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Criminal Court, City of New York.

The PEOPLE of the State of New York v. Ismael ELTAWIL and Jose Diaz, Defendants.


Decided: March 14, 2018

Cyrus R. Vance, Jr, District Attorney, New York for the People Paul J. Solda, New York City, for the defendant.

The defendants are charged in an information with attempted criminal possession of stolen property in the fifth degree (Penal Law § 110/165.40). The "factual basis for this charge" states:

I am informed by Police Officer Fernando Rodriguez․ that while dressed in plain clothes, he entered the store and offered to sell to the defendants an Apple iPad and Apple Laptop. I am informed that Police Officer Rodriguez stated in substance to the defendant, "my girlfriend works at Apple and took these from the back. I will sell them to you for five hundred dollars ($500) total."

I am further informed that Police Officer Rodriguez observed the defendants exchange five hundred dollars ($500) and hand it to him in exchange for the iPad and laptop, which is property of the New York City Police Department.

In a single motion, each defendant moves to dismiss the information on the ground of facially insufficiency (CPL 170.30 [1] [a]; 100.40).

Defense counsel's affirmation presents a trial defense to the allegations and provides additional facts based on his investigation. First, counsel states that the factual allegations are overly broad, inaccurate and misleading. Counsel states that the subject premises is a pawn shop. Next, counsel explains how the transactions were collateral pawnbroker loans and not a sale/purchase. Counsel attaches to his motion to dismiss loan documents and loan receipts. Under terms and conditions, the undercover officer signed a statement that stated he was the owner of the property. Next, counsel argues that the defendants did not take any action that would benefit themselves because the pawn shop was the beneficiary of the items. Finally, counsel argues that the law contains a rebuttable presumption specifically for pawnbrokers (Penal Law § 165.55 [2] ).

These arguments belong in trial, not a motion to dismiss on the ground that the information is facially insufficient.

The People did not respond to the instant motion. Instead the Court received the following email on March 13, 2018 at 6:01 pm: "I will not be submitting a written response to defense counsel's motion to dismiss for facial insufficiency, and will simply rely on the four corners of the complaint."

An information is facially sufficient when the factual part of the instrument establishes reasonable cause to believe that the defendant committed the offense charged (CPL 100.40 [1] [b] [emphasis added] ), and contains non-hearsay allegations that establish every element of the offense charged and the defendant's commission of that offense (CPL 100.40 [1] [c]; People v. Hatton, 26 NY3d 364 [2015]; People v. Dumay, 23 NY3d 518, 522 [2014]; People v. Jackson, 18 NY3d 738 [2012]; People v. Kalin, 12 NY3d 225, 228–29 [2009]; People v. Konieczny, 2 NY3d 569, 575 [2004]; People v. Henderson, 92 NY2d 677, 679 [1999] ). The court, when determining sufficiency of the information, views the factual allegations as true (CPL 100.40 [1] [c] ) and considers all reasonable inferences that may be drawn from these facts (People v. Jackson, 18 NY3d at 741, 747; People v. Konieczny, 2 NY3d at 575). The People have the burden to ensure that the information is facially sufficient (see People v. Jones, 9 NY3d 259, 261 [2007] ). The factual allegations in the information cannot be conclusory (People v. Dreyden, 15 NY3d 100 [2010]; People v. Kalin, 12 NY3d at 229; People v. Dumas, 68 NY2d 729 [1986] ). The required "nonconclusory evidentiary allegations must be contained within the four corners of the instrument itself or in an annexed supporting deposition" (People v. Thomas, 4 NY3d 143, 146 [2005] [citations omitted]; People v. Bottari, 31 Misc 3d 90 [App Term, 9th and 10th Jud Dists 2011] ).

This prima facie case requirement for the facial sufficiency of an information does not rise to the level of a motion to dismiss based on the evidence presented at trial (Kalin, 22 NY3d at 230, quoting Henderson, 92 NY2d at 680). The factual allegations of an information must give an accused notice sufficient to prepare a defense and must be adequately detailed to prevent a defendant from being tried twice for the same offense (People v. Smalls, 26 NY3d 1064 [2015]; quoting People v. Casey, 95 NY2d 354, 360 [2000] ).

Further, where an information charges two or more defendants, all of the offenses must apply to each (CPL 100.15 [2] ). Therefore, attempt to commit criminal possession of stolen property in the fifth degree (Penal Law § 110/165.40) applies to both.

The factual allegations do not articulate what each defendant did that would constitute the crime charged. These allegations must provide reasonable cause as to what each of these defendants did that would constitute the attempt to commit criminal possession of stolen property in the fifth degree. "Reasonable cause to believe that a person has committed an offense" is defined in CPL 70.10 as "when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" [emphasis added].

The allegations here are that Police Officer Rodriguez offered to sell the defendants two laptops and told the defendant [singular] that his girlfriend worked at Apple and took the iPads from the back and that the Officer observed the defendants [plural] exchange five hundred dollars ($500) and hand it to him in exchange for the iPad and laptop. The factual portion of the complaint neither asserts adequately detailed facts as to what each defendant did nor does it give defendant notice sufficient to prepare a defense. Were both defendants standing side-by-side when the offer to sell was made? Did each defendant hand the officer the money? In an acting in concert scenario, the complaint must articulate what each defendant did. If, as in this case, the facts do not provide this information, we don't know if one defendant was merely present while the transaction was handled solely by the other. If one of the defendants handled the alleged transaction, the complaint would need to state a factual basis as to how the other defendant solicited, requested, commanded, importuned, or intentionally aided the other defendant to engage in such conduct.1 Here, we do not know if it was one defendant who spoke with the officer and did the exchange, or if both defendants were active participants in the alleged transaction. Absent more specificity, no reasonable inferences can be drawn as to what each defendant did (Jackson, 18 NY3d at 741, 747).  2

Finally, even though the voluntary disclosure form could not cure a defective accusatory instrument (People v. Alejandro, 70 NY2d 133, 138 [1987] 3 ), it is noteworthy that it fails to provide any additional details as to what each defendant did.

Accordingly, the motion to dismiss the defective information is granted. The People have leave to file a superseding information.



1.   Penal Law § 20.00

2.   It should be noted that since there is no specificity as to what each defendant did and since these defendants are represented by the same attorney, it would be impossible for this court to make a Gomberg inquiry as to a potential conflict of interest in shared representation (People v. Gomberg, 38 NY2d 307 [1975] ).

3.   "Because an information must, for jurisdictional purposes, contain nonhearsay factual allegations sufficient to establish a prima facie case, a prosecutor's hearsay statements, set forth in a bill of particulars, cannot supply necessary factual allegations to cure a deficient information."

Gerianne Abriano, J.

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