PEOPLE v. PHILLIP

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The PEOPLE of the State of New York, Plaintiff, v. Anthony PHILLIP, Defendant.

Decided: September 05, 2017

Kathleen Coulson, ADA, New York, for the People. Jason Tortora, Legal Aid Society, New York, for defendant.

The defendant, Anthony Phillip, is charged with one count Unlicensed Ticket Vending. AC (“Administrative Code”) § 20–551[a][1], one count of Unlawful Vending in a New York City Park, 56 RCNY § 1–05[b] (“Rule & Regulations of the City of New York”) and one count of Ticket Seller–Failure to Display License, AC § 20–554[a].

Motion to Dismiss for Facial Insufficiency

Defendant moves in an omnibus motion to dismiss the accusatory instrument for facial insufficiency pursuant to CPL §§ 100.40 and 170.30, as well as various other reliefs. For the reasons set forth below, defendant's motion to dismiss for facial insufficiency is denied.

The Accusatory Instrument

The factual allegations of the instant accusatory instrument sworn by Police Officer Kasiem Griffin alleges in pertinent part:

I observed the defendant standing inside Battery Park, a New York City Public Park, at the above public location, while holding and displaying a flyer. I further observed the defendant wearing a vest with words “Statute,” “Cruises,” and “Helicopter” written on the vest.

At the time of my observations, the defendant was not displaying a license issued by the Department of Consumer Affairs or a permit issued by the New York City Parks Department and could not produce one when asked.

I further observed the defendant showing a flyer to a group of approximately eight individuals. I further observed the defendant pointing at the flyer and engage in conversation with these individuals. I further observed these individuals examine the flyer.

I approached the defendant and took the flyer from the defendant's hand and observed that it depicted the Statute of Liberty, helicopters, and boats with prices written on the flyer. Based on my training and experience, I know that the defendant's actions are typical of the sale of boat and helicopters tickets which are kept at another location and which are described and offered for sale to pedestrians on the street by means of a flyer containing illustrations.

Defendant argues that based on these allegations, the charges of AC §§ 20–551 [a][1] and 20–554[1] must be dismissed because the accusatory instrument fails to sufficiently plead facts that would establish that the defendant was acting as a ticket seller as defined by the statute. Along the same vein, defendant argues that the charge of 56 RCNY § 1–05[b] is facially insufficient for failing to establish that defendant acted as a vendor, within the meaning of the statute.

Facial Insufficiency in General

“A valid and sufficient accusatory instrument is a non-waivable jurisdictional prerequisite to a criminal prosecution” (People v. Case, 42 N.Y.2d 98, 99 [1977] ). An information is sufficient on its face when the three requirements enumerated in CPL 100.40[1] are met: first, the information must substantially conform to the formal requirements of CPL 100.15 (CPL 100.40[1][a] ); second, the factual allegations and any supporting depositions must “provide reasonable cause to believe the defendant committed the offense charged” (CPL 100.40[1][b] ); and third, the non-hearsay allegations, if true, must establish every element of the offense charged and the defendant's commission thereof (CPL §§ 100.15[3] and CPL 100.41[1][c]; see People v. Dumas, 68 N.Y.2d 729 [1986]; see also People v. Alejandro, 70 N.Y.2d 133 [1987] ). “Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person ordinary intelligence, judgment and experience that is reasonably likely that such offense was committed and that such person committed the offense [ ]” (CPL 70.10[2] ). A court reviewing for facial sufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from them (People v. Jackson, 18 NY3d 738, 741 [2012]; see CPL 100.40[1][c] ). Further, “[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive and technical reading” (People v. Casey, 95 N.Y.2d 354, 360 [2000] ).

The Information is Facially Sufficient

Under AC § 20–551[a][1], a person is guilty of unlicensed ticket vending when they “act as a ticket seller without having first obtained a ticket seller license.” AC § 20–554[a] provides that “each ticket seller shall wear their ticket seller license conspicuously at all times while engaged in vending and shall exhibit such license upon demand to any police officer, peace officer, or other authorized officer or employee of the department or other city agency.” Additionally, 56 RCNY § 1–05[b] states that “no person in or any property under the jurisdiction of the department shall sell, offer for sale, hire, lease, or let anything whatsoever, including, but not limited to goods, services, or entertainment, or provide or offer to provide services, items, or entertainment in exchange for a donation (hereinafter “vend”), except under and within the terms of a permit, or except as otherwise provided by law.”

In the instant matter, the defendant was observed inside Battery Park, a New York City Public Park, wearing a vest that displays the words “statue”, “cruises” and “helicopters” while handing out and engaging groups of passerby in discussions about the flyer. The deponent, whose training and experience provide the basis for interpreting the defendant's alleged allegations, viewed the said flyer and observed that it depicted the Statue of Liberty, helicopters, boats as well as quoted prices relating to tours provided on those vehicles.

The factual allegations thereby sufficiently establish reasonable cause to believe that the defendant was participating in the alleged conduct of ticket selling. AC § 20–550 defines a “ticket seller” as a person who “vends tickets in a public place”. Contrary to what is stated in the defendant's omnibus motion, the term “vend” is clearly defined within the same chapter, meaning “to hawk, peddle, sell, lease, offer to sell or lease, at retail, tickets.” Here, the action of showing a flyer to passersby with touring vehicles and quoted prices, pointing and engaging in conversation regarding those flyers, and wearing a vest with the labels “Statue,” “Cruises,” “Helicopters” clearly demonstrate actions of an individual who is attempting to sell tickets for the attractions that appeared on the flyer.1

For the foregoing reasons, the defendant's motion to dismiss the charges for facial insufficiency is denied.

Motion to Suppress Physical Evidence

The branch of the Defendant's motion that is to suppress physical evidence allegedly recovered from the defendant at the time of his arrest (CPL § 710.20[1] ) is granted to the extent that a Mapp/Dunaway hearing is ordered to be held before trial (CPL § 710.60[4] ). The motion to suppress the physical evidence recovered from Defendant at the time of his arrest is otherwise held in abeyance pending this hearing and is referred to the hearing judge for determination.

Motion to Suppress Statements

The branch of the Defendant's motion that is to suppress evidence of statements allegedly made by the defendant to law enforcement personnel (CPL § 710.20[3] ) is granted to the extent that a Huntley/Dunaway hearing is ordered to be held before trial (CPL § 710.60[4] ). The motion to suppress such statements is otherwise held in abeyance pending this hearing and is referred to the hearing judge for determination.

Motion to Suppress Involuntary Statement Evidence

The branch of the defendant's motion that is to suppress evidence of unnoticed statements on the ground that such statements were involuntarily obtained (CPL § 710.20[3] ) is denied, with leave granted for the Defendant to renew this branch of the motion upon learning that the People intend to introduce such evidence at the Defendant's trial.

Motion to Compel Discovery

The branch of the defendant's motion seeking a Bill of Particulars and Discovery is regarded as a Request for a Bill of Particulars pursuant to CPL § 200.95 and a Demand for Discovery pursuant to CPL § 240.20. The motion is granted to the extent that the People are to serve a response and a Voluntary Disclosure Form within two weeks of this order if they have not already done so. The People are reminded of their continuing obligations under Brady v. Maryland (373 U.S. 83 [1963] ).

Motion for a Sandoval Hearing

The branch of the defendant's motion that is to preclude the People from introducing, for the purpose of impeaching the defendant's credibility at trial, evidence of the defendant's prior uncharged criminal, vicious or immoral acts is granted to the extent that it is referred to the trial judge for determination.

Reservation of Rights

The branch of the defendant's motion seeking the right to make further motions is granted to the extent provided for by CPL § 255.20[3].

Now, upon the papers filed in support of the motion, it is:

ORDERED that Defendant's motion to dismiss the charges of Unlicensed Ticket Vending (AC § 20–551[a][1] ), Unlawful Vending in a New York City Park (56 RCNY § 1–05[b] ), Ticket Seller–Failure to Display License, (AC § 20–554[a] ) is DENIED; and it is further

ORDERED that Defendant's motion to suppress the physical evidence recovered at the time of his arrest is granted to the extent that a Mapp/Dunaway hearing is ordered to be conducted prior to trial; and it is further

ORDERED that Defendant's motions to suppress identification and statement evidence are granted to the extent that Huntley/Dunaway are ordered to be conducted prior to trial.

The foregoing constitutes the opinion, decision, and order of the Court.

FOOTNOTES

1.  Because the factual allegations sufficiently corroborate that defendant was engaged in the act of “ticket selling,” the same analysis applies in evaluating facial sufficiency of the charges under AC § 20–554 [a], the failure to display a license as a ticket seller.

JOSH E. HANSHAFT, J.