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Defendant Asserts that the Plaintiff’s Complaint is Facially Insufficient

In a Criminal Court Complaint, the People assert that a Police Officer observed the offenders at the Subway station. The officer allegedly watched the offenders “acting in concert” receive United States currency from four individuals, “in exchange for which the offenders swiped a Metrocard through the subway turnstile for each of these individuals, thereby allowing the said individuals to enter the transit system.”

The offenders were charged with Petit Larceny, five counts of Criminal Possession of a Forged Instrument in the Third Degree, and Obstructing Governmental Administration in the Second Degree, all Class A misdemeanors. By motion, one of the offenders seeks the dismissal of all charges contained in the Criminal Court Complaint, asserting that the People’s complaint is facially insufficient and pursuant to CPL Sec. 170.35, 100.40 and 100.15, asserting that the People’s complaint is facially insufficient.

Their motions were granted in part, and denied in part for the reasons stated below:

A New York Criminal Lawyer said that under CPL Sec. 100.15, every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that he has committed the crime alleged in the accusatory portion of the accusatory instrument. Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish; 1) each and every element of the offense charged, and 2) the Defendant’s commission of said crime. If both these factors are present, then the information states a prima facie case, and is sufficient.

Applying these principles to the instant matter, the Petit Larceny charge is facially sufficient. The Possession of a Forged Instrument charges and Obstructing charge are insufficient, and are dismissed.

A Nassau County Criminal Lawyer said that in People v. Zayas, the Court reviewed the applicability of the Obstructing charge to a “Metrocard swipe” case. There, this Court found that “the obstructing statute, while broad, simply does not include the conduct asserted here.” In fact, this Court asserted that for the People to charge them with Obstructing Governmental Administration for the actions alleged herein is to torture “the wording of the statute beyond meaning.”

A Staten Island Criminal Lawyer said that there are no facts contained in the People’s complaint which would support an application of PL Sec. 195.05 to the alleged actions of the offenders. The sale of Metrocard “swipes” simply does not “obstruct, impair and pervert the administration of the governmental function of the City Transit Authority (CTA) of operating the transit facilities on a self-sustaining basis.” It merely deprives the CTA of revenue, in a non-violent fashion. Thus, the legislative history of the statute clearly does not support the application of this law to this conduct. Therefore, the charge of ObstructingGovernmental Administration in the Second Degree under PL Sec. 195.05 is hereby dismissed.

The People assert that the offenders “with knowledge that it was forged, and with intent to defraud, deceive or injure another, utter(ed) or possess(ed) a forged instrument.”

Under NYCRR 1050.4( c), a defendant is guilty of Unlawful Receipt of Fare for Providing Access to Transit Authority Facilities when he “not being an employee of the CTA, sell any version of any fare media or otherwise authorize access to or use of the facilities, conveyances or services of the CTA without written permission of a representative of the CTA.” Further, under PL Sec. 165.16, a person is guilty of Unauthorized Sale of Transportation Services when he “with intent to avoid payment by another person in exchange for value, sells access to transportation services to such person, without authorization, through the use of an unlimited fare card or doctored fare card.”

Clearly, the alleged act of selling “swipes” of a bent Metrocard would fit within the two statutes described above. Therefore, this Court reaffirms its ruling in Lopez, and on that basis, the 5 counts of Criminal Possession of a Forged Instrument in the Third Degree are hereby dismissed.

Under PL Sec. 155.25, a defendant is guilty of Petit Larceny when he steals property. If, as in Zayas, we view the “swipe” of a Metrocard as being the property of the CTA, then the offender could also be seen as stealing the property of the CTA. Under these facts, the People have established reasonable cause to believe that they stole the property of the City Transit Authority. Therefore, the charge of Petit Larceny is deemed sufficient, and their respective motions to dismiss this charge is denied.

Stephen Bilkis & Associates, with offices located throughout New York, employs the services of its Kings County Shoplifting Attorneys, or its New York Criminal Lawyers, who are proficient and experienced in dealing with cases involving grand larceny, criminal possession of stolen property, felony shoplifting and the likes. Hence, if faced with situations similar to those stated, better consult your legal team.

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