Opinion
570300/17
01-07-2022
The People of the State of New York, Respondent, v. Mamadou Ba, Defendant-Appellant.
Unpublished Opinion
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Lyle E. Frank, J.), rendered April 27, 2017, convicting him, upon a plea of guilty, of unlicensed general vending, and sentencing him to a $500 fine and $250 surcharge.
PRESENT: Edmead, P.J., McShan, Silvera, JJ.
PER CURIAM.
Judgment of conviction (Lyle E. Frank, J.), rendered April 27, 2017, modified, as a matter of discretion in the interest of justice, to reduce the $250 surcharge to $200, and otherwise affirmed.
Since defendant waived prosecution by information, the accusatory instrument is assessed under the reasonable cause standard applicable to a misdemeanor complaint (see People v Dumay, 23 N.Y.3d 518, 522 [2014]). So viewed, the misdemeanor complaint was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant engaged in unlicensed general vending (see Administrative Code of City of NY § 20-453), the offense to which defendant ultimately pleaded guilty. The instrument recited that the arresting officer observed defendant standing for approximately five minutes on the corner of Avenue of the Americas and West 48th Street, next to a handcart that had a blanket covering approximately 20 handbags; that defendant handed two different females a handbag from the handcart and then pointed to additional handbags; that the females examined the handbag; that the defendant was the only person who was uninterruptedly in immediate proximity to the merchandise, which he never left unattended; and that defendant did not have a license issued by the Department of Consumer Affairs. Based on these allegations, a factfinder could reasonably infer that defendant engaged in the conduct required for acting as a general vendor (see People v Kasse, 22 N.Y.3d 1142 [2014]; People v Abdurraheem, 94 A.D.3d 569 [2012], lv denied 19 N.Y.3d 970 [2012]).
Defendant's challenge to the legal sufficiency of the third-degree trademark counterfeiting charge contained in the accusatory instrument is unavailing, since he is not aggrieved by alleged defects in a charge of which he was not convicted (see People v Ruiz, 146 A.D.3d 417 [2017] , lv denied 28 N.Y.3d 1188 [2017]).
We perceive no basis for reducing the fine. Defendant received the precise sentence for which he had bargained, which was within the permissible statutory range (see Administrative Code of City of NY § 20-472).
The court, however, improperly imposed a mandatory surcharge and crime victim assistance fee in the sum of $250. Penal Law § 60.35[1][a][ii] imposes a mandatory surcharge of $175 and a crime victim assistance fee of $25 upon defendants convicted of a misdemeanor. We therefore modify to reduce the $250 surcharge to $200 (see People v Dugger, 161 A.D.2d 283 [1990], lv denied 76 N.Y.2d 855 [1990]).
All concur