People v Velez (Javier)

[*1] People v Velez (Javier) 2010 NY Slip Op 50945(U) [27 Misc 3d 140(A)] Decided on May 19, 2010 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-220 K CR.

The People of the State of New York, Respondent,

against

Javier Velez, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (William L. McGuire, Jr., J.), rendered December 6, 2008. The judgment convicted defendant, upon his plea of guilty, of trademark counterfeiting in the third degree.

ORDERED that the judgment of conviction is reversed, on the law, the count of the accusatory instrument charging defendant with trademark counterfeiting in the third degree is dismissed, and the matter is remitted to the Criminal Court for all further proceedings on the remaining count.

As defendant correctly argues, and the People concede, the misdemeanor complaint, one count of which charged defendant with trademark counterfeiting in the
third degree, is jurisdictionally defective with respect to that count in that, on its face, it fails to allege facts sufficient to establish reasonable cause to believe that defendant "manufacture[d], distribute[d], s[old], or offer[ed] for sale goods which b[ore] a counterfeit trademark" (Penal Law § 165.71). Thus, this count of the misdemeanor complaint must be dismissed (CPL 100.15 [3]; 100.40 [4]; People v Rosano, 25 Misc 3d 129[A], 2009 NY Slip Op 52110[U] [App Term, 9th & 10th Jud Dists 2009]). The remaining count, an alleged violation of Administrative Code of City of NY § 19-176 (b), riding a bicycle on a sidewalk where there was no sign posted permitting same, was not addressed in the plea and sentencing proceedings.

Accordingly, the judgment convicting defendant of trademark counterfeiting in the third degree is reversed, the count of the accusatory instrument charging this offense is dismissed, and the matter is remitted to the Criminal Court for further proceedings on the remaining count of the accusatory instrument.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: May 19, 2010