People v Sajimi

[*1] People v Sajimi 2008 NY Slip Op 51704(U) [20 Misc 3d 1132(A)] Decided on July 21, 2008 Criminal Court Of The City Of New York, New York County Simpson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2008
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Femi Sajimi, Defendant.



2007NY073032



FOR THE PEOPLE

ROBERT M. MORGENTHAU, ESQ.

DISTRICT ATTORNEY

ONE HOGAN PLACE

NEW YORK, NEW YORK 10013

BY: ADA TATIANA FERNANDES, ESQ.

FOR THE DEFENDANT

LAW OFFICES OF AMBROSE WOTORSON, P.C.

AMBROSE W. WOTORSON, JR., ESQ.

26 COURT STREET, SUITE 1811

BROOKLYN, NEW YORK 11242

ShawnDya L. Simpson, J.

The defendant was charged with one count each of Criminal Possession of a Forged Instrument in the Third Degree (Penal Law § 170.20) and Unlawful Use of Police Uniform or Emblem (Adm. Cd. § 14-107). The defense made a motion to dismiss in the interest of justice pursuant to Article 170 of the Criminal Procedure Law (CPL). A response to the motion was filed by the People. The defendant's motion was granted and the matter sealed on July 8, 2008. What follows is a written decision on the defendant's motion to dismiss in the interest of justice. For the foregoing reasons, the proceeding was dismissed pursuant to CPL §§ 170.30 (1) (g) and 170.40.

The factual part of the accusatory instrument upon which the defendant was arraigned read as follows: [*2]

Deponent states that he is informed by Wilson Vega, of HWA Security, that informant was performing security work at the above location and that he observed defendant enter the location and place a badge on an x-ray machine that informant was using in his work. Deponent is informed that informant observed that said badge read "U.S. RECOVERY BUREAU". Deponent is further informed that defendant admitted in substance that he is not a law enforcement official.

Deponent states that he examined the above-described badge and that based upon his training and experience in document frauds, said badge looks like an authentic New York City Detective badge in that it is the same size and shape as an authentic detective badge, it is made of the same metal material and in the same metal color as an authentic badge and it bears a shield number on the bottom. Deponent states that said badge only differs from an authentic detective badge in that an authentic badge states: "CITY OF NEW YORK, DETECTIVE" not "U.S. RECOVERY BUREAU, AGENT" and an authentic badge bears the seal of the state of New York and defendant's badge bears a U.S. seal.

No additional allegations were contained in the supporting affidavit included in this case.

Criminal Procedure Law §§ 170.30 and 170.40 grant the court discretion to dismiss a criminal charge in the interest of justice. To warrant a dismissal in the interest of justice, the court must be satisfied that there exists some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant would result in injustice (CPL § 170.40). In making this determination, the court must engage in a sensitive balancing of the interest of the individual and the State, giving due consideration to the criteria enumerated in the statute (see, People v. Clayton, 342 NYS2d 106 {41 AD2d 204} [App. Div., 2nd Dept. 1973]).

Section 170.40 (1) of the CPL sets out ten factors to be considered individually and collectively in guiding the court in the exercise of its discretion. These factors are:

a.the seriousness and circumstances of the offense;

b.the extent of harm caused by the offense;

c.the evidence of guilt; whether admissible or inadmissible at trial;

d.the history, character and condition of the defendant;

e.any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;

f.the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

g.the impact of a dismissal upon the confidence of the public in the criminal justice system;

h.the impact of a dismissal on the safety or welfare of the community;

i.where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;

j.any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

The power to dismiss a case in the interest of justice is committed to the trial court's discretion and may be exercised "only in that rare' and unusual' case where it cries out for fundamental justice beyond the confines of conventional considerations'" (People v. Harmon, 586 NYS2d 922 {181 AD2d 34} [App. Div., 1st Dept. 1992]). Further, CPL § 170.40 allows a [*3]dismissal in the interest of justice where a compelling factor, consideration or circumstance requires it. The word "compelling" implies that the facts and circumstances must be of a nature that denial of the motion to dismiss in the interest of justice would be such an abuse of discretion as to shock the conscience of the court (People v. Stern, 372 NYS2d 932 {83 Misc 2d 935} [NY Co. Crim. Ct. 1975]).

The circumstances herein clearly fall within the standard outlined in CPL § 170.40 (1) and case law as the allegations are patently frivolous and insufficient as a matter of law. First, the allegations do not show that the defendant possessed a forged instrument. The defendant is alleged to have carried a badge, that was the same shape and size as that of a New York City detective badge, that stated "US Recovery Bureau". The People assert in their affirmation that the badge was issued by the US Recovery Bureau, an allegedly unlicensed training school for bounty hunters. The allegations do not show that the badge purported to be an authentic New York City Detective badge. The allegations must establish that the badge was falsely made, completed or altered. No such showing is provided in this case. There is no indication that the badge was falsely made, completed or altered (Penal Law § 170.050 (7)). Further, the definition of a forged instrument does not include possession of a facsimile of a police badge(People v. Simmons, 774 NYS2d 284 {2 Misc 3d 728} [Crim. Ct., NY Co. 2003]). "The wrongful use of a facsimile badge is expressly dealt with by NY Penal Law §§ 190.25 and 190.26" (Id.). The possession of a facsimile badge, which does not purport to be, on its face, the symbol of an identifiable agency, cannot be the basis for a Penal Law § 170.20 charge (People v. Simmons, 774 NYS2d 284 [Crim. Ct., NY Co. 2003]). In this case, the badge does not purport to be that of a New York City Detective. Therefore, there is no showing that the defendant possessed a forged instrument and the charge must be dismissed.

The charge of Unlawful Use of Police Uniform or Emblem requires a showing that the defendant was not a member of the police force and that he represented himself falsely as such with fraudulent designs upon a person or property, or had, used, wore or displayed without specific authority from the commissioner any uniform, shield, buttons, wreaths, numbers or other insignia or emblem in a way resembling that worn by the police (N.Y.C. Adm. Cd. § 14-107). The allegations fail entirely to show that the defendant represented himself to be a member of the police force, as required for the charge (see, Adm. Cd. § 14-107). To be sufficient, the allegations must establish that the defendant represented himself falsely to be a member of the police force (Adm. Cd. § 14-107). This is a necessary element of the charge (People v. Iftikhar, 713 NYS2d 671 {185 Misc 2d 565} [Crim. Ct., Qs. Co. 2000]).

None of the facts alleged show that the defendant identified himself, used the item or acted in any manner that would indicate an intent to be perceived as a police officer. The defendant is alleged to have placed the badge on an x-ray machine on his way into the premises. The People assert in their response that the defendant carried the badge in a separate identification wallet case and that he also carried an unexpired U.S. Recovery identification card and U.S. Recovery Bureau credentials certifying with his social security number that he was a member of the U.S. Recovery Bureau. The People also state in their response that "[t]he defendant was not acting as a bail agent at the time, but was acting as a civilian entering a government agency" (People's response dated 4/9/2008, ¶ 8). The Prosecution appears to be proceeding under the section of the statute that states that the defendant had a shield which resembled that used by the police. However, the allegations must show nonetheless, that the defendant represented him or herself to be a member of the police force. Merely alleging that [*4]the defendant possessed a badge that resembled a police officer's badge in someway is not sufficient for the charge (People v. Iftikhar, supra ).

The statute has been found unconstitutional as to the possession of instruments which "resemble"[FN1] those worn by the police (People v. Iftikhar, supra ). The court in Iftikhar stated that the "broad in any way resembl[es]' umbrella of the statute" would "permit a police officer to determine, without legislative guidance, that the shield, whether it was a near duplicate of a real detective's shield or a child's plastic toy, was criminal" (People v. Iftikhar, supra at 676). "Constitutional guidelines do not permit the law to be applied in that manner" (id.). Therefore, the allegations must show that the defendant possessed an authentic shield with the intent to defraud another or that he possessed a forged shield with the same intent. Merely possessing an instrument which "resembles" that worn by the police is not a crime (People v. Iftikhar, supra ).

Additionally, the statute "leaves a police officer free to exercise his unfettered discretion in determining whether a shield possessed by a defendant is sufficiently akin to an official police badge as to warrant arrest" (Iftikhar, supra at 676). The court in Iftikhar, supra at 676, went on to state that "[t]he absence of objective standards to guide those enforcing the laws permits the police to make arrest based upon their own personal, subjective idea of right and wrong." The Forged Instrument and Unlawful Use of Police Uniform or Emblem charges are patently insufficient. The allegations are deficient and there appears to have been no legally sufficient basis for the instant charges. Consequently, dismissal in the interest of justice is required in this case.

Further, as to the first and second prong of the analysis, the seriousness of this case is at best di minimis given the preceding discussion. The defendant is alleged to have possessed a badge that was issued by a bounty hunter training school which stated "US Recovery Bureau." The school is allegedly unlicensed in New York, but is permitted in the state of New Jersey.The defendant is alleged to have placed this badge on an x-ray machine as he attempted to enter the premises. There is no indication that maleficence was involved, that the defendant intended to misuse the badge, or that the badge was forged. Concomitantly, the harm demonstrated in this case is minimal since the complaint alleges that the defendant simply possessed a badge that was neither forged, altered or completed. There is no victim in this case. Therefore, the seriousness of the crimes alleged is at best di minimis and involves little, if any, harm.

Further, there appears to be little evidence of guilt given that the allegations are insufficient and do not establish the commission of any of the charges. Also, a review of the report from the Division of Criminal Justice Services reveals that the defendant has no prior criminal history as the People concede. There is no indication that the defendant has any history or character defect that would give cause for denial of the instant motion. All indications are that the defendant is a law-abiding citizen. As stated above, there appears to be no victim in this [*5]case. Therefore, the attitude of the complainant or victim, with respect to the motion, is not at issue herein. There appears to be no exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant. There would be little if no purpose or beneficial effect in imposing a sentence upon the defendant since the facts alleged indicate that no crime was committed. Given the compelling circumstance of this case, the public's confidence in the criminal justice system would be preserved with the dismissal of this proceeding. There is also no cause to believe that dismissal of this proceeding would adversely impact the safety or welfare of the community.

In considering the factors set forth in CPL § 170.40, as required, this case provides a sufficient showing of "the existence of some compelling factor, consideration or circumstance [that] clearly demonstrat[es] that conviction or prosecution of the defendant ... would constitute or result in injustice" (CPL § 170.40). Thus, the proceeding is hereby dismissed in the interest of justice given the facts and the totality of the circumstances herein. Accordingly, the defendant's motion to dismiss in the interest of justice is granted.This constitutes the decision, opinion and order of the Court.

Dated:New York, New YorkJuly 21, 2008

_______________________________The Honorable ShawnDya L. Simpson Judge of the Criminal Court Footnotes

Footnote 1: Examples of items that may be criminalized under the statute, according to Iftikhar, supra at 676, include the use of long navy blue coats with brass buttons that are meant to resemble a police uniform and commercial police shields that range from toy detective badges to police-like badges used by private security employees. As stated in Iftikhar, supra , "this statute provides the average citizen of ordinary intelligence' no guidance whatsoever, and therefore supplies no fair notice, as to what form of possessory conduct is permitted and which is prohibited (Iftikhar, supra at 676, citing, People v Smith, 44 NY2d 613, 618 [1978]).