People v Primus-Ruben

[*1] People v Primus-Ruben 2005 NY Slip Op 51821(U) [9 Misc 3d 1128(A)] Decided on November 9, 2005 Criminal Court, Kings County Wilson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2005
Criminal Court, Kings County

The People of the State of New York,

against

Esther Primus-Ruben, Defendant.



2005KN003842



For the People, Charles J. Hynes, District Attorney, Kings County, by Lisa Berk, Esq., Assistant District Attorney.

For the Defendant, Law Office of Douglas G. Rankin, PC, by A. James Bell, Esq.

John H. Wilson, J.

Defendant is charged with two counts of Petit Larceny (PL Sec. 155.25), a Class A misdemeanor. Initially, Defendant was also charged with Grand Larceny in the Fourth Degree (PL Sec. 155.30), a Class E felony, however, the People dismissed this charge on May 11, 2005.

By motion dated August 16, 2005, Defendant seeks to dismiss the Criminal Court Complaint, asserting that the People's complaint is facially insufficient. In opposition to Defendant's motion, the People filed a response dated September 18, 2005 asserting that the charges are sufficiently plead.

Defendant's motion is denied for the reasons stated below.

FACTUAL STATEMENT

The People contend, and Defendant does not deny, that on November 20, 2004, Defendant was present at the home of complainant Francois Vernon-Stein at 11:01 AM. [*2]

The initial Criminal Court Complaint dated January 19, 2005 asserts that Ms Vernon-Stein left her wallet containing "a Citibank Debit Mastercard...inside a bedroom in (her) apartment while Defendant was taking care of (the complainant's) paralyzed husband, and that when (the complainant) returned home, the Citibank Debit Mastercard was missing from (her) wallet."

Ms Vernon-Stein makes similar allegations regarding her Capitol One Visa Card, which was apparently left "on top of a table in (her) paralyzed husband's bedroom."

At some subsequent unspecified date, Ms Vernon-Stein discovered that both cards had been used to make several hundred dollars in purchases which she had not authorized.

In a superceding complaint dated June 21, 2005, the People added the allegation that the complainant had left her home for "approximately an hour and that on leaving the home, (she) locked and secured the doors leaving only the Defendant and (the complainant's) paralyzed husband inside the home." Further, when Ms Vernon-Stein returned home, she "found the doors locked and secured and that only the Defendant and (the complainant's) husband were inside the house."

The point at which Ms Vernon-Stein noticed that her property was missing was quantified to be "shortly" after the Defendant left the home.

The initial complaint had asserted that on November 20, 2005, "there were no other persons who entered the location." This language was removed from the superceding complaint.[FN1]

LEGAL ANALYSIS

CPL Sec. 100.15 provides that every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986).

Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987). [*3]

Applying these principles to the instant matter, this Court finds that the factual allegations contained in the misdemeanor information before this Court tend to support the charges that have been brought against this Defendant.

Under PL Sec. 155.25, "a person is guilty of petit larceny when he steals property." PL Sec. 155.05 (1) states that "a person steals property and commits larceny 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."

The superceding complaint does not allege that the subject cards were recovered from the Defendant, nor is it alleged that the Defendant herself made the unauthorized purchases with the missing cards. In fact, the People's arguments are entirely circumstantial in nature; other than the complainant's husband, who is asserted to be paralyzed, no one else had access to the stolen property, other than the Defendant, in a locked house, over the course of an hour.

The mere fact that the evidence against the Defendant is circumstantial, and not direct, does not preclude the use of such evidence in establishing the Defendant's guilt. Such evidence may be used to establish any element of the crime alleged, including the defendant's intent. See, People v. Ozarowski, 38 NY2d 481, 489, 381 NYS2d 438 (1976). "The well settled standard of proof in circumstantial evidence cases is that the facts from which the inference of defendant's guilt is drawn must be inconsistent with the defendant's innocence and must exclude to a moral certainty every other reasonable hypothesis." See, People v. Giuliano, 65 NY2d 766, 767-768, 492 NYS2d 939 (1985), citing People v. Sanchez, 61 NY2d 1022 (1984).[FN2]

In People v. Molloy, 235 AD2d 48, 52, 664 NYS2d 17 (1st Dept., 1997), the dismissal of an indictment charging a New York City police officer with "depraved indifference" murder in the second degree was reversed. Viewing evidence that was completely circumstantial, the First Department noted that the choice of whether or not the defendant's conduct was reckless or depraved lies with a jury, and "is not to be made by the court on a motion to dismiss an indictment prior to trial."

Further, in People v. Andrea, 141 AD2d 740, 529 NYS2d 837 (2d Dept., 1988), another New York City police officer was charged with Grand Larceny in the Third Degree and Petit Larceny for removing property from the residences of burglary complainants. The evidence at trial "revealed that property was taken and that the defendant was the only person with the opportunity to take it since he was the only person alone in the rooms where the property was located." 141 AD2d at 741. Defendant sought reversal of his conviction on the grounds that "the [*4]evidence adduced at trial, which was totally circumstantial, was legally insufficient to prove his guilt because it did not exclude to a moral certainty every reasonable hypothesis of his innocence." 141 AD2d at 740.

The Second Department held that even where "the defendant and his witnesses gave testimony distinctly at odds with that of the People's witnesses, the jury was free to accept, as it obviously did, the testimony given by the People's witnesses." 141 AD2d 741. (cf, Giuliano, supra, in which the Court of Appeals found that the evidence there did not support the jury's verdict by sufficient circumstantial evidence, vacated the defendant's conviction, and dismissed the indictment.)

The parties are reminded that this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court Complaint are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 NY2d 103, 115, 512 NYS2d 652 (1986).

Thus, if Molloy and Andrea are representative of the standards of sufficiency for circumstantial evidence which has been presented to a jury in an indicted matter, than this Court has absolutely no basis to hold the instant misdemeanor complaint to be facial insufficient, particularly when the present facts are so substantially similar to those discussed in Andrea.

Therefore, Defendant's motion to dismiss dated August 16, 2005 is denied.

All other arguments advanced by Defendant have been reviewed and rejected by this court as being without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Brooklyn, New York

November 9, 2005______________________

Hon. John H. Wilson, JCC Footnotes

Footnote 1: Another superceding complaint dated June 27, 2005 was served by the People, however, the only change here was the deletion of the Grand Larceny counts. The allegations of the June 21, 2005 superceding complaint were not changed in the June 27, 2005 complaint.

Footnote 2: "While it is not necessary that the words 'moral certainty' be used, when the evidence is circumstantial the jury should be instructed in substance that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence." Sanchez, 61 NY2d at 1024.