DECISION AND ORDER I. By motion dated April 9, 2019 and April 10, 2019 (“Dismissal Motion”) and filed in court’s AP2 Part on April 10, 2019, the Defendant moved to dismiss the accusatory instrument for facial insufficiency pursuant to CPL 100.40 and 170.30 (1) (a). Specifically, the Defendant contends that the complaint is facially insufficient because it fails to establish the crime charged and it was legally impossible for the Defendant to have committed the crime. The People have filed an opposition (“Opposition Motion”) dated May 16, 2019 and received by the Court on June 11, 2019 to Defendant’s Dismissal Motion. By felony complaint (Docket No. CR-046413-18KN) filed on October 23, 2018 (“Oct. Complaint”), the Defendant was charged and arraigned in Kings County Criminal Court on one count of criminal mischief in the third degree (Penal Law §145.05 [2]), and one count of criminal mischief in the fourth degree (Penal Law §145.00 [1]). The case was then adjourned to January 7, 2019 in Part AP1F for grand jury action. On February 21, 2019, the People dismissed the felony charge of criminal mischief in the third degree (Penal Law §145.05 [2]) and retained the charge of criminal mischief in the fourth degree (Penal Law §145.00 [1]). The People filed and served a supporting deposition (“Supporting Deposition”) signed by the complaining witness, B. Lugo, dated November 30, 2018, and the complaint was deemed an information. II. The factual allegations in the Oct. Complaint are that on or about August 18, 2018 at approximately 5:30 AM at […] Atlantic Avenue in Brooklyn, New York, “Deponent is informed by [B…] Lugo that informant is the owner of the above-mentioned location, [P…] and [L…], PLLC., and the raised stone step in front of said location, and is further informed by the defendant that the defendant is [the] owner of the adjoining property, [C…] Barrett and Associates P.C. Deponent is informed by [B…] Lugo that, prior to the above time and place, the informant and defendant were involved in a civil lawsuit, regarding a decorative fence located between the informant’s and defendant’s law firms, and that defendant lost said lawsuit, and that thereafter, defendant and informant had discussions relating to the placement of said fence. Deponent further states that [the] deponent reviewed video surveillance footage depicting the above time and place, and that deponent observed defendant speaking to and gesturing defendant’s hands at unapprehended individuals, further observed said unapprehended individuals saw said fence and saw approximately two to three inches of bluestone, located in front of the informant’s storefront, using what appeared to be a rotary saw, further observed defendant walking into and out of the range of the video camera, and further observed unapprehended individuals move said fence to the other side of the sidewalk closest to the street. Deponent is further informed by the informant that informant is the owner of the above location and property in front of the location, and as an owner, the above informant is the custodian of the video camera surveillance system that monitors the location, and that the footage from said surveillance system is kept and maintained in the ordinary course of the informant’s business.” III. Pursuant to CPL 100.40 (1), “an information…is sufficient on its face when: (a) it substantially conforms to the requirements prescribed in section 100.15; and (b) the allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and (c) non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and defendant’s commission thereof” (People v. Alejandro, 70 NY2d 133, 136 [1987]). Pursuant to CPL 100.15 (3), the “factual part of [the] instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges…the factual allegations may be based either upon personal knowledge of the complainant or upon information and belief.” The prima facie case requirement “is not the same as the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial” (People v. Kalin, 12 NY3d 225, 230 [2009]). Moreover, when assessing the facial sufficiency of an accusatory instrument, the court must view the facts “in the light most favorable” to the People (People v. Contes, 60 NY2d 620, 621 [1983]). A misdemeanor complaint must “set forth facts that establish reasonable cause to believe that the defendant committed the charged offense” (People v. Dumay, 23 NY3d 518, 522 [2014]) and provide the “defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” (id. at 527, quoting People v. Dreyden, 15 NY3d 100, 103 [2010]). “Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it” (CPL 70.10 [2]). The Defendant contends that her alleged conduct in speaking to, gesturing her hands at unapprehended individuals and walking in and out of range of the video camera merely established Defendant’s presence at the location and that the conduct alleged in the Oct. Complaint “is conclusory, innocuous and consistent with innocence” (Dismissal Mot. at 5). Defendant further contends that it was legally impossible for her to have committed the crime because “the concrete stone and fence were in fact on her land” (Dismissal Mot. at 6). Pursuant to Penal Law §145.00 (1), “a person is guilty of criminal mischief in the fourth degree when, having no right to do so nor any reasonable ground to believe that he or she has such right, he or she…[i]ntentionally damages property of another person.” Here, the accusatory instrument that charged the Defendant with criminal mischief in the fourth degree, along with its Supporting Deposition, alleged that the Defendant intentionally damaged a section of a fence and a blue stone owned by the complaining witness by acting with unapprehended individuals to saw off two to three inches of blue stone and to move the fence to the other side of the sidewalk without any right to do so or any reasonable ground to believe that she had such right. Accordingly, the factual allegations of the criminal mischief accusatory instrument and the Supporting Deposition met the reasonable cause requirement, as they informed the Defendant that she had intentionally damaged the property of the complaining witness, B. Lugo, without the right to do so or any reasonable ground to believe that she had such right (see Penal Law §145.00 [1]). Here, neither the Defendant nor the complaining witness disputes the fact that the complaining witness owns the blue stone and the fence; however, whether the complaining witness owns the land (“Land”), by adverse possession, on which the blue stone and the fence are located is still in dispute and subject to a civil law suit. In addition, based on the information before the Court, the Defendant did not lose the lawsuit, as referenced in People’s Oct. Complaint; rather, such civil lawsuit “was marked off calendar due to failure to appear by both [Defendant and complaining witness in the instant case] and no decision from the Kings County Supreme Court was ever rendered” (Opposition Mot. at 6). The fact that the ownership of the Land is in dispute or is the subject of a civil litigation does not render People’s Oct. Complaint facially insufficient. The Defendant also contends that it was legally impossible for her to have committed the crime because the blue stone and the fence were on her land. Here, based on the facts before the Court, the ownership of the Land is still in dispute. Whether Defendant’s subjective belief that she owns such Land would be a defense to the criminal mischief charge in the fourth degree (Penal Law §145.00 [1]) is an issue for trial where the People must prove their case beyond a reasonable doubt, a burden that is different from the requirements under CPL 100.40 for facial sufficiency. IV. Defendant’s Dismissal Motion is denied. This constitutes the DECISION and ORDER of the Court. Dated: June 12, 2019 Kings County, New York
