People v Alvarez

[*1] People v Alvarez 2005 NY Slip Op 51514(U) [9 Misc 3d 1113(A)] Decided on September 15, 2005 Criminal Court Of The City Of New York, New York County Freed, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 15, 2005
Criminal Court of the City of New York, New York County

THE PEOPLE OF THE STATE OF NEW YORK

against

HECTOR ALVAREZ, Defendant.



2005NY036057

Kathryn E. Freed, J.

The defendant is charged with Patronizing a Prostitute in the Fourth Degree, (PL§230.03).

In his omnibus motion, the defendant moves to dismiss the instant accusatory instrument for facial insufficiency pursuant to C.P.L.§100.40 and C.P.L.§170.30. He also moves to preclude the People from introducing any statement or identification testimony at trial for which proper notice was not given pursuant to CPL§710.30(3) and also moves for a Sandoval hearing. Additionally, the defendant moves to reserve his right to make additional motions.

The court has reviewed the defendant's moving papers, the People's response, all relevant statutes and caselaw, and for the reasons discussed hereafter, grants the defendant's motion to dismiss the count of Patronizing a Prostitute in the Fourth Degree based on facial insufficiency.

MOTION TO DISMISS FOR FACIAL INSUFFICIENCY:

It is well settled that an accusatory instrument is a non-waivable jurisdictional prerequisite to a criminal prosecution. People v Case, 42 NY2d 98 (1977). In order to be considered facially sufficient, an accusatory instrument together with any supporting depositions, must allege facts of an evidentiary character supporting or tending to support the offense charged, C.P.L§100.15(3). It must also provide reasonable cause to believe that the defendant committed the offense charged, C.P.L.§100.40(1)(b); and it must contain non-hearsay allegations which establish if true, every element of the offense charged and the defendant's commission thereof. C.P.L.§100.40(1)(c). See also People v Dumas, 68 NY2d 729 (1986); People v Alejandro, 70 NY2d 133 (1988); People v McDermott, 69 NY2d 889 (1987); People v Case, supra . Mere conclusory allegations will render the instrument defective. People v Dumas, supra . The facts may establish a prima facie case for the purposes of pleading an offense, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. People v Jennings, 69NY2d 103 (1986); People v Swamp, 84 NY2d 725 (1995).

The factual part of the instant accusatory instrument states in pertinent part:

Deponent states on information and belief, the source of which is the

supporting deposition(s) of 1449 U/C, shield No.1449, of the

Unknown (sic) to be filed with this instrument, that defendant committed the [*2]

above stated crime(s):

1449 U/C. Shield #

1449 of the Unknown (sic) states that the defendant

agreed to engage in Sexual Conduct with 1449 U/C, shield #

1449 of the

Unknown,(sic) to wit: masturbation in exchange for $10.00 U.S. currency.

Accompanying the accusatory instrument is a pre-printed form entitled specifically,"Patronizing a Prostitute Supporting Deposition." It states the defendant's name, his arrest number, both the undercover officer's identification number and shield number. It also states the date, time and the location of the alleged offense. The factual portion of the pre-printed form reads as follows: "The defendant agreed to pay me a fee of $ ______ U.S. Currency, in return for Sexual Conduct with the defendant, to wit..... Underneath this, there are three options under a caption that reads, "CHECK ONE", with boxes next to the three options. It is generally understood that these are acts to be performed by the prostitute on the "John."

The three options are specifically, Fellatio, Sexual Intercourse and Masturbation. In this case, the box next to the term Masturbation is checked. Directly after the dollar sign, the number "10" is inserted, indicating that $10 was the alleged fee or consideration for the sexual act to be performed.

Additionally, the form contains a section which allows for the undercover officer to fill in the statement that the defendant allegedly stated in her presence. It reads specifically, "DEFENDANT STATED IN MY PRESENCE (in substance):_______________________. The defendant's alleged statement reads "I'll give you $10.00 to look at you until I jerk off." The bottom of the form is dated May 21, 2005 and is signed by the undercover officer, a police officer as well as a supervising officer.

P.L.§230.03 states that "a person is guilty of patronizing a prostitute in the fourth degree when he patronizes a prostitute." It is necessary to read this section in conjunction with P.L.§230.02 which provides definitions of what constitutes "patronizing."

P.L.§230.02 states:

1) A person patronizes a prostitute when:

(a) Pursuant to a prior understanding, he pays a fee to another person as compensation for such person or a third person having engaged in sexual conduct with him; or

(b) He pays or agrees to pay a fee to another person pursuant to an understanding that in return therefor such person or a third person will engage in sexual conduct with him; or

(c) He solicits or requests another person to engage in sexual conduct with him in return for a fee. (Emphasis added).

The defendant argues that the instant instrument is facially insufficient in that it is devoid of any additional factual allegations regarding his conduct which demonstrates how he "requested" or "agreed" to engage in sexual conduct with another for a fee. In their response, the People have neglected to specifically address the points raised by the defendant.

To support his position, the defendant proffers two cases, People v A.S., 179 Misc2d 569 (Crim. Ct. N.Y.Co. 1998) and People v A.M., 2001 WL 1117455 (NY City Crim. Ct.), 2001 NY Slip [*3]Op. 40124(U) for the court's consideration. It must be noted that both these cases addressed a different crime than that charged in the instant case and are factually quite distinguishable from the instant case. In People v A.S., supra and People v A.M., supra , the defendants were charged with the crime of Prostitution, P.L.§230.00. P.L.§230.00 states that "A person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee."

Additionally, in both those cases, at issue was a standard pre-printed form similar to the instant one which essentially stated in pertinent part that the "defendant agreed to engage in sexual conduct with the informant" and provided several options from which to choose, ie. fellatio, sexual intercourse and masturbation. Finding the term "agreed" to be conclusory, both courts dismissed their respective accusatory instruments holding that a mere recitation of facts without any specific factual description of the conduct which was alleged to constitute the alleged "agreement" between the defendants and the informants, was inadequate to establish a facially sufficient accusatory instrument.

However, other courts have determined that accusatory instruments containing the bare allegation that the defendant "did offer and agree" to perform a specific sexual act in exchange for a fee "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." People v Hilo, 791 NYS2d 872, 2004 WL 1517151, 2004 NY Slip Op. 50713(U). See also People v Richardson, 2002 WL 977167 ( NY City Crim.Ct.), 2002 NY Slip Op. 40150(U); People v Polianskaia, 189 Misc2d 237 (Crim.Ct., NY Co. 2001); People v Bah, 180 Misc2d 39 (Crim.Ct., NY Co. 1999).

The instant case, however, is unique in that a further tortured analysis of the term "agreed" would be unnecessary and misplaced. Indeed, after reviewing the definitions set forth in P.L.§230.02, this court does not believe that the crime charged was committed in this matter. A reading of this section leads to the inevitable conclusion that the sexual proposition which was alleged to have occurred fails to effectively fit into any of the three categories contained therein.

The key, repetitive term of P.L.§230.02 is "engaged" or "engage." Webster's Third New International Dictionary (1993) defines or describes the term engage as "to pledge or commit to participate in some social or business activity", "to bring together or interlock" and "to involve or entangle in some affair or enterprise." In consideration of this, it seems clear that in the context of patronizing a prostitute, the act of "engaging" requires the proactive efforts of more than one person and especially an act to be performed by the prostitute.

Generally, the sexual acts or options listed on these types of supporting depositions indicate what sexual act(s) a prostitute would perform on a customer. Since the box next to the word masturbation is checked off on the instant deposition, it would mean that the defendant wanted the undercover cover "prostitute" to physically masturbate the defendant by physically touching or manipulating his genitals. However, this presumption is undermined by the defendant's own statement; "I'll give you $10.00 to look at you while I jerk off."

The cases previously discussed in this decision involved sexual activity to be personally performed by the "prostitute" defendant on or with the "John". The defendant in the instant case offered to pay the undercover officer "prostitute" a fee to merely look at her while the defendant masturbated himself. The defendant did not request or solicit any sexual activity to be provided or [*4]performed by the "prostitute." Indeed, the "prostitute" was not asked to do any act since even the act of looking was to be done by the defendant.

Certainly, the crimes of prostitution and patronizing a prostitute do not address the situation where a individual is to perform the act on himself. Since no affirmative act evidencing the defendant's agreement to engage in sexual activity for a fee occurred, there is nothing "[s]upporting or tending to support the offense charged" C.P.L.§100.15(3), nor is there "reasonable cause to believe that the defendant committed the offense charged." C.P.L.§100.40(1)(b).

Accordingly, the motion to dismiss the accusatory instrument based on facial insufficiency is granted. There is no need to address the additional motions.

This constitutes the decision and order of the court.

DATED: September 15, 2005

New York County, New York

Kathryn E. Freed

Judge of the Criminal Court