Opinion
XXXXX
07-12-2022
The PEOPLE of the State of New York v. N.R., Defendant.
For the People: Darcel Clark, District Attorney of Bronx County (by Phillip Elon Waknin) For Mr. N.R.: The Legal Aid Society (by Chrystalia King)
For the People: Darcel Clark, District Attorney of Bronx County (by Phillip Elon Waknin)
For Mr. N.R.: The Legal Aid Society (by Chrystalia King)
Wanda L. Licitra, J. 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.
THE LEGAL STANDARD FOR FACIAL SUFFICIENCY
An information is facially sufficient only if it contains non-hearsay evidentiary factual allegations that, if true, establish "every element" of the charged offenses. C.P.L. § 100.40(1)(c) ; People v. Sumter , 151 A.D.3d 556, 558, 58 N.Y.S.3d 304 (1st Dep't 2017) (rejecting the dissent's argument that not "every element" must be established for an information to be facially sufficient); see also C.P.L. § 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, 133 N.Y.S.3d 723 (1st Dep't App. Term 2020) (quoting People v. Alejandro , 70 N.Y.2d 133, 137, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987) ). Unlike an indictment, which requires support "by legally sufficient evidence before a 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 case." Alejandro , 70 N.Y.2d at 137-38, 517 N.Y.S.2d 927, 511 N.E.2d 71 (internal citations 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 N.Y.2d 103, 115, 512 N.Y.S.2d 652, 504 N.E.2d 1079 (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 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000). The court must also assume that all allegations are true and consider all reasonable inferences that may be drawn from them. See C.P.L. §§ 100.40 ; 100.15.
THE MOTIONS TO DISMISS FOR FACIAL INSUFFICIENCY
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 allegations to establish each of the other charged offenses.
I. The information
The information in this case reads that:
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
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, P.L. § 165.40; third-degree unauthorized use of a motor vehicle, P.L. § 165.05(1); three versions of operating a motor vehicle while intoxicated, V.T.L. §§ 1192(2-a)(a), 1192(3), and 1192(2); and operating a motor vehicle while impaired, V.T.L. § 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. P.L. § 165.40. Therefore, two "essential elements" of the offense are that the property "was stolen by someone" and that the accused person "knew that the property was stolen." People v. Ortega , 57 Misc. 3d 151(A), at *1, 2017 WL 5490905 (1st Dep't App. Term 2017) ; accord People v. Brissett , 62 Misc. 3d 149(A), at *2-*3, 2019 WL 1177788 (2d Dep't App. Term 2019) (stating the same).
Accordingly, Appellate Terms in both the First and Second Department 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), at *1 ; accord Brissett , 62 Misc. 3d 149(A), at *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), at *1 ; accord Brissett , 62 Misc. 3d 149(A), at *2-*3 (stating the same).
To be sure, "[k]nowledge that property is stolen may be shown circumstantially." Brissett , 62 Misc. 3d 149(A), at *2-*3. For instance, the People may establish such knowledge "by evidence of recent exclusive possession, defendant's conduct, or contradictory statements from which guilt may be inferred." Id. (internal quotation marks omitted). That is because "the 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 A.D.2d 442, 443, 645 N.Y.S.2d 294 (2d Dep't 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 allegations" 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), at *2-*3 ; see also Ortega , 57 Misc. 3d 151(A), at *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. P.L. § 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 prime-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 A.D.2d at 443-444, 645 N.Y.S.2d 294 ; People v. Burnett , 149 A.D.2d 717, 718-19, 540 N.Y.S.2d 510 (2d Dep't 1989) with People v. Zorcik , 67 N.Y.2d 670, 671, 499 N.Y.S.2d 674, 490 N.E.2d 541 (1986) ; People v. Cintron , 95 N.Y.2d 329, 332-33, 717 N.Y.S.2d 72, 740 N.E.2d 217 (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 A.D.2d at 718-19, 540 N.Y.S.2d 510 ; In re Jashua A. , 50 A.D.3d 528, 529, 856 N.Y.S.2d 580 (1st Dep't 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."). 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 A.D.2d at 443-444, 645 N.Y.S.2d 294 ; People v. Cullen , 138 A.D.2d 501, 501-03, 525 N.Y.S.2d 895 (2d Dep't 1988). Therefore, the Court concludes that motor vehicles should not trigger a different rule than any other stolen-property possession charge.
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), at *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 id. 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 non-hearsay evidentiary allegations within ‘the four corners of the instrument itself.’ " People v. Thomas , 4 N.Y.3d 143, 146, 791 N.Y.S.2d 68, 824 N.E.2d 499 (2005) (quoting Preiser, Practice Commentaries, C.P.L. § 100.10 ); see also People v. Hardy , 35 N.Y.3d 466, 475, 157 N.E.3d 117 (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), at *3, 2015 WL 9282608 (Bronx Cty. Crim. Ct. 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, 9 N.Y.S.3d 773 (Bronx Cty. Crim. Ct. 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, 871 N.Y.S.2d 824 (Queens Cty. Crim. Ct. 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
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 V.T.L. § 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 N.Y.3d 1016, 102 N.Y.S.3d 164, 125 N.E.3d 829 (2019) ; People v. Dolan , 1 Misc. 3d 32, 770 N.Y.S.2d 558 (1st Dep't 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." Def. 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. , In re Michael P. , 165 A.D.2d 651, 560 N.Y.S.2d 28 (1st Dep't 1990).
CONCLUSION
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.
The foregoing constitutes the Order and Decision of the Court.