Published on:

Defendant Claims Charges Against Him are Defective

A New York Criminal Lawyer said the defendant is charged with petit larceny, theft of services, criminal possession of a forged instrument in the third degree, obstructing governmental administration in the second degree and resisting arrest.

A Deponent is informed by a Police Officer, that, at the above time and place defendant did approach informant and ask informant if informant wanted a swipe. The deponent is further informed by informant observed the defendant deprive the New York City Transit Authority of a quantity of United States currency by 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 bent card through the subway turnstile for each of these individuals, thereby allowing the said individuals to enter the transit system beyond the turnstiles, and the defendant did not enter the transit system beyond the turnstiles.

A New York Criminal Lawyer said that the reponent is further informed by informant that, informant, as a New York City Police Officer, is the custodian of the above-mentioned transit system, and the defendant did not have permission or authority to authorize access to or use of the services of the New York City Transit Authority and that the defendant did not have permission or authority to sell said fares or to collect, accept or retain United States Currency from said individuals entering the New York City transit system.

Defendant argues that the charges of petit larceny, theft of services, criminal possession of a forged instrument in the third degree, and obstructing governmental administration in the second degree are defective. This court shall address each of the charges and denies defendant’s motion in each instance.

A Brooklyn Criminal Lawyer said the information is facially sufficient if it contains facts of an evidentiary character tending to support every element of the charges and defendant’s commission thereof; Where the factual allegations contained in 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 or technical reading”

A Bronx Criminal Lawyer said that indeed, “[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged”. Thus, the court must not rely on “external factors to create jurisdictional defects not evident from the face of the document”. The complete omission of an element from the face of an accusatory instrument, however, is a jurisdictional defect that requires dismissal.

The prima facie case requirement of an accusatory instrument is a lower threshold than the burden of proof beyond a reasonable doubt required at trial. If the evidence supporting the charges is circumstantial, it will be sufficient only if the allegations, and the logical inferences which flow from them, supply proof of every element of the crimes charged, and defendant’s commission thereof.

Defendant urges that the obstruction charge is facially insufficient where it fails to allege that defendant physically interfered with a public servant, or how defendant’s alleged actions constituted a form of interference amounting to obstruction.

A person is guilty of obstructing governmental administration 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 systems owned or operated by the state, or a county, city, town, village, fire district or emergency medical service or by means of releasing a dangerous animal under circumstances evincing the actor’s intent that the animal obstruct governmental administration”

The operation of the subway system is a function of the government. Indeed, the transit facilities are actually owned by the City of New York and merely operated by the New York City Transit Authority (hereinafter NYCTA) on the City’s behalf.

The MTA is a public benefit corporation performing a governmental function in exercising its duties. The same holds true for the local counterpart of the MTA, the NYCTA. The NYCTA works in conjunction with the MTA in the operation and control of the transit system.

Defendant maintains that, if anything, the taking here consisted of a “service” and not “property.” He further suggests “there are no facts suggesting that the NYCTA ever had possession of the money that was allegedly given to the defendant by a third party”. Finally, defendant submits that the People have not established that he lacked permission or authority to take the property.

The People, on the other hand, argue that defendant committed the crime of petit larceny when he diverted money that otherwise would have been paid to the MTA. Specifically, the People argue the two dollars defendant received for swiping two passengers through the subway turnstile lawfully belonged to the MTA.

“A person is guilty of petit larceny when he steals property” “A person steals property and commits larceny 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”. Originally, “property” was defined to mean “any money, personal property, real property, thing in action, evidence of debt or contract, or any article, substance or thing of value” In 1978, however, the Legislature amended the definition to include “any gas, steam, water or electricity, which is provided for a charge or compensation”

In addition to the Legislature, the courts have also expanded the definition of property. In 1911, the Appellate Division, First Department, held that the definition of property was “intended to embrace every species of valuable right and interest, and whatever tends in any degree, no matter how small, to deprive one of that right, or interest, deprives him of his property” In so doing, the Court paved the way for the expansion of property to include intangible rights, whether it is the right to one’s labor, the right to “advantageous business relationship[s]”.

Particularly relevant to the issue before this court is the Court of Appeals decision. In that case, the defendant was convicted, among other things, of the crimes of grand larceny in the first degree by extortion and petit larceny. Specifically, he was convicted of using threats of physical injury to coerce the victim to relinquish a contract to pick up refuse at a particular restaurant. On appeal, the defendant argued that a customer or service contract is not a thing or property capable of being delivered and that “property,” for purposes of the statutes in question, refers only to tangible items such as money or objects of value. The Court of Appeals disagreed.

Describing the defendant’s arguments as “overly literal,” the Court held that “business is property, as much so as the articles themselves which are included in its transactions”.

Likewise, this court finds defendant’s arguments to be overly literal and at odds with the long-established precedence of the Court of Appeals.

In the present case, it is alleged that defendant offered to sell entry to the subway station to a police officer. After the officer declined, defendant purportedly made the same offer to two other individuals. Using a bent Card, defendant then allegedly swiped the card to enable these individuals to gain entry into the subway system, after charging each one a dollar. Thereafter, defendant remained standing on the outside of the subway entrance, supposedly awaiting his next customer. The officer, a duly authorized custodian of the transit system, stated that defendant did not have permission or authority to accept money or transact business on behalf of the NYCTA.

If true, defendant’s actions constitute the crime of petit larceny. Selling access to the subway system is a diversion of the business, and hence property, of the NYCTA. And doing so without the permission of the NYCTA constitutes petit larceny. Because defendant’s actions are clearly spelled out in the information, defendant has already received legally sufficient notice of the crime charged.

This court finds defendant’s reliance on a jurisprudence unavailing. Unlike the facts pleaded in the present case, the defendant in Johnson entered the subway system by turning back the turnstile. Jurisprudence stands for the proposition that an intent to unlawfully obtain a service for oneself is not a theft of property but a theft of service. In contrast, the allegation in the present case is that defendant unlawfully obtained money in exchange for providing others entry to the subway.

Accordingly, defendant’s motion to dismiss the charge of petit larceny is denied.

When a person stole a property, he committed the crime of petit larceny. Here in Stephen Bilkis and associates, we have Kings County Petit Larceny Lawyers, who file a case against the thief who stole your property. All you have to do is contact them and narrate the facts surrounding the incident. For other criminal cases, you can also consult our Kings County Criminal Attorneys. Call us now, we will be glad to help you.

Contact Information