Recitation of the papers considered: Defendant’s n/m, aff. Amanda A. Tagore, Esq., dated June 29, 2022 DECISION AND ORDER Kiara Ovalle, hereinafter “defendant”, is charged by information with Assault in the Third Degree (Penal Law §120.00[1]), a class A misdemeanor; Petit Larceny (Penal Law §155.25), a class A misdemeanor, and Harassment in the Second Degree (Penal Law §240.26[1]), a violation. By omnibus motion, defendant moves for an order dismissing the count of petit larceny as facially insufficient and also seeks to suppress tangible, non-tangible and testimonial evidence. The People oppose all such motions. Facial Sufficiency An accusatory instrument must allege “facts of an evidentiary character supporting or tending to support the charges” (CPL §100.15 [3]) and demonstrate “reasonable cause to believe that the defendant committed the offense charged” (CPL §100.40 [4] [b]). It must contain non-hearsay factual allegations that “establish, if true, every element of the offense charged and defendant’s commission thereof” (CPL §100.40 [1] [c]; People v. Dumay, 23 NY3d 518 [2014]; People v. Casey, 95 NY2d 354, 360 [2000]; People v. Dumas, 68 NY2d 729, 731 [1986]). The non-hearsay factual allegations must be sufficient to establish a prima facie case, a standard which does not require the same level of proof needed at trial (People v. Suber, 19 NY3d 247, 252 [2012]). The information alone must be sufficient. If a defendant “must resort to the testimony or the record of the evidence to show the crime” for which he is being tried, then the complaint is insufficient (People v. Zambounis, 251 N.Y. 94, 97 [1929]). The court must view the facts in the light most favorable to the People when determining the facial sufficiency of an accusatory instrument (People v. Contes, 60 NY2d 620, 621 [1983]). “That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry” (People v. Deegan, 69 NY2d 976, 979 [1987]). Finally, the court should approach factual allegations with a fair, not overly restrictive or technical reading. The allegations must give defendant enough notice to prepare a defense and prevent defendant from being tried twice for the same offense (Casey at 360). “A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution.” People v. Case, 42 NY2d 98, 99 (1977). Here, the defendant asserts that the second count of the complaint, petit larceny (PL §155.25), is facially insufficient for the following reasons. First, the factual allegations fail to establish the complainant’s ownership of the property at issue. Second, the complaint fails to explicitly indicate that the property was present at the apartment in question before the complainant left. Third, the complaint does not state that anyone saw defendant remove the property. Lastly, the statement attributed to the defendant in the complaint negates necessary intent. In response, the People argue that ownership of the items is clearly established, and that defendant’s statement does not contradict her intent to deprive the complainant of property given that she bit the complainant, left the complainant’s building with a bag full of items and the complainant returned to her apartment to find the numerous items missing. In this Court’s opinion, the determinative analysis rests with ownership. Ownership The factual allegations of the complaint read, in pertinent part, as follows: Deponent [Police Officer Richard Zimmer] states that on or about January 25, 2022, at approximately 6:25pm inside of 3064 Bailey Avenue, in the County of Bronx, State of New York,…Deponent is informed by NINA PALOMA that, at the above time and place, informant observed defendant walking out of informant’s building with [sic] holding in her hand a trash bag and informant’s dog. Deponent is further informed by informant that defendant stated in sum and substance I’M TAKING MY THINGS. Deponent is further informed by informant defendant bit informant on the left index finger causing informant to suffer substantial pain and a bleeding laceration. Deponent is further informed by informant that informant returned to her apartment and observed one (1) Mackbook laptop, one Nintendo Switch gaming system, one (1) makeup bag, and one (1) handbag to be missing from her apartment. Deponent is further informed by informant that informant was last inside her apartment that morning and that no one else had access to the apartment in the time that she was gone. Deponent is further informed by informant that informant is the lawful custodian of the aforementioned items and as such did not give the defendant permission or authority to remove said items. As an initial matter, the complaint is rather obscure both in form and in substance. Nonetheless, as indicated above, this Court begins by assuming all factual allegations to be true and adopts a lens most favorable to the People. The defendant was seen leaving the complainant’s building, not the complainant’s apartment, carrying a large garbage bag and the complainant’s dog. The complainant affirms that, when confronted, the defendant indicates to the complainant that she, the defendant, is taking her own things. Bizarrely, the defendant then bites the complainant’s finger. There is no indication that the biting occurs amid a scuffle over the garbage bag, the complainant’s dog or something else. At some later point, the complainant returns to her apartment to which no one else has access and finds items missing. The “no one else” who “had access to the apartment” apparently excludes the defendant. The complaint does not allege a burglary or trespass and does not set forth any facts indicating that the apartment was illegally entered or accessed at all for that matter. The dog is not among the property alleged to have been stolen. The defendant unequivocally asserts ownership of the items in the garbage bag: “I am taking my things.” (Emphasis added.) The complaint calls for one to determine, by circumstantial inference, that the contents of the garbage bag include the items missing from the complainant’s apartment. Assuming the Court draws this conclusion, the Court is now faced with the following circumstance: the defendant, while legally in the complainant’s apartment removed items that the defendant asserts are her own. The complainant does not assert rightful ownership of the items. Rather, she declares herself the “lawful custodian” of the property and indicates that she did not grant defendant the permission to remove said property from the apartment — apparently an apartment they both legally accessed. A person commits larceny “when, with intent to deprive another of property…he wrongfully takes, obtains or withholds such property from an owner thereof.” PL §155.05 (1) (emphasis added). An “owner” is defined in the statute as “any person who has a right to possession thereof superior to that of the taker, obtainer or withholder.” PL §155.00 (5) (emphasis added). Thus, to sufficiently plead petit larceny, the prosecution must indicate that the complainant has a right of possession superior to that of the defendant. People v. Wilson, 93 N.Y.2d 222, 226 (1999) citing People v. Hutchinson, 56 N.Y. 868 (1982); see also People v. Matthew P., 26 N.Y.3d 332 (2015). Although there is no specific definition of custodian in our penal law, the term is generally defined as “a person or institution that has charge or custody (of a child, property, papers, or other valuables).” Black’s Law Dictionary, 11th ed. (2019). See also People v. Garcia, 46 Misc.3d 620 (Crim Ct, NY County 2014). More specifically, a custodian of property is a person or institution “responsible for managing real or personal property. The custodian’s duties generally include securing, safeguarding, and maintaining the property in the condition received and accounting for any changes in it.” (Id., emphasis added.) In short, a custodian holds, cares for and/or protects property owned by another. A lawful custodian maintains an interest in the protected property but, custodial interests are obviously not absolute and do not surpass the possession rights of the property’s owner. In this instance, had the complainant affirmed that she too was the owner of the property in the bag, ownership would be a trial issue. But, unlike the facts in People v. Singleton, cited by the prosecution, here, in leaving the defendant’s ownership assertion unrefuted, the charging instrument actually assigns the defendant a superior right of possession.1 Thus, if the Court accepts all factual allegations as true, the complaint fails to sufficiently allege that the defendant knowingly stole property. Accordingly, defendant’s motion seeking to dismiss the count of petit larceny is granted. The remaining counts, uncontested by the defendant, survive. With respect to defendant’s remaining motions: a combined Mapp and Dunaway hearing (Mapp v. Ohio, 367 US 643 (1961); Dunaway v. New York, 442 US 200 (1979)] is granted; all Sandoval issues are respectfully referred to the trial court; and the defendant’s request to file additional motions is granted. The foregoing constitutes the opinion, decision, and order of the court. Dated: December 14, 2022
