Opinion
570147/14
12-22-2017
The PEOPLE of the State of New York, Respondent, v. Marvin DRELICH, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, Criminal Appeals Bureau, New York City (Susan Epstein of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York City (Rebecca Hausner of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, Criminal Appeals Bureau, New York City (Susan Epstein of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York City (Rebecca Hausner of counsel), for respondent.
PRESENT: Schoenfeld, J.P., Ling–Cohan, Gonzalez, JJ.
Per Curiam. Judgment of conviction (Ann E. Scherzer, J.), rendered January 8, 2014, reversed, on the law, accusatory instrument dismissed, and surcharge and fees remitted.
The accusatory instrument was jurisdictionally defective, since the misdemeanor complaint and supporting deposition failed to allege "facts of an evidentiary character" ( CPL 100.15[3] ) demonstrating "reasonable cause" to believe ( CPL 100.40[4][b] ) that defendant was guilty of patronizing a prostitute in the third degree (see Penal Law § 230.04 ), the sole charge contained therein. The single-sentence, conclusory, factual allegation that, at 2:25 a.m. on October 17, 2013, at a particular street location, "defendant offered [a police officer] $15 in exchange for manual stimulation," is insufficient to establish the "sexual conduct" element of the charged crime (see Penal Law § 230.02[1][b][c] ; Penal Law § 130.00[10] ), inasmuch as the term "manual stimulation," without more, is reasonably susceptible to non-sexual conduct (see People v. Sidarah , 41 Misc.3d 17, 973 N.Y.S.2d 517 [App. Term, 1st Dept. 2013] ; see also People v. Pashkoff , 53 Misc 3d 151[A], 2016 N.Y. Slip Op. 51696[U], 2016 WL 7007808 [App. Term, 1st Dept. 2016] ; compare People v. Saleh , 40 Misc.3d 1211[A], 2013 N.Y. Slip Op. 51152[U], 2013 WL 3586689 [Crim. Ct., Bronx County 2013] [defendant asked the officer "to engage in sexual conduct to wit oral sex in exchange for giving (the officer) $15.00 U.S. currency"]; People v. Bah , 180 Misc.2d 39, 688 N.Y.S.2d 397 [Crim. Ct., New York County 1999] [defendant "agreed to engage in sexual conduct with the informant, which was ... sexual intercourse ..., for $30.00 U.S. Currency"]; People v. Kenrick , 162 Misc.2d 75, 615 N.Y.S.2d 859 [Crim. Ct., New York County 1994] [defendant asked the officer to "engage in sexual conduct, to wit; intercourse, with him in return for $10.00 in U.S. currency").
The dissent fails to distinguish People v. Sidarah , 41 Misc.3d 17, 973 N.Y.S.2d 517 or People v. Pashkoff , 53 Misc.3d 151(A), 48 N.Y.S.3d 267, which both clearly support dismissal in this case.
In view of the foregoing, we reach no other issue.
Hon. Lizbeth Gonzalez, Dissenting Opinion.
I respectfully dissent.
A person is guilty of the misdemeanor of patronizing a prostitute in the third degree (see Penal Law § 230.04 ) when "[h]e or she solicits or requests another person to engage in sexual conduct with him or her in return for a fee" ( Penal Law § 230.02[1][c] ). The underlying accusatory instrument recites that, on October 17, 2013 "at about 2:25 a.m., on the south west corner of Bethune Street & Greenwich Street," defendant offered a female "$15 in exchange for manual stimulation." Giving these allegations "a fair and not overly restrictive or technical reading" ( People v. Casey , 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ), and "drawing reasonable inferences from all the facts set forth in the accusatory instrument" ( People v. Jackson , 18 N.Y.3d 738, 747, 944 N.Y.S.2d 715, 967 N.E.2d 1160 [2012] ), the factfinder could certainly infer that when defendant offered the female money in return for "manual stimulation"—in the middle of the night on a West Village street corner—he did so with the desire and expectation of sexual conduct.
The defendant's strained argument the "manual stimulation" he sought could refer to a "foot rub, therapeutic massage, chiropractic adjustment, personal training—even an energetic match of thumb wrestling"—fails "as a matter of common sense and reasonable pleading" ( People v. Davis , 13 N.Y.3d 17, 31, 884 N.Y.S.2d 665, 912 N.E.2d 1044 [2009] ). Here, the test for determining the facial sufficiency of the accusatory instrument is not obviated by positing innocent behaviors that purportedly fall within the ambit of "manual stimulation." The prima facie case requirement of an information is not the same as the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial (see People v. Smalls , 26 N.Y.3d 1064, 1066, 44 N.E.3d 209 [2015] ). Since the factual allegations contained in the instrument give defendant notice sufficient to prepare a defense and are adequately detailed to prevent him from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (see People v. Casey , 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 ). Any challenge to these allegations, including defendant's contention that he was seeking a therapeutic massage or a thumb wrestling opponent when he requested manual stimulation, was a matter to be raised as an evidentiary defense to the charge, not by insistence that the instrument was jurisdictionally defective (see People v. Konieczny , 2 N.Y.3d 569, 577, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.