People v Verastegui

[*1] People v Verastegui 2005 NY Slip Op 51298(U) Decided on August 12, 2005 Criminal Court Of The City Of New York, Kings County Sciarrino, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2005
Criminal Court of the City of New York, Kings County

THE PEOPLE OF THE STATE OF NEW YORK, DECISION/ORDER

against

Christopher Verastegui.



2005KN009057

Matthew A. Sciarrino, J.

The defendant moves to dismiss the charges of Petit Larceny (PL §155.25), Obstructing Governmental Administration in the Second Degree (PL §195.05), and all four counts of Criminal Possession of a Forged Instrument in the Third Degree (PL §170.20) for facial insufficiency, pursuant to CPL §170.30(1)(a) and 170.35.

Facts

On February 12, 2005, at the Myrtle Ave subway station, the defendant was arrested by Police Officer Jemal Gungor of Transit District 33. Officer Gungor allegedly observed the defendant receive money from two individuals, in exchange for which the defendant swiped a metro-card through the subway turnstile for each of these individuals, allowing them to enter the transit system. Officer Gungor allegedly recovered four metro-cards that were bent along the magnetic strip and the sum $4.00 from the defendant. These bent metro-cards did not maintain a cash balance.

On February 13, 2005, the defendant was arraigned on a misdemeanor complaint charging him with Unlawful Receipt of Fare for Providing Access to Transit Authority Facilities (NYCRR §1050.4[C]), Petit Larceny (PL §155.25), Theft of Services (PL §165.15[3]), Obstructing Governmental Administration in the Second Degree (PL § 195.05), and four counts of Criminal Possession of a Forged Instrument in the Third Degree (PL §170.20).[FN1] The misdemeanor complaint was corroborated by the arresting officer who claims to have observed the alleged incident, and was deemed an information.

Discussion

CPL §100.15 provides that every accusatory instrument must contain an accusatory portion designating the offense charged and a factual portion containing evidentiary facts that support, or tend to support the charges stated in the accusatory portion of the instrument. Such facts must provide reasonable grounds to believe that the defendant has committed the crime alleged (People v Dumas, 68 NY2d 729, 731 [1986]). In order for the misdemeanor complaint to be facially [*2]sufficient, the non-hearsay facts stated in the complaint must establish each and every element of the offense charged and that the defendant committed the alleged crime (People v Alejandro, 70 NY2d 133, 134-35 [1987]).

Petit Larceny

PL §155.25 provides that "[a] person is guilty of Petit Larceny when he steals property." "Property" is defined in PL §155.00 as "any money or thing of value which is provided for a charge or compensation." (Emphasis added). Further, PL §155.05(1) defines "larceny" as "when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains, or withholds such property from an owner thereof."

According to the People, profits that were normally due to the Metropolitan Transportation Authority ("MTA"), were not realized due to the defendant's alleged swiping of two individuals through the subway turnstile in exchange for money. The issue of whether the charge of Petit Larceny is facially sufficient turns on whether money that the defendant received for the swiping the metro-cards, which would have ordinarily have been tendered to the MTA meets the definition of "property."

The defense cites People v Harris (4/24/2000 NYLJ 35, [col 3])(dismissing complaint alleging petit larceny for swiping two individuals through subway system with metro-card as facially insufficient) and People v Johnson, (8/2/93 NYLJ 24, [col 1])(finding complaint alleging petit larceny for slipping through turnstile facially insufficient) to show that the defendant here stole only "services" and not "property." However, Harris was dismissed because there were no factual allegations that it was illegal for the defendant to swipe those to individuals through the subway system.[FN2] Further, Johnson was dismissed because the defendant slipped through the turnstile and gave access only to himself. Therefore, the defendant in Johnson stole transportation services without stealing any "property" from the MTA. However, here, the defendant allegedly stole the transportation services and sold them to two individuals, thereby depriving the MTA of their profits from those individuals. This Court finds that the defendant was allegedly depriving the MTA of their lost profits and that the profits of a business are property (People v Zayas, 797 NYS2d 897, 901 [2005]). Accordingly, the defendant's motion to dismiss the charge of Petit Larceny (PL §155.25) is denied.

Obstructing Governmental Administration

The defendant is alleged to have intentionally sold swipes of a bent metro-card to two individuals, thereby obstructing the governmental function of the New York City Transit Authority ("NYCTA"). PL §195.05 states that a person is guilty of Obstructing Governmental Administration [*3]in the Second Degree when "he intentionally obstructs, impairs, or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function "

Although there has been much dissent regarding the reading of this statute by the courts with regard to the progeny of "metro-card cases," a thorough read of the legislative history of PL §195.05, clearly shows that the acts allegedly committed by this defendant were not meant to be charged as a violation of PL §195.05. Moreover, the New York State Legislature recently promulgated PL §165.16, Unauthorized Sale of Certain Transportation Services [FN3] to deal with a District Attorney's inability to adequately charge a person for committing the acts alleged to have been committed by this defendant [FN4]. The legislative history clearly shows that Obstruction of Governmental Administration involves violence or physical interference (39 McKinney's Consolidated Laws of New York, Annotated, Penal Law §§1.00 to 219, p. 642-643 1967). Within the scope of PL §195.05 are such cases as: [1] an assault on a public servant who is engaged in the performance of his official duties, provided that the defendant's intent is to prevent such public servant from performing an official function; [2] tampering with a motor vehicle of a housing inspector, provided that the defendant's intent is to prevent such inspector from carrying out his official duties; and [3]engaging in disorderly conduct in the chamber of a legislative body with intent to obstruct the legislative session (id).

Article 195 of Title L of the revised Penal Law, makes it a crime to obstruct public servants from performing their official duties [Emphasis Added]. Moreover, the commentaries reference two Law Review Articles,[FN5] that both expressly refer to public servants who are curtailed from performing an authorized official duty, and to one who intentionally impedes or defeats a governmental function by means of physical force or interference or by means of some independently unlawful act. The facts of the instant case do not indicate that the defendant purported to hinder a "governmental function," or that he impeded a public servant from performing an official duty.

This court acknowledges that the MTA is a public benefit corporation, responsible for facilitating public transportation in New York City and the surrounding areas (Public Authorities Law § 1264; People v. Dixon, 798 NYS2d 659 [2005]). Additionally, this court is cognizant that NYCTA is its local counterpart, responsible for facilitating transportation within New York City itself and that the MTA and NYCTA work in conjunction with one another in the operation and control of the transit system (Public Authorities law §§1202 [1], 1264 [1]). However, this court finds too tenuous, the argument that by allegedly swiping an altered metro-card in exchange for [*4]money, and diverting funds away from the NYCTA (and therefore the MTA), the defendant is obstructing the governmental function of the NYCTA and MTA. Accordingly, the defendant's motion to dismiss the charge of Obstructing Governmental Administration is granted.

Criminal Possession of a Forged Document

Under PL §170.20, "a person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument." A "forged instrument," under PL §170.00(7) is a "written instrument which has been falsely made, completed or altered" [Emphasis Added]. The defendant is charged with Criminal Possession of a Forged Instrument because he allegedly possessed four "bent" metro-cards. In order for these charges to stand, a metro-card must be deemed a "written instrument" and the defendant must have "falsely altered" the metro-cards.

A "written instrument," under PL § 170.00(1) is defined as "any instrument or article containing written or printed matter or the equivalent thereof, used for the purpose of recording information " Further, PL § 170.00(6) provides that "a person 'falsely alters' a written instrument when, without the authority of anyone entitled to grant it, he changes a written instrument ... by means of erasure, obliteration, deletion, insertion of new matter, transposition of matter, or in any other manner, so that such instrument in its thus altered form appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker or drawer." [Emphasis added].

A metro-card is clearly a "written instrument" (People v Lopez, ___Misc3d___, 797 NYS2d 893, 896 [2005]). Determining whether a bent metro-card is considered to be "falsely altered" requires an analysis of the instrument, as to whether "in its altered form [it] appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker or drawer." This is predicated on the entity or individual that the instrument is presented to, that will ultimately validate authenticity. For example, adding a digit to the amount on a check clearly meets the definition of "falsely alters," as when the check is presented to a bank teller, the bank teller will validate authenticity by depositing money in the depositor's account. Likewise, by swiping a bent metro-card through the turnstile, the defendant was allegedly purporting to the turnstile reader of the machine that the metro-card is authentic. In this situation the teller and the metro-card turnstile reader are analogous entities. Therefore, a metro-card, bent in a specific way, for the purpose of defrauding the MTA, does constitute a "forged instrument." Accordingly, the defendant's motion to dismiss all four counts of Criminal Possession of a Forged Instrument is denied.

This opinion shall constitute the Decision and Order of the Court.

Dated: August 12, 2005 ________________________

Hon. Matthew A Sciarrino, Jr.

Judge of the Criminal Court Footnotes

Footnote 1: The defendant did not move to dismiss the Theft of Services (PL §165.15 [3]) and the Unlawful Receipt of Fare for Providing Access to Transit Authority Facilities (NYCRR §1050.4 [c]) charges in the People's information on grounds of facial insufficiency.

Footnote 2: The Harris Court discussed the MTA regulations regarding use of MetroCards. It is illegal for a person to swipe another through the turnstile with an unlimited (whether or not it was obtained illegally) in exchange for compensation. However, with regards to a pay-per-ride MetroCard, it is perfectly legal to swipe up to four individuals in exchange for compensation.

Footnote 3:McKinney's Public Authorities Law §165.16, NY PENAL §165.16 Effective: July 11, 2005.

Footnote 4:See, Gaeta, Misuing Metrocards- Courts and Legislatures Take Swipe at the Crime, 4 Richmond County Bar Ass'n J. 17 (2005).

Footnote 5:Note, Types of Activity Encompasses by the Offense of Obstructing Public Officer, 108 U.Pa L. Rev. 388 (1960); Comment, Violation of a Statute Prohibiting Interference With a Police Officer, 11 Hastings L.J. 220 (1959).