People v Kargbo

[*1] People v Kargbo 2012 NY Slip Op 51003(U) Decided on June 6, 2012 Criminal Court Of The City Of New York, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 6, 2012
Criminal Court of the City of New York, Kings County

The People of the State of New York,

against

Joseph Kargbo, Defendant.



2011KN087697



For the People, Charles J. Hynes, District Attorney, Kings County, by Jason M. Goldberg, Esq., Assistant District Attorney.

For the Defendant, Jared Kneitel, Esq., Brooklyn Defender Services.

John H. Wilson, J.

Defendant is charged with Theft of Services (PL Sec. 165.15), a Class A Misdemeanor, and Trespass (PL Sec. 140.05), a violation.

By motion dated April 25, 2012, Defendant seeks dismissal of the charges, asserting that the People's complaint is facially insufficient.

On May 31, 2012, this Court orally denied Defendant's motion. In its oral decision, the Court indicated that a written decision would be provided to the parties. This decision follows.

The Court has reviewed the Court file, Defendant's motion, and the People's Response dated May 31, 2012. For the reasons stated below, the motion to dismiss is denied.

FACTUAL STATEMENT

Pursuant to the Criminal Court Complaint, on or about November 2, 2011, Defendant " [*2]was observed entering the New York City Transit System." at 8:58 PM, at the Utica Avenue train station, Brooklyn, New York, "without paying the lawful fare by doubling up through the turnstile with another person." See, Criminal Court complaint dated November 3, 2011.

A supporting deposition, signed by the observing officer on November 2, 2011, was provided to the Court and defense at the Defendant's arraignment on November 4, 2011.

ARGUMENTS OF THE PARTIES

Defendant asserts that the charges brought against him are facially insufficient since "a turnstile can only operate when a lawful fare is paid." See, Defendant's motion dated April 25, 2012, p 3, para 8. If this is the case, then "at least one lawful fare was paid," and "the complaint against (Defendant) cannot be true." See, Defendant's motion dated April 25, 2012, p 3-4, para 14, 19.

Citing to People v. Best, 12 Misc 3d 597, 599, 817 NYS2d 895 (Crim Ct, Kings Cty, 2006), Defendant asserts that "(i)t is possible that one person paid the fare and then a stranger jumped into the turnstile with the lawful passenger." See, Defendant's motion dated April 25, 2012, p 3, para 11. Further, Defendant states that if the Theft of Services charge is insufficient, then the Trespass charge must also fail since "the two charges stand or fall together." See, Defendant's motion dated April 25, 2012, p 5, para 23.

The People assert that they have properly plead the charges on the docket, and cite the authority of People v. Lang, 14 Misc 3d 869, 871-872, 831 NYS2d 862 (Crim Ct, NY Cty, 2007), which holds that "an accusatory instrument stating that a police officer who observes a defendant enter a subway station beyond the turnstiles...without paying the required fare, by doubling up with another person is facially sufficient." See, People's Response dated May 31, 2012, p 5.

Defendant also asserts that the People's failure "to properly convert the complaint into an information" leads to dismissal of the complaint under CPL Sec. 30.30.See, Defendant's motion dated April 25, 2012, p 5, para 27.

LEGAL ANALYSIS

(A) FACIAL SUFFICIENCY

PL Sec. 165.15 provides that "a person is guilty of theft of services when...(3) with intent to obtain railroad, subway...or any other public transportation service without payment of the lawful charge for such transportation service...he obtains or attempts to obtain such service or avoids or attempts to avoid payment thereof by force, intimidation, stealth, deception or mechanical tampering, or by unjustifiable failure or refusal to pay."

Under PL Sec. 140.05, a Defendant is guilty of trespass when he "knowingly enters or [*3]remains unlawfully in or upon premises." The definition of "premises" of PL Sec. 140.00(1) includes "any real property."

CPL Sec. 100.15 requires every accusatory instrument to 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 of 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).

On a motion to dismiss, 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).

Applying these principles to the instant matter, the factual allegations contained in the misdemeanor information before this Court are facially sufficient.

Defendant's reliance upon Best is misplaced. Though that case may support his contentions, Lang is better reasoned. There, a Court of concurrent jurisdiction to both this Court, and the Best Court, ruled that "one of two persons who go through a turnstile together must have paid the fare does not preclude both from being guilty of theft of services, as long as the person who actually paid acted with the intent that the nonpayer obtain public transportation service without payment of the lawful charge." 14 Misc 3d at 871.

The Lang Court continued as follows; "To be sure, the People must prove these allegations beyond a reasonable doubt at trial...as long as those allegations...constitute the crime charged, the information is not defective." 14 Misc 3d at 871 (citations omitted).

Here, Defendant is charged with "entering the New York City Transit System ...without paying the lawful fare by doubling up through the turnstile with another person." See, Criminal Court complaint dated November 3, 2011. These allegations are sufficient to support the charges contained within the information before the Court.

We therefore join the Lang Court in holding that "to the extent that (Best) holds to the contrary, this Court declines to follow it." 14 Misc 3d at 872. See, also, People v. Laureano, 29 [*4]Misc 3d 664, 667, 906 NYS2d 753 (Crim Ct, NY Cty, 2010), citing Lang, 14 Misc 3d at 870 ("(E)ntry into the subway system...without paying the fare constitutes Criminal Trespass").

(B) CPL Sec. 30.30

Defendant also asserts that the People's failure "to properly convert the complaint into an information" leads to dismissal of the complaint under CPL Sec. 30.30.See, Defendant's motion dated April 25, 2012, p 5, para 27. However, Defendant does not cite, nor can this Court find any authority to support the invocation of CPL Sec. 30.30 under these circumstances.

The charges have been found to be facially sufficient, rendering Defendant's motion under CPL Sec. 30.30 moot. Yet, even if the information before the Court was facially insufficient, "replacement of one accusatory instrument which is defective by another involving the same crime does not affect time computations...the fact that a superceding instrument is filed does not automatically render the entire period prior thereto as includable." See, People v. Odoms, 143 Misc 2d 503, 504, 541 NYS2d 720 (Crim Ct, Kings Cty, 1989).

In People v. Camacho, 185 Misc 2d 31, 711 NYS2d 283 (Crim Ct, Kings Cty, 2000), the court ruled that where a complaint is found to be facially insufficient, "(t)he People should be allowed a reasonable period of time, to be determined by the court depending upon the particular factual circumstances of the case, to (correct the defect). " 185 Misc 2d at 36. (Citation omitted).

Thus, facial insufficiency would not necessarily lead to dismissal of the information pursuant to CPL Sec. 30.30. "(T)he lower court, when evaluating insufficiency must also consider whether amendment, supersession, replacement or supplementation and conversion is still possible." See, People v. Gore, 143 Misc 2d 106, 109, 540 NYS2d 147 (Crim Ct, Kings Cty, 1989), citing Dumas. See, also, People v. Evangelista, 1 Misc 3d 873, 874, 771 NYS2d 791(Crim Ct Bx Cty 2003) (the People will be given the opportunity to cure this error by "either filing a superceding information or prosecutor's information").

Where the People have the ability to correct the defect, CPL Sec. 30.30 is not implicated.

Therefore, Defendant's motion is denied in its entirety.

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 YorkJune 6, 2012

_______________________________Hon. John H. Wilson, JCC