Criminal Court of the City of New York, Bronx County, July 12, 2022

The Legal Aid Society (Chrystalia King of counsel) for defendant.

Darcel D. Clark, District Attorney (Phillip Elon Waknin of counsel), for plaintiff.

The People have filed an information against Mr. N.R. containing six counts, all of which arise out of the same incident. The defense now moves to dismiss each count as facially insufficient. The motion to dismiss the count charging fifth-degree criminal possession of stolen property for facial insufficiency is granted. The motions to dismiss the remaining counts for facial insufficiency are denied.

An information is facially sufficient only if it contains nonhearsay evidentiary factual allegations that, if true, establish "every element" of the charged offenses. (CPL 100.40 [1] [c]; People v Sumter, 151 AD3d 556, 558 [1st Dept 2017] [rejecting the dissent's argument that not "every element" must be established for an information to be facially sufficient]; see also CPL 30.30 [5-a].) This standard—also called a "prima facie case"—is "necessary because of the 'unique function that an information serves under the [Criminal Procedure Law].' " (People v Parsons, 69 Misc 3d 11, 14 [App Term, 1st Dept 2020], quoting People v Alejandro, 70 NY2d 133, 137 [1987].) Unlike an indictment, which requires support "by legally sufficient evidence before the Grand Jury," an information is an accusatory instrument for which "the People need not, at any time prior to trial, present actual evidence demonstrating a prima facie{**76 Misc 3d at 392} case." (Alejandro, 70 NY2d at 137-138 [citations and internal quotation marks omitted].)

Still, this standard does not require that the information allege facts proving the accused person's guilt beyond a reasonable doubt. (People v Jennings, 69 NY2d 103, 115 [1986].) Moreover, a court reviewing for facial sufficiency must apply a "fair and not overly restrictive or technical reading" to the information. (People v Casey, 95 NY2d 354, 360 [2000].) The court must also assume that all allegations are true and consider all reasonable inferences that may be drawn from them. (See CPL 100.40, 100.15.)

Upon review, the court concludes that the information does not provide sufficient allegations that, if true, would establish every element of fifth-degree criminal possession of stolen property. However, the court concludes that the information provides sufficient [*2]allegations to establish each of the other charged offenses.

I. The Information

The information in this case reads:

"Deponent states that [on or about September 2, 2021, at approximately 4:54 a.m. in front of 2185 Grand Avenue], he observed a . . . Ford Van . . . with distinctive damage to the front end of said vehicle, while on a public roadway.

"Deponent is informed by defendant's own statement that defendant was operating the above-mentioned vehicle, in that, when [sic] defendant stated in sum and substance 'Yes I was driving.'

"Deponent further states that he observed defendant to have slurred speech, bloodshot watery eyes, and an [sic] light odor of an alcoholic beverage emanating from defendant's breath, and to be unsteady on defendant's feet.

"Deponent further states that defendant stated in sum and substance 'I had 6 Modelos. We were at the deli. We were drinking and headed this way.'

"Deponent further states that deponent was present for the administration of a chemical test analysis of defendant's breath and that defendant's blood alcohol content as displayed on the breath analysis machine was .20 of one per centum by{**76 Misc 3d at 393} weight.

"Deponent is informed by informant . . . that, informant is the lawful custodian of the abovementioned vehicle and informant did not give defendant permission or authority to operate, exercise control over, ride in, or otherwise use said vehicle." (Information at 1-2.)

The information charges six counts: fifth-degree criminal possession of stolen property (Penal Law § 165.40); third-degree unauthorized use of a motor vehicle (Penal Law § 165.05 [1]); three versions of operating a motor vehicle while intoxicated (Vehicle and Traffic Law § 1192 [2-a] [a]; [3], [2]); and operating a motor vehicle while impaired (Vehicle and Traffic Law § 1192 [1]).

II. Fifth-Degree Criminal Possession of Stolen Property

Penal Law § 165.40 defines fifth-degree criminal possession of stolen property as containing four necessary elements. Those elements are that a person: (1) knowingly; (2) possesses property; (3) that is stolen; (4) with the intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof. (Penal Law § 165.40.) Therefore, two "essential elements" of the offense are that the property "was stolen by someone" and that the accused person "knew the property was stolen." (People v Ortega, 57 Misc 3d 151[A], 2017 NY Slip Op 51540[U], *1 [App Term, 1st Dept 2017]; accord People v Brissett, 62 Misc 3d 149[A], 2019 NY Slip Op 50271[U], *2-3 [App Term, 2d Dept, 2d, 11th &13th Jud Dists 2019] [stating the same].)

Accordingly, Appellate Terms in both the First and Second Departments have held that it is not sufficient to simply allege that the accused person possessed property and that the "lawful custodian" of that property never gave the person "permission or authority to possess or exercise control over said property." (Ortega, 57 Misc 3d 151[A], 2017 NY Slip Op 51540[U], *1; accord Brissett, 62 Misc 3d 149[A], 2019 NY Slip Op 50271[U], *2-3 [stating the same].) Alone, these two allegations do not establish that the property was stolen or that the accused person knew it was stolen. (Ortega, 57 Misc 3d 151[A], 2017 NY Slip Op 51540[U], *1; accord Brissett, 62 Misc 3d 149[A], 2019 NY Slip Op 50271[U], *2-3 [stating the same].)

To be sure, "[k]nowledge that property is stolen may be shown circumstantially." (Brissett, 62 Misc 3d 149[A], 2019 NY Slip Op 50271[U], *2-3.) For instance, the People may establish {**76 Misc 3d at 394}such knowledge "by evidence of recent exclusive possession, defendant's conduct or contradictory statements from which guilt may be inferred." (2019 NY Slip Op 50271[U], *3 [internal quotation marks omitted].) That is because "the [*3]unexplained or falsely explained recent exclusive possession of the fruits of a crime" allows a "permissible inference that defendant knew the property was stolen." (Id. [internal quotation marks omitted].) In addition, there are other allegations that could establish a circumstantial case that a person knew that property was stolen. For instance, if a vehicle's "ignition locks are damaged," then a person may reasonably know a vehicle is stolen. (Matter of John R., 229 AD2d 442, 443 [2d Dept 1996].) Or where a person flees from police, along with other circumstances, a "reasonable inference" may be drawn that a person knows the property they possess is stolen. (Id.) The universe of possible allegations from which the People may pull to establish knowing possession of stolen property is large.

However, as the Appellate Terms have explained, "absent . . . allegation[s]" that "circumstantially" establish knowledge, whether through a "time frame" or other facts, then the element of knowing possession is not sufficiently alleged. (Brissett, 62 Misc 3d 149[A], 2019 NY Slip Op 50271[U], *2-3; see also Ortega, 57 Misc 3d 151[A], 2017 NY Slip Op 51540[U], *1 [finding that mere possession and lack of permission were insufficient].)

Of course, Brissett and Ortega did not involve motor vehicles—they involved a bicycle and a laptop, respectively. Accordingly, the court considers whether a case involving a motor vehicle, like this one, would trigger a different rule. After all, there is a statutory presumption that a person who "takes, operates, exercises control over, rides in or otherwise uses a vehicle" is "presumed to know" that he does not have "consent" to do so. (Penal Law § 165.05 [1].) This is a presumption in the section of the Penal Law criminalizing unauthorized use of a motor vehicle. The question is therefore whether that presumption, on its own, establishes a prima facie case that a person knew that a vehicle was stolen.

In reviewing the case law, the court concludes that, just like with any other property, appellate courts hold that a person knew a vehicle was stolen only when there are specific factual circumstances that support the inference. (Compare John R., 229 AD2d at 443-444, and People v Burnett, 149 AD2d 717, 718-719 [2d Dept 1989], withPeople v Zorcik, 67 NY2d 670,{**76 Misc 3d at 395} 671 [1986], and People v Cintron, 95 NY2d 329, 332-333 [2000].) Indeed, appellate courts have analyzed circumstantial cases of knowledge for criminal possession of stolen property separate from the unauthorized-use presumption. (See e.g. Burnett, 149 AD2d at 718-719; Matter of Jashua A., 50 AD3d 528, 529 [1st Dept 2008] ["The evidence established the knowledge element of the possessory crimes by application of the inference drawn from recent, exclusive, unexplained possession, and also established the corresponding element of unauthorized use of a vehicle by application of the statutory presumption" (citation omitted)].) And courts have found unauthorized-use charges legally sufficient where they also found stolen-property possession charges legally insufficient for lack of evidence establishing that the person knew the vehicle was stolen. (See e.g. id.; John R., 229 AD2d at 443-444; People v Cullen, 138 AD2d 501, 501-503 [2d Dept 1988].) Therefore, the court concludes that motor vehicles should not trigger a different rule than any other stolen-property possession charge.

[1] Here, there are no specific circumstances alleged to establish that Mr. N.R. knew the property he allegedly possessed was stolen. Instead, just like in Brissett and Ortega, the information only alleges that he possessed the property and that the property's "lawful custodian" did not give him permission to possess it. The information does not allege evidence of recent exclusive possession. (See Brissett, 62 Misc 3d 149[A], 2019 NY Slip Op 50271[U], *2-3.) Indeed, it fails to allege when the property was stolen (and fails to allege that the property was stolen at all), and so it fails to establish a "time frame" under which "recent" exclusive possession could be established. (See 2019 NY Slip Op 50271[U], *3.) [*4]It also fails to allege that Mr. N.R. gave "contradictory" or otherwise suspicious explanations for the possession. (See id.) It fails to allege any damage to the locks, doors, or windows consistent with a stolen vehicle. And it fails to allege that Mr. N.R. fled from police or behaved in any other way that suggested he knew that the property was stolen.

In defending the purported facial sufficiency of this charge, the People make several allegations in their motion response that are not contained within the information. In accordance with fundamental facial sufficiency principles, the court refuses to consider these allegations. An information "must set forth the required nonhearsay evidentiary allegations within 'the four corners of the instrument itself.' " (People v Thomas, 4{**76 Misc 3d at 396}NY3d 143, 146 [2005], quoting Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 100.10 at 330; see also People v Hardy, 35 NY3d 466, 475 [2020] ["(I)n evaluating the sufficiency of an accusatory instrument we do not look beyond its four corners"]; People v Gibbs, 50 Misc 3d 1202[A], 2015 NY Slip Op 51856[U], *2 [Crim Ct, Bronx County 2015] ["Those allegations, however, do not appear in the accusatory instrument and cannot be considered for purposes of facial sufficiency"]; People v Lloret, 48 Misc 3d 829 [Crim Ct, Bronx County 2015] [noting that allegations solely in the People's motion papers cannot be considered for facial sufficiency]; People v Nwogu, 22 Misc 3d 201, 205-206 [Crim Ct, Queens County 2008] ["The new facts contained in the People's opposition, . . . and not contained in the information, cannot be considered in deciding this motion and thus do not cure any of the information's jurisdictional defects"].)

For the foregoing reasons, the court concludes that the count charging fifth-degree criminal possession of stolen property is facially insufficient.

III. Driving while Intoxicated or Impaired

[2] The defense argues that the information does not sufficiently allege that Mr. N.R. operated a motor vehicle, but there is no merit to this contention. To be sure, operating a motor vehicle is an essential element of the Vehicle and Traffic Law § 1192 charges. But the information alleges that an officer observed Mr. N.R. at the same time and place as a vehicle on a public roadway and that he said, "Yes I was driving." (Information at 1-2.) This establishes operation. (See e.g. People v Esposito, 33 NY3d 1016 [2019]; People v Dolan, 1 Misc 3d 32 [App Term, 1st Dept 2003].)

IV. Unauthorized Use of a Motor Vehicle

The defense similarly argues that the information does not allege that Mr. N.R. was "ever inside the damaged vehicle." (Defendant's mot at 9.) There is no merit to this contention, either. The information alleges that an officer observed Mr. N.R. at the same time and place as a vehicle on a public roadway and that he said, "Yes I was driving." (Information at 1-2.) This establishes use of the vehicle. (See e.g. Matter of Michael P., 165 AD2d 651 [1st Dept 1990].)

The motion to dismiss the count charging fifth-degree criminal possession of stolen property for facial insufficiency is{**76 Misc 3d at 397} granted. The motions to dismiss the remaining counts for facial insufficiency are denied.