Summary
In People v Bannister (37 Misc.3d 1229 [A], 2012 NY Slip Op 52240[U] [Crim Ct, NY County 2012]), a charge of fraudulent accosting was dismissed where the defendant hailed cabs in the hopes of obtaining tips from travelers while pretending to be an Amtrak worker, but where the accusatory instruments did not allege that defendant approached the victims while doing so (see also People v Morrison (58 Misc.3d 19 [App Term, 1st Dept 2017] [holding same where defendant was impersonating a Port Authority employee]).
Summary of this case from People v. MitchellOpinion
No. 2012CN005065.
2012-12-10
The PEOPLE of the State of New York v. Juan BANNISTER, Defendant.
Steven Banks, Esq., The Legal Aid Society (H. Adam Meyer IV of counsel), for the Defendant. Cyrus R. Vance, Jr., District Attorney, New York County (Kelly Rahn of counsel), for the People.
Steven Banks, Esq., The Legal Aid Society (H. Adam Meyer IV of counsel), for the Defendant. Cyrus R. Vance, Jr., District Attorney, New York County (Kelly Rahn of counsel), for the People.
ROBERT M. MANDELBAUM, J.
According to the superseding information, a police officer observed defendant standing in the street at the corner of West 34th Street and Seventh Avenue, approximately one block away from Pennsylvania Station, for approximately 10 minutes, blocking traffic as defendant waved down passing taxicabs. After successfully stopping one taxi, defendant opened its doors and assisted another person to place his luggage inside; the other person then handed defendant some money. Throughout the encounter, defendant was wearing an Amtrak lanyard around his neck, the end of which was tucked into defendant's shirt pocket, where it could not be seen. Upon recovery of the lanyard, the officer learned that “in place of any kind of official Amtrak identification at the end of [the] lanyard, there was a key which defendant had placed in defendant's chest pocket.”
As a result of these allegations, defendant was charged with fraudulent accosting, disorderly conduct, opening or closing doors, and hailing taxis. This court previously rendered an oral decision dismissing the fraudulent-accosting charge for facial insufficiency. This opinion serves to explain the basis for the court's prior ruling.
“No person, other than an occupant or prospective occupant of a passenger vehicle on a street, shall open, hold open, or close, or offer to open, hold open, or close any door of the vehicle. This provision shall not apply to such acts when intended purely as a social amenity without expectation or acceptance of a gratuity, nor to doormen or other persons employed by owners, occupants, or managers of abutting premises to render such service, nor when such service is incidental to other legitimate service being rendered to such an occupant or prospective occupant of a passenger vehicle” (34 RCNY 4–04[e][4] ).
“Unless asked to do so without advance solicitation (direct or implied), no person shall hail or procure for another, not in his or her social company, a taxi or other passenger vehicle” (34 RCNY 4–04[e] [5] ).
In order to be sufficient on its face, an information must provide reasonable cause to believe that the defendant has committed the crime charged and contain nonhearsay allegations that, if true, establish every element of the crime and its commission by the defendant ( seeCPL 100.40[1][b], [c] ). 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 of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it” (CPL 70.10[2] ).
A person is guilty of fraudulent accosting “when he accosts a person in a public place with intent to defraud him of money or other property by means of a trick, swindle or confidence game” (Penal Law § 165.30[1] ). The People contend, and the court agrees, that defendant's actions in visibly wearing an Amtrak lanyard, unattached to any valid Amtrak identification, demonstrate an intent to defraud by means of a trick, swindle or confidence game. Plainly, if the allegations are true, defendant wanted the person from whom he received money for providing the unauthorized service of hailing a cab and assisting with luggage to believe that he was officially sanctioned to do so as an Amtrak employee.
But although fraudulent accosting is in essence “a theft offense aimed primarily at confidence artists who prey upon the gullible” (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 165.30 at 238), evidence of fraud alone is not enough, since essential to the crime is an additional and distinct element of accosting. To accost means “to approach and speak to”; “speak to without having first been spoken to” (Webster's Third New International Dictionary 12 [1993] ).
The information here is devoid of any allegation that defendant “initiate[d] contact with the potential victim in some manner” (People v. Tanner, 153 Misc.2d 742, 745 [Crim Ct, N.Y. County 1992] ). It is, of course, conceivable that defendant approached the victim and offered to hail him a cab. It is equally conceivable, however, that the victim, observing defendant's ostensibly official Amtrak lanyard, approached defendant in the mistaken belief—a belief that defendant fraudulently misled the victim into holding—that defendant was an Amtrak employee who could and was authorized to assist him. Conduct equally compatible with guilt or innocence cannot supply reasonable cause ( see People v. Carrasquillo, 54 N.Y.2d 248, 254 [1981] ).
Accordingly, defendant's motion to dismiss must be granted.