficient (Criminal Procedure Law §§ 100.15, 210.20). The People have not filed a response. For the reasons stated herein defendant's motion to dismiss is GRANTED. [*2]

To be sufficient on its face, a misdemeanor information must contain non-hearsay factual allegations providing reasonable cause to believe that the defendant committed the offense(s) charged; and which establish, if true, every element of the offense(s) charged (CPL §§ 100.15[3];

100.40[1][b] and [c]. The reasonable cause standard is met by allegations of an evidentiary nature that disclose facts or circumstances which, collectively, bear such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense(s) was committed and that defendant committed it (CPL § 70.10[2]). An information which fails to satisfy this prima facie case requirement is jurisdictionally defective. (CPL §§ 170.30 and 170.35; People v. Alejandro, 70 NY2d 133 [1987]; People v. Dumas, 68 NY3d 729 [1986]).

This court recognizes that a prima facie case requirement is not the same as the burden of proof, beyond a reasonable doubt, required at trial (People v. Henderson, 92 NY2d 677, 680 [1999]).In reviewing an accusatory instrument for facial insufficiency, "[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, [it] should be given a fair and not overly restrictive or technical reading" (People v. Casey, 95 NY2d 354, 360 [2000]; People v Konieczny, 2 NY3d 569 [2004]). Moreover, the Court of Appeals, in People v. Allen (99 NY2d 378, 385 [1998]), held that at the pleading stage, all that is required are factual allegations that are sufficiently evidentiary in character and which tend to support the charges. In assessing the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorable to the People. However, the court is not required to abandon common sense or the significance of the alleged conduct (People v. Gibble, 2 Misc 3d. 510, 512 [Crim Ct. NY County 2003]).

The accusatory instrument alleges, in pertinent part, that the defendant committed the charged offenses on or about February 10, 2013, between 1:10 p.m. and 1:15 p.m., inside of Terminal D, LaGuardia Airport, Queens, New York, under the following circumstances:

Deponent states that at the above date, time and location of occurrence, he observed the defendant, Angel Villalobos, offer ground transportation to arriving airline passengers as a vehicle for hire for a fee to "the city" without permission or authority to do so.

Deponent further states that he is an employee of the Port Authority of New York and New Jersey and the legal custodian of said premise and the defendant does not have permission or authority to enter or remain upon said premise for the purpose of engaging in the business activity of offering ground transportation services in the above described manner.

Deponent further states that a check of official police records kept and maintained in the ordinary course of business within a reasonable time of the event or occurrence reflected therein, indicates that the defendant was previously warned both verbally and in writing on November 4, 2012 by the deponent not to enter or remain in or upon JFK or LaGuardia Airports for the purposes of engaging in the business activity of offering ground transportation services in the above described manner.

Deponent further states that the defendant stated, in sum and substance, "There are other hustlers here. Why are you always catching me?"

A person unlawfully solicits ground transportation services at an airport when, at an airport, such person, without being authorized to do so by the airport operator, or without having made a prior arrangement to provide ground transportation services to a specific patron, engages or offers to engage in any business, trade or commercial transaction involving the rendering to another person of any ground transportation services from such airport (Vehicle and Traffic Law § 1220[b]).

The defendant argues that the allegations contained in the accusatory instrument, in support of the Unlawful Solicitation of Ground Transportation Services At An Airport count are conclusory. I disagree. In this case, the pleadings allege that the deponent both "observed and overheard" the defendant "offer ground transportation to arriving airline passengers" as a vehicle for hire "for a fee." Whereas here, the language quoted above has a plain and unambiguous meaning, I find that it sufficiently apprised the defendant of the conduct at issue, and is detailed enough to prevent the defendant from being tried twice for the same offense (People v. Casey, supra). In this case, merely because the allegations contained in the complaint also mirror an element of the charged offense, does not necessarily negate its inherent evidentiary character.

However, the VTL § 1220-b statute only criminalizes solicitation of ground transportation services at the airport without prior authorization (emphasis added) by the airport operator, or without pre-arranged agreement (emphasis added) to provide such services to a specific passenger. (see People v. Ramirez, 188 Misc 2d 170, 727 NYS2d 599 [Crim Ct. NY Cty, 2001][the statutory exception providing that pre-arranged ground transportation services with private individuals do not violate VTL § 1220-b is woven into the definitional fabric of the statute; and therefore, the People bear the burden of demonstrating its inapplicability to establish a prima facie violation of the charge]). The instant accusatory instrument is completely devoid of any information from which this Court could rationally conclude or infer that the defendant did not pre-arrange to provide ground transportation services to a particular patron. For instance, the accusatory instrument is silent on whether the deponent observed a pattern of conduct wherein defendant approached separate people or groups of people; whether defendant engaged in such conduct one (1) time or repeatedly over a period of time; what, if anything did the defendant say to such arriving passengers; etc. Moreover, the Trespass Notice purportedly served on defendant on some previous date, specifically permits the defendant to enter or remain upon airport property to provide "ground transportation to another person arriving at or departing from JFK and LaGuardia Airports by air travel pursuant to an arrangement made prior to such other person's arrival at Airports."

The Court of Appeals, in People v. Kohut (30 NY2d 183, [(1972]), stated that "[i]f the defining statute contains an exception, the [accusatory instrument] must allege that the crime is not within the exception. But when the exception is found outside the statute, the exception generally is a matter for the defendant to raise in defense" (Id. at 187). The main goal of the interpretive rules governing exceptions and provisos is to discover the intention of the enacting body (People v. Davis, 13 NY3d 17 [2009] ).

In People v. Davis, supra, the defendantwas convicted of violating a New York City Parks and Recreation Department rule that prohibited persons from being in city parks after posted closing times; except that a person may disregard the posted park closing signs upon order by a police officer or designated Department employee. The Information, in Davis, provided only that the defendant was observed in the park after hours and did not state whether a police officer or designated Department employee authorized defendant to disregard the signs and remain in the park after closing. The Court of Appeals determined that the qualifying language in the park rules statute [*4]constitutes a proviso rather than an exception; and as such, the People were not required to establish, at the pleading stage, that defendant had permission to remain in the park after closing with the express authorization from a police officer or Department employee (Id. at 31-32). Conversely, where the statute defining an offense contains an exception, as recognized by the Ramirez Court, supra, the complaint must contain factual allegations which sufficiently negate the exceptions in order to establish each element of the offense (People v. Kohut, supra).

I find the facts in this case distinguishable from those before the Davis Court. Whether or not a police officer or designated park employee granted an accused permission to disregard park closing signs is, in fact, information which only an accused could provide. For example, there is no objective conduct that could lead one to conclude or infer that a defendant was or was not granted such permission. Conversely, the People are in a position to set forth factual allegations from which a reasonable inference may be drawn that no pre-agreement for ground transportation services exists. Much like an accused believed to be engaging in criminal drug sales based on a pattern of discernible conduct recognized by a trained observer, there exists numerous behavioral indicators of a person who engages in unlawful solicitation of ground transportation services from which a court could reasonably infer the lack of such pre-arranged agreement. When the People are in a position to set forth evidentiary facts to negate an exception to the alleged offense, they are required to do so to establish a prima facie case.

This Court, in agreement with the Ramirez Court (188 Misc 2d 170), holds that the People bear the burden of sufficiently negating the pre-agreement exception to the Unlawful Solicitation of Ground Transportation Services statue to establish a prima facie case of the offense charged.

A person is guilty of Criminal Trespass in the Third Degree when he knowingly enters or remains unlawfully in a building or upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders (Penal Law § 140.10[a]). A person is guilty of Trespass when he knowingly enters or remains unlawfully in or upon premises (Penal Law § 140.05).

In accordance with the Trespass Notice served on the defendant, he unequivocally has permission to enter or remain on Airport property for a lawful purpose; including pursuant to a pre-arranged agreement to pick up an arriving passenger prior to such person's arrival. Hence, the Trespass charges, in this case, rise or fall on the sufficiency of the Unlawful Solicitation offense.

For the foregoing reasons, defendant's motion to dismiss the accusatory instrument on ground of facially insufficiency is hereby GRANTED, without prejudice. Sealing is stayed for thirty (30) days to permit the People an opportunity to file a superseding information.

The foregoing constitutes the opinion, decision, and order of the court.

Dated: September 18, 2013

Kew Gardens, New York

ENTER

_______________________________ [*5]

MICHELLE A. ARMSTRONG, J.C.C.