CRIMINAL COURT OF THE CITY OF NEW YORK NEW YORK COUNTY: PART B THE PEOPLE OF THE STATE OF NEW YORK, vs. ARTHUR Z. SCHWARTZ, Defendant DECISION and ORDER Docket No. 2015NY044144 HEIDI C. CESARE, J. Defendant, charged by misdemeanor information with one count of petit larceny (Penal Law 155.25), now moves to dismiss the information as facially insufficient (CPL 100.40 and 170.30) and in the interest of justice (CPL 170.30 and 170.40). For the reasons set forth below, defendant s motion to dismiss is DENIED. 1 A. Procedural History On July 14, 2015, the defendant was arraigned on a felony complaint charging one count of grand larceny in the fourth degree (Penal Law 155.30 [1]). The court adjourned the case to October 15, 2015 for action by the grand jury. On October 15, 2015, the court granted the People s application to reduce the one count of grand larceny in the fourth degree (Penal Law 155.30 [1]) to petit larceny (Penal Law 155.25). The People served and filed a supporting deposition and the court deemed the complaint an information. The court set a motion schedule and adjourned the case to December 2, 2015. On November 14, 2015, defendant timely served and filed his motion to dismiss. On December 2, 2015, the parties appeared before the court and the People served and filed their response. The People communicated their plea offer of an adjournment in contemplation of dismissal pursuant to CPL 170.55 upon payment of restitution in the amount of $2,660.00. Defendant declined the offer and the court adjourned the case to January 26, 2016 for decision. 1 In deciding these motions the court has considered the parties submissions, all court documents, and all relevant statutes and case law. Page 1 of 6
B. Allegations The factual allegations in the information are: [Deponent detective is] informed by an individual known to the District Attorney's Office that she is the building manager at 95 Christopher Street, an apartment building in the County and State of New York. [Deponent detective is] further informed by informant that on June 18, 12015, the defendant removed five surveillance cameras from the hallway of the 15th floor of the building. [Deponent detective is] further informed by informant that the defendant subsequently admitted to her that he removed the abovedescribed cameras. The defendant subsequently admitted to [Deponent detective] that he removed the above-described cameras. [Deponent detective] observed video surveillance from the 15th floor of 95 Christopher Street which shows the defendant removing the above-described video cameras. [Deponent detective is] informed by informant that she is a custodian of the above-described video cameras, and that the defendant did not have permission or authority to take or remove them. [Deponent detective is] further informed by informant that the value of the cameras was $4000. C. The information is facially sufficient. Defendant contends that the present information is facially insufficient because it fails to allege facts supporting an inference that defendant intended to permanently deprive the owner of her property. To be facially sufficient, an information must contain non-hearsay factual allegations providing reasonable cause to believe that the People can prove every element of the crime charged (CPL 100.40 [1] [b], [c]; see also People v Alejandro, 70 NY2d 133 [1988]; People v Dumas, 68 NY2d 729 [1986]; People v Case, 42 NY2d 98 [1977]). A court reviewing for facial insufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from them (CPL 100.40, 100.15; People v Jackson, 18 NY3d 738, 747 [2012]). A person is guilty of petit larceny when he steals property (Penal Law 155.25). A Page 2 of 6
person steals property when, with the intent to deprive another of property or to appropriate the same to himself or to a third person, such person wrongfully takes, obtains, or withholds such property from another (Penal Law 155.05 [1]). Larceny requires the specific intent to deprive another of property or to appropriate same to oneself or to a third person. The definition of the terms deprive (Penal Law 155.00 [3]) and appropriate (Penal Law 155.00 [4]) connote a purpose... to exert permanent or virtually permanent control over the property taken, or to cause permanent or virtually permanent loss to the owner of the possession and use thereof (People v Jennings, 69 NY2d 103, 118 [1986]). Larcenous intent may be inferred from the circumstances surrounding the defendant's actions (People v Moran, 123 NY 254, 257 [1890]). Proof of guilty intent is normally based on circumstantial evidence (e.g., People v Johnson, 65 NY2d 556, 561 [1985]; People v Mackey, 49 NY2d 274, 279 [1980]; People v Collins, 178 AD2d 789, 789 [3d Dept 1991]). For pleading purposes, the requisite mental state may be alleged by inference from the act itself or the surrounding circumstances (e.g., People v Bracey, 41 NY2d 296, 301 [1977]; People v McGee, 204 A.D.2d 353, 611 [1994]). The Court is not required to turn a blind eye to compelling circumstantial evidence while engaged in a facial sufficiency review (People v Choi, 18 Misc 3d 1122[A] [Crim Ct, NY County 2008]). Here, the allegations are that defendant removed five surveillance cameras from the fifteenth floor hallway of an apartment building; defendant had no authority to remove the cameras; and the cameras had an approximate value of $4,000. On their face, these allegations well establish defendant s wrongful taking of property. These allegations further permit a reasonable inference that defendant s intent was to cause a permanent taking of the cameras. For these reasons the information satisfies the pleading requirements of facial sufficiency. D. Dismissal in the interest of justice is unwarranted. According to defendant, the genesis of this prosecution is a protracted landlord/tenant dispute between a 92 year old tenant who has lived since 1959 in a rent-controlled, two bedroom, Greenwich Village penthouse apartment and a landlord seeking to decontrol said apartment. Defendant contends that the tenant s landlord has persisted in ongoing efforts to Page 3 of 6
evict the tenant from her apartment, including a successful scheme to have her admitted, involuntarily, to a nursing home. According to defendant, when he discovered this elderly victim languishing in a nursing home, he came to her rescue and petitioned, successfully, to be her guardian. Acting as her guardian, defendant secured her release from the nursing home and her safe return home to her rent-controlled apartment. Defendant claims that when he discovered five surveillance cameras pointing into his ward s apartment he, with intent to abate landlord harassment, removed said cameras and turned them over to the NYS Attorney General s Office. A court may dismiss an accusatory instrument in the interest of justice... when... such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice. (CPL 170.30 [1] [g]). The power to dismiss in the interest of justice is committed to the trial court s discretion; it should be exercised sparingly and only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations (People v Harmon, 181 AD2d 34, 36 [1st Dept 1992] [internal quotes and citations omitted]). Where defendant fails to sustain his initial burden of making a prima facie showing of some compelling factor, consideration or circumstance which would render his conviction or prosecution on the underlying charges unjust the court may deny the motion without a hearing (People v Schlessel, 104 AD2d 501, 502 [2d Dept 1984]). When deciding a motion to dismiss in the interest of justice, it is not necessary to engage in a point-by-point catechistic discussion of all ten statutory factors (People v Gragert, 1 Misc. 3d 646, 648 [Crim Ct, NY County 2003]; quoting, People v Rickert, 58 NY2d 122, 128 [1983]). The court must consider, individually and collectively, each of the factors listed in Criminal Procedure Law 170.40 (1) 1 and must, where dismissal is granted, place its reasons on the record (CPL 170.40 1 CPL 170.4(1) requires consideration of the following factors: (a) the seriousness and circumstances of the offense; (b) the extent of harm caused by the offense; (c) the evidence of guilt, whether admissible or inadmissible at trial; Page 4 of 6
[2]); People v Berrus, 1 NY3d 535, 536 [2003]). Defendant submits that the court should grant his motion to dismiss in the interest of justice on the following grounds: his actions have caused no harm; he had no intent to permanently deprive the owner of the five cameras he removed from the hallway; his positive record as an advocate, public interest attorney and public official; his history of good works; and the potential deterrent effect on future pro bono advocacy for the elderly should this prosecution continue. Defendant s history of good works and good character is insufficient to justify dismissal in the interest of justice. (People v Diggs, 125 AD2d 189, 191 [1st Dept 1986). Defendant s claim of innocence is properly reserved to the trial court. (People v Hold, 22 Misc3d 297, 305 [Crim Ct, NY County 2008]; People v Figueroa, 164 Misc2d 814, 625 [Crim Ct Kings County 1995]; People v Prunty, 101 Misc2d 163 [Crim Ct, Queens County 1979]). Defendant s contention that prosecution may deter advocacy for seniors is speculative and insufficient to justify dismissal. Finally, defendant is accused of taking valuable property from the victim, and while the actual value of the property may be in dispute, the value is more than nil. A dismissal would deny the victim the opportunity of restitution and for this reason alone the court finds that dismissal in the interests of justice is unwarranted. Finding no compelling factor in favor of dismissal, the court finds that dismissal in the interest of justice pursuant to CPL 170.40 is unwarranted. E. Conclusion Defendant s motion to dismiss the information is DENIED. (d) the history, character and condition of the defendant; (e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant; (f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense; (g) the impact of a dismissal on the safety or welfare of the community; (h) the impact of a dismissal upon the confidence of the public in the criminal justice system; (i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; (j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose. Page 5 of 6
January 26, 2016 New York, New York Heidi C. Cesare, J.C.C. Page 6 of 6