Opinion
2004 CN 003119.
Decided June 1, 2004.
Russell Paisley, N.Y.N.Y., for the Defendant.
Sean Sullivan, Office of the District Attorney of New York County, N.Y.N.Y., for the People.
The defendant stands charged with Loitering for the Purpose of Engaging in Prostitution (Penal Law § 240.37) and Disorderly Conduct (Penal Law § 240.20). The information alleges that April 8, 2004, at approximately 1:20 a.m., on Park Avenue between 29th and 30th Streets, in New York County, Police Officer Pasquale Rocchio observed the defendant "remain and wander about the above vicinity, a public place, for a period of approximately thirty minutes during which time the defendant beckoned to passing traffic or motorists, stopped or attempted to stop approximately four passersby and three motorists and engaged in conversations with approximately one passerby and one motorist." The information further alleges that:
the defendant's general deportment and surrounding circumstances indicated that the defendant was loitering for the purpose of prostitution in that the defendant was wearing black leather pants, high heel shoes with chrome tipped stilettos, and a V-cut shirt, which was revealing in that the pants were tight to her legs and the cut of the shirt revealed the sides of the defendant's breasts, the defendant was in the street, there were no open stores or restaurants in proximity to the defendant, none of the motorists approached were livery, taxi or bus drivers, defendant was not waiting at a bus stop or taxi stand, defendant was at the above location on other occasions engaging in the same conduct and [Officer Rocchio] is experienced in the field of prostitution crimes in the [Officer Rocchio] has effected or assisted in over 200 prostitution arrests.
[Officer Rocchio] further states that he observed the defendant obstructing vehicular traffic by approaching motorists stopped at a traffic light. Defendant's conduct created a public disturbance/inconvenience in that it caused disruption of the normal flow of traffic when the light would turn green and other vehicles would have to honk their horns or drive around defendant.
The People have filed a supporting deposition of Assistant District Attorney Michael Sofia who alleges that the defendant's criminal record reveals that she was convicted of violating Penal Law § 230.00, Prostitution, on November 10, 2003.
In her omnibus motion, the defendant moves, inter alia, for an order dismissing as facially insufficient the loitering for the purpose of engaging in prostitution count. Upon consideration of the facts and the relevant law, the defendant's motion is denied.
A criminal court information is sufficient on its face if it contains non-hearsay factual allegations which, if true, establish every element of the crime charged and provides reasonable cause to believe that the defendant committed it. See CPL §§ 100.40 (1); 100.15(3); People v. Alejandro, 70 NY2d 133 (1987); People v. Dumas, 68 NY2d 729 (1986). Penal Law § 240.37(2) provides that "[a]ny person who remains or wanders about in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of prostitution, or of patronizing a prostitute . . . shall be guilty of a violation and is guilty of a class B misdemeanor if such person has previously been convicted of a violation of this section or of sections 230.00 or 230.05 of the penal law."
The defendant argues that the information is facially insufficient in that it (1) fails to allege that she had the requisite prior conviction for a violation of Penal Law § 230.00 or § 230.05 to charge her with a class "B" misdemeanor, and (2) fails to establish that she was loitering for the purpose of prostitution.
(1) Penal Law § 240.37(2) as a Class B Misdemeanor
Where the existence of a prior conviction determines the level of the crime, proof of the prior conviction constitutes an element of the crime. See People v. Van Buren, 82 NY2d 878 (1993); People v. Cooper, 78 NY2d 476 (1991). However, establishment of the prior conviction sufficient to sustain the charge of an enhanced offense may not be accomplished by an indictment. CPL § 200.60(1). Instead, the District Attorney is required to file a special information charging the defendant was previously convicted of a specified offense. CPL § 200.60(2). This procedure is specifically applicable to felony offenses. There is, however, no parallel or analogous statute for criminal court accusatory instruments and the decisional law presents varying views on the proper procedural mechanism to establish a predicate conviction necessary to prosecute for an enhanced misdemeanor offense.
For example, in People v. Peacock, 193 Misc2d 672 (App Term, 2nd Dept. 2002), the court held that the predicate convictions necessary to charge a defendant with the misdemeanor of driving while impaired may be alleged either in the initial accusatory instrument or in a prosecutor's information. In so holding, the Appellate Term necessarily concluded that § 200.60 was inapplicable to misdemeanor prosecutions. Cf. People v. Denise L., 159 Misc 2d 1080 (Crim Ct, Queens County 1994) [CPL § 200.60 requires filing of special information to charge defendant with loitering for the purpose of prostitution as class B misdemeanor].
The court in People v. Powlowski, 172 Misc 2d 240 (City Court, City of Rochester 1997) similarly concluded that CPL § 200.60 was not applicable to accusatory instruments filed in local criminal courts. However, that court held that where a defendant is charged with driving while impaired as a misdemeanor, the predicate conviction must be alleged in the accusatory instrument, and not in a prosecutor's information. The court reasoned that had the Legislature intended for CPL § 200.60 to apply to local criminal court accusatory instruments it would have included analogous language in CPL Article 100 or referenced section 200.60 to reflect its intention, as it had in analogous sections of the CPL. The court observed further, by way of examples, that the Legislature included language in CPL § 100.35 [form and content of a prosecutor's information], which references CPL § 200.50 [form and content of indictment] and CPL §§ 200.20 and 200.40 [joinder and consolidation of indictments]. CPL § 100.45(1), which governs severance, consolidation, amendment and bills of particulars with respect to criminal court accusatory instruments, references provisions of the CPL governing indictments. CPL § 100.45(1), provides that "[w]here appropriate, the provisions of sections 200.20 and 200.40 . . . apply to informations, to prosecutor's informations, and to misdemeanor complaints."
A similar view was expressed by the court in People v. Jackson, 177 Misc 2d 657 (Crim Ct, NY County 1998), which held that while "the filing of a special information may be an acceptable way to charge the prior conviction," that method was applicable only to indictments. The court held that, therefore, the People were required to allege the defendant's prior conviction in the factual portion of the complaint or in a supporting deposition.
As in the instant case, the defendant in Jackson was charged with Loitering for the Purpose of Prostitution as a class B misdemeanor by an information which did not allege a prior conviction, and was not accompanied by a supporting deposition. The court found that, absent an allegation of the predicate conviction, the information was facially sufficient as to the violation only. The court reasoned that the purpose of requiring a special information for felony offenses was to prevent the prior crime from being presented to a jury. Since class B misdemeanors are tried only before a judge, there is no need to omit a prior conviction from the information, i.e., no prejudice would accrue to the defendant by the inclusion of the prior conviction in the accusatory instrument. The court's conclusion that the defendant's prior conviction must be alleged in the factual portion of the instrument or in a supporting deposition comports with the CPL provisions which define an accusatory instrument as including any supporting depositions and require a local criminal court, when determining facial sufficiency, to examine the accusatory instrument together with any supporting depositions. See CPL §§ 100.40; 170.65.
Based upon these principles of statutory construction and the reasoning set forth in People v. Powlowski, supra, and People v. Jackson, supra, the court concludes that the special information requirement of CPL § 200.60 is inapplicable to the prosecution of a violation of Penal Law § 240.37(2) as a misdemeanor and that a defendant's predicate conviction for violating Penal Law § 230.00 or § 230.05 may be alleged in a supporting deposition filed with the accusatory instrument. Therefore, contrary to the defendant's contention, the People's failure to allege her prior Penal Law § 230.00 conviction in the instant information does not render the information facially insufficient since the prior conviction is alleged in the supporting deposition of Assistant District Attorney Sofia.
(2) Sufficiency of Allegations Establishing Purpose of Prostitution
Nor is there any merit to the defendant's argument that the information fails to allege sufficient facts to establish that her purpose in loitering was for prostitution. An information charging a violation Penal Law § 240.37(2) is facially sufficient so long as it "details the prohibited conduct" by "delineation of specific conduct, in addition to the loitering, which the arresting officer must observe." People v. Smith, 44 NY2d 613, 620 (1978). In Smith, the Court of Appeals upheld the facial sufficiency of the accusatory instrument where the "defendant's observed acts, superimposed on the arresting officer's knowledge of her previous arrest for prostitution, the general area known for its prostitution-related activities and the numerous arrests for prostitution at the spot where the operations took place, in combination, furnished" the basis for a finding of probable cause. People v. Smith, supra at 622.
As set forth above, the instant information first tracks the language of Penal Law § 240.27(2) by alleging that Officer Rocchio observed the defendant."remain and wander about the above vicinity, a public place, for a period of approximately thirty minutes during which time the defendant beckoned to passing traffic or motorists, stopped or attempted to stop approximately four passersby and three motorists and engaged in conversations with approximately one passersby and one motorist." The information also alleges, in detail, the "the defendant's general deportment and surrounding circumstances", which support the charge that she was, in fact, loitering for the purpose of prostitution. These allegations include the defendant's attire (tight black leather pants, shoes with chrome tipped stiletto heels, and a V-cut shirt that revealed the sides of her breasts), the fact that she remained on the street rather than the sidewalk, that none of the nearby places of businesses were open at the time, that none of the motorists she approached were taxis, buses or livery vehicles, and that she was not standing at a bus stop or taxi stand.
The information further alleges that the defendant was present at the above location on other occasions engaging in the same conduct and that Officer Rocchio is experienced in the field of prostitution crimes and effected or assisted in over 200 arrests for prostitution. The information also includes allegations that, while engaging in the above-described behavior, the defendant obstructed vehicular traffic by approaching motorists stopped at a traffic light and that she created a public disturbance/inconvenience in that her conduct disrupted the normal flow of traffic since, when the light was green, vehicles had to honk their horns or drive around the defendant.
Similar accusatory instruments charging loitering for the purpose of prostitution have been found to be facially sufficient. Those dismissed as insufficient contain considerably fewer factual allegations to indicate that the defendant's conduct was for the purpose of prostitution.
For example, in People v. Koss, 153 Misc2d 68 (Crim Ct, NY County 1992), the court denied a motion to dismiss an information which alleged that police officers observed the defendants standing in the middle of the street in an area where there were no open stores, restaurants, bus or taxi stops, the defendant was beckoning to passing traffic and stopping a number of male motorists while not approaching any female passers-by or motorists, the locations were frequented by people engaged in prostitution, the promotion of prostitution and the patronizing of prostitutes, and that one defendant was wearing a black leopard bikini and high heels, another was wearing a white mini-skirt and white heels, and another was wearing a red tank top, jeans and brown shoes. The court stated that "[a]lthough there may be disagreement as to what constitutes `provocative' clothing, certain types of clothing may, when considered in conjunction with other facts alleged, provide circumstantial evidence that the observed conduct was for the purpose of prostitution." People v. Koss, supra at 70.
Likewise, the information in People v. Smith, NYLJ, Jan. 19, 1996, at 29, col 4 (Crim Ct, Kings County), was found sufficient where it alleged that the police officer observed the defendant on a street corner for ten minutes; and during that time, the defendant, who was wearing fishnet stockings and a tight dress, stood in the middle of the street, waved at male motorists, caused vehicles to slow down and obstruct the flow of traffic, approached three male motorists and had a brief conversation with each, and got into one of those vehicles. Further, the street corner was in an industrial area and no factories were open at the time. The deponent, an experienced trained police officer, was, moreover, familiar with the general attire and deportment of individuals involved in prostitution.
In People v. Denise L., supra, the accusatory instrument alleged that a police officer observed the defendant for a period of twenty minutes, that there had been more than twenty arrests at that location in a two-week period, that the defendant stopped three vehicles driven by lone male motorists and carried on conversations with them, that this was not a livery location, and that the defendant's conduct obstructed vehicular traffic. Though these allegations were the type that could be facially sufficient, the court found the complaint defective for failing to include so-called "Dumas" language ( see People v. Dumas, 68 NY2d 729) to establish the officer's training and experience in identifying prostitution-related activity, and granted the People leave to replead.
The information in People v. Zumpfe, NYLJ, April 22, 1991, at 26, col 1 (Crim Ct, NY County) was found facially insufficient as it alleged only that a police officer observed the defendant for ten to fifteen minutes in an area known for prostitution and, during that time, she stood in the middle of the street, beckoned to passing traffic, and stopped three male passersby and/or motorists. In People v. Little, NYLJ, July 30, 1992, at 26, col 5, (Crim Ct, Kings County), the court dismissed an information which similarly provided "only the barest allegations." That information alleged that the officer observed the defendant for approximately thirty minutes during which time she stopped six vehicles with male occupants, that the area was known for prostitution-related activities, that the officer was familiar with the general attire and deportment of individuals involved in prostitution and that he had made an unspecified number of prostitution arrests. It did not, however, provide details of the defendant's behavior and attire at the time of the offense and offered conclusions instead of specific facts regarding the area and circumstances in which the conduct occurred, among other deficiencies.
In support of her argument for dismissal, the defendant relies primarily upon the case of People v. Byrd, 149 Misc2d 350 (Crim Ct, NY County 1991). That case is readily distinguishable as that information contained significantly less indicia of prostitution. The information in Byrd alleged only that the defendant was observed loitering and wandering for ten to fifteen minutes during which time she beckoned to passing traffic and stopped three male passersby and/or motorists, the location was one frequented by prostitutes and their patrons, the defendant was in the middle of the street, the defendant did not approach any females, and there were no stores or restaurants open in the area at the time.
Notably, the information in Byrd is different from the instant information in that it did not allege that the defendant engaged anyone in conversation, obstructed traffic, was not waiting at a bus or taxi stand, none of the motorists she approached were livery, taxi or bus drivers, or that she was observed at the same location engaging in the same behavior on other occasions. Further, it failed to demonstrate that the officer who observed the defendant was experienced in the field of prostitution crimes. The information in Byrd contained no description of the clothing worn by the defendant while the instant information alleges that the defendant wore tight black leather pants, a V-cut shirt which revealed the sides of her breasts, and chrome-tipped stilettos, attire which certainly can be categorized as "provocative." See People v. Koss, supra. These and the other factual allegations of the instant information, read together, sufficiently establish that the defendant's purpose in loitering was to engage in prostitution. See People v. Smith, supra; People v. Koss, supra.
Accordingly, the defendant's motion to dismiss the information as facially insufficient is denied.
The People, in their Voluntary Disclosure Form, indicate they intend to introduce a statement made by the defendant to a police officer. However, no notice was served pursuant to CPL § 710.30(1)(a) within fifteen days of the defendant's arraignment. As such, the People are precluded from introducing said statement.
Discovery is granted to the extent provided in the People's Voluntary Disclosure Form.
The defendant's Sandoval motion is reserved for the trial court.