People v Diaz
Annotate this CaseDecided on December 6, 2005
Criminal Court of the City of New York, New York County
THE PEOPLE OF THE STATE OF NEW YORK
against
MARIO DIAZ, Defendant
2005NY028801
For the People: NY County ADA Jonathan Lenzner, One Hogan Place, NY,NY 10013 (212) 335-9924. for D: Neighborhood Defender Services of Harlem by Valentina M. Morales, 317 Malcolm X Blvd. NY,NY 10027 (212) 876-5500.
Richard M. Weinberg, J.
Defendant is charged in an information with one count of Criminal Mischief in the Fourth Degree (Penal Law § 145.00[1]), one count of Making Graffiti (Penal Law § 145.60[2]) and one count of Possession of a Graffiti Instrument (Penal Law § 145.65). He has moved for an order dismissing the Possession of a Graffiti Instrument count for facial insufficiency under Criminal Procedure Law §100.40, as well for other forms of relief.
Criminal Procedure Law §100.40 and, by reference, Criminal Procedure Law §100.15 require that factual allegations of an evidentiary character in the information provide reasonable cause to believe the defendant committed the offenses charged and that non-hearsay factual allegations establish a prima facie case that the defendant is guilty. (People v. Allen, 92NY2d 378). While an information must state the crime with which the defendant is charged and the particular facts constituting that crime (People v Hall, 48NY2d 927), the prima facie requirement is not the same as the burden of proof required at trial. (People v Henderson, 92 NY2d 677). So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading. (People v. Casey, 95 NY2d 354).
A person possesses a graffiti instrument when he possesses any instrument designed or commonly used to draw upon or otherwise place a mark upon a piece of property. The possessor must have no permission or authority to place the mark upon the property and it must be done with intent to damage the property.
The accusatory instrument recites the relevant statutory language for the challenged count and provides the defendant with notice that he must defend against a charge that, at a specified time and place, a police officer observed him writing the word "KING" on a United States postal mailbox with a "black sharpie marker" and that the officer then recovered the marker from the defendant's right hand. The defendant told the officer, in part, "I was just finishing the letter G on [*2]the word KING." These allegations, together with the reasonable inferences to be drawn from them, are sufficiently evidentiary in character to satisfy the relevant CPL requirements and the allegations tend to support the Penal Law charge. These allegations establish reasonable cause to believe and a prima facie case that defendant committed the challenged offense. "At the pleading stage, nothing more is required." (People v Allen, supra, at 385).
The defendant's brand name and internet based arguments, while novel and clever, fail to convince the Court to adopt the defendant's position. The essential charge is that defendant was drawing on a mailbox with a black marker. Whether that marker was a "Sharpie" or some other brand is without relevance to a sufficiency analysis. The arguments that the information is insufficient because many types of "Sharpie" markers "would be ill-suited to writing on anything other than paper" and that the information is insufficient because it does not specify the "type and tip size" of the marker are likewise irrelevant since the information alleges that the defendant was observed actually creating graffiti on a mail box with the subject marker. The fact that the defendant's internet search failed to find any site which listed a "Sharpie" marker as an "appropriate graffiti tool" is hardly a firm legal basis upon which to exempt the subject marker from the strictures of the statute. In sum, the Court declines to accept defendant's invitation to find the allegations insufficient based on Sharpie's on-line product catalog and the absence of Sharpie markers from the inventories of various on-line graffiti supply stores.
Defendant's motion to dismiss the count charging Possession of a Graffiti Instrument is denied.
The defendant's motion to suppress statements is granted to the extent of ordering a Huntley/Dunaway hearing.
The defendant's motion to suppress any evidence which flowed from his allegedly illegal arrest is granted to the extent of ordering a Mapp/Dunaway hearing.
The defendant's motion for preclusion under CPL §710.30 is granted to the extent applicable.
The defendant's Sandoval motion is referred to the trial court.
The defendant's request for discovery and a bill of particulars is granted to the extent indicated in the People's response and voluntary disclosure form.
The People are reminded of their continuing Brady, Rosario and related responsibilities.
The defendant retains all rights to which he is entitled under CPL §255.20.
This constitutes the decision and order of the Court.
Dated: ___________________________
New York, New YorkJudge of the Criminal Court
[*3]
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