DECISION AND ORDEROPINION OF THE COURT Defendant stands charged with one count of Penal Law §155.25 (Petit Larceny). Defendant now moves by omnibus motion for an order: (1) dismissing the accusatory instrument as facially insufficient pursuant to CPL §§100.40 and 170.30; (2) for a Bill of Particulars and discovery; (3) precluding the admission of evidence pursuant to CPL §710.30; (4) suppressing identification evidence or, in the alternative, granting a Wade/Dunaway hearing; (5) granting a pre-trail “voluntariness” hearing for statements made to civilians or statements sought to be used only on cross-examination of the defendant; and (6) precluding at trial the use of the defendant’s prior criminal history or prior uncharged criminal, vicious, or immoral conduct.FACIAL SUFFICIENCY“The procedural requirements for the factual portion of a local criminal court information are, simply: that it state facts of an evidentiary character supporting or tending to support the charges, that the allegations of the factual part together with those of any supporting depositions provide reasonable cause to believe that the defendant committed the offense charged and that the non-hearsay allegations of the information and supporting depositions establish, if true, every element of the offense charged and the defendant’s commission thereof” (People v. Casey, 95 NY2d 354, 360 [2000] [internal quotations omitted; CPL §100.40[1]; see, CPL 100.15[3]).“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. Oldham, 54 Misc 3d 303, 305–06 [Crim Ct, New York County 2016] [internal quotations omitted]; see CPL §100.40 [1][c]). Furthermore, “[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 or technical reading” (People v. Casey, 95 N.Y.2d 354, 360 [2000]).PL §155.25 provides that “A person is guilty of petit larceny when he steals property” (PL §155.25). “A person steals property … when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof” (Penal Law §155.05[1]). In other words, the People must allege “ownership of the property in question, a taking or asportation of that property, that the taking was without the owner’s consent, that it was done by the defendant, and that it was done with the intent to deprive the owner of the property or to appropriate same to the defendant or a third person” (People v. Fishman, 44 Misc 3d 1208(A) [Crim Ct, Kings County 2014] citing People v. Shurn, 69 AD2d 64 [2d Dept, 1979]).In the accusatory instrument, Police Officer Michael Bellie states that he is informed by Bellaneira Robles Olmo that on or about August 7, 2018, at about 1:07 AM, at the northwest corner of East 20th Street and Park Avenue South, Ms. Robles Olmo arrived at her vehicle and observed that all four doors of her vehicle were open, and that the defendant was leaning in the rear passenger door going through her property in the vehicle. Ms. Olmo observed several items of property on the ground next to defendant’s feet, including several items of makeup which she had previously left inside her vehicle. Ms. Robles Olmo informed Officer Belli that she is the custodian of this property and that defendant did not have permission or authority to take or possess such property.These allegations, taken as true, are sufficient to establish defendant’s commission of every element of the offense charged. Defendant’s arguments to the contrary are unavailing. Defendant first argues that the complaint does not identify the specific objects owned by the complainant that defendant allegedly possessed. In fact, the complaint states that several items of makeup were on the ground by her car, leading the Court to the reasonable inference that defendant was the person who moved them there, thereby exercising dominion and control over these items inconsistent with the complainant’s rights. “Where a larceny is committed by trespassory taking, a thief’s responsibility for the crime is not diminished because his act of carrying away the loot (asportation) is frustrated at an early stage” (People v. Robinson, 60 NY2d 982, 983-84 [1983]; see also People v. Olivo, 52 NY2d 309 [1981] [shoplifter exercised dominion and control over the goods wholly inconsistent with the continued rights of the owner guilty of larceny even though apprehended before leaving store]).Defendant also argues that the complaint fails to allege any facts that would lead to the inference that defendant intended to steal anything. This, too, is incorrect, as defendant’s presence in complainant’s car without her permission, and his removal of items within that car, creates a reasonable inference that he was planning to take some or all of these items (See People v. Bailey, 59 Misc 3d 142(A) [App Term, 1st Dept 2018], lv to appeal denied, 31 NY3d 1144 [2018] [defendant's "larcenous intent is readily inferable from allegations that he exercised dominion and control over the complainant's phone for a period of time, however temporary, in a manner wholly inconsistent with the complainant's continued rights"]). Accordingly, defendant’s motion to dismiss the accusatory instrument as facially insufficient is denied.MOTION TO PRECLUDE STATEMENT AND IDENTIFICATION EVIDENCEThe branch of the defendant’s motion that is to preclude evidence of unnoticed statements or identification procedures (CPL §710.30[3]) is denied, with leave granted for the defendant to renew this branch of the motion upon learning that the People intend to introduce any such evidence at the defendant’s trial.VOLUNTARINESS HEARINGDefendant’s motion, pursuant to CPL §710.20(3), for a pre-trial voluntariness hearing for unnoticed statements to be used in the cross-examination of defendant or statements made to civilians is denied, without prejudice, as premature.MOTION TO SUPRESS IDENTIFICATION EVIDENCEThe branch of the defendant’s motion that is to suppress evidence regarding any prior identification and in-court identification (CPL §710.60[4]) as well as evidence of pretrial identification procedures (CPL §710.20[6]) is granted to the extent that a Wade/Dunaway hearing is ordered to take place before trial and is otherwise held in abeyance pending this hearing and is referred to the hearing judge for determination.MOTION TO COMPEL A BILL OF PARTICULARS AND DISCOVERYDefendant’s motion seeking a Bill of Particulars and Discovery is granted to the extent that the People are to serve a Voluntary Disclosure Form and their Response within two weeks after receipt of this Decision and Order if they have not already done so (CPL §§200.95[2]-[6]; 240.40, 240.80). The People are reminded of their continuing duty to supply all Brady material.SANDOVAL/VENTIMIGLIA MOTIONThe branch of the defendant’s motion that is to preclude the People from introducing evidence of the defendant’s prior uncharged criminal, vicious or immoral acts for the purpose of impeaching the defendant’s credibility at trial is granted to the extent that the People are directed to provide written notice to the defendant of all such acts, if any, that they intend to introduce at the defendant’s trial (CPL §240.43) no later than three days prior to jury selection (excluding Saturdays, Sundays, and court holidays). The defendant is granted leave to renew the branch of this motion that is for a Sandoval/Ventimiglia hearing upon receiving such notice.Accordingly, it isORDERED that branch of defendant’s motion that is to dismiss the accusatory instrument as facially insufficient is DENIED; and it is furtherORDERED that the branch of defendant’s motion that is to preclude evidence of unnoticed statements is DENIED without prejudice; and it is furtherORDERED that the branch of defendant’s motion seeking a voluntariness hearing is DENIED without prejudice; and it is furtherORDERED that the branch of defendant’s motion that is to suppress identification evidence is GRANTED to the extent set forth above; and it is furtherORDERED that the branch of defendant’s motion to compel a Bill of Particulars and Discovery is GRANTED to the extent set forth above; and it is furtherORDERED that the branch of defendant’s motion that is to preclude the People from introducing evidence of the defendant’s prior uncharged criminal, vicious or immoral acts is GRANTED to the extent set forth above.This constitutes the Decision and Order of the Court.Dated: November 26, 2018New York, New York
