| People v Washington |
| 2015 NY Slip Op 25439 [50 Misc 3d 89] |
| Accepted for Miscellaneous Reports Publication |
| As corrected through Wednesday, March 9, 2016 |
[*1]
| The People of the State of New York,Respondent, v Nelquan Washington, Appellant. |
Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th JudicialDistricts, December 31, 2015
Steven Banks, The Legal Aid Society, New York City (AdrienneGantt of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn (LeonardJoblove, Lori Glachman and Daniel Berman of counsel), forrespondent.
Ordered that the judgment of conviction is reversed, on the law, the count of theaccusatory instrument charging theft of services pertaining to defendant's conduct onFebruary 13, 2012 is dismissed, and the matter is remitted to the Criminal Court for allfurther proceedings.
Defendant was charged in an accusatory instrument with eight counts of petit larceny(Penal Law § 155.25), eight counts of theft of services (Penal Law§ 165.15 [3]), eight counts of forgery in the third degree (Penal Law§ 170.05), eight counts of obstructing governmental administration in thesecond degree (Penal Law § 195.05), and eight counts of unlawful receiptof fare for providing access to Transit Authority facilities (21 NYCRR 1050.4 [c]),alleging that on eight different occasions defendant had been seen swiping individualsinto the New York City transit system with what appeared to be a MetroCard in exchangefor money, which should have been paid to the New York City Transit Authority, andthat he had also been observed altering a quantity of MetroCards by bending theMetroCards along the magnetic strip. In the presence of counsel, defendant pleadedguilty to one count of theft of services pertaining to his conduct on February 13, 2012, insatisfaction of the accusatory instrument, and was sentenced to a one-year conditionaldischarge. On appeal, defendant challenges the facial sufficiency of the accusatoryinstrument pertaining to the countof theft of services to which he pleaded guilty.
At the outset, we note that the arguments raised concerning the facial sufficiency ofthe accusatory instrument pertaining{**50 Misc 3d at 91} to the count of theft of services in question arejurisdictional (see People v Alejandro, 70 NY2d 133 [1987]). Thus, defendant'sclaims were not forfeited upon his plea of guilty (see People v Dreyden, 15 NY3d 100, 103 [2010]; People v Konieczny, 2 NY3d569, 573 [2004]) and must be reviewed despite his failure to raise them in theCriminal Court (see Alejandro, 70 NY2d 133). Furthermore, while defendantdoes not challenge the facial sufficiency of the entire accusatory instrument, wenevertheless must review the facial sufficiency of the only count challenged, to which hepleaded guilty (see People v Dumay, 23 [*2]NY3d 518 [2014];[FN1] but see People v Lineberger, 46 Misc 3d 152[A], 2015 NYSlip Op 50335[U] [App Term, 1st Dept 2015]).[FN2]
As defendant did not waive prosecution by information, the facial sufficiency of thecount of the accusatory instrument in question must be reviewed according to therequirements of an information (see CPL 100.10 [1]; 170.65 [1], [3]; People v Kalin, 12 NY3d225, 228 [2009]; People vChan, 36 Misc 3d 44, 46 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists2012]). To be facially sufficient, a count of an accusatory instrument must contain factualallegations of an evidentiary nature which establish, if true, every element of the offensecharged and must provide reasonable cause to believe that the defendant committed theoffense charged (CPL 100.15 [3]; 100.40 [1]; see People v Casey, 95 NY2d 354,360 [2000]; Alejandro, 70 NY2d at 135-136; People v Dumas, 68 NY2d729, 731 [1986]). "So long as the factual allegations of an information give an accusednotice sufficient to prepare a defense and are adequately detailed to prevent a defendantfrom being tried twice for the same offense, they should be given a fair and not overlyrestrictive or technical reading" (Casey, 95 NY2d at 360).
{**50 Misc 3d at 92}Pursuant to Penal Law§ 165.15 (3), a person is guilty of theft of services when,
"[w]ith intent to obtain railroad, subway, bus, air, taxi or any other publictransportation service without payment of the lawful charge therefor, or to avoid paymentof the lawful charge for such transportation service which has been rendered to him, heobtains or attempts to obtain such service or avoids or attempts to avoid payment thereforby force, intimidation, stealth, deception or mechanical tampering, or by unjustifiablefailure or refusal to pay."
In deciding a case involving the facial sufficiency of an accusatory instrument whichcontained factual allegations similar to those contained herein, the Court of Appeals, inPeople v Hightower (18NY3d 249, 255 [2011]), noted that the defendant had not been prosecuted under thetheft of services statute, and stated that the Court would not address that statute'sapplicability to the facts of that case. Nonetheless, when making this statement, the Courtof Appeals cited to Penal Law § 20.10, which provides that
"a person is not criminally liable for conduct of another person constitutingan offense when his own conduct, though causing or aiding the commission of suchoffense, is of a kind that is necessarily incidental thereto. If such conduct constitutes arelated but separate offense upon the part of the actor, he is liable for that offense onlyand not for the conduct or [*3]offense committed by theother person."
As applicable to the case at bar, the Court of Appeals, in People v Mattocks (12 NY3d326, 334 n 2 [2009]), noted that theft of services is one of the charges typicallybrought for "turnstile jumping," i.e., gaining access to public transportation servicewithout paying the fare (see alsoPeople v Barlow, 46 Misc 3d 148[A], 2015 NY Slip Op 50237[U] [App Term,1st Dept 2015]; People vThompson, 43 Misc 3d 137[A], 2014 NY Slip Op 50708[U] [App Term, 2dDept, 2d, 11th & 13th Jud Dists 2014]; People v Pin, 41 Misc 3d 128[A], 2013 NY Slip Op51681[U] [App Term, 1st Dept 2013]). The New York State Legislature promulgatedPenal Law § 165.16 (unauthorized sale of certain transportation services)to deal with selling swipes (seePeople v Verastegui, 8 Misc 3d 1026[A], 2005 NY Slip Op 51298[U] [Crim Ct,Kings County 2005]). Thus, the accessorial conduct{**50 Misc3d at 93} here, i.e., the alleged act of selling swipes of a MetroCard, constitutes arelated but separate offense, since it fits the definition of unauthorized sale of certaintransportation services (seePeople v Walters, 9 Misc 3d 1121[A], 2005 NY Slip Op 51720[U] [Crim Ct,Kings County 2005]). Therefore, since the people to whom defendant allegedly sold theswipes could arguably have been prosecuted for theft of services, defendant could not beprosecuted as an accessory to that crime.
As the accusatory instrument did not allege that defendant had entered the subwaystation beyond the turnstiles without paying the required fare, it was facially insufficientas to the one count of theft of services to which defendant pleaded guilty (seeWalters, 2005 NY Slip Op 51720[U]; but see People v Dixson, 9 Misc 3d 358 [Crim Ct, KingsCounty 2005]). Thus, the count of the accusatory instrument charging defendant withtheft of services pertaining to his conduct on February 13, 2012 must be dismissed.However, in view of the numerous counts set forth in the accusatory instrument, wedecline to dismiss the instrument in the interest of justice since it cannot be said that nopenological purpose would be served by reinstating the proceedings (see People vAllen, 39 NY2d 916, 917-918 [1976]; see also CPL 470.55 [2] ["Upon anappellate court order which reverses a judgment based upon a plea of guilty to anaccusatory instrument or a part thereof, but which does not dismiss the entire accusatoryinstrument, the criminal action is, in the absence of express appellate court direction tothe contrary, restored to its pre-pleading status and the accusatory instrument is deemedto contain all the counts and to charge all the offenses which it contained and charged atthe time of the entry of the plea, except those dismissed upon appeal or upon some otherpost-judgment order"]).
Accordingly, the judgment of conviction is reversed, the count of the accusatoryinstrument charging theft of services pertaining to defendant's conduct on February 13,2012 is dismissed, and the matter is remitted to the Criminal Court for all furtherproceedings.
Weston, J.P., Aliotta and Elliot, JJ., concur.
Footnote 1:In Dumay, therecord on appeal reveals that the defendant pleaded guilty to obstructing governmentaladministration in the second degree in satisfaction of the entire accusatory instrument,which also charged him with, among other things, resisting arrest, another class Amisdemeanor. The defendant contended on appeal that the count of obstructinggovernmental administration in the second degree was facially insufficient but did notchallenge the facial sufficiency of the other counts charged in the accusatory instrument.Nevertheless, the Court of Appeals reviewed the facial sufficiency of the one count ofthe multi-count accusatory instrument.
Footnote 2:Indeed, CPL 470.55 (2)presupposes the review of a challenge on appeal to the facial sufficiency of the one countin a multi-count accusatory instrument to which a defendant pleaded guilty in satisfactionof the entire instrument.