Opinion
No. 2016NY005316.
03-18-2016
The PEOPLE of the State of New York v. Jian ZHOU, Defendant.
Jason Tortora, Esq., The Legal Aid Society, New York, for Defendant. Office of the New York County District Attorney, New York, for The People of the State of New York.
Jason Tortora, Esq., The Legal Aid Society, New York, for Defendant.
Office of the New York County District Attorney, New York, for The People of the State of New York.
LOUIS, J. NOCK, J.
The defendant moves, pursuant to Criminal Procedure Law (“CPL”) § 100.40 and 170.30, to dismiss the charges of NYC Administrative Code (“AC”) § 20–453 and 20–461(b).
On February, 3, 2016, the defendant was arraigned upon an information charging her with violating AC § 20–453, unlicensed general vending; and AC § 20–461(b), failure to conspicuously display a general vendor's license. On February 18, 2016, the defendant filed the present motion to dismiss, and the people filed a superseding information. The superseding information added the charge of Penal Law (“PL”) § 165.71, trademark counterfeiting in the third degree. The factual allegations on the Administrative Code charges are unchanged with the exception that the defendant is now alleged to have been wearing the merchandise on her wrist, rather than holding the merchandise in her hand. This minor change is inapplicable to the defendant's argument in favor of dismissal. Therefore, it is appropriate to consider the merits of the defendant's arguments as applied to the superseding information.
FACIAL SUFFICIENCY
A misdemeanor information is facially sufficient if the non-hearsay facts stated in said information, together with any supporting depositions, establish each and every element of the offense charged, as well as the defendant's commission of said crime (CPL § 100.40 ). For an information to be sufficient and, thereby, make out a prima facie case, it does not need to allege facts that, if proven and taken alone, could establish a defendant's guilt beyond a reasonable doubt (People v. Jennings, 69 N.Y.2d 103 [1986] ). Rather, an information need only allege facts sufficient to enable a defendant to have “notice sufficient to prepare a defense” and that such facts be “adequately detailed to prevent a defendant from being tried twice for the same offense” and that such facts “be given a fair and not overly restrictive or technical reading” (People v. Casey, 95 N.Y.2d 354, 360 [2000] ). “A court reviewing for facial insufficiency 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. Barber, 42 Misc.3d 1225[A], [Crim Ct N.Y. County 2014].)
The defendant is charged with AC § 20–453 and 20–461(b). AC § 20–453 provides “[i]t shall be unlawful for any individual to act as a general vendor without having first obtained a license.” AC § 461(b) provides “[t]he general vendor's license shall contain his or her name, his or her license number and a non-removable photograph of the licensee. It shall be worn conspicuously by him or her at all times while he or she is operating as a general vendor .” A “general vendor” is defined by AC § 20–452(b) as a “person who hawks, peddles, sells, leases or offers to sell or lease, at retail, goods or services, including newspapers, periodicals, books, pamphlets or other similar written matter in a public space.”
The defendant contends that the allegations in the information are insufficient because they fail to plead that the defendant was selling goods in a “public space.” The defendant relies upon the recent Court of Appeals decision in People v. Afilal (26 NY3d 1050 [2015] ) which held that an information failed “to allege sufficient facts to establish the public place' element of [Penal Law] section 221.10(1) ” (Afilal, supra, at 1051).
However, the definition of “public space” applicable to the Administrative Code charges herein has a definition which is distinct from that of a “public place” applicable to PL § 221.10 (criminal possession of marihuana in the fifth degree). AC § 20–452(d) defines “public space” as “[a]ll publicly owned property between the property lines on a street as such property lines are shown on the City Record including but not limited to a park, plaza, roadway, shoulder, tree space, sidewalk or parking space between such property lines. It shall also include, but not be limited to, publicly owned or leased land, buildings, piers, wharfs, stadiums and terminals.” On the other hand, “public place,” as defined by PL § 240.00(1), “means a place to which the public or a substantial group of persons has access.” These are clearly distinguishable definitions. The essential element of “public place” is that the public has access to the location. However, with a “public space” there is no requirement that the public or a substantial group of persons have access. Instead “public space” deals with ownership and control of a space. Under the definition of “public space,” even publicly owned property to which no one is permitted access could be a public space.
Accordingly, although the description of the location at which the defendant is alleged to have committed the crimes charged herein utilizes the same language of “opposite” a certain address, similar to such language alleged in the Afilal pleading, a less detailed description is required in the present case than was required by the Court of Appeals in Afilal. In Afilal, a more detailed description was needed in order to more precisely plead the public nature of defendant's location (see Afilal, supra, at 1052). The Administrative Code crimes charged in the present case are not required to allege that the offenses were public in nature. Rather, the crimes are committed when the actions alleged occur on publicly owned or leased property. Therefore, the allegation that the defendant's conduct occurred in a “public space” are sufficient, and this court limits the application of Afilal to its statutory context: PL § 221.10(1).
Therefore, the “public space” element of the Administrative Code charges in the information is sufficiently pled. This, when combined with the factual allegations that the defendant was observed offering for sale approximately ten bracelets, and that the defendant was not displaying a license issued by the Department of Consumer Affairs and could not produce one when asked, sufficiently allege each element of the Administrative Code crimes charged herein.
CONCLUSION
Accordingly, for the reasons stated herein, it is hereby
ORDERED that Defendant's motion to dismiss the information is DENIED in its entirety.
This constitutes the decision and order of the Court.