PEOPLE v. MORRISON (2017)

Judgment of conviction (Heidi C. Cesare, J.), rendered March 11, 2015, reversed, on the law, and the accusatory instrument is dismissed.

The accusatory instrument charging fraudulent accosting (see Penal Law § 165.30[1] ) was jurisdictionally defective.   The instrument recited, in relevant part, that defendant was observed standing outside the Port Authority Bus Terminal and wearing an “orange traffic vest,” “hail[ing] several cabs for passengers,” placing “passengers' bags inside the cabs” and “accept[ing] $1 from a cab passenger.”   The information further alleged that there was “no taxi dispat[ch] service that people would have to pay for” at that location.

The quoted facts, even when taken together with all reasonable inferences which can be drawn from those facts (see People v. Jackson, 18 N.Y.3d 738, 747, 944 N.Y.S.2d 715, 967 N.E.2d 1160 [2012] ), were insufficient to support the “accosts” element of the offense charged, which “requires that defendant take some affirmative action to make contact with the victim for the purpose of involving that individual in the scam” (People v. Tanner, 153 Misc.2d 742, 746, 582 N.Y.S.2d 641 [Crim.Ct., New York County 1992, (Richter, J.) ];   see also People v. Bannister, 37 Misc.3d 1229[A], 2012 N.Y. Slip Op. 52240[U], 2012 WL 6171953 [Crim.Ct., New York County 2012, (Mandelbaum, J.) ] ).   There was no allegation that defendant approached anyone, called out to potential customers or made any effort to initiate contact with any passersby (see People v. Tanner, 153 Misc.2d at 745, 582 N.Y.S.2d 641).   Thus, the factual allegations in the accusatory instrument did not establish that defendant accosted anyone, an essential element of the offense.

Inasmuch as defendant has served his sentence, and the record does not demonstrate that further proceedings on the remaining petty offense would serve any compelling penological purpose, we dismiss the accusatory instrument.

PER CURIAM.