People v Ongteco

[*1] People v Ongteco 2009 NY Slip Op 51214(U) [24 Misc 3d 1201(A)] Decided on May 14, 2009 Criminal Court Of The City Of New York, Kings County Gubbay, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 21, 2009; it will not be published in the printed Official Reports.

Decided on May 14, 2009
Criminal Court of the City of New York, Kings County

The People of the State of New York

against

Matthew Ongteco, Defendant.



2006KN056572



The People were represented by Assistant District Attorney Danielle Muscatello

Defendant was represented by Douglas G. Rankin, Esq.

Joseph Gubbay, J.

Defendant is charged with one count of Petit Larceny P.L. § 155.25 and one count of Identity Theft P.L. § 190.78(2). Defense counsel moves to dismiss this case on several grounds. First, counsel claims that accusatory instrument is facially insufficient in that the Petit Larceny count is duplicitous. Counsel further claims that because the count is duplicitous, the People never converted the complaint to an information and thus were never ready for trial and the case should be dismissed pursuant to CPL § 30.30. For the reasons that follow, the motion to dismiss is denied in its entirety.

The information reads, in pertinent part, that:

"Deponent is informed by Evelina N. Louie that, prior to the above time period, informant had applied for an Aspire Visa credit card which informant never received in the mail. The deponent is further informed by informant that informant subsequently received in the mail a credit card statement indicating that an Aspire visa credit card—which had been issued under informant's name and under No. ending in the digits 3846—had been used on numerous occasions, during the above time period and at the above place, to purchase various items of property, said purchases occurring on 3/7/06, 3/8/06, and 3/9/06, 3/10/06, 3/13/06, 3/14/06, 3/16/06, and 3/17/06, the aggregate monetary total of such purchases equaling $1,641.00 USC."

An information is facially sufficient if (a) the factual part of the information provides reasonable cause to believe that the defendant committed the offenses charged in the accusatory part of the information and (b) nonhearsay allegations of the factual part establish, if true, every element of the offenses charged and the defendant's commission thereof. C.P.L. § 100.40; People v. Alejandro, 70 NY2d 133 (1987).

Defense counsel argues that the Petit Larceny count of the accusatory instrument is defective pursuant to CPL § 200.30(1) and is therefore duplicitous. The People contend that this charge is not duplicitous, but rather a continuous crime.

CPL § 200.30(1) provides that,

"Each count of an indictment may charge one offense only." [*2]

The rule against duplicitous pleadings is applicable to informations. People v. Evangelista, 1 M3d 873 (Crim. Ct. Bronx Co. 2003). The purpose of this rule is to ensure that the defendant is given adequate notice of the charges against him thereby enabling him to prepare his defense. See People v. Klipfel 160 NY 371, 374 (1899); People v. Beauchamp, 74 NY2d 639 (1989). This rule also serves to ensure a unanimous verdict and protects against double jeopardy. People v. Keindl, 68 NY2d 410, 418 (1986).

It is well-settled that a single larceny may be charged where there is a series of successive takings that occur over a period of time, provided that the larceny is held to be pursuant to a single intent and in the execution of a general fraudulent scheme. People v. Cox, 286 NY 137, 142-45 (1941). In Cox, supra, a turnstile maintainer for the Independent Subway System of the City of New York, appropriated thousands of dollars in nickels deposited in the turnstiles over a period of eleven months. The Court found that the evidence was sufficient to "sustain the verdict of the jury that the entire taking was governed by a single intent and a general illegal design." Id. At 143. Specifically, the Court stated that "there was a continuing larceny by a thief operating under a single purpose to carry out a general fraudulent plan." In making its determination, the Court relied on several factors such as whether or not there was: (1) "a continuing larceny by a thief operating under a single purpose to carry out a general fraudulent plan," (2) " . . .[a] formulation of a plan for systemized thievery," (3)". . . [an] adoption of the plan by persons able to make it effective," and (4) "[a] subsequent realization, together with the taking of the necessary steps to preserve a continuing operation..." Id. At 144.

Similarly, in the case at bar, defendant was initially charged with Grand Larceny in the Fourth Degree. The charges are a result of several purchases and cash withdrawals allegedly made by defendant, on eight specific dates pleaded in the accusatory instrument, over a ten-day period, using a credit card activated by him that belonged to Evelina Louie.These allegations demonstrate a continuous crime. The facts clearly indicate that defendant was"operating under a single purpose to carry out a general fraudulent plan" by using Evelina Louie's credit card to commit larceny as contemplated by the Court in People v. Cox, supra.[FN1] See also, People v. Gbohou, 186 M2d 324 (Crim. Ct. Bronx Co. 2000). Moreover, Defendant can not argue insufficient notice as each date the alleged thefts took place were identified in the accusatory instrument.

The court finds that a jurisdictionally sufficient information existed from the time the People served and filed the supporting deposition of Evelina Louie.[FN2] Nevertheless, the court finds that the most practical way to proceed is to allow the People to file a superseding information pursuant to CPL § 100.45(3).

[*3]Speedy Trial Calculations

Defendant was arraigned on a felony complaint on August 16, 2006. This commenced the running of a six-month period, less excludable time, within which the People had to be ready for trial pursuant to CPL 30.30(1)(a).

On November 2, 2006, the People moved to dismiss all of the pending felony charges, including PL §§ 155.30(1), 155.30(4), 190.78(1), and 190.79(2). The sole remaining counts were Petit Larceny P.L. § 155.25 and Identity Theft P.L. §190.78(2), each class A misdemeanors, thereby invoking a speedy trial time limitation of 90 days pursuant to CPL § 30.30(1)(b). The People, therefore, had 90 days from November 2, 2006, or the expiration of six months from August 16, 2006, whichever occurred first, to be ready for trial pursuant to CPL § 30.30(5)(d). On this same date the People filed a corroborating affidavit and announced their readiness for trial. The case was adjourned to January 9, 2007 for Discovery by Stipulation, hereinafter "DBS." This period of time is not chargeable pursuant to CPL § 30.30(4)(a).

On January 9, 2007, the People served and filed DBS. The case was adjourned to March 8, 2007 for hearings and trial. This period of time is excludable. People v. Watson, 182 M2d 644, 699 (Crim Ct Bronx Co 1999).

On March 8, 2007, the People announced ready. The Defendant answered not ready and sought additional discovery. The case was adjourned to May 9, 2007 for hearings and trial. This period of time is excludable.

On May 9, 2007 the People were not ready for trial. The People requested May 15, 2007. The case was adjourned to May 18, 2007 for hearings and trial. The People are charged with 6 days. People v. Dushain, 247 AD2d 234 (1st Dept. 1998).

On May 18, 2007 the case was adjourned to June 13, 2007 for trial. The court action sheet and the court minutes do not indicate whether or not the People were ready on this date. Hence, the People have not sustained their burden of showing that this period of time is excludable. People v. Cortes, 80 NY2d 201 (1992); People v. Notholt, 242 AD2d 251 (1st Dept. 1997). The court finds 26 days chargeable to the People.

On June 13, 2007, the People were not ready for trial and requested an adjournment of one week. The case was adjourned to July 17, 2007 for trial. The People are charged with 7 days.

On July 17, 2007 the People were not ready and again requested an adjournment of one week. The case was adjourned to September 18, 2007 for hearings and trial. On July 23, 2007, the People served and filed off calendar, a statement of readiness, thereby stopping the speedy trial clock. The People are charged with 6 days.

On September 18, 2007, the People announced their readiness for trial. Defense counsel was not available in the morning and no trial court parts were available in the afternoon. The case was adjourned to October 16, 2007 for trial. This period of time is not chargeable to the People.

On October 16, 2007, the People were ready for trial but there were no trial court parts available. The case was adjourned to November 7, 2007 for trial. This period of time is excluded.

On November 7, 2007, the People were ready for trial. Defense counsel was engaged on another matter pending in Supreme Court. The case was adjourned to December 12, 2007 for [*4]trial. This period of time is not chargeable to the People pursuant to CPL § 30.30(4)(b).

On December 12, 2007, the People were not ready for trial. The People requested a one week adjournment. The case was adjourned to January 15, 2008 for hearings and trial. The People are charged with 7 days.

On January 15, 2008 both sides answered ready, but no trial parts were available. The case was adjourned for February 13, 2008 for trial. This period of time is not chargeable to the People.

On February 13, 2008 the People were ready for trial but once again there were no trial court parts available. The case was adjourned to March 10, 2008 for trial. This period of time is not chargeable to the People.

On March 10, 2008, the People announced ready for trial. No trial court parts were available. The case was adjourned to April 8, 2008. This period of time is not chargeable to the People.

On April 8, 2008, the People were ready for trial. There were no trial court parts available. The case was adjourned to May 21, 2008. This period of time is not chargeable to the People.

On May 21, 2008, the People were ready for trial but Defense counsel was on trial in Queens. The case was adjourned to July 1, 2008. This period of time is not chargeable to the People.

On July 1, 2008 the People were ready for trial. The case was adjourned to September 12, 2008 at the request of defense counsel. This period of time is not chargeable to the People.

On September 12, 2008, the People announced ready for trial. Defense counsel was on trial on a different case. The case was adjourned to October 16, 2008 for trial. This period of time is excluded.

On October 16, 2008 the People announced ready for trial. The case was adjourned to November 7, 2008 at the request of defense counsel. This period of time is not chargeable to the People.

On November 7, 2008 the People announced ready for trial. The case was adjourned to November 14, 2008 for trial or for defense counsel to file the instant motion. This period of time is not chargeable to the People.

On November 14, 2008 the People announced ready and the case was adjourned for defense counsel to file the instant motion. This entire period of time, from November 14th, 2008 to May 14th, 2009, for motion practice and the court's decision, is excludable pursuant to CPL § 30.30(4)(a). People v. Shannon, 143 AD2d 572, 573 (1st Dept 1988).

Based on the foregoing chronology, the court finds only fifty-two days chargeable to the People. Accordingly, the defendant's motion to dismiss pursuant to CPL § 30.30 is denied and the People may proceed on a superceding information.

This constitutes the Opinion, Decision and Order of the court.

Dated: May 14, 2009 -

Brooklyn, New YorkHon. Joseph Gubbay

Acting Supreme Court Justice Footnotes

Footnote 1:To ensure that there is a unanimous verdict in the event of a trial, the jury would be instructed that they must unanimously agree that the People have proven, beyond a reasonable doubt, that on a particular date, as supported by the evidence, the defendant stole property. See, People v. Meridian, 86 NY2d 608, 616 (1995).

Footnote 2:Defense counsel does not address the sufficiency of the identity theft count, P.L.§ 190.78(2). The court finds this charge to be facially sufficient.