People v Benouis

[*1] People v Benouis 2015 NY Slip Op 51309(U) Decided on September 8, 2015 Criminal Court Of The City Of New York, New York County Cesare, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 8, 2015
Criminal Court of the City of New York, New York County

The People of the State of New York,

against

Benabdellah Benouis, Defendant.



2015NY012243



For the People:
NYC ADA David Ginensky

For the Defendant:
Howard B. Greenberg, Esq.
Van Leer & Greenberg
132 Nassau Street
New York, NY 10038
Heidi C. Cesare, J.

Defendant is charged in a misdemeanor complaint with a single count of trademark counterfeiting in the third degree, Penal Law § 165.71. Defendant moves to dismiss on the grounds that the misdemeanor information is facially insufficient (CPL 100.15; 100.40 [1] [c]) and in the interest of justice (CPL 170.30 [g]; 170.40). For the reasons set forth below, the court denies the defendant's motion to dismiss for facial insufficiency and denies the defendant's motion to dismiss in the interest of justice. Nonetheless, the court finds that the accusatory instrument is not fully converted (see CPL 100.40 [1] [c]). The court grants the People leave to cure this defect by filing an appropriate supporting deposition or a superseding information within the applicable time restraints (see CPL 30.30).[FN1]

A. The Allegations

The factual portion of the criminal complaint sworn out by Police Officer Mohammad Aryakia reads as follows:

"I observed the defendant display and offer for sale five belts. I have examined the merchandise and, based on my training and experience, I know the merchandise bears a counterfeit Lacoste [*2]trademark.

The counterfeit trademark appears the same as the genuine trademark except the item bearing the counterfeit trademark is different from items that the owner of the trademark produces. The item bearing a counterfeit trademark has poor overall quality, poor stitching quality, the packaging is inconsistent with that of authentic packaging and items have a "Made in China" sticker on them and items bearing a genuine trademark have high overall quality, high stitching quality, authentic packaging, and no "Made in China" sticker on them.

An affidavit signed by Michael Mullady, a representative of the trademark, states that the trademark is in use and registered."

At the arraignment the People also served and filed the supporting deposition of one Michael Mullady. Mr. Mullady's duly sworn supporting deposition, dated February 11, 2015, and titled "New York County District Attorney's Office Trademark Counterfeiting Manufacturer's Affidavit", reads as follows:

"I, Michael Mullady, an authorized representative of Lacoste Inc., state that the Lacoste Inc. trademark is currently in use and registered at the United States Trademark Office in Washington, D.C."

B. Facial Insufficiency

A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution (People v Jackson, 18 NY3d 738, 741 [2012]). Since this defendant has not waived his right to be prosecuted by information, the court must assess his motion on the standards governing an information (People v Kalin, 12 NY3d 225, 228 [2009]). An information is "sufficient on its face" when three requirements are met (CPL 100.40 [1]). One, the information must allege "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15 [3]; 100.40 [1] [a]). Two, the factual allegations of the information and supporting depositions must "provide reasonable cause to believe that the defendant committed the offense charged" (CPL 100.40 [1 ] [b]). Three, the nonhearsay allegations of the information and supporting depositions must "establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40 [1] [c]). A court reviewing for facial insufficiency must subject the allegations in the information to a "fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]); assume that those allegations are true, and consider all reasonable inferences that may be drawn from them (People v Konieczny, 2 NY3d 569, 575 [2004]; see CPL 100.40 [1] [c] ).

After "arraignment upon an information . . . or a misdemeanor complaint, the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that. . . " (CPL 170.30 [1] [a]) the information "is not sufficient on its face" (CPL 170.35 [1] [a]). The court, however, may not dismiss the accusatory instrument "where the [*3]defect or irregularity is of a kind that may be cured by amendment and where the people move to so amend" (CPL 170.35 [1] [a]).

This court finds unavailing defendant's challenge to the facial sufficiency of the accusatory instrument charging trademark counterfeiting in the third degree, Penal Law § 165.71. The criminal complaint alleges that at a specified time and location a police officer observed defendant "display and offer for sale five belts." The complaint identifies and distinguishes the characteristics of the genuine and counterfeit trademarked merchandise; and states that the "Lacoste" trademark appearing on the belts is registered and in use. These factual allegations, "given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000] ), are sufficient for pleading purposes to establish reasonable cause to believe and a prima facie case that defendant committed the offense of trademark counterfeiting in the third degree (see People v Guo Zhang, 14 Misc 3d 82, 83 [App. Term 2007, 1st Dept]).

While the court finds that the complaint is facially sufficient, the court also finds that the present accusatory instrument contains uncorroborated hearsay allegations. In the factual allegations, the first paragraph is attributed to the deponent, Police Officer Mohammad Aryakia. This paragraph meets the non hearsay allegation requirement (see CPL 100.40 [1] [c]). The third paragraph is corroborated by the supporting deposition of Michael Mullady. The third paragraph also meets the nonhearsay allegation requirement (Id).

The problem lies with the second paragraph of the factual allegations. The allegations in the second paragraph are not attributed to any person. The source of the information may be the deponent, or it may be Mr. Mullady, or it may be some other person. Absent any additional information, the court is unable to discern from the face of the complaint who is the source of the information in the second paragraph. The court finds that the allegations set forth in the second paragraph of the complaint constitute uncorroborated hearsay.

For these reasons, the court finds that the criminal complaint has not been properly converted to an information (see CPL 100.40 [1] [c]) and the accusatory instrument remains a misdemeanor complaint. As this defect appears to be readily curable, the court grants the People leave to cure by filing an appropriate supporting deposition or a superseding information within the applicable speedy trial time restraints (see CPL 30. 30).

C. Dismissal in the Interest of Justice

Criminal Procedure Law § 170.40 provides for the dismissal of an information or a misdemeanor complaint or count thereof "in the interest of justice . . . when, even though there may be no basis for dismissal as a matter of law . . . such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice." The power to dismiss on such ground is committed to the trial court's discretion and it should be "exercised sparingly and only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations" (People v Harmon, 181 AD2d 34, 36 [1st Dept 1992] [citations and internal quotation marks omitted]).

The defendant bears the burden of demonstrating by a preponderance of the credible evidence that dismissal in the interest of justice is warranted (People v Schlessel, 104 AD2d 501, 502 [2d Dept 1984]). If the defendant fails to meet his burden, the court may summarily deny [*4]the motion (Id). If a defendant meets his burden of presenting compelling facts that individually or collectively warrant dismissal, this Court may order a hearing to determine the facts, or grant the motion to dismiss if sufficient uncontested facts are present (People v Clayton, 41 AD2d 204, 208 [2d Dept1973]). The court must consider individually and collectively each of the factors listed in Criminal Procedure Law § 170.40 (1)[FN2] and must, where dismissal is granted, place its reasons on the record (CPL 170.40 [2]); People v Berrus, 1 NY3d 535, 536 [2003]). A motion for dismissal in the interests of justice "is not an opportunity for the Court to judge the merits of a case before trial, but a power that should be exercised sparingly and only in that rare and unusual case when it cries out for fundamental justice beyond the confines of conventional considerations'" (People v Curcio, 22 Misc 3d 907, 915 [Crim Ct, Kings County 2008], quoting People v Premier House, Inc., 174 Misc 2d 163, 168 [Crim Ct. Kings County 1997]).

The defendant submits that the court should grant his motion to dismiss in the interest of justice on following grounds: good moral character; absence of a criminal record; and actual innocence, specifically a lack of knowledge that the goods were counterfeit. The defendant asserts he had no guilty knowledge because he did not personally negotiate the wholesale purchase of the belts; because he was a store employee; and because the alleged counterfeit belts were being sold from an open display in a reputable store. The defendant's good character and absence of a criminal record are commendable but insufficient to justify dismissal of the charges. The fact that a defendant may have had "no prior criminal record and an exemplary background, standing alone, is insufficient to justify a dismissal in the interest of justice" (People v Diggs, 125 AD2d 189, 191 [1st Dept 1986], see also, People v Varela, 106 AD2d 339, 340 [1st Dept 1984], People v Andrew, 78 AD2d 683[ 2nd Dept 1980]). With regard to the defendant's claim of innocence, adjudication on the merits is properly reserved to the trial court. A motion to dismiss in the interest of justice "is not the appropriate mechanism for a defendant's assertion of his innocence" (People v Hold, 22 Misc 3d 297, 305 [Crim Ct, New York County 2008], see also, People v Figueroa, 164 Misc 2d 814, 625 [Crim Ct, Kings County 1995], People v Prunty, 101 Misc 2d 163 [Crim Ct, Queens County 1979]).

Taken individually or collectively, the defendant's arguments do not warrant dismissal of charges in the interest of justice.

D. Conclusion

For the foregoing reasons the defendant's motions to dismiss for facial insufficiency and in the interests of justice are hereby denied. Nonetheless, the court finds that the present [*5]accusatory instrument contains uncorroborated hearsay in the second paragraph of the factual allegations. The people are granted leave to correct this defect by filing either a supporting deposition or a superseding information within the applicable time retrains under the speedy trial statute.

The defendant's remaining motions shall be addressed once the criminal complaint is converted to an information.

This constitutes the decision and order of the Court.September 8, 2015
New York, New York

______________________________
Heidi C. Cesare, J.C.C. Footnotes

Footnote 1: In deciding this motion, the court has considered the defendant's omnibus motion dated April 14, 2015; the People's affirmation in response dated May 12, 2015; the defendant's reply affirmation dated August 19, 2015; all papers in the court file; and the relevant statutes and case law.

Footnote 2:Those 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 on the safety or welfare of the community; (h) the impact of a dismissal upon the confidence of the public in the criminal justice system; (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.