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The PEOPLE of the State of New York, v. Erik ZAYAS, Defendant.
Defendant is charged with Unlawful Receipt of Fare for Providing Access to Transit Authority Facilities (NYCRR Sec. 1050.4(c)), a violation, Petit Larceny (PL Sec. 155.25), and Obstructing Governmental Administration in the Second Degree (PL Sec. 195.05), both Class A misdemeanors. Defendant moved to dismiss the latter two charges of the Criminal Court Complaint pursuant to CPL Sec. 170.30, asserting that the People's complaint is facially insufficient.1
In response to Defendant's motion, the People filed a response dated April 18, 2005 asserting that these charges were sufficiently plead.
Defendant's motion is granted in part, and denied in part for the reasons stated below.
The Defendant is alleged in the Criminal Court complaint to have been observed by the deponent, Police Officer Anthony Clemente, “wrongfully taking from two individuals a sum of United States Currency that would otherwise have been paid to the New York City Transit Authority as lawful fares from said individuals, in exchange for which the Defendant swiped a Metrocard thrugh (sic) the subway turnstile for each of these individuals, thereby allowing the said individuals to enter the transit system beyond the turnstiles.” The Officer goes on to allege that upon his arrest, the Defendant was in possession of 2 unlimited ride Metrocards, for which the Defendant did not have permission or authority to authorize access to the transit system for other individuals.
This opinion should be read in conjunction with this Court's decision in People v. Radames Lopez, 8 Misc.3d 873, 797 N.Y.S.2d 893 (Crim.Ct., N.Y.Cty., 2005), which is rendered contemporaneously with this decision. There the Defendant is charged with having possessed and used a bent Metrocard to gain access to the subway system.
This Court has observed that as the number of cases of alleged Metrocard misuse being brought by the People increases, there is an ongoing dispute between the People and the Defense Bar as to the sufficiency of the charges that have been brought against Defendant's accused of crimes associated with the misuse of Metrocards. This opinion, and the Lopez opinion, are attempts to provide a uniform approach to the legal issues presented by these matters.
Under CPL Sec. 100.15, every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986).
Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish two things; 1) each and every element of the offense charged, and 2) the Defendant's commission of said crime. If both these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987).
Applying these principles, there can be no dispute that the factual allegations contained in the misdemeanor information before this Court do not support the charge of Obstructing Governmental Administration in the Second Degree pursuant to PL Sec. 195.05.
PL Sec. 195.05 states that a person is guilty of Obstructing Governmental Administration in the Second Degree when “he intentionally obstructs, impairs, or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act, or by means of interfering, whether or not physical force is involved, with radio, telephone, television or other telecommunications system owned or operated by the state ․” (Emphasis added).
In his motion to dismiss, Defendant ignores the conjunction “or” present in the statute, and substitutes an “and.” In so doing, Defendant asserts that the People must show that the Defendant “prevented or attempted to prevent another from performing a governmental function,” “the other person was a public servant,” “the function was an official act authorized by law, and ․ the obstruction was sought to be accomplished by means of intimidation, force or interference.”
A plain reading of the statute proves the error of Defendant's argument.
Likewise, the People misstate the basis for their case by asserting that the Defendant interfered “whether or not physical force is involved, with ․ (a) telecommunications system owned or operated by the state ․” This is an obvious effort to “shoehorn” their facts under the umbrella of PL Sec. 195.05.
The Obstructing statute, while broad, simply does not include the conduct asserted here. There is no “intentional obstruction,” no “impairment or perversion of the administration of law,” no “other governmental function” no “prevention or attempt to prevent a public servant from performing an official function,” whether by “means of intimidation, physical force or interference,” “or by means of any independently unlawful act.”
The Defendant is alleged to have stood next to a subway turnstile, and sold “swipes” from his unlimited access Metrocard to people willing to buy these “swipes.” These actions do not even remotely fit the proscribed conduct described in the statute, and the attempt to fit the defendant's conduct under PL Sec. 195.05 tortures the wording of the statute beyond meaning.2
As to the People's argument that the “the interference being alleged is with a telecommunications system owned by the state,” there is no evidence presented by the People to establish that the Metrocard system is a “telecommunications system.” Further, the sale of “swipes” does not in any way interfere with the Metrocard system-only with the Transit Authority's collection of fares from their customers.
Therefore, the charge of Obstructing Governmental Administration in the Second Degree under PL Sec. 195.05 is hereby dismissed.
As to the charge of Petit Larceny pursuant to PL Sec. 155.25, the central question is stated quite plainly-what Transit Authority “property” has the Defendant stolen?
Under PL Sec. 155.25, “a person is guilty of petit larceny when he steals property.” PL Sec. 155.00(1) defines property as “any money, personal property, real property, computer program, thing in action, evidence of debt or contract, or any article, substance or thing of value, including any gas, steam, water or electricity, which is provided for a charge or compensation.” (Emphasis added.)
Defendant asserts that the sale of “swipes” on an unlimited access Metrocard is not a theft of property as defined above, but is in fact a theft of a “transportation service” as defined in PL Sec. 155.00(8). On the other hand, the People cite the last sentence of PL Sec. 155.00(8), which excludes “a ticket or equivalent instrument which evidences a right to receive a service is not in itself service but constitutes property within the meaning of subdivision one.”
The People's reliance on this exclusion is misplaced because the Defendant is not charged with stealing the Metrocard itself. In fact, there is no allegation in the complaint that he came by the unlimited Metrocard by other than legal means. The true gravamen of the People's complaint is that the Defendant was misusing his card by selling rides to his fellow customers, and “swiping” them through the turnstile after they made their payments to him.
Thus, the question remains unanswered-what Transit Authority “property” has the Defendant stolen?
PL Sec. 155.05(1) defines larceny as “when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.”
The Practice Commentary of the Hon. William Donnino, JSC, to PL Sec. 155.00 states that “(l )arceny requires the specific intent to ‘deprive’ another of property or to ‘appropriate’ same to oneself or to a third person. The definition of the terms ‘deprive’ (PL Sec. 155.00(3)) and ‘appropriate’ (PL Sec. 155.00(4)) ‘connote a purpose ․ to exert permanent or virtually permanent control over the property taken, or to cause permanent or virtually permanent loss to the owner of the possession and use thereof’.” Practice Commentary, PL Sec. 155.00, McKinney's Book 39, p. 166 (1999) citing People v. Jennings, 69 N.Y.2d 103, 118, 512 N.Y.S.2d 652, 504 N.E.2d 1079 (1986).
Applying the basic standards of statutory construction to the factual allegations contained in the Criminal Court Complaint, this Court finds that the People's allegations do tend to support the Petit Larceny charge. The “property” at issue here is the money to be collected by the Transit Authority from the customers to whom the Defendant is selling the “swipes” from his unlimited Metrocard. By selling those “swipes,” the Defendant is allegedly depriving the Transit Authority of their profits. See, People v. Barondess, 133 N.Y. 649, 31 N.E. 240 (1892) (“The profits of a business are property so that one who threatens unlawfully to interrupt the business threatens injury to the property of the owner.”)
The Defendant's actions can therefore be viewed as connoting “a purpose to exercise permanent or virtually permanent control” over the profits to be derived by the Transit Authority from the sale of the unlimited ride Metrocard, thus causing “a permanent or virtually permanent loss to the owner of the possession and use thereof.” 3
Therefore, the branch of Defendant's motion which seeks dismissal of the charge of Petit Larceny pursuant to PL Sec. 155.25 as facially insufficient is denied.4
All other arguments advanced by Defendant in his motion have been reviewed and rejected by this court as being without merit
This shall constitute the opinion, decision, and order of the Court.
1. Defendant does not present any argument regarding the sufficiency of the charge of Unlawful Receipt of Fare for Providing Access to Transit Authority Facilities under NYCRR Sec. 1050.4(c).
2. Obstructing Governmental Administration has been held to apply where an individual fails to obey the lawful orders of a police officer (Decker v. Campus, 981 F.Supp. 851 (S.D.N.Y., 1997)), where an individual interferes in the arrest of another (Matter of Samuel VV., 217 A.D.2d 863, 629 N.Y.S.2d 843 (3d Dept., 1995)), or where an individual prevents the recovery of evidence by the police (People v. Ravizee, 146 Misc.2d 679, 552 N.Y.S.2d 503 (Crim.Ct., N.Y.Cty., 1990)). This Court has not found any case where the statute has been applied to circumstances similar to the facts at issue here, and this court declines to do so in this instance.
3. The People's position assumes that the holder of an unlimited use Metrocard has no legal right to transfer his card, or resell his use of said card. This position also assumes a certain cost-benefit analysis. If the Defendant continued this behavior, there would come a point where the use of the card would exceed the profitability of said card.
4. This Court has only been called upon to decide whether the People's factual allegations support or tend to support a charge of Petit Larceny herein. Whether or not the People will be able to establish the Defendant's guilt of this charge beyond a reasonable doubt is a matter left to the trier of fact if and when this matter reaches trial.
JOHN H. WILSON, J.
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Decided: June 17, 2005
Court: Criminal Court, City of New York,
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