DECISION AND ORDER The Defendant was arraigned on December 19, 2018, and charged by criminal complaint dated December 11, 2018, with Petit Larceny in violation of Penal Law (“P.L.”) §155.25 and Criminal Possession of Stolen Property in the Fifth Degree in violation of P.L. §165.40. The Defendant now moves this Court for an order dismissing the accusatory instrument on the ground that the accusatory instrument is facially insufficient, in that it fails to establish the elements of each of the offenses charged. The People by Affirmation filed on April 30, 2019, oppose the Defendant’s motion.FACTUAL ALLEGATIONSDET JAMES CAUSA of NARCBBX, Shield# 1852, states that on or about October 26, 2018 at approximately 12:35 AM in front of 1815 Grand Concourse, County of the Bronx, State of New York,THE DEFENDANT COMMITTED THE OFFENSES OF:(M) P.L. 155.25 Petit Larceny DQO(M) P.L. 165.40 Criminal Possession of Stolen Property 5^ DQOTHE GROUNDS FOR THE DEPONENT’S BELIEF ARE AS FOLLOWS:Deponent is informed by Undercover Police Officer, Shield #398, that at above time and place, informant and defendant engaged in a brief drug related conversation regarding informant purchasing marijuana and cocaine.Deponent is further informed by informant that informant handed defendant a sum of ($20) dollars United States Currency pre-recorded buy money, at which point defendant left the location and did not return.Deponent is further informed by informant that informant did not give defendant permission or authority to keep said currency (pre-recorded buy money) without providing the agreed upon controlled substance.Deponent states that he observed defendant to have on his person, inside his front right pants pocket, twenty ($20) dollars United States Currency pre-recorded buy money.FACIAL SUFFICIENCY STANDARDTo be facially sufficient, an accusatory instrument “must designate the offense or offenses charged” (C.P.L. §100.15 [2]) and “must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges.” C.P.L. §100.15(3). More specifically, an information must provide “reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information” and must contain “non-hearsay allegations…[that] establish, if true, every element of the offense charged and the defendant’s commission thereof.” People v. Henderson, 92 N.Y. 2d 677, 679 (1999); see C.P.L. §100.40 (1). “An information must set forth the required non-hearsay evidentiary allegations within the ‘four corners of the instrument itself’ or in annexed supporting depositions.” People v. Thomas, 4 N.Y. 3d 143, 146 (2005).The Court of Appeals has stated that the C.P.L. §100.40(1) places “the burden on the People to make out their prima facie case for the offense charged in the text of the information.” People v. Jones, 9 N.Y. 3d 259, 261 (2007). It should be noted that the prima facie case requirement is not the same as the burden required at trial of proof beyond a reasonable doubt, “nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at the trial.” People v. Kalin, 12 N.Y. 3d 225, 230 (2009).In determining the facial sufficiency of an accusatory instrument, this court must view the facts in the light most favorable to the People. People v. Contes, 60 N.Y.S. 2d 620, 621 (1983). It is required that the factual allegations in the 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.” People v. Kalin, 12 N.Y. 3d 225. Ultimately, the information “should be given a fair and not overly restrictive or technical reading.” People v. Casey, 95 N.Y. 2d 354, 740 N.E. 2d 233 (2000).The court, having reviewed the parties’ submissions, the court file, relevant statutes, and case law, finds as follows:FACIAL SUFFICIENCY ANALYSISIn the instant proceeding, the Defendant asserts that the criminal complaint should be dismissed because it is facially insufficient in that it fails to establish the elements of each of the offenses charged. Specifically, the Defendant argues that the criminal information does not make out the intent element or the theft element of larceny. The Defendant further argues that the “knowingly” element of Criminal Possession in the fifth degree cannot be made out in the information because the information lacks facts that would establish this element.Pursuant to P.L. §155.25, a person is guilty of Petit Larceny when such person steals property. In charging Defendant with larceny by information, the People are required to establish reasonable cause to believe that, “with intent to deprive another of property or to appropriate the same to himself or to a third person, [defendant] wrongfully t[ook], obtain[ed] or with [held] such property from an owner thereof” Penal Law §155.05(1) .The crime of larceny consists of an unauthorized taking, coupled with the “intent to deprive another of property or to appropriate the same” (P. L. §155.05[1]).See also, People v. Jennings, 69 N.Y.2d 103, 118, 504 N.E. 2d 1079, 1086 (1986). The terms “deprive” and “appropriate” are specifically defined in P.L. §155.00 and the relevant portions of the statute state:“To ‘deprive’ another of property means (a) to withhold it or cause it to be withheld from him permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him, or (b) to dispose of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property”. P.L. §155.00 (3).“To ‘appropriate’ property of another to oneself or a third person means (a) to exercise control over it permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit, or (b) to dispose of the property for the benefit of oneself or a third person”. P.L. §155.00 (4)The Defendant is also charged with Criminal possession of Stolen Property in the Fifth Degree. Pursuant to P.L. §165.40, a person is guilty of Criminal Possession of Stolen Property in the Fifth Degree when that person knowingly possesses stolen property, with intent to benefit himself or herself or a person other than an owner thereof or to impede the recovery by an owner thereof.The pertinent parts of the criminal complaint herein include the following allegations:Deponent is informed by Undercover Police Officer, Shield #398, that at above time and place, informant and defendant engaged in a brief drug related conversation regarding informant purchasing marijuana and cocaine.Deponent is further informed by informant that informant handed defendant a sum of ($20) dollars United States Currency pre-recorded buy money, at which point defendant left the location and did not return.Deponent is further informed by informant that informant did not give defendant permission or authority to keep said currency (pre-recorded buy money) without providing the agreed upon controlled substance.Deponent states that he observed defendant to have on his person, inside his front right pants pocket, twenty ($20) dollars United States Currency pre-recorded buy money.Upon a review of the four corners of the criminal complaint, the Court finds that complaint fails to support the necessary elements in both charges. Specifically, the complaint fails to allege the intended purpose of providing the $20.00 to the Defendant. The People cite to People v. Kinfe, in support of their argument, where the court made a reasonable inference that the Defendant’s intent was to wrongfully take $20.00 from the undercover officer. People v. Kinfe, 52 Misc. 3d 1217(A), 43 N.Y.S.3d 768 (N.Y.Crim.Ct. 2016).The criminal information in Kinfe contained the following factual allegations“I am informed by undercover police officer [] of the Narcotics Borough Manhattan South that the defendant approached him and stated in substance ‘I can sell you two rocks for $20′ and that the undercover agreed to pay the defendant $20. I am further informed that the defendant then placed a small bag inside the undercover’s jacket and stated, in substance, that the bag contained ‘two rocks inside some synthetic marijuana’.I am informed that the defendant then stated that the undercover should place the money on the table, and that the undercover placed $20 of pre-recorded buy money on the table and walked away from the defendant.I recovered $20 of pre-recorded buy money from the table where the undercover left it for the defendant. I am custodian of the $20 and the defendant did not have permission or authority to take or possess the money.” People v. Kinfe, 52 Misc. 3d 1217(A), 43 N.Y.S. 3d 768 (N.Y.Crim.Ct. 2016).The latter factual allegations permitted the court in Kinfe to make a reasonable inference on the Defendant’s intent to wrongfully take $20.00 from the undercover officer. In contrast, the factual allegations contained in the criminal complaint herein are devoid of the necessary allegations to permit this Court to make a reasonable inference as to the Defendant’s intent or that the Defendant wrongfully took, obtained, or withheld the $20.00 from the undercover officer.For instance, the criminal complaint herein does not allege that the undercover officer had an agreement with the Defendant to purchase drugs with the pre-marked $20.00 nor does the complaint provide circumstantial facts in which this Court can make a reasonable inference that the undercover officer had an agreement with the Defendant to purchase drugs with the pre-recorded $20.00 that was given to the Defendant. The complaint herein states “Deponent is informed by Undercover Police Officer, Shield #398, that at above time and place, informant and defendant engaged in a brief drug related conversation regarding informant purchasing marijuana and cocaine.” Emphasis added. The Court cannot infer from this allegation that the undercover and the Defendant had any agreement that the Defendant would have any involvement in the undercover’s purchase of cocaine and marijuana. The only conduct alleged involving the Defendant was the undercover handing him $20.00, not that he engaged in any drug-related or other illegal activity.Furthermore, the complaint does not allege that the deponent or the undercover officer were the owners or custodians of the pre-recorded $20.00 given to the Defendant nor does the complaint allege the span of time during which the events in question took place, including how long the Defendant was allegedly gone. Without these factual allegations, the Court cannot make a reasonable inference as to the Defendant’s intent nor that the Defendant wrongfully took, obtained, or withheld the $20.00 from the undercover officer. Thus, the instant criminal complaint fails to allege sufficient factual allegations to support the essential elements necessary to support the charges of P.L. §155.25 and P.L. §165.40.Accordingly, the Defendant’s motion to dismiss P.L. §155.25 and P.L. §165.40 charges as facially insufficient is GRANTED and the remaining contentions and application for additional relief are rendered moot.This constitutes the decision and Order of the Court.Dated: May 10, 2019Bronx, New York
