PEOPLE v. DE LA CRUZ (2020)

Judgment of conviction (Lisa A. Sokoloff, J. at plea; Laurie Peterson, J. at replea and sentencing), rendered November 5, 2015, affirmed.

Since defendant waived prosecution by information, the accusatory instrument only had to satisfy the reasonable cause requirement of a misdemeanor complaint (see People v. Dumay, 23 NY3d 518, 522 [2014]). So viewed, the accusatory instrument was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of unlawful possession of a skimmer device in the second degree (see Penal Law § 190.85). The instrument recited that on September 19, 2014, inside the store located at 319 Broadway, a customer handed defendant a credit card to pay for goods and that defendant, after swiping the credit card in the cash register, swiped the card a second time in a device he was holding in his hand. The instrument further alleged that a “skimming device”—described as one that is “commonly used to take and record account information from credit cards for the purpose of reproducing said account numbers onto fraudulent credit cards”—was subsequently recovered from the bottom of a trash can inside the employee locker room at said location. These factual allegations were sufficient for pleading purposes since they provided adequate notice to enable defendant to prepare a defense and invoke his protection against double jeopardy (see People v. Kasse, 22 NY3d 1142, 1143 [2014]).

Defendant's argument that the instrument did not contain sufficient factual allegations to satisfy the possession element of the offense ignores the inferences to be drawn from the facts alleged, namely, that defendant was “holding a device ․ in his hand” in which he “swip[ed] the credit card a second time,” and the subsequent recovery of a “skimming device” in the employee locker room. Based upon these allegations, a factfinder could rationally infer that the skimming device recovered was the same device defendant was holding in his hand.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.