Opinion
46682.
October 22, 2009.
Christopher D. Hameline, Esq., Asst. District Attorney of Oneida County, for the People.
Frank Mellace, II, Esq., Attorney for the Defendant.
MEMORANDUM DECISION
The defendant has moved this court by a motion which was filed with the court on July 31, 2009 and which was duly submitted to the court for decision on September 4, 2009 for an order seeking dismissal of the accusatory instrument herein charging Petty Larceny in violation of § 155.25 of the Penal Law for being defective upon its face. The People have opposed said motion by an answering affirmation which was filed with the court and after due deliberation, the court determines the defendant's motion as follows:
The accusatory instrument herein alleging Petty Larceny, which is labeled as an information, states as to the factual allegation regarding an incident occurring on or about the 30th day of October, 2004 at about 2:00 P.M. . as follows:
On Saturday, June 20, 2009 at about 3:45 pm, while at Herb Philipson's located at 300 W. Dominick St in the City of Rome, County of Oneida, State of New York, the said defendant, Daniel A. Metott did unlawfully and with intent to steal property did so when he put on a pair of new Carhartt blue jeans and removed the price tags and put his old pair of jeans on the Lee Women's blue jeans rack.
An accusatory instrument to be valid upon its face within the provisions of CPL § 100.40 would in addition to the requirements of the reasonable cause to believe that the defendant committed the offense charged in the accusatory instrument, also have to establish by, "nonhearsay allegations of the factual part of the information and/or of any supporting depositions" every element of the offense charged and the defendant's commission thereof.
The statutory charge filed against the defendant reads as follows:
§ 155.25 Petty Larceny
A person is guilty of petty larceny when he steals property.
An "information" (charging a misdemeanor or petty offense) must demonstrate "reasonable cause" and be legally sufficient for a prima facie case, a much more demanding standard than what is required for a felony complaint. People vs. Alejandro, 70 N.Y.2nd 133 (1987).
§ 100.15 of the Criminal Procedure Law does require that," The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary nature supporting or tending to support the charges."
A legally sufficient misdemeanor complaint must contain facts of an evidentiary character supporting or tending to support the charges. The facts must provide reasonable cause to believe that the defendant committed the offense charged. The factual allegations may be based upon personal knowledge of the complainant or upon information and belief. In addition, a legally sufficient information must contain nonhearsay allegations establishing, if true, every element of the offense charged and the defendant's commission thereof. An information which fails to satisfy these requirements is jurisdictionally defective (see, CPL 100.40, [4]; 100.15 [3]; People v Alejandro, supra; People v Dumas, 68 NY2d 729). As stressed by the court in People v Alejandro (supra), the unique function that an information serves under the Criminal Procedure Law is the reason the additional showing is required for a prima facie case. Unlike a felony complaint, a defendant can be tried on an information alone. Misdemeanor complaints are not tested by a preliminary hearing or a Grand Jury proceeding. The People are not required to present at any stage before trial actual evidence demonstrating a prima facie case.
So 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 ( see, People v. Casey, 95 N. Y. 2nd 354, 360; People v Jacoby , 304 NY 33, 38-40; People v Knapp , 152 Misc 368, 370, affd 242 App Div 811; People v Shea , 68 Misc 2d 271, 272; see also, People v Allen , 92 NY2d 378, 385; People v Miles , 64 NY2d 731, 732-733).
The Alejandro case actually involved a failure to satisfy the first requirement of CPL 100.40(1)(c), in that there was a total absence of pleading of one of the elements of the crime of Resisting Arrest, i.e., that the defendant had resisted an " authorized" arrest (Penal Law §§ 205.30 [emphasis supplied]; People v Alejandro, supra, at 135-136). As noted in People v. Casey, supra, a defect would be a jurisdictional non-waivable defect, as opposed to the issue as to whether the supporting deposition contains the proper non-hearsay testimony to support the charge. A defect in the supporting deposition, on the other hand, would not have been jurisdictional. People v. Casey, supra.
The disputed issue is whether the accusatory demonstrates the requisite reasonable cause to believe that a person has committed an offense, within the meaning of CPL 70.10(2). Such reasonable cause "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 it. Except as otherwise provided in [the CPL], such apparently reliable evidence may include or consist of hearsay" ( id. ). [1] [2] [3] The "reasonable cause" standard defined in CPL 70.10(2) and referenced in CPL 100.40(4)(b) is, not coincidentally, also the statutory standard for determining whether a person was lawfully arrested ( see CPL 140.10[1]). The Appellate Division 4th Department noted in Fitzpatrick v. Rosenthal , 29 A.D. 3rd 24; leave to appeal denied at 6 N.Y. 3rd 715 (May 11.2006) that reasonable cause is the equivalent of probable cause ( see People v. Maldonado , 86 N.Y.2d 631, 635, 635 N.Y.S.2d 155, 658 N.E.2d 1028; People v. Wharton , 60 A.D.2d 291, 293, 400 N.Y.S.2d 840, affd. 46 N.Y.2d 924. 415 N.Y.S.2d 204. 388 N.E.2d 341, cert. denied 444 U.S. 880, 100 S.Ct. 169, 62 L.Ed.2d 110), the constitutional prerequisite for a lawful arrest. "The constitutional standard for arrest is probable cause, defined in terms of facts and circumstances `sufficient to warrant a prudent [person] in believing that the (suspect) had committed or was committing an offense'"( Gerstein v. Pugh , 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 , quoting Beck v. Ohio , 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142). Where a demonstration of probable or reasonable cause is based on hearsay information, New York courts apply the Aguilar-Spinelli test, requiring that the hearsay affiant establish "that the informant had some basis for the knowledge transmitted and that [the informant] was reliable"(Fitzpatrick v. Rosenthal, supra at p. 28; People v. Bigelow , 66 N.Y.2d 417. 423, 497 N.Y.S.2d 630, 488 N.E.2d 451; see People v. DiFalco , 80 N.Y.2d 693, 696, 594 N.Y.S.2d 679, 610 N.E.2d 352; People v. Johnson , 66 N.Y.2d 398, 402, 497 N.Y.S.2d 618, 488 N.E.2d 439; see generally People v. Davis , 170 Misc.2d 987, 994, 653 N.Y.S.2d 789; People v. Born , 166 Misc.2d 757, 759-761, 634 N.Y.S.2d 915. The Court of Appeals has held that a taking of property in a self-service store context can be established by evidence that a customer exercised control over merchandise wholly inconsistent with the store's continued rights. Quite simply, a customer who crosses the line between the limited right he or she has to deal with merchandise and the store owner's rights may be subject to prosecution for larceny. People v. Olivo, 52 N.Y. 2nd 309 (1981). The face of the information, does provide evidentiary proof that the defendant stole the pants apparently by a trespassory taking in accordance with the standards of the Olivo case. The People have offered facts of an evidentiary character to support their assertion that the defendant wrongfully took, obtained or withheld property from an owner thereof (Penal Law § 155.05 [1]), and the supporting depositions supply information of an evidentiary nature to support the allegations. Accordingly, the defendants' motions to dismiss the accusatory instrument would be in all respects denied. This will constitute the Decision and the Order of the Court.