People v Allison

[*1] People v Allison 2008 NY Slip Op 52008(U) [21 Misc 3d 1108(A)] Decided on October 7, 2008 District Court Of Nassau County, First District Engel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 7, 2008
District Court of Nassau County, First District

The People of the State of New York,

against

Jodi Allison, Defendant.



2008NA001778



Hon. Kathleen Rice, District Attorney, Nassau County

By: ADA, April Montgomery

Attorney for Defendant: Christopher Graziano, Esq.

Andrew M. Engel, J.

The Defendant is charged, by Information, with Petit Larceny, in violation of Penal Law § 155.25. The Defendant now moves for an order dismissing the Information; suppressing statements alleged to have been involuntarily made by the Defendant, pursuant to CPL § 60.45; requiring a hearing to resolve the issues raised in this motion, pursuant to CPL § 170.60; and, precluding the People from introducing evidence at trial concerning any uncharged bad or immoral acts, pursuant to People v. Molineux, 168 NY 264, (1901) and CPL § 240.43.

DISMISSAL OF INFORMATION

The Information alleges that on January 5, 2008, at about 9:45 p.m., at the Macy's department store located at 630 Old Country Road, East Garden City, New York, the Defendant violated Penal Law § 155.25 by "process[ing] fraudulent transactions to benefit others on numerous dates. The total loss to Macy's is $562.19. At no time did Jodi M Allison have permission or authority to process said transactions and to deprive Macy's." This factual portion of the Information [See: CPL § 100.15(3)] is subscribed by Sgt. William R. Murphy and is based upon information and belief, the source of which is the supporting deposition of Christina Stampfel, which is annexed thereto. Ms. Sampfel's supporting deposition [See: CPL § 100.20] reads as follows:

On the 05 day of January 2008 at about 9:45 PM I was working for Macy's located at 630 Old country rd. [sic] East Garden City. I was approached by loss prevention supervisor Kevin Charles who was conducting routine package check of all of the employee [sic] that exit for the day, at the employee door. LPO Kevin Charles noticed a receipt with unauthorized markdowns, LPO Charles brought the receipt and the package to my attention using the intellex video system. I observed on camera a Macy's associate, now known to me as Jodi Allison conduct an unauthorized markdown transaction for her friends and coworkers on the following dates. on [sic] 12/27/07 at approximately 9:31 PM hours, at register 341, the true value of merchandise is $69.96 marked down to $30.00, on 12/29/07 at approximately 7:16 PM register 402, true value of $68.00 marked down to $12.99, on 01/05/08 at approximately 2:49 hours at register 160 and 341, true value of $530.11 markdown to $62.89. The total lost to Macy's is $562.19. At no time did Allison have permission or authorization [*2]to give or receive unauthorized markdowns. As an authorized representative for Macy's, I want her arrested for her actions. I have given this statement in my own words and it is the truth.

In seeking dismissal of the Information the Defendant alleges that it is insufficient on its face in failing to substantially comply with CPL §§ 100.15 and 100.40. Specifically, the Defendant alleges that Ms. Stampfel's supporting deposition is not based upon her personal knowledge, but is, instead, based solely upon her review of a surveillance video and the receipts in question. Additionally, the Defendant argues that this deposition fails to set forth facts, asserting conclusions instead.

In opposition, the People argue that the Information satisfies all of the requirements of CPL §§ 100.15 and 100.40. Specifically the People argue that Ms. Stampfel's representations that she reviewed a video allegedly depicting the Defendant making the subject markdowns and "compared the receipts from the Defendant's register on the video taped days and noticed the discrepancies in the actual price of the merchandise and the price charged[]" (Montgomery Affirmation 9/11/08, ¶ 8) are neither hearsay nor conclusory and are of an evidentiary character supporting or tending to support the charge and the Defendant's commission thereof.

An Information will be found facially sufficient where, in conformity with CPL §§ 100.15 and 100.40, it contains an accusatory part, designating the offense charged, CPL § 100.15(2), and setting forth every element thereof, People v. Hall, 48 NY2d 927, 425 NYS2d 56 (1979), and a factual part containing "a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]" CPL § 100.15(3), which is based upon either the complainant's personal knowledge or upon information and belief. CPL § 100.15(3) The factual part must contain non-hearsay allegations which, if true, establish every element of the offence charged, People v. Moore, 5 NY3d 725, 800 NYS2d 49 (2005); People v. Thomas, 4 NY3d 143, 791 NYS2d 68 (2005), "provid[ing] reasonable cause to believe that the defendant committed the offense[.]" People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987) The factual allegations should not be given an overly restrictive or technical reading, People v. Casey, 95 NY2d 354, 717 NYS2d 88 (2000); People v. Baumann & Sons Buses, Inc., 6 NY3d 404, 813 NYS2d 27 (2006), but must be sufficient to serve the purpose of providing the Defendant with notice enabling her to prepare for trial and to distinguish the offense sufficiently to prevent her from again being tried for the same offense. People v. McDermott, 69 NY2d 889, 515 NYS2d 225 (1987); People v. McGuire, 5 NY2d 523, 186 NYS2d 250 (1959) Such a showing is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Henderson, 92 NY2d 677, 685 NYS2d 409 (1999) The Information sub judice does not satisfy these requirements.

Ms. Stampfel's representation of the statements made by Loss Prevention Officer Kevin Charles are being offered for the truth of those statements and are, by definition, hearsay. Spensieri v. Lasky, 94 NY2d 231, 701 NYS2d 689 (1999); Nucci v. Proper, 95 NY2d 597, 721 NYS2d 593 (2001); Stern v. Waldbaum, Inc., 234 AD2d 534, 651 NYS2d 187 (2nd Dept. 1996); Winant v. Carras, 208 AD2d 618, 617 NYS2d 487 (2nd Dept. 1994) lv. den. 85 NY2d 812, 631 NYS2d 288 (1995) They will be deemed to be of an evidentiary character and considered only if they fall within one of the recognized exceptions to the hearsay rule. People v. Nieves, 67 NY2d 125, 501 NYS2d 1 (1986); Tyrell v. Wal-Mart Stores Inc., 97 NY.2d 650, 737 NYS2d 43 (2001); Alvarez v. First [*3]National Supermarkets, Inc., 11 AD3d 572, 783 NYS2d 62 (2nd Dept. 2004) They do not.

Ms. Stampfel's statements regarding what she allegedly observed on Macy's video monitoring system is similarly deficient. Ms. Stampfel never claims that she saw the Defendant make the alleged markdowns, either in person or through the video monitoring system, as they occurred. Her recitation of these alleged facts is not based upon her personal observations, but upon her viewing, second hand, this alleged conduct on a video tape previously recorded on the day of arrest and days earlier. Nowhere, however, does Ms. Stampfel attempt to lay an appropriate evidentiary foundation for the video tape she viewed. Had Ms. Stampfel contemporaneously observed the alleged markdowns, either in person or through video monitoring, her description thereof would constitute "facts of an evidentiary character[.]" CPL §§ 100.15(3); 100.20; See: People v. Fondal, 154 AD2d 476, 546 NYS2d 26 (2nd Dept. 1989) lv. den. 75 NY2d 770, 551 NYS2d 912 (1989) ["One of the two Sears' employees who watched the defendant and his accomplice through the medium of a closed-circuit television as they were engaged in the commission of the theft testified that the videotape which was received in evidence accurately depicted the events which he had observed. Under these circumstance, there was an adequate foundation fo the introduction of the videotape into evidence (citations omitted).]; Estate of Burack, 201 AD2d 561, 607 NYS2d 711 (2nd Dept. 1994) ["A proper foundation was laid; the three witnesses to the will execution and the attorney who supervised the will execution testified that the videotape was a fair and accurate depiction of the events which were filmed (citations omitted)."]; People v. Wemette, 285 AD2d 729, 728 NYS2d 805 (3rd Dept. 2001) ["the complainant testified that the events depicted on the videotape were a fair and accurate representation of the things she saw with her unenhanced vision on May 28, 1997. That testimony provided an adequate foundation for the videotape's admission (citations omitted)."] The People could have also submitted an affidavit from appropriate individuals authenticating the videotape upon which Ms. Stampfel relied, establishing that the videotape truly and accurately depicted what was before the camera on the given dates, that it was not altered in any way and establishing a proper chain of custody. People v. Patterson, 93 NY2d 80, 688 NYS2d 101 (1999); Zegarelli v. Hughes, 3 NY3d 64, 781 NYS2d 488 (2004) In the absence of such proper authentication, "this court regards the deponent's observations of the video as hearsay, unsupported by sworn allegations of fact[,]" People v. Schell, 18 Misc 3d 972, 849 NYS2d 882 (Crim. Ct. Richmond Co. 2008), requiring dismissal of the accusatory instrument. [deponent, after the fact, reviewed video tape of the defendant therein driving through a red light].

Ms. Stampfel's recitation of what she observed on the sales receipts in question suffers from the same deficiency. "Because no foundation was laid by a qualified custodian to establish that these receipts were made in the ordinary course of business, this evidence constituted inadmissible hearsay (People v. Kennedy, 68 NY2d 569, 510 NYS2d 853, 503 NE2d 501; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 4518.18)." People v. Teague, 145 AD2d 911, 536 NYS2d 293 (4th Dept. 1988) lv. den. 73 NY2d 983, 540 NYS2d 1017 (1989); See also: Friedman-Wallach Co. V. Rosenau Bros., Inc., 189 NYS2d (1st Dept. 1921)

Ms. Stampfel's remaining statements, that she observed "unauthorized markdown transaction[s]" and that the Defendant did not "have permission or authorization" for same, are impermissible concusory statements. People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986); People v. Wacke, 77 Misc. 196, 137 N.Y.S. 652 (Co. Ct. Kings Co. 1912) ["did unlawfully operate" [*4]is conclusory not factual]; People v. Molina, 145 Misc 2d 612, 547 NYS2d 546 (Crim.Ct. Queens Co.1989) [complaint charging Petit Larceny, alleging the "unauthorized usage" of credit cards, dismissed as conclusory and facially insufficient]; People v. Wright, 2001 WL 1358796 (Crim. Ct. NY Co. 2001) [Information charging Trespass in the third degree dismissed due to conclusory supporting deposition alleging the subject property was "enclosed in a manner designed to exclude unauthorized persons ...."] Wholly absent from the supporting deposition herein are any factual allegations describing what made the markdowns unauthorized. Ms. Stampfel does not indicate that she is an individual familiar with all sale merchandise, all reduced merchandise, the sale status of the items here in question or the Defendant's authorization, or lack thereof, to effectuate markdowns on certain items at the register.

While the court may not dismiss the defective Information "where the defect or irregularity is of a kind that may be cured by amendment and where the people move to so amend[,]" CPL § 170.35(1); See: People v. Casey, supra .; People v. Penn Central Railroad Co., 95 Misc 2d 748, 417 NYS2d 822 (Crim.Ct. Kings Co.1978); People v. Pacifico, 105 Misc 2d 396, 432 NYS2d 588 (Crim.Ct. Queens Co. 1980), the People herein have demonstrated neither a willingness to cure the aforesaid defects nor the ability to do so.

Accordingly, that branch of the Defendant's motion seeking an order dismissing the Information as insufficient is granted; and, the Information is dismissed.

Given the dismissal of the Information, the balance of the Defendant's motion is moot and, therefore, denied at this time.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

October 7, 2008

___________________________

Andrew M. Engel

J.D.C.