Defendant, charged with Attempted Criminal Possession of Stolen Property in the Fifth Degree (Penal Law §§ 110/165.40), moves to dismiss the Information for facial insufficiency, and to suppress certain evidence. For the reasons discussed below, the Court DENIES the motion to dismiss and GRANTS the motion to suppress to the extent of ordering a Dunaway/Wade/Huntley hearing.^[FN1]

I. FACTUAL BACKGROUND

A. The Allegations

On May 28, 2013, an undercover police officer entered a store located at 154 East 109th Street, in Manhattan, and offered to sell the defendant a laptop computer. He told the defendant that he had a "laptop that was taken from college that I want to sell to make money." Defendant gave the undercover $10 in exchange for the laptop, which was in fact property belonging to the New York City Police Department.

B. Legal Proceedings

On May 29, 2013, defendant was arraigned on a Misdemeanor Complaint charging him with Attempted Criminal Possession of Stolen Property in the Fifth Degree (Penal Law §§ 110/165.40), and was released on his own recognizance.

The Court adjourned the case to July 10, 2013, for corroboration. On that date, the People filed the necessary Supporting Deposition, which converted the Misdemeanor Complaint into an Information. Defendant filed the instant motion to dismiss on August 15, 2013, and the People filed their response on November 18, 2013.

[*2]II. DISCUSSION

Defendant argues that the Information does not sufficiently allege facts from which it can be reasonably inferred that he knew that the laptop he purchased from the undercover was stolen. The Court disagrees.

A. Facial Sufficiency in General.

To be facially sufficient, an accusatory instrument must contain non-hearsay allegations providing reasonable cause to believe that the People can prove every element of the crime charged. CPL § 100.40(1)(a)-(c). See also People v Dumas, 68 NY2d 729 (1986); People v Alejandro, 70 NY2d 133 (1988); People v McDermott, 69 NY2d 889 (1987); People v Case, 42 NY2d 98 (1977). 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).

This standard does not require that the instrument allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115 (1986). Rather, the instrument need only contain allegations of fact that 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. People v Casey, 95 NY2d 354, 360 (2000). A court reviewing for facial insufficiency must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747 (2012). See also Casey, 95 NY2d at 360. Under these standards, the Information here is facially sufficient.

B. The Information

Because this motion challenges the facial sufficiency of the Information, the entirety of the factual recitation of the Misdemeanor Complaint,^[FN2] which was sworn out by Police Officer Dariusz Glasnapp, is reproduced here:

I am informed by undercover officer #28876, of the 23rd Precinct, that he entered the store [located at 154 East 109 Street] and offered to sell the defendant a laptop. I am informed that the undercover officer stated in substance to the defendant, "I have a laptop that was taken from college that I want to sell to make money."

I am further informed that the undercover officer observed the defendant hand him $10 in exchange for the laptop, which is property of the New York Police Department.

As a member of the New York Police Department, I am a custodian of the laptop, and the defendant did not have permission or authority to possess the laptop.

Under Penal Law § 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 the owner thereof or to impede the recovery by an owner thereof." While this section requires that the property actually be stolen, the Court of Appeals has long recognized that a person can be convicted of Attempted Criminal Possession of Stolen Property where he believes that the property was stolen, even if, in fact, it was not. People v. Zaborski, 59 NY2d 863, 865 (1983). A defendant's knowledge that property was stolen can be established by circumstantial evidence. People v. Reisman, 29 NY2d 278, 285-86 (1971).

Here, the parties dispute the meaning of the undercover's statement that the laptop was one that was "taken from college that I want to sell to make money." To the defendant, this statement suggests that "the laptop belonged to the undercover officer, who used it while in college, but now wanted to sell it to make money." To the People, this statement does not "suggest that the laptop was an old college computer. On the contrary, the word taken' suggests that the laptop was removed from somewhere without permission." For the purposes of facial insufficiency review, at least, the People are correct.

There is a reasonable inference that defendant understood the undercover's words to mean that the laptop had been stolen, and not that it was his own, particularly since he did not actually refer to it as his laptop. In addition, there is a second fact that supports the conclusion that the defendant believed the laptop was stolen: the bargain-basement price for which the undercover sold it. That defendant was able to purchase a laptop computer for a mere $10 is additional circumstantial evidence that he understood that was purchasing something with a less-than-sterling provenance.

Whether the People can prove their case beyond a reasonable doubt at trial remains to be seen. But for pleading purposes, the allegations in the Information are, on their face, sufficient. The motion to dismiss is accordingly denied.

III. CONCLUSION

For the foregoing reasons, defendant's motion to dismiss to is denied. His motion to suppress evidence is granted to the extent of ordering a Dunaway/Wade/Huntley hearing.

This constitutes the Decision and Order of the court.

Dated: January 15, 2014 _______________________

New York County, New YorkSteven M. Statsinger

Judge of the Criminal Court