The People, Respondent,v.Harouna Kasse, Appellant.BriefN.Y.March 26, 2014Blaine (Fin) V. Fogg President Steven Banks Attorney–in–Chief Seymour W. James, Jr. Attorney–in–Charge Criminal Practice Criminal Appeals Bureau 199 Water Street New York, NY 10038 T (212) 577-3564 www.legal-aid.org Direct Dial: (212) 577-3368 Direct Fax: (646) 616-4451 E-mail: mjmclaughlin@legal-aid.org January 7, 2014 Hon. Jonathan Lippman Chief Judge, New York Court of Appeals Eagle Street Albany, New York 12207 Attn: Hon. Andrew W. Klein, Clerk of the Court Re: People v. Kasse (Harouna), Submission Pursuant to Rule 500.11 APL-2013-0311 Your Honor: In accordance with the requirements of the Clerk’s November 7, 2013, letter, the following constitutes our submission on the merits in support of our contention that the order below should be reversed. This case concerns the facial insufficiency of an accusatory instrument charging appellant with unlicensed general vending (N.Y. City Admin. Code § 20-453). We contend that the Appellate Term erred by upholding the accusatory instrument, since it does not allege evidentiary facts that establish reasonable cause to believe appellant committed unlicensed general vending (CPL §§ 100.15(3), 100.40(4)). Introduction The misdemeanor complaint suffers from a common jurisdictional defect: factual allegations that are too conclusory to distinguish the defendant’s conduct as unlawful. Such unspecific allegations do not provide a defendant with sufficient notice to prepare a defense or protect against double jeopardy, and they allow for unjustified prosecutions of innocent conduct. This Court has therefore found indefinite and conclusory allegations to be facially insufficient in People v. Dreyden, 15 N.Y.3d 100 (2010), People v. McNamara, 78 N.Y.2d 626 (1991), and People v. Dumas, 68 N.Y.2d 729 (1986). In each of those cases, the allegations did not establish reasonable cause because they did not specifically describe how the defendant engaged in proscribed, rather than permissible, conduct. Hon. Jonathan Lippman Page 2 January 7, 2014 This Court should reach the same conclusion here. By failing to specify whether Mr. Kasse’s conduct occurred on public or private land, or whether he made an offer for sale or instead merely showed items to others, the allegations did not establish reasonable cause to believe that Mr. Kasse engaged in unlicensed general vending. Accordingly, the accusatory instrument was facially insufficient and must be dismissed. This result will advance the intended functions of the misdemeanor complaint by ensuring that defendants receive fair notice of factual allegations to prepare defenses and avoid double jeopardy, and by preventing unfounded prosecutions based on imprecise allegations that encompass innocent conduct. Arrest, Accusatory Instrument, and Plea On February 26, 2011, appellant Harouna Kasse was arrested and charged with unlicensed general vending in violation of New York City Administrative Code § 20-453. To initiate Mr. Kasse’s prosecution, the People filed a misdemeanor complaint and a supporting deposition. The supporting deposition, which was the source of all the factual allegations, was a pre-typed form containing blank spaces for information about the incident. The form suggested potential facts to support the offense. The deponent’s task was limited to filling in blanks or checking off boxes next to pre-printed facts. The arresting officer filled in the blanks to allege that he “observed the defendant display and offer for sale _more than (10) ten handbags_”; and that he “saw the defendant standing for approximately __2__ minutes immediately _behind_ (in front of, behind, next to) a ___suitcase___ (e.g., shopping cart, cardboard box, wall, rack counter, folding table, blanket or sheet on the ground), and the above described merchandise was offered for sale thereon.”1 He also checked off a box next to pre-typed text stating, “I saw defendant showing the merchandise to numerous people.”2 The officer did not assert many allegations suggested by the form. He did not allege that Mr. Kasse “was the only person who was uninterruptedly in the immediate proximity to the merchandise”; that Mr. Kasse “did not leave the merchandise unprotected during the entire period of [the] observation”; that Mr. Kasse quoted a price; that Mr. Kasse arranged the items so people could see them more clearly; that the officer saw Mr. Kasse exchange anything for money; that anyone approached the handbags, examined them or conversed with Mr. Kasse; or that Mr. Kasse attempted to flee. He also did not allege that Mr. Kasse made any statement. Thus, the only factual allegations to support the conclusion that Mr. Kasse offered the bags for sale were that he stood behind a suitcase holding 10 handbags for about two minutes and showed the bags to others. At the top of the form, the officer wrote that the arrest occurred at the “n/w c/o Canal Street and Greene Street.” The face of the complaint also stated that the events 1 For clarity, the pre-printed portions of the form are represented as normal text, and the handwritten portions are represented as bold text. 2 A more complete description of the pre-printed form is included in Appellant’s Main Brief to the Appellate Term, at pages 4-7. Hon. Jonathan Lippman Page 3 January 7, 2014 occurred at “Canal and Greene Streets.” The accusatory instrument did not otherwise specify Mr. Kasse’s location. On May 3, 2011, Mr. Kasse entered a plea of guilt to the charge of unlicensed general vending. During the plea hearing, defense counsel stated that Mr. Kasse “waive[s] prosecution by information and formal allocution.” (Plea Minutes, at 1-2). The court entered a judgment of conviction and imposed a sentence of time served. Appeal to the Appellate Term Mr. Kasse appealed his conviction to the Appellate Term, First Department. His brief argued that the accusatory instrument was jurisdictionally defective because it did not allege facts of an evidentiary character demonstrating reasonable cause to believe the he had committed the charged crime. (See Appellant’s Brief at 8, citing CPL §§ 100.15(3), 100.40(b), People v. Dreyden, 15 N.Y.3d 100, 103-104 (2010), and People v. Dumas, 68 N.Y.2d 729, 731 (1986)). For a misdemeanor complaint charging unlicensed general vending to be facially sufficient, appellant noted, it must allege evidentiary facts demonstrating reasonable cause to believe that the defendant (1) peddled, sold, leased, or offered to sell or lease goods or services (2) in a public place, and (3) lacked a vending license. (Appellant’s Brief at 9, citing N.Y. City Admin. Code §§ 20-452(b), 20-453). Appellant argued that the accusatory instrument was jurisdictionally defective because it did not allege evidentiary facts demonstrating reasonable cause to believe that he peddled, sold, leased, or offered to sell goods, nor that he did so in a public. Due to these jurisdictional defects, appellant argued that the conviction should be reversed and the complaint dismissed. Appellant’s brief pointed out that the only factual allegations to show Mr. Kasse’s conduct occurred in a public place were that he was at “Canal and Greene Street” or at the “northwest corner of Canal and Green Street.” (Appellant’s Brief at 17-18). But these allegations could not provide reasonable cause to believe he vended in a public place, the brief argued, because they “included no information regarding whether Mr. Kasse was on public or private land at the time he allegedly committed the offense.” (Appellant’s Brief at 18). This failure to distinguish the unlawful conduct was especially harmful in Mr. Kasse’s case, the brief contended, because there was a substantial likelihood that the events occurred on the edge of a privately owned surface parking lot, which occupies the northwest corner of Canal and Greene streets (Appellant’s Brief at 19-20). It argued that since the allegations could equally apply to public and private property, they did not constitute evidentiary facts demonstrating reasonable cause to believe that appellant vended in a public space (Id. at 20). Appellant’s brief further argued that the factual allegations were too sparse and conclusory to demonstrate reasonable cause to believe that appellant peddled, sold, leased, or offered to sell goods. It noted that the accusatory instrument’s conclusion that Mr. Kasse offered 10 bags for sale rested solely on factual allegations that for two minutes he stood by a suitcase holding handbags and showed the handbags to others. These allegations did not Hon. Jonathan Lippman Page 4 January 7, 2014 establish reasonable cause to believe he offered to sell goods, appellant’s brief contended, since they contained no facts distinctively indicative of an offer for sale. “Standing next to consumer goods in public does not mean one is trying to sell those goods,” the brief argued, and “simply showing items to others is very different from seeking to exchange those items for something else of value.” (Id. at 10). The brief further noted that the arresting officer chose not make numerous allegations that would have distinguished the conduct as unlawful vending (Id. at 10-11). Because the complaint did not specifically describe how Mr. Kasse engaged in unlicensed general vending, rather than permissible conduct, the brief argued that the complaint lacked evidentiary facts demonstrating reasonable cause to believe he committed the charged offense (Id. at 11-12). Respondent’s brief countered that “[o]f course” the “complaint was a legally sufficient information.” (Respondent’s Brief at 3).3 It noted that when evaluating facial sufficiency, a court should not give the accusatory instrument an overly restrictive or technical reading, and that the allegations are sufficient if they “‘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.’” (Id. at 4, citing People v. Kalin, 12 N.Y.3d 225, 230 (2009)). Respondent’s brief contended that the accusatory instrument sufficiently alleged that appellant made an offer for sale. It further posited that “[o]f course, the northwest corner of Canal and Greene Streets are a public place.” (Id. at 5). Respondent did not offer any specific support for this claim, instead simply arguing that “suffice to say, the officer could not have been more specific,” and “of course, a ‘corner is a public place.’” (Id. at 7). The Appellate Term held that the accusatory instrument was not jurisdictionally defective. It found that allegations that appellant showed more than 10 handbags to numerous people and stood behind a suitcase holding the handbags “‘were sufficiently evidentiary in character’ to support the sale or offer for sale element of unlicensed general vending.” People v. Kasse, 2013 NY Slip Op 51022(U) (App. Term, 1st Dept., June 28, 2013) (citing People v. Allen, 92 N.Y.2d 378, 385 (1998)). It further held that the conduct was “sufficiently pleaded as having occurred in a ‘public space.’” Id. Chief Judge Jonathan Lippman of the New York Court of Appeals granted Mr. Kasse leave to appeal the Appellate Term’s decision and order. 3 Respondent’s argument assumed that the accusatory instrument was an information, even though appellant’s argument was premised on the instrument being a misdemeanor complaint. In any event, the jurisdictional defect asserted by appellant – the failure to allege evidentiary facts demonstrating reasonable cause to believe appellant committed the charged offense – applies equally to misdemeanor complaints and informations. See CPL §§ 100.15(3); 100.40; People v. Kalin, 12 N.Y.3d 225, 228 (2009); People v. Alejandro, 70 N.Y. 2d 133, 137 (1987) (“The ‘reasonable cause’ requirement for a finding of facial sufficiency . . . is applicable not only to informations but to the other local criminal court accusatory instruments, simplified informations . . . and misdemeanor and felony complaints.”). Hon. Jonathan Lippman Page 5 January 7, 2014 ARGUMENT POINT THE MISDEMEANOR COMPLAINT WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT FAILED TO ALLEGE EVIDENTIARY FACTS DEMONSTRATING REASONABLE CAUSE TO BELIEVE APPELLANT ENGAGED IN UNLICENSED GENERAL VENDING, WHERE ITS INDEFINITE AND CONCLUSORY ALLEGATIONS DID NOT DISTINGUISH APPELLANT’S CONDUCT AS UNLAWFUL. CPL §§ 100.05(3), 100.40(4); PEOPLE V. DREYDEN, 15 N.Y.3D 100 (2010); PEOPLE V. DUMAS, 68 N.Y.2D 729 (1986). A misdemeanor complaint serves a dual function in the New York Criminal Procedure Law. First, it is an accusatory instrument that provides the defendant with notice of the charged crime and the specific conduct supporting the charge. See People v. Dreyden, 15 N.Y.3d 100, 103-104 (2010). Second, it is the instrument used by a judge to make an independent determination of whether there is a lawful basis to arrest and detain the defendant. See People v. Dumas, 68 N.Y.2d 729, 731 (1986); CPL §§ 120.20, 140.45. In both contexts, the test for the facial sufficiency is the same: whether the misdemeanor complaint alleges “facts of an evidentiary character” that “provide reasonable cause to believe that the defendant committed the offense charged in the accusatory instrument.” CPL §§ 100.05(3), 100.40(4); see CPL §§ 120.20(1)(b) and 140.45 (incorporating facial sufficiency test of CPL § 100.40(4)). Facial sufficiency analysis should be informed by the misdemeanor complaint’s two distinct functions. See Dumas, 68 N.Y.2d at 731 (Because a “misdemeanor complaint . . . may serve as the basis for issuing an arrest warrant . . . the requirement for factual allegations of an evidentiary character establishing reasonable cause [in the accusatory instrument context] should be assessed in that light.”); see also People v. Casey, 95 N.Y.2d 354, 364 (2000). When a misdemeanor complaint operates as an accusatory instrument, facial sufficiency ensures that the defendant receives adequate notice of the charged offense and the specific conduct supporting that charge. See Dreyden, 15 N.Y.3d at 103; see also People v. Kalin, 12 N.Y.3d 225, 230 (2009). As this Court has long held, “‘a fundamental basic principle of justice and fair dealing’ requires that an accusatory instrument factually describe elements of the crime and the particular acts of the defendant constituting its commission.” Casey, 95 N.Y.2d at 366 (quoting People v. Zambounis, 251 N.Y. 94 (1929)). By requiring evidentiary facts showing the defendant’s probable commission of the charged crime, the law ensures that the defendant is informed of the particular acts that he or she must defend at trial. See People v. Hightower, 18 N.Y.3d 249, 254 (2011) (“In Hon. Jonathan Lippman Page 6 January 7, 2014 order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged.”); see also Cole v. State of Ark., 333 U.S. 196, 201 (1948) (“No principle of procedural due process is more clearly established than . . . notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge. . . .”).4 Specific evidentiary allegations also ensure that the defendant is not tried twice for the same crime. See Dreyden, 15 N.Y.3d at 103. If a misdemeanor complaint does not meet these “demands of due process and double jeopardy,” it is jurisdictionally defective. Id. When a misdemeanor complaint is used to determine the lawfulness of an arrest or detention, facial sufficiency operates as a safeguard against unfounded prosecutions. Before issuing an arrest warrant and after a warrantless arrest, a judge reviews a misdemeanor complaint’s facial sufficiency to determine if there is reasonable cause to believe that the defendant committed a crime. CPL §§ 120.20, 140.45.5 This review complies with the constitutional rule that before issuance of an arrest warrant and after a warrantless arrest, a neutral magistrate must make an independent probable cause determination. See Gerstein v. Pugh, 420 U.S. 103, 114 (1975); Shadwick v. City of Tampa, 407 U.S. 345, 349 (1972).6 By ensuring that “probable cause be drawn by ‘a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime,’” a misdemeanor complaint provides an essential check on excessive law enforcement. Shadwick, 407 U.S. at 349 (citing Johnson v. United States, 333 U.S. 10, 14 (1948)); Gerstein, 420 U.S. at 114 (“[P]robable cause . . . must be determined by someone independent of police and prosecution” in order to “guard[] against the misuse of the law enforcement process,” and to provide “safeguards . . . against the dangers of the overzealous as well as the despotic.”) (citation omitted). If the misdemeanor complaint does not allege evidentiary facts demonstrating reasonable cause to believe the defendant committed the charged offense, the judge must stop an unfounded prosecution by dismissing the complaint. See CPL §§ 120.20, 140.45. 4 Other facial sufficiency requirements help guarantee that the defendant has adequate notice to prepare a defense and avoid double jeopardy. See People v. Sedlock, 8 N.Y.3d 535, 538 (2007) (Notice and double jeopardy concerns underlie requirement that an accusatory instrument reasonably specify the time interval of an offense); People v. Keindl, 68 N.Y. 2d 410, 418 (1986) (“The prohibition against duplicity furthers . . . the functions of notice to a defendant and of assurance against double jeopardy.”); CPL 100.15(2). 5 The reasonable cause necessary for facially sufficiency is equivalent to the probable cause necessary to arrest and detain. See CPL § 140.10 (defining “reasonable cause” as the necessary predicate for a lawful arrest); People v. Maldonado, 86 N.Y.2d 631, 635 (1995) (“Reasonable cause means probable cause”). 6 See also People v. Machado, 182 Misc.2d 194, 202 (Crim Ct. N.Y. Co. 1999) (concluding that CPL § 140.45 operates to fulfill the requirements of Gerstein); Peter Preiser, Practice Commentaries to CPL § 140.45 (After Gerstein held that “a judicial probable cause determination is required as a prerequisite to post arrest continued restraint upon liberty,” it is “clear that a procedure for evaluation of the accusatory instrument - i.e., a judicial reasonable cause determination - is a constitutional necessity.”). Hon. Jonathan Lippman Page 7 January 7, 2014 An appellate court must strike down a facially insufficient misdemeanor complaint regardless of whether the defendant preserved the issue below. See Dreyden, 15 N.Y.3d at 103 (reviewing the facially sufficiency of a misdemeanor complaint following the defendant’s guilty plea, because the “violation of the ‘reasonable cause’ requirement amounted to a jurisdictional defect”). This is because the failure to allege evidentiary facts establishing reasonable cause is a jurisdictional defect, which is “of constitutional dimension” and “not waivable.” Casey, 95 N.Y.2d at 363; People v. Case, 42 N.Y.2d 98, 100 (1977).7 A misdemeanor complaint can be facially insufficient and jurisdictionally defective in several ways. It might be “conclusory” in the strictest sense by omitting any factual allegations to support a conclusion that the defendant committed an element of the crime. See People v. Alejandro, 70 N.Y.2d 133, 135-136, n. 1 (1987) (Accusatory instrument facially insufficient where there were no factual allegations to support arresting officer’s assertion that it was an “authorized arrest”).8 Or its defect might lie in alleging facts that, while specific, do not provide reasonable cause to believe the defendant committed the charged offense. See Hightower, 18 N.Y.3d at 254 (“Although the information in this case described the events with enough clarity to provide reasonable cause that defendant was engaged in the unlawful sale of NYCTA services and providing unlawful access to NYCTA services, we hold that it was jurisdictionally defective as to the crime of which defendant was actually convicted – petit larceny”); Case, 42 N.Y.2d at 101 (Accusatory instrument facially insufficient under CPL § 100.15(3), where the statute required “physical interference” and allegations described non-physical interference). But accusatory instruments are most often jurisdictionally defective by including some factual allegations, but not enough to distinguish the defendant’s conduct as violating the charged crime. This was the jurisdictional defect in Dreyden, where the misdemeanor complaint alleged that the officer had observed the defendant in possession of a knife, but lacked allegations to show that the knife was a “gravity knife” in violation of the charged offense. The complaint was facially insufficient because it “contained no factual basis for the officer’s conclusion that the knife was a gravity knife, as opposed to a pocket knife, craft knife or other type of knife that does not fit the definition of a per se weapon as defined in Penal Law article 265.” Dreyden, 15 N.Y.3d at 104. Likewise, Dumas found 7 Casey distinguished between a violation of a reasonable cause requirement, which is a jurisdictional defect, and the failure to provide non-hearsay allegations in an information, which is a non-jurisdictional defect. See Casey, 95 N.Y.2d at 362-363. Casey further noted that the non- hearsay requirement is limited to an information and does not apply to a misdemeanor complaint. Id. at 365. Accordingly, the facial sufficiency of a misdemeanor complaint – which depends on whether it alleges evidentiary facts that provide reasonable cause to believe the defendant committed the charged offense – is always a non-waivable, jurisdictional issue. See Dreyden, 15 N.Y.3d at 103. 8 See R. Garner, A Dictionary of Modern Legal Usage 135 (1987 ed.) (defining “conclusory” as a “conclusion of fact without stating the specific facts upon which the conclusion is based.”). Hon. Jonathan Lippman Page 8 January 7, 2014 the misdemeanor complaint to be facially insufficient where it alleged that the officer observed the defendant in possession of clear plastic bags containing marihuana, but lacked specific allegations to establish that the substance “was actually marihuana.” Dumas, 68 N.Y.2d at 731; see also Kalin, 12 N.Y.3d at 229.9 The failure to distinguish between lawful and unlawful conduct also made the accusatory instrument facially insufficient in People v. McNamara, 78 N.Y.2d 626 (1991). The defendants were charged public lewdness under PL § 245.00, which criminalizes lewd acts committed in a public place. The Court construed the “public place” requirement to be limited to locations that “likely would . . . be seen by the casual passerby.” Id. at 634. The accusatory instrument alleged that the defendant had sex in a “parked car” at “291 15th Street,” but it did not further allege that “the car was on a street where people resided or otherwise might encounter it.” Id. The Court found that these allegations did not establish “reasonable cause” to believe the defendant engaged in public lewdness, since it did not distinguish criminal conduct from acts done by “persons who desire privacy and who take reasonable measures to secure it,” and the “address could as readily refer to a private driveway as to a residential street.” Id.; see also People v. Jones, 9 N.Y.3d 259, 262 (2007) (finding accusatory instrument facially insufficient where it merely alleged that defendants stood in a group on a sidewalk and “numerous pedestrians . . . had to walk around [them],” since these allegations encompassed “innocent” conduct and did not indicate how the defendants acted with the necessary mens rea to commit disorderly conduct).10 These cases each suffered from the same type of jurisdictional defect: factual allegations too indefinite and conclusory to provide reasonable cause to believe the defendant committed the charged crime.11 Such allegations implicate both functions of a 9 Cf. People v. Allen, 92 N.Y.2d 378, 385 (1998) (finding that accusatory instruments charging facilitation met reasonable cause requirement by simply alleging that the defendants were observed assisting in marijuana sales, yet noting that “since any sale of marihuana is a crime, no further or more specific allegations were required.”). 10 Although McNamara concerned a misdemeanor information, the decision addressed the failure of an accusatory instrument to provide reasonable cause, a requirement shared by informations and misdemeanor complaints. See Kalin, 12 N.Y.3d at 228; Alejandro, 70 N.Y. 2d at 137. Similarly, although Jones also concerned a misdemeanor information, the decision addressed the failure of an accusatory instrument to allege facts of an evidentiary character supporting the charge, a requirement shared by informations and misdemeanor complaints. See CPL § 100.15(3). 11 This defect is also common in trial court and intermediate appellate court decisions. See, e.g., People v. Glassman-Blanco, 2013 N.Y. Slip Op. 23423 (App. Term, 2d, 11th & 13th Jud. Dist. Dec. 9, 2013) (Allegation that officer “recovered crack and cocaine residue from ‘inside [a specified address] next to where the defendant was situated’ is too vague to demonstrate reasonable cause to believe that defendant exercised dominion or control over the controlled substance,” since “[n]othing in the facts alleged in the complaint specifically indicates . . . . whether defendant exercised any dominion or control over the location from which it was recovered.”); People v. Sidarah, 41 Misc.3d 17, 18 (App. Term, 1st Dept. 2013) (Misdemeanor complaint facially insufficient because the “sparse and unelucidating” allegations only “vaguely referenced” the asserted criminal conduct); People v. Shen Chen, 30 Misc.3d 1205(A), at *4 (N.Y. Dist. Ct. Nassau Hon. Jonathan Lippman Page 9 January 7, 2014 misdemeanor complaint. Imprecise allegations undermine the complaint’s accusatory function, since they withhold fair notice of the particular conduct the defendant must answer for at trial. See People v. Hall, 48 N.Y.2d 927, 927 (1979) (“It is a fundamental and nonwaiveable jurisdictional prerequisite that an information state the crime with which the defendant is charged and the particular facts constituting that crime.”). A defendant can only “speculate” about what specific act violated the charge and does not “know in advance of trial what crime he is called upon to defend.” People v. McGuire, 5 N.Y.2d 523, 526 (1959); cf. People v. Morris, 61 N.Y. 2d 290, 295 (1984) (“In order for a defendant to make his defense ‘with all reasonable knowledge and ability’ and to have ‘full notice of the charge’, it is important that the indictment ‘charge the time and place and nature and circumstances of the offense with clearness and certainty.’”). The defendant also receives little protection against double jeopardy, since the state could later use more specific allegations to retry the defendant for the same conduct at issue in the indistinct prior complaint. Cf. People v. Sedlock, 8 N.Y.3d 535, 538-539 (2007) (An accusatory instrument must “delineate a sufficiently narrow time frame for the alleged act” so the defendant “cannot be charged with the crime again in a subsequent prosecution”). In addition to giving inadequate notice, an indefinite and conclusory complaint does not establish a lawful basis to arrest and detain the defendant. Probable cause cannot exist, since when allegations apply both to innocent and unlawful conduct, the defendant’s “behavior [is] at most equivocal and suspicious.” People v. Davis, 36 N.Y.2d 280 (1975); see also People v. Vandover, 20 N.Y.3d 235, 237 (2012) (“[C]onduct equally compatible with guilt or innocence will not suffice” to establish probable cause). Unless courts invalidate arrests and detentions that rest on imprecise and conclusory allegations, innocent defendants will face the burdens of prosecution. See People v. A.M., 2001 WL 1117455, at *4 (Crim. Ct. N.Y. Co. July 31, 2001) (“The pitfalls of conclusory pleading are highlighted by the context in which this case arises. . . . Requiring the accusatory instrument to set forth the specific conduct on which the arrest was predicated would serve to protect against unwarranted prosecutions in these situations.”); People v. Joseph, 156 Misc.2d 192, 197 (Crim. Ct. N.Y. Co. 1992) (allowing indefinite allegations to support the charge “would ignore the admonition that this statute not become a ‘catchall’ with ‘no outer boundaries’”). The court’s role in policing jurisdictionally defective misdemeanor complaints is essential. Unlike an information or Grand Jury indictment, a misdemeanor complaint contains no other mechanism to prevent groundless prosecutions. See Casey, 95 N.Y.2d at 363; Alejandro, 70 N.Y.2d at 138, n. 2; People v. Iannone, 45 N.Y.2d 589 (1978). And, because few misdemeanor defendants test accusations at trial due to strong institutional pressures to plead guilty, facial sufficiency review is often the last safeguard against wrongful conviction. See Ian Weinstein, The Adjudication of Minor Offenses in New York City, 31 Co. 2011) (Since “not all counterfeiting or piracy is criminalized; only those involving trademarks which are registered and in use,” accusatory instrument defective where it “fails to identify or distinguish the characteristics of the genuine and counterfeit trademarks.”); People v. Crayton, 19 Misc.3d 1129(A), at *5 (Crim. Ct. Richmond Co. 2008) (Accusatory instrument charging defendant with trespass for being in a park after dusk facially insufficient, where the allegation that he was in the park at “approximately 1730 hours” left uncertain whether or not it was after dusk). Hon. Jonathan Lippman Page 10 January 7, 2014 Fordham Urban L. J. 1157, 1170-1174 (2004) (describing various forces that drive most defendants charged with minor crimes to resolve cases quickly before trial). An accusatory instrument that rests on indefinite and conclusory allegations is therefore facially insufficient and jurisdictionally defective. See Dreyden, 15 N.Y.3d at 104; Jones, 9 N.Y.3d at 262; McNamara, 78 N.Y.2d at 634; Dumas, 68 N.Y.2d at 731. A court must dismiss a complaint founded on uncertain allegations to ensure that the defendant receives adequate notice of factual basis of the charge, and to protect the defendant against unfounded prosecution.12 * * * Under these principles, the misdemeanor complaint charging Mr. Kasse was jurisdictionally defective. It charged him with unlicensed general vending, which an individual commits by (1) peddling, selling, leasing, or offering to sell or lease goods or services (2) in a public place, and (3) without a vending license. N.Y. City Administrative Code §§ 20-452, 453. To support this charge, the accusatory instrument alleged that Mr. Kasse stood behind a suitcase holding 10 handbags for approximately two minutes and showed the bags to “numerous” others; that he did so at the northwest corner of Greene and Canal Streets; and that he did not display a vending license. Because these allegations did not distinguish between permissible and proscribed conduct, they were not “facts of an evidentiary character” establishing reasonable cause to believe Mr. Kasse committed unlicensed general vending. See Dreyden, 15 N.Y.3d at 104. The allegation that Mr. Kasse was located at the corner of Greene and Canal Streets left unclear whether the conduct occurred on public or private land. Likewise, allegations that he stood behind a suitcase holding handbags, and showed the bags to others, did not resolve whether he offered the bags for sale or instead engaged in lawful conduct. These indefinite allegations frustrated Mr. Kasse’s ability to prepare a defense and protect himself against double jeopardy, and they forced him to endure prosecution for potentially innocuous conduct. The accusatory instrument was therefore facially insufficient and must be dismissed. 12 For similar reasons, a court must strike down a law that “fails to distinguish between conduct calculated to cause harm and conduct that is essentially innocent.” People v. Bright, 71 N.Y.2d 376 (1988); also compare Dreyden, 15 N.Y.3d at 104 (misdemeanor complaint facially insufficient where allegations did not distinguish the possessed item as a “gravity knife” rather than a lawful knife) with People v. Munoz, 9 N.Y.2d 51, 56-57 (1961) (striking down a law prohibiting possession of sharp objects because it did not distinguish between weapons and “innocently possessed devices of everyday life”). Like conclusory accusatory instruments, imprecise statutes are unconstitutional because they deny a defendant “fair notice” and allow for unjustified prosecutions. Bright, 71 N.Y.2d at 382-383. Hon. Jonathan Lippman Page 11 January 7, 2014 The complaint’s failure to specify how Mr. Kasse’s conduct violated § 20-453 was especially problematic because the alleged conduct was otherwise wholly innocent. “The business of peddling is lawful when conducted in [a] manner which does not injure or annoy the public or impede traffic upon the street.” Good Humor Corp. v. City of New York, 290 N.Y. 312, 320 (1943). While a city may regulate it, regulation must be justified by a city’s interest in “maintaining its busiest streets as free as possible from congestion and of preserving them for their primary purpose of public travel.” Italiano v. Town and Village of Harrison, 110 A.D.2d 684, 685 (2d Dept. 1985); People v. Bissinger, 163 Misc.2d 667, 673 (Crim. Ct. N.Y. Co. 1994) (“The [vending] regulation . . . is designed to meet the city’s compelling interest in regulating pedestrian traffic on crowded city streets.”); cf. Good Humor Corp., 290 N.Y. 312 (Law banning peddling in order to protect tax paying businesses is unconstitutional). When commercial activity occurs on private property, it cannot be regulated under the city’s interest in maintaining its streets. See People v. Realmato, 294 N.Y. 45, 50 (1945) (A law that prohibited an individual from soliciting business on private property “would be of very doubtful constitutionality,” since while the city has “power to regulate the use of its streets,” there is not “any basis for validating such a statutory prohibition of essentially orderly and reasonable conduct by a merchant on his own land.”). Accordingly, unlicensed general vending is not a crime unless it occurs in a public space. N.Y. City Admin. Code §§ 20-452, 453. The public space requirement is no mere technicality; it is a necessary prerequisite to the government proscribing otherwise beneficial economic activity. If the allegations in a misdemeanor complaint do not distinguish whether an offer to sell goods occurred on public or private land, they provide no basis to determine whether the defendant engaged in unlawful or lawful conduct. See Dreyden, 15 N.Y.3d at 104; People v. McNamara, 78 N.Y.2d at 634. Because such allegations do not provide reasonable cause to believe the defendant committed unlicensed general vending, they render a complaint facially insufficient. See People v. Montanez, 177 Misc.2d 506, 511 (Crim. Ct., N.Y. Co. 1998) (Accusatory instrument facially insufficient where it merely alleged that the defendant was at an address, without specifying whether it was public or private property); see also People v. Sherman, 24 Misc.3d 344, 350 (Crim. Ct., N.Y. Co. 2009) (Accusatory instrument facially insufficient to charge possession of marihuana in a public place, where it merely alleged that “defendant possessed marihuana ‘at’ a particular address,” without distinguishing the location as public or private). Here, the accusatory instrument alleged that Mr. Kasse’s conduct occurred at the northwest “corner” of Canal and Greene Streets. This allegation did not distinguish Mr. Kasse’s conduct as unlawful, since the term “corner” applies both to public and private property located at the meeting point of two streets. “At the corner” and “on the corner” are phrases commonly used to describe the location of private businesses. See Macmillan Dictionary, http://www.macmillandictionary.com/us (describing a “corner store” as “a small store . . . often found on the corner of a street“ and a “corner shop” as “a small, general shop . . . typically situated on a street corner.”). New York City, in fact, has numerous private businesses that either have “corner” in their names or describe themselves Hon. Jonathan Lippman Page 12 January 7, 2014 as being located “at the corner” of two streets.13 Indeed, the precise corner alleged here – the northwest corner of Canal and Greene – is occupied by a large surface parking lot owned by a private rental car company. See Appellant’s Brief, at 19-20. By merely alleging that appellant’s conduct occurred at a corner, without specifying whether it occurred lawfully on private land or unlawfully on public land, the misdemeanor complaint did not allege evidentiary facts demonstrating reasonable cause to believe that appellant committed unlicensed general vending. See Davis, 36 N.Y. 2d at 282 (Probable cause does not exist where the “observed acts of the defendant were susceptible of various innocent interpretations”). This same jurisdictional defect was present in Dreyden, 15 N.Y.3d at 104, where the officer observed a knife but did not distinguish how it was an unlawful gravity knife; in McNamara, 78 N.Y.2d at 634, where the officer observed the defendant having sex in a car at an address but did not distinguish it was located in a place the public would likely pass; and in Dumas, 68 N.Y.2d at 731, where the officer observed a plastic bag containing what he thought to be marihuana but did not describe how he knew it was actually an unlawful substance. Because the indefinite allegation that appellant was located at a “corner” did not distinguish his conduct as unlawful, the misdemeanor complaint was jurisdictionally defective. The misdemeanor complaint was also jurisdictionally defective because it lacked evidentiary allegations demonstrating reasonable cause to believe appellant offered goods for sale. Allegations that appellant stood behind a suitcase holding handbags, and that he showed the bags to other people, did not distinguish his conduct as general vending. The omissions on the pre-printed deposition suggest that appellant did not engage in most acts typical of an offer for sale. The arresting officer consciously chose not to allege that he saw appellant quote a price, arrange the items to assist a sale, or exchange any goods for money. He also did not allege that anyone approached the bags, examined them, or conversed with Mr. Kasse (Appellant’s Brief, at 11-12). The sparse allegations, especially in light of all that could have been alleged but was not, did not differentiate appellant’s conduct as unlawful vending. Indeed, the allegations could equally apply to lawful acts such as showing friends recent purchases, or presenting samples of merchandise not offered for sale. By failing to distinguish between an offer for sale and permissible conduct, the allegations did not provide reasonable cause to believe appellant committed the charged offense. See Dreyden, 15 N.Y.3d at 104; McNamara, 78 N.Y.2d at 634; Dumas, 68 N.Y.2d at 731; Montanez, 177 Misc.2d at 510-511; People v. Sene, N.Y.L.J., Aug. 25, 1998, p. 27, col. 1 (Crim Ct. N.Y. Co. 1992). 13 For instance, the “Corner Bistro” states on its website that it is located “at the corner of Jane and West 4th” (http://www.cornerbistrony.com). “The Corner Bookstore” states it is “located at 1313 Madison Avenue, on the corner of 93rd Street” (http://cornerbookstorenyc.com). The Apple Store describes itself as being located on Broadway “at the corner of 67th Street” (http://www.apple.com/ retail/upperwestside). Ricky Nelson also uses “corner” to reference a private business in his hit “Waitin’ in School,” when he sings, “Headin’ down to the drugstore to get a soda pop/Throw a nickel in the jukebox, then we start to rock . . . Down on the corner of Lincoln and a-forty-six.” (http://www.ricknelson.com/lyrics/waitininschool.html). Hon. Jonathan Lippman Page 13 January 7, 2014 Due to these jurisdictional defects, the misdemeanor complaint could not serve either of its functions under the Criminal Procedure Law. Since the allegations encompassed both lawful and unlawful conduct, Mr. Kasse had to guess at what particular conduct supported the charge. See McGuire, 5 N.Y.2d at 526. If the misdemeanor complaint had alleged particular facts to establish Mr. Kasse’s commission of the charged offense – such as alleging that he exchanged money with customers on a public sidewalk – Mr. Kasse could have prepared a defense. For instance, 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. But with the indefinite allegations provided here, Mr. Kasse did not know what to challenge. Indeed, based on the complaint, Mr. Kasse could only conclude that it was a crime to show handbags to other people anywhere on that corner, and that he therefore had no defense. At the same time, the unspecific allegations did not protect him from being tried again for the same conduct, under allegations that appeared different by describing his precise location. Because the conclusory and imprecise allegations did not allow Mr. Kasse to answer the charge or protect him against double jeopardy, the misdemeanor complaint did not serve its necessary accusatory function. See Dreyden, 15 N.Y.3d at 104; Hall, 48 N.Y.2d 927. The indefinite allegations also prevented the misdemeanor complaint from assuring the legality of Mr. Kasse’s arrest and detention. Since the allegations encompassed lawful acts, there is a risk that Mr. Kasse was wrongfully prosecuted. As Judge Bellacosa noted in Alejandro, misdemeanor accusatory instruments require judicial scrutiny “so that such prosecutions do not become routinized or treated by anyone as insignificant or unimportant.” Alejandro, 70 N.Y.2d at 140. Routinized prosecution was especially likely here, since the misdemeanor complaint was based exclusively on ready-made allegations from a pre-printed deposition form. See People v. McGinnis, 972 N.Y.S.2d 882 (Crim. Ct. N.Y. Co. 2013) (discussing the risk of over-prosecution through form affidavits).14 When courts sustain indefinite allegations derived from boilerplate forms, they permit indiscriminate prosecutions of the innocent and guilty alike. The adversarial process fails to correct this injustice, since most misdemeanor defendants have overwhelming incentives to resolve their cases before trial. For instance, Mr. Kasse had little practical choice but to plead guilty and receive a sentence of time served, since he otherwise would have faced up to three months in prison and a $1000 fine. To protect Mr. Kasse and others like him from unfounded prosecution, it is therefore essential that this Court invalidate this indefinite and conclusory misdemeanor complaint. 14 By supplying pre-made allegations, fill-in-the-blank forms may also encourage officers to tailor the facts to fit the desired charge. Cf. People v. Sayavong, 83 N.Y.2d 702, 710-711 (1994) (Testifying officer’s unauthorized presence during Grand Jury proceeding prejudiced defendant, because it gave the officer an “opportunity to listen to the child witnesses’ testimony and to tailor his testimony to theirs,” even if only “reflexively”). Hon. Jonathan Lippman Page 14 January 7, 2014 For these reasons, appellant’s conviction must be reversed and the accusatory instrument dismissed. Very truly yours, Michael J. McLaughlin Of Counsel to Steven Banks The Legal Aid Society – Criminal Appeals Bureau 199 Water Street – 5th Floor New York, New York 10038 (212) 577-3368 mjmclaughlin@legal-aid.org cc Hon. Cyrus Vance, Jr. New York County District Attorney Attn. A.D.A. Sheryl Feldman One Hogan Place, Room 854 New York, NY 10013