Criminal Court of the City of New York, New York County, February 22, 2018

Law Office of Miller & Miller (Andrew R. Miller of counsel) for defendant.

Cyrus R. Vance, Jr., District Attorney (Garrett Baldwin of counsel), for plaintiff.

The defendant, Manuel Perez, is charged with one count of fraudulent accosting, Penal Law § 165.30, one count of criminal possession of stolen property in the fifth degree, Penal Law § 165.40, and one count of petit larceny, Penal Law § 155.25. The defendant moves for dismissal of the information as facially insufficient pursuant to CPL 170.30 (1) (a) and 170.35 (1) (a), as well as for other relief. For the reasons stated below, the defendant's motion to dismiss is granted.

Facial Sufficiency in General

An accusatory instrument is a non-waivable jurisdictional prerequisite to a criminal prosecution. (People v Case, 42 NY2d 98, 99 [1977].) An information is sufficient on its face when the three requirements enumerated in CPL 100.40 (1) are met: first, the information must substantially conform to the formal requirements of CPL 100.15 (CPL 100.40 [1] [a]); second, the factual allegations and any supporting depositions must "provide reasonable cause to believe that the defendant committed the offense charged" (CPL 100.40 [1] [b]); and third, the nonhearsay allegations, if true, must establish every element of the offense charged and the defendant's commission thereof (CPL 100.15 [3]; 100.40 [1] [c]; see People v Dumas, 68 NY2d 729 [1986]; see also People v Alejandro, 70 NY2d 133 [1987]).

" '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 [the offense]" {**60 Misc 3d at 179}(CPL 70.10 [2]).

Mere conclusory allegations will render the instrument defective (People v Dumas, 68 NY2d 729 [1986]).

A court reviewing for facial sufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from them (People v Jackson, 18 NY3d 738, 741 [2012]; see CPL 100.40 [1] [c]). [*2]Further, "[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 [and] technical reading" (People v Casey, 95 NY2d 354, 360 [2000]).

The Accusatory Instrument

The factual portion of this accusatory instrument, sworn by the deponent officer Anthony Assent, states that on September 6, 2017, at 333 Avenue of the Americas, at about 6:29 p.m.:

"I am informed by undercover police officer 084, that the defendant approached him and stated in substance 'Are you waiting for someone? Do you want one bag for sixty or two for one hundred?' I am further informed by undercover police officer 084 that the undercover then gave the defendant $60 for a bag containing what appeared to be cocaine. The undercover believed it was cocaine based on his professional training as a police officer, experience making drug arrests and his observation of the substance, which was a white powder and packaged in a small clear plastic bag.

"I know that the substance is not cocaine based on a field test I conducted that tested negative for the presence of cocaine. From my training and experience, I know that the defendant's actions are of a kind commonly used to defraud people of money through trick or swindle. I am a custodian of the $60 and defendant did not have permission or authority to take or possess the money."

Discussion

The defendant contends that the factual portion of the information is insufficient to establish the charges alleged by the People. Penal Law § 165.30 (1) provides that "[a] person is guilty of fraudulent accosting when he accosts a person in a public place with intent to defraud him of money or other property{**60 Misc 3d at 180} by means of a trick, swindle or confidence game." "It is well settled that the specific intent to defraud may be established by circumstantial evidence, and may be implied from defendant's conduct and/or surrounding circumstances." (People v Watts, 35 Misc 3d 1230[A], 2012 NY Slip Op 50957[U], *2 [Crim Ct, NY County 2012]; see People v White, 101 AD2d 1037, 1039 [2d Dept 1984]; People v Carey, 103 AD2d 934 [3d Dept 1984]; People v Ford, 88 AD2d 859, 861 [1st Dept 1982]; People v Mellish, 4 Misc 3d 1013[A], 2004 NY Slip Op 50869[U] [Crim Ct, NY County 2004].)

In the instant matter, the People fail to make out the requisite intent necessary to sufficiently establish the offenses charged—petit larceny, criminal possession of stolen property and fraudulent accosting. The complaint is devoid of any allegations that would suggest to a satisfactory degree of reasonableness that the defendant intended to commit any of the crimes charged in the information. In considering the sufficiency of an information, while intent may be inferred from the facts and circumstances pleaded in the information, there must be sufficient nonhearsay facts pleaded which would allow a reasonable inference regarding the defendant's intention to be drawn (see People v Oldham, 54 Misc 3d 303 [Crim Ct, NY County 2016]).

The factual portion of the instant complaint fails to suggest anything more sinister or criminal than an exchange of a powdery item for money. The recitation neglects to allege sufficient facts to infer that the transaction was criminal in nature and permit one to reasonably exclude that a legal transaction had taken place. For instance, the information is void of any allegations that the sale took place in a drug prone location as opposed to an open-air market [*3]with vendors seeking to sell their goods. There are no allegations the defendant used common street sale terminology for the sale of drugs as compared to words that would suggest that the substance was anything other than a type of flour, powder or other legal substance. As the defendant argues, there is nothing in the complaint that would allow a reasonable person to assume that the defendant was selling anything other than a bag of powder. The assertion that based on the undercover's experience, the substance happens to appear similar to cocaine, without any further corroboration, is insufficient.

Moreover, the People failed to plead any facts from which this court could infer that the intent of the defendant was to{**60 Misc 3d at 181} defraud the complainant officer, an essential element of Penal Law § 165.30. In this regard, the failure to sufficiently plead the charge of fraudulent accosting, Penal Law § 165.30, results in a similar deficiency as to the charges of petit larceny, Penal Law § 155.25, and possession of stolen property, Penal Law § 165.40. Penal Law § 155.25 states that "[a] person is guilty of petit larceny when he steals property." Penal Law § 165.40 provides that "[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."

As discussed above, since the information fails to allege sufficient facts to support the underlying charge of fraudulent accosting, in that the defendant intended to defraud the undercover officer by selling him what he thought was cocaine, those same facts are insufficient to establish that the defendant committed the crimes of petit larceny and possession of stolen property in the fifth degree. This court finds that the information fails to adequately allege facts supporting any offense for which defendant may have been arrested. The entirety of the information is jurisdictionally defective.

Accordingly, for the foregoing reasons, the defendant's motion to dismiss on grounds of facial insufficiency is granted in its entirety.