16-340. THE PEOPLE OF THE STATE OF NEW YORK, res, v. IRINA KRYZHAPOLSKY, def-app — Judgment of conviction (Stephen Antignani, J.) rendered, February 11, 2016, affirmed.The accusatory instrument was not jurisdictionally defective. Giving the instrument “a fair and not overly restrictive or technical reading” (People v. Casey, 95 NY2d 354, 360 [2000]), we find that the instrument contained nonconclusory factual allegations establishing every element of the offenses of petit larceny (see Penal Law §155.25) and criminal possession of stolen property in the fifth degree (see Penal Law §165.40). The allegations that defendant “conceal[ed]” certain store merchandise “ in a personal bag,” and “attempt[ed] to leave the [Lord & Taylor] store in possession of the property without paying for it” are nonconclusory and do not require any further explanation (see People v. Livingston, 150 AD3d 448 [2017], lv denied 29 NY3d 1093 [2017]; People v. Gaye, 54 Misc 3d 141[A], 2017 NY Slip Op 50187[U][App Term, 1st Dept 2017], lv denied 29 NY3d 1031 [2017]). Defendant’s larcenous intent could be readily inferred from the surrounding circumstances of her actions (see People v. Olivo, 52 NY2d 309, 320 n 8 [1981]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 19, 2018By: Ling-Cohan, J.P., Gonzalez, Edmead, JJ.15-294. THE PEOPLE OF THE STATE OF NEW YORK, res, v. DONALD NORTON, def-app — Judgment of conviction, (Laurie Peterson, J.), rendered March 12, 2015, affirmed.In view of defendant’s knowing waiver of his right to prosecution by information, the accusatory instrument only had to satisfy the reasonable cause requirement (see People v. Dumay, 23 NY3d 518 [2014]). So viewed, the accusatory instrument was jurisdictionally valid, since it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of criminally possessing a hypodermic instrument (see Penal Law §220.45). The accusatory instrument recited that at a specified time and location, police recovered “four hypodermic needles from defendant’s backpack” and that defendant stated that he uses the needles “for medical reasons and for heroin.”Contrary to defendant’s contention, the accusatory instrument was not required to allege that his possession of the hypodermic needles was unlawful pursuant to Public Health Law [PHL] §3381. Although Penal Law §220.45 specifies that “[i]t shall not be a violation of this section when a person obtains and possesses a hypodermic syringe or hypodermic needle pursuant to [PHL §3381],” we do not believe that the Legislature intended to require the People to negate each of the lawful conditions specified in section 3381 in every accusatory instrument charging criminal possession of a hypodermic instrument pursuant to Penal Law §220.45. Unlike a true exception, the statutory language excludes certain conditions only through reference to regulations found outside the statute, here the PHL (see People v. Kohut, 30 NY2d 183, 187 [1972]), and the PHL otherwise provides that in a criminal action or proceeding “brought for the enforcement of any provision of this article, it shall not be necessary to negate or disprove any exception, excuse, proviso or exemption contained in this article, and the burden of proof of any such exception, excuse, proviso, or exemption shall be upon the person claiming its benefit” (PHL §3396[1]; see also William C. Donnino, Practice Commentary, McKinney’s Cons. Laws of NY, Book 39, Penal Law 220.00, p. 19-20; see also People v. Strong, 47 AD2d 798, 799 [1975], affd 42 NY2d 868 [1977] [under prior version of Penal Law §220.45 "defendant ha[d] the burden of establishing by a preponderance of the evidence…that his ‘possession’ of the hypodermic syringe and hypodermic needle were for a lawful purpose”]).Furthermore, the facts surrounding defendant’s lawful possession of the instrument are “peculiarly and almost exclusively within the defendant’s firsthand knowledge, with the details not readily available to the People” (People v. D’Amato, 12 AD2d 439, 444 [1961]; see People v. Strong, 47 AD2d at 799). Thus, the requirements of “common sense and reasonable pleading,” (People v. Davis, 13 NY3d 17, 31 [2009]), warrant the treatment of the PHL §3381 conditions for lawful possession of a hypodermic instrument as provisos to be raised as a defense by a defendant, rather than as exceptions to be pleaded and proved by the People (see People v. Santana, 7 NY3d 234, 237 [2006]; see also McKinney’s Cons. Laws of NY, Book 1, Statutes, §211).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 19, 201817-103. THE PEOPLE OF THE STATE OF NEW YORK, res, v. ADALGIZA NUNEZ, def-app — Judgment of conviction (Kate Paek, J.), rendered September 21, 2016, reversed, on the law, accusatory instrument dismissed, and surcharge, if paid, remitted.Defendant was charged with criminal nuisance in the second degree (see Penal Law §240.45[2]). The factual portion of the information alleged that the arresting officer observed “betting slips, United States currency, [and] a printer and a laptop that was operating a Dominican lottery program” in the back of the store premises managed by defendant. The officer further alleged that these items are “commonly used to operate a Dominican Lottery, a game based on chance.”We agree with defendant that the accusatory instrument was facially insufficient, since it failed to set forth, prima facie, her commission of the charged offense. Penal Law §240.45(2) is directed at persons who knowingly “conduct[] or maintain[]” any premises where people “ gather for purposes of engaging in unlawful conduct.” The statute “generally refers to acts of continuing duration or to a continuing condition” (People v. Gallucci, 62 AD2d 1129, 1132 [1978]; see William C. Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law §240.45, p. 147; see also People v. Fiedler, 31 NY2d 176 [1972]). The pleaded facts, while sufficient to infer an isolated misuse of the premises, was insufficient to show that the premises were used “with some degree of regularity” as a place where others gathered in order to participate in illegal conduct (People v. Fiedler, 31 NY2d at 181; cf. People v. Monday, 309 AD2d 977 [2003][evidence was sufficient to support criminal nuisance conviction where there was evidence of drug sales from the premises for approximately two months, two or three times a week]). Accordingly, the accusatory instrument must be dismissed.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 19, 201817-277/278. CARL E. PERSON, plf-app, v. ANDRE SULTON, def-app — Orders (Lisa A. Sokoloff, J.), entered August 11, 2016, and (Debra Rose Samuels, J.), entered January 3, 2017, affirmed, without costs.We find no abuse of discretion in the grant of defendant’s prompt motion for vacatur relief, defendant having demonstrated both a reasonable excuse for failing to appear at the pretrial conference and a meritorious defense to this action to recover unpaid legal fees (see Travis v. Allstate Ins. Co., 12 Misc 3d 135[A], 2006 NY Slip Op 51230[U] [App Term, 1st Dept 2006]; see also Donnelly v. Treeline Cos., 66 AD3d 563 [2009]).Plaintiff’s motion to dismiss the counterclaims pursuant to CPLR 3211(a)(7) was properly denied. Construing the answer liberally and drawing all reasonable inferences in favor of defendant (see Leon v. Martinez, 84 NY2d 83, 87-88 [1994]), defendant stated cognizable counterclaims to recover for alleged overbilling and padding of costs by plaintiff (see O’Connor v. Blodnick, Abramowitz & Blodnick, 295 AD2d 586, 587 [2002]). Contrary to plaintiff’s contention, the counterclaims are based in contract, and not in fraud (see Graphic Offset Co. v. Torre, 78 AD2d 788 [1980]). Thus, CPLR 3016(b)’s heightened pleading requirements are inapplicable.Plaintiff’s motion for summary judgment on his causes of action for account stated and quantum meruit was also properly denied. Defendant’s submissions, including his August 2015 email to plaintiff, raised triable issues of fact as to his consent to the amounts due (see Boies, Schiller & Flexner LLP v. Modell, 129 AD3d 533, 534 [2015]), whether plaintiff overbilled defendant and acted unprofessionally (see Bryan L. Salamone, P.C. v. Cohen, 129 AD3d 877, 879 [2015]), and whether plaintiff was discharged for cause (see Notrica v. North Hills Holding Co., LLC, 105 AD3d 826, 826-827 [2013]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 19, 2018By: Ling-Cohan, J.P., Gonzalez, Cooper, JJ.17-061. THE PEOPLE OF THE STATE OF NEW YORK, res, v. SHAWN REID, def-app — Judgment of conviction (Abena Darkeh, J.), rendered June 24, 2016, affirmed.The accusatory instrument — comprising the misdemeanor complaint and domestic incident report signed by the arresting officer and the complainant — was not jurisdictionally defective. It charged all the elements of attempted third-degree assault (see Penal Law §§110.00, 120.00[1]). Defendant’s intent to cause physical injury could be readily inferred from allegations that, during a domestic dispute, defendant “choked,” “hit” and “punch[ed]” complainant in the left and right eye, causing “ bruising and swelling,” and that complainant “observed the defendant strike her with a closed fist [and] place both hands around her neck and apply pressure” (see Penal Law 120.00[1]; Matter of Edward H., 61 AD3d 473 [2009]). Contrary to defendant’s contention, the absence of “threatening language” and the fact that both parties were drinking and arguing did not negate a finding that he acted with the requisite injurious intent (see People v. Waite, 2002 NY Slip Op 50260[U] [App Term, 1st Dept 2002], lv denied 99 NY2d 540 [2002]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 19, 2018
