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Appellate Term, First Department: July 7, 2020

Appellate Term, First Department: July 7, 2020

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By: Shulman, P.J., Cooper, Torres, JJ.

13-465. THE PEOPLE OF THE STATE OF NEW YORK, res, v. RAUL VARGAS, def-app — Judgment of conviction (Tamiko A. Amaker, J.), rendered February 15, 2013, reversed, on the law, and the accusatory instrument dismissed. We agree with defendant that the accusatory instrument charging theft of services (see Penal Law §165.15[3]) was jurisdictionally defective. The instrument failed to contain allegations to support an essential element of the offense, namely, defendant’s “unjustifiable failure or refusal to pay” the charge for public transportation service. The mere allegation that defendant, while “aboard” an undelineated New York City bus, “could not produce the receipt” for the purchase of his fare, is, without more, insufficient to establish the nonpayment element of the offense, given the absence of any allegations that defendant was on a select bus or explaining the significance or requirement of a receipt (see People v. Polanco, 162 AD3d 434, 435 [2018], lv denied 32 NY3d 940 [2018] [nonpayment element of theft of services was sufficiently charged by way of allegations explaining the procedure for riding a "select bus" and stating that "defendant rode such a bus without being able to produce a payment receipt," which effectively constituted failure to pay]). In view of our determination, we reach no other issue. All concur. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

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