DECISION AND ORDERThe Defendant, Tina Ross, is charged with two counts each of Endangering the Welfare of a Child (PL §260.10[10]), Petit Larceny (PL §155.25) and Criminal Possession of Stolen Property in the Fifth Degree (PL §165.40). By papers dated April 24, 2018, the Defendant has filed a supplemental omnibus motion seeking the dismissal of the Information as facially insufficient pursuant to CPL §§100.40, 170.30[1][a], 170.35[1][a]. Particularly, the Defendant challenges the sufficiency of the supporting deposition filed in the matter, arguing that additional paperwork is necessary to deem the accusatory instrument an information as to the second count of each charge.1 For the reasons stated below, the Defendant’s motion to dismiss is denied.The factual portion of the instant accusatory instrument alleges that the deponent, Police Officer Osmairy Castillo, was informed of the following:I am informed by Steven Velasquez, who works as a security guard at The Gap at 1511 3rd Avenue […] he observed the defendant with two young children inside of the The Gap at 1511 3rd Avenue. I am further informed that [sic]he observed the two young children remove several items, including five pairs of shoes, from the shelves, and hand the items to the Defendant, who placed the items in a pink bag. I am further informed that Mr. Velasquez then observed the Defendant remove two pair of tights from a display and place them in her pink bag. Mr. Velasquez also informs me that he then observed the Defendant bypass the store cash registers and leave the store without paying the items.I am further informed by Mr. Velasquez that he followed the Defendant and her two children after she left the above location.Mr. Velazquez also informs me that on February 18, 2018, at approximately 3:00 pm, he observed the Defendant with her two children enter The Children’s Place located at 173 East 86th Street. I am further informed by Mr. Velasquez that inside of The Children’s Place, he observed the defendant take two pairs of shoes from a rack and eight pairs of leggings from [sic] display and place all of those items in her pink bag.I am further informed by Mr. Velasquez that he took seven pairs of shoes, two pairs of tights, and eight pairs of leggings from the Defendant’s pink bag.I am further informed by Mr. Velasquez that he is the custodian of the property at The Gap and that the Defendant did not have permission or authority to take or possess the property.I am informed by John Durst, who works as a loss prevention manager at The Children’s Place at 173 East 86th Street, that Mr. Durst is a custodian of the property at The Children’s Place and that the Defendant did not have permission or authority to take or possess the property.The Defendant stated to me that the two children with her were her daughters, and that they are 9 and 8 years old respectively.Defendant contends that in order to properly convert the accusatory instrument to an information, a supporting deposition from John Durst is necessary, so as to establish that the Defendant did not have permission and authority to take the property from The Children’s Place.Facial Sufficiency in General“A valid and sufficient accusatory instrument is a non-waivable jurisdictional prerequisite to a criminal prosecution” (People v. Case, 42 N.Y.2d 98, 99 [1977]). An information is sufficient on its face when the three requirements enumerated in CPL 100.40[1] are met: first, the information must substantially conform to the formal requirements of CPL 100.15 (CPL 100.40[1][a]); second, the factual allegations and any supporting depositions must “provide reasonable cause to believe the defendant committed the offense charged” (CPL 100.40[1][b]); and third, the non-hearsay allegations, if true, must establish every element of the offense charged and the defendant’s commission thereof (CPL §§100.15[3] and CPL 100.41[1][c]; see People v. Dumas, 68 N.Y.2d 729 [1986]; see also People v. Alejandro, 70 N.Y.2d 133 [1987]). “Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person ordinary intelligence, judgment and experience that is reasonably likely that such offense was committed and that such person committed the offense […]” (CPL 70.10[2]). A court reviewing for facial sufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from them (People v. Jackson, 18 N.Y.3d 738, 741 [2012]; see CPL 100.40[1][c]). Further, “[s]o long as the factual allegations of an information 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, they should be given a fair and not overly restrictive and technical reading” (People v. Casey, 95 N.Y.2d 354, 360 [2000]).DiscussionThe question to decide here is whether there is sufficient evidence to support the conclusion that the instrument is properly converted in the absence of a witness whose position confers the requisite permission and authority over stolen goods.Here, the allegations include that Steven Velasquez, a security guard, observed the Defendant enter The Gap with her two young children. The security guard alleged that he observed both children remove several items from the shelves, hand them to the defendant, who then placed those items in a pink bag that the Defendant was carrying. The security guard further stated that as he continued to watch the Defendant, he observed that she too would pick up clothing and put those items in the same pink bag. The security guard watched as the defendant, while still holding the property, bypassed the registers and left the location without paying for the items. The security guard continued to follow the Defendant, whereupon he observed the Defendant enter The Children’s Place, another clothing establishment. Once inside, he again observed the defendant placing store merchandise in the same pink bag. A few moments later, the Defendant was stopped and the property from both locations was recovered from the bag, with the whole incident taking less than 25 minutes.This Court finds the facts here would lead a reasonable person to believe that the Defendant was taking the clothing and did not have permission and authority to do so without paying for each item. Although a store manager of The Children’s Place, is the type of witness most often relied upon by the people to establish permission and authority, it is not required to provide reasonable cause to believe that the Defendant committed the crimes of Petit Larceny or Possession of Stolen Property. A person who has witnessed facts sufficient to form a reasonable conclusion as to an offense committed, in this case Petit Larceny or Criminal Possession of Stolen Property, is permitted to conclude that that person did not have permission and authority to possess or remove those items that are alleged to have been stolen.The controlling case relied upon by this Court is People v. Borrero, 26 NY2d 430 [1970]. In that case, the Defendant was observed by a detective standing in the street prying on the vent windows of parked cars with a screwdriver. After being watched by the detective for several minutes, his conduct was interrupted by another individual. It was at this point in time the defendant, after concealing the screwdriver beneath his jacket began to walk away, only to be stopped shortly thereafter by the detective. The Court of Appeals, reversing the Appellate Court’s ruling, found that based on the circumstantial evidence, the facts supported the conclusion that the Defendant’s actions constituted a crime, to wit: Possession of Burglary Tools. The Court opined that the failure to produce the owner of the property was not fatal to the prosecution and that the Defendant’s intent can be inferred from the surrounding circumstances. This court finds that same notion can be applied to the facts in the instant matter.The circumstantial evidence offered here, clearly would, according to common human experience lead a reasonable person to conclude that the Defendant was stealing property from both the Gap and The Children’s Place. The security guard, Steven Vasquez, was purposely focused on this Defendant and watched her placing store merchandise in a bag that was not a bag provided by the establishment. He continued to watch as this Defendant left the first establishment without providing payment and continued on to the second location where he continued to watch the defendant as she removed several more items from the display shelf and a store rack. Accordingly, the Defendant’s lack of ownership may reasonably be inferred based on the surrounding facts and circumstances.The Defendant further argues that the supporting deposition of John Durst, the loss prevention manager at The Children’s Place is required to remove any hearsay from the accusatory instrument. Although technically correct, here, it is not necessary since the charges have been sufficiently established without the supporting deposition of John Durst. Under CPL §§100.15[1] and 100.40[1][c], in order for an information or a count to be sufficient on its face, every element of the offense charged and the defendant’s commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions. In this matter, the supporting deposition of security guard Steven Vasquez, standing alone, corroborates the charged crimes.Accordingly, the Defendant’s motion to dismiss the accusatory instrument is denied.The foregoing constitutes the opinion, decision, and order of the Court.Dated: June 20, 2018New York, New YorkENTER:
