People v Hilo (Myung)

[*1] People v Hilo (Myung) 2004 NY Slip Op 50713(U) Decided on July 1, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 1, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:DECIDED July 1, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
NO.2003-931 Q CR NO.2003-933 Q CR NO.2003-934 Q CR

THE PEOPLE OF THE STATE OF NEW YORK, Appellant,

against

MYUNG HILO, Respondent. THE PEOPLE OF THE STATE OF NEW YORK, Appellant, KYEONG CHOI, Respondent. THE PEOPLE OF THE STATE OF NEW YORK, Appellant, SUKHEE KIM, Respondent.

Appeals by the People from so much of the orders of the Criminal Court, Queens County (L. Gerald, J.), dated May 23, 2003, granting in each of three proceedings the People's motion for reargument and, upon reargument, adhering to a prior decision granting each defendant's motion insofar as it sought dismissal of the accusatory instrument.

On the court's own motion, appeals consolidated for purposes of disposition.

Orders unanimously modified upon the law by providing that, upon reargument, the motion by each defendant to dismiss the accusatory instrument is denied, accusatory instruments reinstated and matters remanded to the court below for a determination of the remaining branches of each defendant's motion.

In each case, the court dismissed the accusatory instrument charging defendant with one count of prostitution (Penal Law § 230.00) on the ground that the bare allegation that defendant "did offer and agree" to perform a sexual act for a fee "lacked sufficient factual allegations of defendant's communication or other manifestation of her willingness to perform the acts alleged" (cf. CPL 100.15 [3]). By the clear import of People v Allen (92 NY2d 378, 385 [1998]), we conclude that such terms as "offer and agree" as alleged in the accusatory portion are so inherently "evidentiary in character" that their mere recapitulation in the factual portion creates a facially sufficient pleading, the particulars of which are evidentiary matters appropriate for trial (see People v Miles, 64 NY2d 731, 732 [1984]; People v Polianskaia, 189 Misc 2d 237 [2001]; People v Kenrick, 162 Misc 2d 75, 76-77 [1994]; People v Ortiz, 146 Misc 2d 594, 596 [1990]; contra People v A.S., 179 Misc 2d 569, 571-572 [1998]).
Decision Date: July 01, 2004