*1 The defendants are charged in an information with attempted criminal possession of stolen property in the fifth degree (Penal Law §110/165.40). The “factual basis for this charge” states:*2
I am informed by Police Officer Fernando Rodriguez…that while dressed in plain clothes, he entered the store and offered to sell to the defendants an Apple iPad and Apple Laptop. I am informed that Police Officer Rodriguez stated in substance to the defendant, “my girlfriend works at Apple and took these from the back. I will sell them to you for five hundred dollars ($500) total.”I am further informed that Police Officer Rodriguez observed the defendants exchange five hundred dollars ($500) and hand it to him in exchange for the iPad and laptop, which is property of the New York City Police Department.In a single motion, each defendant moves to dismiss the information on the ground of facially insufficiency (CPL 170.30 [1] [a]; 100.40).Defense counsel’s affirmation presents a trial defense to the allegations and provides additional facts based on his investigation. First, counsel states that the factual allegations are overly broad, inaccurate and misleading. Counsel states that the subject premises is a pawn shop. Next, counsel explains how the transactions were collateral pawnbroker loans and not a sale/purchase. Counsel attaches to his motion to dismiss loan documents and loan receipts. Under terms and conditions, the undercover officer signed a statement that stated he was the owner of the property. Next, counsel argues that the defendants did not take any action that would benefit themselves because the pawn shop was the beneficiary of the items. Finally, counsel argues that the law contains a rebuttable presumption specifically for pawnbrokers (Penal Law §165.55 [2]).These arguments belong in trial, not a motion to dismiss on the ground that the information is facially insufficient.The People did not respond to the instant motion. Instead the Court received the following email on March 13, 2018 at 6:01 pm: “I will not be submitting a written response to defense counsel’s motion to dismiss for facial insufficiency, and will simply rely on the four corners of the complaint.”An information is facially sufficient when the factual part of the instrument establishes reasonable cause to believe that the defendant committed the offense charged (CPL 100.40 [1] [b] [emphasis added]), and contains non-hearsay allegations that establish every element of the offense charged and the defendant’s commission of that offense (CPL 100.40 [1] [c];
