People v Hye
Annotate this CaseDecided on December 5, 2011
New Rochelle City Ct
The People of the State of New York, Plaintiff
against
Doreen Hye, Defendant.
11-0312
FRANCISCO C. LUIS, ESQ.
Office of the District Attorney of
Westchester County, New Rochelle Branch
475 North Avenue
New Rochelle, NY 10801
ANTHONY MATTESI, ESQ..
Law Office of Anthony Mattesi, Esq.
270 North Avenue, Suite 208
New Rochelle, NY 10583
Attorney(s) for Defendant
Susan I. Kettner, J.
The defendant herein, having been charged with the offense of Petit Larceny in violation of Penal Law § 155.25, moves this Court for orders seeking the following relief:
A.Dismissal of the charge against defendant;
B.Suppression of evidence of the alleged stolen property.
The People have filed their opposition to the defendant's omnibus motion.
The Court will address each portion of the defendant's motion ad seriatum. The Court rules as follows:
A. Dismissal of Charge
Defendant moves for dismissal on three separate grounds. First, defendant cites CPL § 240.20 for the proposition that the People cannot comply with the statute because they never took custody of the alleged stolen property. The statute however, does not require the police to retain custody of the property. Since the police never formally seized the items, there is no CPL § 450.10 mandate to produce. People v. Carter, 121 AD2d 644, 504 NYS2d 43. In any event, even if there were such a requirement, the defendant is hardly prejudiced, since a person is guilty of the crime of Petit Larceny merely when "he steals property". (See, PL 155.25) There is no element requiring a certain dollar threshold. People v. Trotty, 188 AD2d 353, 591 NYS2d 171.
The second basis for dismissal is the lack of the element of asportation. Defendant's counsel states that the defendant did not physically leave the store with the alleged stolen goods and that asportation is a necessary element of the offense charged. However, the Court finds that there is no such statutory requirement for the crime of larceny. People v Olivo, 52 NY2d 309, [*2]438 NYS2d 242. Defendant moves prematurely in asking the Court for a pre-determination of the People's case based solely upon defendant's presentation of her case. The fact of whether or not the defendant needs to physically leave the store to satisfy the elements of Petit Larceny is a factual issue to be determined at trial.
Defendant further moves that the information be dismissed for facial insufficiency pursuant to CPL § 170.35(a) insofar as it alleges that each and every element of the offense charged is not supported by a non-hearsay allegation contained in the information. The Court, however, finds that the information is sufficient on its face.
CPL § 100.40(1) provides that an information is sufficient on its face, in pertinent part, if: (b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof.
Thus, the CPL § 100.40(1)(b) standard to determine the facial sufficiency of an information is not beyond a reasonable doubt, but "reasonable cause to believe that the defendant committed the offenses charged". People v. Henderson, 92 NY2d 677, 708 NE2d 165, 685 NYS2d 409.
It is well settled that on a defendant's motion to dismiss, the court must view the facts in the light most favorable to the People. (See, People v Delmonaco, 16 Misc 3d 526, 837 NYS2d 869). Moreover, an accusatory instrument is sufficient if it apprises the defendant of the charges against him so that he can prepare an adequate defense. (See, People v Fitzgerald, 45 NY2d 574, 384 NE2d 649, 412 NYS2d 102). It is also well established that a supporting deposition based upon personal knowledge or information and belief is sufficient to support an information. (See, People v Gorman, 36 Misc 2d 568, 232 NYS2d 889). Moreover, the Court of Appeals, in determining whether a flaw in a accusatory instrument was jurisdictionally defective, recently held that "[t]he test is, simply, whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy". People v Dreyden, 15 NY3d 100, 103, 931 NE2d 526.
The defendant is charged with one count of Petit Larceny, which provides that a person is guilty under Penal Law § 155.25 when such person steals property. The misdemeanor information here, puts the defendant on notice as to the time (approximately 6:25 p.m.), place (55 Weyman Avenue, New Rochelle, New York), and date (March 9, 2011) of the alleged incident which forms the basis of the charge against defendant. The supporting deposition attached to the accusatory instrument is sworn to by the complainant and propertly verified with the warning that, "PURSUANT TO THE PENAL LAW SECTION 210.45, IT IS A CRIME PUNISHABLE AS A CLASS A MISDEMEANOR TO KNOWINGLY MAKE FALSE STATEMENTS HEREIN". In addition, the supporting deposition reflects the factual basis of the charges filed against the defendant. The complainant's supporting deposition provides a detailed account of his observations of defendant and an unidentified male walking through the store on March 9, 2011, at approximately 6:30 p.m., selecting various items totaling $2,099.45, placing them in [*3]their cart, and subsequently, secreting these items in a large cardboard box that had originally contained a roof vent valued at $36.90. Complainant further observed, as further detailed in his supporting deposition, defendant paying only $36.90 for the value of the originally boxed item and not the value of the hidden merchandise.
Accordingly, the Court finds that the allegations set forth in the misdemeanor information, together with the supporting deposition provide reasonable cause to believe that the defendant committed the crime charged.
Based upon the foregoing, the defendant's motion to dismiss the Petit Larceny charge and the motion to dismiss the information are hereby denied.
B. Suppression of Evidence of the Alleged Stolen Property
Defendant alleges that the People have failed to comply with PL § 450.10 requirements of notifying the defendant when a request for the alleged stolen property is to be returned. As mentioned previously, the Court finds that the statute does not pertain where, as here, the Police never took custody of the property. The statute does not require the police to take custody of the property The Court thus finds that PL 450.10 does not apply to the physical evidence in this instance.
Defendant has requested that the People turn over phonographs of the alleged stolen property and the People have yet to comply. CPL § 240.20(1)(e) provides that upon the defendant's demand, "the prosecutor shall disclose to the defendant and make available for inspection, photographing, copying or testing... [a]ny photograph or drawing relating to the criminal action or proceeding which was made or completed by a public servant engaged in law enforcement activity, or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial.
Accordingly, the Court finds that the photographs of the alleged stolen items are discoverable by defendant and the People are directed to turn over same by December 19, 2011. In all other respects, defendant's motion is denied.
The foregoing constitutes the Decision and Order of the Court.
Dated:December 5, 2011
New Rochelle, New York
Susan I. Kettner
City Court Judge
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