Judge John Wilson
Schiavone, charged with patronizing a prostitute and loitering for purposes of engaging in a prostitution offense, sought dismissal of all charges, arguing the complaint was facially insufficient. It was alleged Schiavone approached a police offer and sought to “engage in sexual conduct,” stating “I want sex. I’ll give you forty dollars.” The court found the factual allegations in the superceding information were facially insufficient to support the charge of loitering for the purpose of engaging in a prostitution offense. It stated the legislature intended for a defendant’s conduct to be repeated for criminal liability to attach under Penal Law §240.37(2), and not a mere singular instance of the alleged conduct. Here, the court found in both the Criminal Court complaint and the superceding information, Schiavone was alleged to have approached one person, and once asked to engage in sexual conduct in exchange for money. It ruled only one single instance of the conduct complained of was alleged, and at no point did Schiavone repeatedly beckon, stop or attempt to engage passersby in conversation or interfere with their free passage. Thus, the court granted dismissal of the charge.
