16-408. THE PEOPLE OF THE STATE OF NEW YORK, res, v. RONALD BROUSSARD, def-app — Judgment of conviction (Felicia A. Mennin, J.), rendered March 31, 2016, affirmed.The accusatory instrument charging unlicensed general vending (see Administrative Code of City of New York §20-453) was not jurisdictionally defective. The sworn police allegation that defendant was observed “at the north east corner of Eighth Avenue and West 131st Street,” displaying and offering for sale three t-shirts, “holding the merchandise in his hand”, and “showing the merchandise to numerous people” was “sufficiently evidentiary in character” (People v. Allen, 92 NY2d 378, 385 [1998]) to support the “sale or offer for sale” (see People v. Abdurraheem, 94 AD3d 569 [2012], lv denied 19 NY3d 970 [2012]; People v. Guo Zhang, 14 Misc 3d 82 [2007], lv denied 8 NY3d 951 [2007]) and the “public space” elements of unlicensed general vending (see People v. Kasse, 40 Misc 3d 126[A], 2013 NY Slip Op 51022[U] [App Term, 1st Dept 2013]), affd. 22 NY3d 1142 [2014]; People v. Abdurraheem, 94 AD3d at 570).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 16, 201816-176. THE PEOPLE OF THE STATE OF NEW YORK, res, v. SIDY FOFANA, def-app — Judgment of conviction (Laurie Peterson, J.) rendered, October 15, 2015, affirmed. The accusatory instrument charging criminal possession of marijuana in the fifth degree (see Penal Law §221.10[1]) was not jurisdictionally defective. The deponent police officer’s allegations that he observed the defendant “inside Tompkins Square Park, near the north west corner of Avenue B and East 8th Street,” “holding one cigarette containing marijuana,” and that the officer “took the cigarette…from on top of a fence where [he] observed the defendant place it,” were sufficient for pleading purposes to establish the public place element of the charged offense (see Penal Law §240.00; People v. Afilal, 26 NY3d 1050, 1052 [2015]) and that the marijuana was “open to public view” (Penal Law §221.10; see People v. Jackson, 18 NY3d 738 [2012]; Matter of Kawon W., 127 AD3d 668 [2015]). We perceive no basis for reducing the fine. Although defendant claims that he is indigent, he never sought relief from the fine by way of a CPL 420.10(5) motion for resentencing (see People v. Toledo, 101 AD3d 571 [2012], lv denied 21 NY3d 947 [2013]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 16, 201817-109. THE PEOPLE OF THE STATE OF NEW YORK, res, v. JAKE ISAAC, def-app — Judgment of conviction (Heidi C. Cesare, J.), rendered October 6, 2016, affirmed.The accusatory instrument charging unlicensed general vending (see Administrative Code of City of New York §20-453) was not jurisdictionally defective. The sworn police allegations that defendant was observed on the south east corner of Vermilyea Avenue and West 207th Street, on a public sidewalk, “display[ing] and offer[ing] for sale a variety of clothing items, [including] shoes, computer accessories, two computer monitors, and roller blades;” that defendant was seen “arranging the items on the ground above pieces of flattened cardboard…so that people could see [the merchandise] more clearly” was sufficiently evidentiary in character (see People v. Allen, 92 NY2d 378, 385 [1998]) to support the “sale or offer for sale” element of unlicensed general vending (see People v. Abdurraheem, 94 AD3d 569 [2012], lv denied 19 NY3d 970 [2012]; People v. Guo Zhang, 14 Misc 3d 82 [2007], lv denied 8 NY3d 951 [2007]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 16, 201815-091. THE PEOPLE OF THE STATE OF NEW YORK, res, v. DEONARINE SINGH, def-app — Judgment of conviction (Ann E. Scherzer, J.), rendered October 8, 2013, affirmed.In view of defendant’s knowing waiver of his right to prosecution by information, the facial sufficiency of the accusatory instrument must be assessed under the pleading standard required of a misdemeanor complaint (see People v. Dumay, 23 NY3d 518 [2014]). So viewed, the accusatory instrument was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of petit larceny (see Penal Law §155.25). In this connection, the factual portion of the misdemeanor complaint and supporting deposition alleged, inter alia, that a security officer at a specified Bergdorf Goodman store observed defendant “remove one white scarf from a display,” place the scarf around his neck, that defendant was observed “outside the store in possession of the property without paying for it,” and that the property “belonged to the store and for which defendant had no receipt.” Contrary to defendant’s present contentions, these allegations were sufficient for pleading purposes to establish that the store was the owner of the scarf and that defendant exercised dominion and control of this merchandise inconsistent with the rights of the owner (see People v. Olivo, 52 NY2d 309, 317-319 [1981]; People v. Livingston, 150 AD3d 448 [2017], lv denied 29 NY3d 1093 [2017]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 16, 201813-275. THE PEOPLE OF THE STATE OF NEW YORK, res, v. DWAYNE SINGLETON, def-app — Judgment of conviction (Marc J. Whiten, J.), rendered October 17, 2012, reversed, on the law, conviction vacated, the counts of the information charging assault in the third degree dismissed, and matter remanded for further proceedings on the remaining count of the instrument.The accusatory instrument was jurisdictionally defective as to the third-degree assault charges (see Penal Law §120.00[1]). The victim’s conclusory statement that she suffered “substantial pain” after defendant “str[uck] [her] on the back of [her] neck with an open hand” are insufficient to satisfy the “substantial pain” element of “physical injury” (see People v. Henderson, 92 NY2d 677, 680 [1999]; see also People v. Hodge, 83 AD3d 594, 595 [2011], lv denied 17 NY3d 859 [2011]; People v. Rodriguez, 158 AD2d 376, 377 [1990], lv denied 75 NY2d 969 [1990] [substantial pain requires evidence of more than slaps]; Matter of Wanji W., 277 AD2d 243 [2000][slap in the back of head insufficient to establish intent to cause physical injury]). Absent from the People’s pleading were any additional objective facts to support an inference that the slap caused substantial pain, such as the nature of the injury sustained, the duration of the pain, whether there was any residual impairment or need for medical attention (see People v. Chiddick, 8 NY3d 445, 447-448 [2007]; People v. Rios, 142 AD3d 28 [2016]). “[P]etty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives constitute only harassment and not assault, because they do not inflict physical injury” (People v. Chiddick, 8 NY3d at 448 [internal quotation omitted]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 16, 201815-250. THE PEOPLE OF THE STATE OF NEW YORK, res, v. CALVIN WEST, def-app — Judgment of conviction (Ann E. Scherzer, J.), rendered November 16, 2014, affirmed.Since defendant waived prosecution by information, the accusatory instrument only had to satisfy the reasonable cause requirement of a misdemeanor complaint (see People v. Dumay, 23 NY3d 518, 522 [2014]). The factual portion of the accusatory instrument alleged, inter alia, that defendant was “operating a [motor] vehicle”; that the officer “took a forged temporary South Carolina license plate from the rear license plate holder of the above mentioned vehicle,” a plate that the officer knew was “forged based upon…[her] training and experience,” including that the plate “lacked a vehicle identification number,” “the South Carolina state seal” and “a bar code,” all of which a “genuine” South Carolina temporary license plate would have had.Giving these facts “a fair and not overly restrictive or technical reading” (People v. Casey, 95 NY2d 354, 360 [2000]), we find that the accusatory instrument sufficiently alleged criminal possession of a forged instrument in the third degree (see Penal Law §170.20). “[A]s a matter of common sense and reasonable pleading” (People v. Davis, 13 NY3d 17, 31 [2009]), the information adequately alleged that the plate attached to defendant’s vehicle was a forged instrument (see People v. Hodges, 246 AD2d 824, 826 [1998]). Likewise, for purposes of our threshold, pleading-stage inquiry, the accusatory instrument, read as a whole, specified sufficient information from which defendant’s knowledge and intent could be inferred.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 16, 2018By: Shulman, P.J., Ling-Cohan, Cooper, J.J.570069/18. Isham 521 LLC v. Almonte, AntonioIt is Ordered that the respondent-appellant’s motion seeking to stay the enforcement of the final judgment and warrant of eviction is granted on condition that appellant: 1) perfect the appeal by no later than the June 2018 term – the filing deadline for which is April 10, 2018; and 2) pay landlord accruing use and occupancy, as specified at the last lease rate, without prejudice.It is further Ordered that the portion of the motion which seeks permission to appeal on the original record and to direct respondent to produce all trial exhibits is denied. In the event of respondent-appellant’s failure to comply with the foregoing conditions, landlord-respondent may move on five days notice for an order vacating the stay.570224/11. Common Ground Community v. Curry, Cornell570069/18. Isham 521 LLC v. Almonte, Antonio570103/18. Esplanade Gardens Inc., v. Robinson, Jamiah570104/18. 4389 Matilda Ave Rlty Corp., v. Thurmond, Sherill570105/18. 42 Clinton Street LLC v. Tejada, Brigida570106/18. Riverview Redevelopment Co., v. Jackson, Laverne570107/18. Francis, Gene v. BPP ST Owner LLPEx-parte applications are declined
