[*1]
People v Estrict
2016 NY Slip Op 50050(U) [50 Misc 3d 1209(A)]
Decided on January 13, 2016
District Court Of Suffolk County, First District
Wilutis, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through January 21, 2016; it will not be published in the printed Official Reports.


Decided on January 13, 2016
District Court of Suffolk County, First District


People of the State of New York

against

Desmond Estrict, Defendant




2014SU-039635



For the Defendant:
Edward Pshedesky
West Sayville, NY

For the People:
ADA Alexander D. Sylvan
for Thomas J. Spota, District Attorney of the County of Suffolk


Karen M. Wilutis, J.

 

It is, ORDERED that this motion by the defendant to dismiss for insufficiency the within accusatory instruments charging criminal possession of stolen property in the fifth degree (PL §165.40) is denied. It is alleged that the defendant possessed jewelry stolen during the move of personal property and that he pawned same on the day of the alleged theft and on the next day. The defendant argues that three movers were present when the property in question was allegedly stolen and that those persons are not specifically identified by the owner of the property. Said argument is unavailing. The requisite knowledge element in these matters does not relate to the person or persons who stole the property, but rather the defendant's knowledge that the property he allegedly pawned was stolen. It has been held that the knowledge element of PL §165.40 may be demonstrated by circumstantial evidence and that recent exclusive possession of the property in question may give rise to an inference of knowledge that the property is stolen. (See People v. Zorcik, 67 NY2d 670 [1986]; People v. Von Werne, 41 NY2d 584 [1977]). "[F]or pleading purposes, the requisite mental state may be alleged on the basis of a logical implication of the act itself or upon the surrounding circumstances." (People v. Prevete, 10 Misc 3d 78 [App Term 2nd Dept, 9th & 10th Jud Dists 2005] (citations omitted)). Additionally, the moving papers specifically refer to the contents of the defendant's written statement, in which he admits that he "had a bad feeling about the jewelry - that it might be stolen - but pawned it anyway." It has also been held that, "[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, they should be given a fair and not overly restrictive or technical reading." (People v. Casey, 95 NY2d 354 [2000]). The sufficiency standard on a pretrial motion to dismiss does not require proof beyond a reasonable doubt. Questions of fact or potential defenses are matters to be resolved at trial. It is the opinion of this Court that the allegations set forth in the accusatory instruments herein, read in conjunction with their supporting depositions, are sufficient to charge violations of PL §165.40.



Dated: January 13, 2016

J.D.C.