A person is charged with unlawful receipt of fare for providing access to Transit Authority facilities, a violation, petit larceny, and obstructing governmental administration in the second degree, both class A misdemeanors. He moved to dismiss the latter two charges of the Criminal Court complaint, pursuant to CPL 170.30, asserting that the People’s complaint is facially insufficient. He is alleged in the Criminal Court complaint to have been observed by the deponent, Police Officer, as “wrongfully taking from two individuals a sum of United States Currency that would otherwise have been paid to the Transit Authority as lawful fares from said individuals, in exchange for which he swiped a Metrocard through the subway turnstile for each of these individuals, thereby allowing the said individuals to enter the transit system beyond the turnstiles.” The officer goes on to allege that, upon his arrest, the offender was in possession of two unlimited ride Metrocards, for which he did not have permission or authority to authorize access to the transit system for other individuals.
His motion is granted in part, and denied in part for the reasons stated below:
Under CPL 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 the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. Further, under CPL 100.40, a misdemeanor information is facially sufficient if the non hearsay facts stated in said information establish two things: (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.
A New York Criminal Lawyer said applying these principles, there can be no dispute that the factual allegations contained in the misdemeanor information before this court do not support the charge of obstructing governmental administration in the second degree pursuant to Penal Law section 195.05 which states that a person is guilty of obstructing governmental administration in the second degree 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”.
A New York City Criminal Lawyer said plain reading of the statute proves the error of offender’s argument. Likewise, the People misstate the basis for their case by asserting that the offender interfered “whether or not physical force is involved, with (a) telecommunications systems owned or operated by the state.” This is an obvious effort to “shoehorn” their facts under the umbrella of Penal Law section 195.05. The obstructing statute, while broad, simply does not include the conduct asserted here. There is no “intentional obstruction,” no “impairment or perversion of the administration of law,” no “other governmental function,” no “prevention or attempt to prevent a public servant from performing an official function,” whether by “means of intimidation, physical force or interference,” “or by means of any independently unlawful act.”
A Manhattan Criminal Lawyer said as to the People’s argument that “the interference being alleged is with a telecommunications system owned by the state,” there is no evidence presented by the People to establish that the Metrocard system is a “telecommunications system.” Further, the sale of “swipes” does not in any way interfere with the Metrocard system, only with the Transit Authority’s collection of fares from their customers.
Therefore, the charge of obstructing governmental administration in the second degree under Penal Law section 195.05 is hereby dismissed.
As to the charge of petit larceny pursuant to Penal Law section 155.25, the central question is stated quite plainly, what Transit Authority “property” has the offender stolen?
Under Penal Law section 155.25, “a person is guilty of petit larceny when he steals property.” Penal Law section 155.00 (1) defines property as “any money, personal property, real property, computer data, computer program, thing in action, evidence of debt or contract, or any article, substance or thing of value, including any gas, steam, water or electricity, which is provided for a charge or compensation.” Penal Law section 155.05 (1) defines larceny as “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.”
Applying the basic standards of statutory construction to the factual allegations contained in the Criminal Court complaint, the court finds that the People’s allegations do tend to support the petit larceny charge. The “property” at issue here is the money to be collected by the Transit Authority from the customers to whom the offender is selling the “swipes” from his unlimited Metrocard. By selling those “swipes,” he is allegedly depriving the Transit Authority of its profits. The offender’s actions can therefore be viewed as connoting “a purpose to exercise permanent or virtually permanent control” over the profits to be derived by the Transit Authority from the sale of the unlimited ride Metrocard, thus causing “a permanent or virtually permanent loss to the owner of the possession and use thereof.”
Therefore, the branch of his motion which seeks dismissal of the charge of petit larceny pursuant to Penal Law section 155.25 as facially insufficient is denied.
The crimes of grand larceny, criminal possession of stolen property, shoplifting and the likes are examples of the many cases tried before the courts. If you are facing actions similar to those mentioned, speak with your legal team. Stephen Bilkis & Associates, with offices throughout New York, offer the services of its seasoned Kings County Criminal Defense Attorneys, or its capable New York Petit Larceny Lawyers to cater your legal needs.