The People, Respondent,v.Harouna Kasse, Appellant.BriefN.Y.March 26, 2014 DISTRICT ATTORNEY OF THE COUNTY OF NEW YORK ONE HOGAN PLACE New York, N. Y. 10013 CYRUS R. VANCE, JR. DISTRICT ATTORNEY January 22, 2014 Hon. Andrew W. Klein Clerk of the Court New York Court of Appeals 20 Eagle Street Albany, New York 12207 -1095 Re: People v. Kasse Submission Pursuant to Rule 500.11 APL-2013-00311 Dear Mr. Klein: By permission of the Honorable Jonathan Lippman, defendant appeals from a June 28, 2013 decision and order of the Appellate Term, First Department. By that order, the court unanimously affirmed a May 3, 2011 judgment of the Criminal Court of the City of New York, convicting defendant, upon his guilty plea, of Unlicensed General Vending (New York City Administrative Code 20-453), and sentencing him to time served. By letter of August 27, 2012, the appeal has been calendared for summary treatment pursuant to Section 500.11 of the Court’s Rules of Practice. This letter is submitted in reply to defendant’s letter submission, dated January 7, 2014. For the reasons that follow, the Appellate Term’s order should be affirmed. The Pertinent Statutes On the afternoon of February 26, 2011, a police officer saw defendant trying to sell handbags on the northwest corner of Canal and Greene Streets in Manhattan. When defendant was unable to produce a license, he was arrested for violating New York City Administrative Code Section 20-453, which prohibits any person from D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 2 January 22, 2014 acting as a “general vendor” “without having first obtained a license.” As is pertinent here, a “general vendor” is defined as a person who “hawks, peddles, sells, leases or offers to sell or lease, at retail, goods or services … in a public space.” Administrative Code 20-452(b). And, “public space” is defined as “[a]ll publicly owned property between the property lines on a street … including but not limited to a park, plaza, roadway, shoulder, tree space, sidewalk or parking space between such property lines.” Administrative Code 20-452 (d). Finally, Administrative Code 20-474.3 provides that “failure by a general vendor who is required to be licensed” to “exhibit upon demand a general vendor’s license” to “any police officer” is “presumptive evidence that such general vendor is not duly licensed.” The Criminal Court Proceedings On February 27, 2011, the People filed a misdemeanor complaint and supporting deposition, charging defendant with one count of Unlicensed General Vending. In the complaint, the deponent, Police Officer Billy Shepherd, alleged that “[o]n February 26, 2011, at about 16:05 hours at Canal Street and Greene Street in the County and State of New York,” defendant committed the offense of unlicensed general vending. The complaint stated that Officer Shepherd’s allegations were based “on information and belief, the source of which [was] the supporting deposition” of Police Officer Joseph Cristiano, which was filed along with that instrument. The complaint specified that Officer Cristiano “observed the defendant display and offer for sale more than ten (10) handbags,” in that defendant was “standing for approximately 2 minutes immediately behind a suitcase”; that “the above-described merchandise was offered for sale thereon”; and that “defendant show[ed] the merchandise to numerous people.” Finally, the complaint alleged that, “[a]t the time of the above officer’s observations, defendant was not displaying a license issued by the Department of Consumer Affairs and could not produce one when asked” (see Complaint). In the accompanying supporting deposition that was referenced in the complaint, Officer Cristiano swore that on February 26, 2011, at about 16:05 hours, he “observed the defendant display and offer for sale more than (10) ten handbags” at “the northwest corner of Canal and Greene Streets” (Supporting Deposition).1 Officer Cristiano further swore that he saw defendant “standing for approximately 2 minutes immediately [behind] a suitcase” that had “the above described merchandise 1 The supporting deposition was a typical form with choices to check off as applicable and spaces to fill in specifics (see Supporting Deposition). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 3 January 22, 2014 … offered for sale thereon,” and that he “saw defendant showing the merchandise to numerous people.” Finally, Officer Cristiano swore that defendant was not “displaying a license issued by the Department of Consumer Affairs and could not produce one when asked” (id.). On May 3, 2001, defendant waived his right to be prosecuted by information and pled guilty to the charge before Judge Larry Stephen, in exchange for a sentence of time served, which was imposed the same day (P:2-4).2 Defendant admitted that, on February 26, 2011, at about 4:00 p.m., on Canal and Greene Streets in New York County, he was “attempting to sell merchandise without a license” (P:3).3 Defendant’s Appeal to the Appellate Term On appeal to the Appellate Term, defendant contended for the first time that the accusatory instrument was facially insufficient and thus jurisdictionally defective. As defendant saw it, “the activity described by Officer Cristiano” did not provide reasonable cause to believe that he sold or offered to sell handbags (DB: 10-16). Moreover, while acknowledging that the supporting deposition noted the “specific corner of the intersection” where he was alleged to have committed the crime, i.e., the northwest corner of Canal and Greene Streets, defendant contended that the “vague” reference to his location provided “no reason to believe that [he] was standing on the sidewalk or in any other public space when he allegedly attempted to sell the handbags” (DB: 17-18; see generally DB: 17-20). The Appellate Term unanimously rejected both complaints. Relying on People v. Allen, 92 N.Y.2d 378, 385 (1998), People v. Abdurraheem, 94 A.D.3d 569 (2012), and People v. Yu, 4 Misc. 3d 128(A) (App. Term, 1st Dept. 2004), the court concluded that “[t]he sworn police allegations that defendant, without the requisite license, ‘showed’ more than 10 handbags to ‘numerous people’ and that the handbags were situated on a suitcase behind which defendant was standing” were “sufficiently evidentiary in character” to “support the sale or offer for sale element of unlicensed general vending.” Kasse, 40 Misc. 3d 126(A)(App. Term, 1st Dept. 2013). The court 2 Parenthetical references preceded by: “P” are to the plea proceedings; “DB” are to defendant’s Appellate Term brief; and “DS” are to defendant’s submission to this Court. 3 Although defendant expressly waived his right to be “prosecut[ed] by information” and his right to “formal allocution” (P:3), the accusatory instruments -- the complaint and its accompanying supporting deposition -- did in fact constitute an information, and he was formally allocuted (P:3-4). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 4 January 22, 2014 further found that “defendant’s actions were sufficiently pleaded as having occurred in a ‘public space.’” Id. The Appellate Term’s Decision Was Correct Before this Court, defendant contends that the Appellate Term was wrong on both scores. That claim should be rejected. As defendant correctly states, the facial sufficiency of the accusatory instrument in this case is reviewed under the standards for a misdemeanor complaint (see DS: 4, fn 3; see also DS: 3). See People v. Kalin, 12 N.Y.3d 225, 228 (2009). CPL 100.40 (4) provides that a misdemeanor complaint is “sufficient on its face” when it meets two requirements. First, a complaint must “substantially conform[] to the requirements prescribed in section 100.15” (CPL 100.40 [a]), by containing “an accusatory portion that charges the designated offense (see CPL 100.15 [2]) and a factual section that alleges ‘facts of an evidentiary character supporting or tending to support the charges’ (CPL 100.15 [3]).” Kalin, 12 N.Y.3d at 228. Second, CPL 100.40 (b) requires that “[t]he allegations of the factual part of such accusatory instrument and/or any any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument.” See, e.g., Kalin, 12 N.Y.3d at 228; People v. Allen, 92 N.Y.2d at 385. “Reasonable cause” exists when there are “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.” CPL 70.10 (2). Critically, as this Court has repeatedly declared, when reviewing an accusatory instrument for facial sufficiency, it must be “given a fair and not overly restrictive or technical reading.” Kalin, 12 N.Y.3d at 230; People v. Casey, 95 N.Y.2d 354, 360 (2000). After all, not every “irregularity” or “deficiency implicates the jurisdiction of the court. People v. Konieczny 2 N.Y.3d 569, 575 (2004). “The test is, simply, whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy.” People v. Dreyden, 15 N.Y.3d 100, 103 (2010). Indeed, as this Court has repeatedly emphasized, “so long as the factual allegations of an [accusatory instrument] 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,” the “core concerns” of jurisdictional sufficiency have been met. Kalin, 12 N.Y.3d at 230; see also, e.g., D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 5 January 22, 2014 People v. Jackson, 18 N.Y.3d 738, 746 (2012); Konieczny 2 N.Y.3d at 575; Casey, 95 N.Y.2d at 360. That is true even if the accusatory instrument is “bare-boned,” Allen, 92 N.Y.2d at 385, and not “a model of specificity.” Jackson, 18 N.Y.3d at 747. Here, the misdemeanor complaint and its accompanying supporting deposition informed defendant that he was being charged with Unlicensed General Vending because Officer Cristiano saw him on “February 26, 2011, at 16:06 hours,” “display and offer for sale more than (10) ten handbags” at “the northwest corner of Canal and Greene Streets,” and defendant “could not produce” a “license issued by the Department of Consumer Affairs” “when asked” (see Complaint and Supporting Deposition). The instruments further specified that, when Cristiano saw defendant on that corner, defendant was “standing for approximately 2 minutes immediately [behind] a suitcase” that had the handbags “offered for sale thereon,” and that defendant was “showing the merchandise to numerous people” (id.). The Appellate Term was entirely correct to conclude that those accusatory instruments were jurisdictionally sufficient. They provided defendant with notice that he was accused of committing Unlicensed General Vending at a particular time and place and in a particular manner, thereby supplying adequate detail “to prevent him from being tried twice for the same offense,” and allowing him to prepare a defense - - the “core concerns” of jurisdictional sufficiency. Kalin, 12 N.Y.3d at 230; see also Jackson, 18 N.Y.3d 738, 746 (2012); Konieczny 2 N.Y.3d at 575; Casey, 95 N.Y.2d at 360. Moreover, the facts alleged were “of an ‘evidentiary character’ (CPL 100.15 [3]), demonstrating ‘reasonable cause’ to believe the defendant committed the crime charged (CPL 100.40 [4][b]).” People v. Dumas, 68 N.Y.2d 729, 731 (1986), accord Dreyden, 15 N.Y.3d at 102. After all, those “facts [and] circumstances,” when viewed “collectively” made it “reasonably likely” that, when defendant was standing on the northwest corner of Canal and Greene Streets, showing numerous people the 10 handbags that he had displayed on top of a suitcase, and then could not produce a vendor’s license when asked, he was trying to sell those people the handbags in a public space, without a license, in violation of Administrative Code 20-453. See CPL 70.10 (2). According to defendant, however, the Appellate Term should have found that the allegations in the complaint simply alleged “wholly innocent” conduct because it “left unclear whether the conduct occurred on public or private land” and “did not D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 6 January 22, 2014 resolve whether he offered the bags for sale” (DS: 10-12).4 Defendant contends that these “indefinite allegations frustrated [his] ability to prepare a defense and protect himself against double jeopardy, and they forced him to endure prosecution for potentially innocuous conduct” (DS: 10). But the Appellate Term was correct to reject those claims. Of course, as a matter of “common sense and reasonable pleading” (People v. Davis, 13 N.Y.3d 17, 31 [2009]), the allegation that defendant was “standing” on the northwest corner of Canal and Greene streets provided defendant with sufficient notice that his conduct occurred in a “public space.” Indeed, the conclusion that defendant urges -- that the allegation was too “indefinite” because “the term ‘corner’ applies both to public and private property located at the meeting point of two streets” (DB: 11) -- cannot be reached with the “fair and not overly restrictive or technical reading” that this Court requires. Kalin, 12 N.Y.3d at 230; Casey, 95 N.Y.2d at 360. For that reason, courts in other unlicensed general vendor cases have repeatedly rejected the “public space” complaint that defendant makes here. See, e.g., People v. Wele, 41 Misc 3d 133(A) (App. Term, First Dept. 2013)(allegation that defendant was selling handbags at the “southeast corner of Canal and Church streets” supported a “finding that defendant was acting in a ‘public space’”); People v. Jobi, 10 Misc.3d 632, 635 (Crim. Ct., N.Y. Co. 2005)(“the intersection of two busy streets in Manhattan” -- “the corner of Baxter and Canal streets” -- was “indisputably a ‘public space’ within the meaning [of] Administrative Code §20-452 [d]”); People v. Ye, 179 Misc.2d 592, 596 (Crim, Ct., N.Y. Co. 1999)(allegation that defendant was “at Canal Street and Broadway … sufficiently alleges element of public place”). Not surprisingly, defendant cannot point to a single case that supports the notion that the allegation that he was displaying and offering to sell handbags on a specific street corner provided insufficient notice that his conduct occurred in a public space. Instead, to make his claim, defendant points to a Ricky Nelson song that references a drugstore “on the corner,” an on-line dictionary’s definitions of “corner store” and “corner shop,” and on-line directions to “private businesses” that have the word “corner” in their names (see DS: 11-12). But, quite simply, the accusatory instruments did not say that defendant was in a store or a shop that stood on a corner. They said he was “standing” at the “corner” of two streets. That description fits comfortably into the Administrative Code’s definition of “public space,” i.e., “[a]ll publicly owned property between the property lines on a street … 4 In light of the presumption in Administrative Code 20-474.3, defendant cannot complain about the sufficiency of the allegations establishing that he was unlicensed. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 7 January 22, 2014 including but not limited to a … roadway, shoulder, tree space, sidewalk or parking space between such property lines.” Administrative Code 20-452 (d).5 Notably, People v. Doyle, 232 N.Y. 96 (1921), belies the notion that the term “at the corner” was so vague that defendant had to “guess” whether he was being charged with vending in a public or private place (DS:13). In Doyle, this Court upheld the constitutionality of an ordinance that gave the Common Council of Mount Vernon the authority to regulate people from “congregating upon the corners of the streets thereof.” Id. Obviously, there was no basis for concern that the ordinance would be reasonably interpreted to prohibit people from congregating in shops or stores located on street corners. Perhaps the best evidence that the allegation that defendant’s conduct occurred at the corner of Canal and Greene Streets provided him with sufficient notice is his repeated reference to a parking lot on that corner (DS: 3, 12, 13). Of course, that reference ignores this Court’s rule that it will not “rely on external factors to create jurisdictional defects not evident from the face of the information.” Konieczy, 2 N.Y.3d at 576. But the fact that defendant is able to point to that parking lot shows that the allegations in the complaint were entirely sufficient. Id. at 577. Indeed, even he admits that “he could have argued that his conduct was lawful because it did not actually occur on the sidewalk, but instead on the private parking lot adjacent to it” (DS:13; see also DS: 3, 12). Thus, his claim that identifying the specific corner that he was standing on did not provide him with enough information to prepare a defense for trial is simply disingenuous. 5 Even defendant’s on-line dictionary defines “corner” as “a place where two roads or paths meet” (DS: 11). And, if defendant was standing at a place where two roads meet, he was in a “public space,” within the meaning of Administrative Code 20-452 (d). Moreover, if song lyrics controlled whether defendant had sufficient notice, Ricky Nelson’s song would be irrelevant. As defendant acknowledges, that song talks about being in a drugstore that is “on the corner” (see DS: 12, fn 13), not about a person standing on a street corner. Of course, no one would reasonably believe that when Dean Martin sang, “Standing on the corner watching all the girls go by,” he was singing about being in a store. And, when Creedence Clearwater Revival sang the song, “Down on the Corner,” they were talking about being “out on the street.” http://www.sing365.com/music/lyric.nsf/Down-On-The-Corner-lyrics- Creedence-Clearwater-Revival/BB488C0ACD0F077848256AAB0030E701. Common sense dictates that the reference to a specific corner here should be read the same way. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 8 January 22, 2014 The same holds true for defendant’s claim that the allegations in the accusatory instruments were so “sparse” that they did not provide reasonable cause or sufficient notice that he “offered goods for sale” (DS: 12-13). In that regard, defendant claims that the allegation that he stood on a street corner behind a suitcase that had 10 handbags displayed on it and showed those bags to numerous people would have constituted “lawful” conduct if he was “showing friends recent purchases, or presenting samples of merchandise not offered for sale” (DS: 12). But, again, that “was a matter to be raised as a defense … not by insistence that this information was jurisdictionally defective.” Konieczy, 2 N.Y.3d at 577. After all, the facial sufficiency requirements of an accusatory instrument do not rise to the level of “the burden of proof beyond a reasonable doubt required at trial.” Henderson, 92 N.Y.2d at 680. Indeed, they are not even as stringent as the requirement that the People present legally sufficient evidence to survive a motion to dismiss at trial. Kalin, 12 N.Y.3d at 230. Rather, they simply require facts which, if true, could establish every element for the charged offense when coupled with all reasonable inferences. See People v. Henderson, 92 NY2d at 680 (finding information sufficient when, “[a]ccepting [its] allegations as true, a jury could certainly infer” all of the elements of the alleged offense). Indeed, as one court put it, in assessing the facial sufficiency of an information, “the court is not required to ignore common sense or the significance of the conduct alleged.” People v. Gonzalez, 184 Misc. 2d 262, 264 (App Term 1st Dept 2000). Here, as a matter of “common sense and reasonable pleading” (People v. Davis, 13 N.Y.3d at 31), “[t]he large quantity of goods allegedly possessed by the defendant, the type of goods, the manner in which he displayed them, the ‘numerous’ amount of people he displayed them to and the location and time of the conduct, the corner of [Greene] and Canal streets [in the afternoon], are facts which, read together, permit a reasonable inference that defendant intended to sell the goods.” Jobi, 10 Misc. 3d at 634 (complaint facially sufficient where it alleged that the defendant “display[ed] and offer[ed] for sale more than twenty (20) DVDs and more than twenty (20) watches,” which he “showed” to “numerous people” at the corner of Canal and Baxter Streets in the afternoon). If the “numerous people” referenced in the accusatory instruments were simply “friends” to whom defendant was showing his “recent purchases” of 10 handbags (DS:12), then that was “a matter to be raised as a defense” at trial, not a basis to claim that the accusatory instrument “was jurisdictionally defective.” Konieczy, 2 N.Y.3d at 577. For that reason, numerous courts, when faced with almost identical allegations to the ones here, have concluded that the accusatory instruments sufficiently pleaded that the defendants were acting as general vendors. See, e.g., People v. Wele, 41 Misc. 3d at 133(A) (allegations that D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 9 January 22, 2014 defendant stood on the southeast corner of Canal and Church Streets showing “numerous people” handbags was facially sufficient to plead that he was acting as a general vendor); People v. Dickie 38 Misc3d 127(A)(App. Term, 1st Dept. 2012)(allegation that defendant stood on Canal Street showing handbags and sunglasses to “numerous people” facially sufficient to allege that he “engaged in the conduct required for acting as a general vendor”); People v. Diatara, 36 Misc. 3d 158A (App Term 1st Dept 2012)(allegation that defendant displayed and offered for sale handbags to two unidentified individuals sufficient to support sale or offer element of unlicensed general vendor). Finally, defendant’s focus on the “fill-in-the blank” nature of the supporting deposition is nothing but a red-herring. In that regard, defendant argues that those types of forms may “encourage officers to tailor the facts to fit the desired charge” (DS:13 fn14). However, that is not an issue before this Court. Defendant’s complaint has never been that Officer Cristiano tailored the complaint based on the form. He complained -- and still complains -- that the officer did not fill in enough boxes on the form (DS:2, 4, 12). Thus, the only issue for this Court to decide is whether the “facts or circumstances” that the officer did allege were sufficient “to convince a person of ordinary intelligence, judgment and experience that it [was] reasonably likely” that defendant committed the offense of unlicensed general vending. See CPL 70.10 (2). And, as demonstrated, as a matter of “common sense and reasonable pleading” (People v. Davis, 13 N.Y.3d at 31), that was the case here. In short, the Appellate Term was correct to conclude that the accusatory instruments, charging defendant with Unlicensed General Vending, were jurisdictionally sufficient. Thus, there is no basis for this Court to disturb defendant’s conviction of that charge. * * * D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 10 January 22, 2014 For the abovementioned reasons, the order of the Appellate Term should be affirmed. Respectfully submitted, Sheryl Feldman Assistant District Attorney Phone: (212) 335-9857 Fax: (212) 335-9288 feldmans@dany.nyc.gov cc: Michael J. McLaughlin, Esq. The Legal Aid Society 199 Water Street – 5th Floor New York, New York 10038