People v. Alessi

Decision Date09 December 1993
PartiesThe PEOPLE of the State of New York v. Joseph T. ALESSI, Defendant.
CourtNew York Justice Court

Howard R. Relin, Monroe County Dist. Atty. by Patrick K. Russi, Asst. Dist. Atty., for the People.

Edward J. Nowak, Monroe County Public Defender by Eftihia Dardaganis, Asst. Public Defender, for defendant.

GARY W. ROOD, Justice.

The Defendant in the above titled criminal action has moved for an Order of this Court, among other things, dismissing, as defective, the Information filed in this Court pursuant to CPL §§ 170.30 and 170.35. That Information charges the Defendant with attempted petit larceny. The accusatory part of the Information charges only a violation of Penal Law § 155.25, the statute defining the crime of petit larceny, but contains no reference to Penal Law § 110.00, defining "attempt to commit a crime".

The factual allegations contained in the Information are:

"That Joseph Alessi, at approx. 1545 hrs., on 05-08-93, at 4395 Nine Mile Point Rd. in the Town of Perinton, N.Y., did attempt to steal property consisting of at least (1) 'Honda Harmony' lawn mower, Model # HRM 215 5XA, at which time such property had an aggregate value of less than $1000.00, to wit, $599.00, all contrary to the provisions of the statute in such case made and provided."

The Defendant contends that the above factual allegations are insufficient to meet the requirements of CPL § 100.40(1)(c) in that there are no non-hearsay factual allegations supporting the required elements of "attempt to commit a crime" aspect of the charge, i.e. first, that the Defendant intended to commit a specific crime, here petit larceny, and second, that the Defendant engaged in conduct which tended to effect the commission of such a crime. The People contend that they do not bear the burden of "proving" intent on the face of an accusatory instrument and it is sufficient for the Information merely to allege that the Defendant committed or attempted to commit the crime charged. The People also contend that the conduct engaged in by the Defendant which tends to effect the commission of the intended crime is an issue more appropriate for the trier of fact to determine and not the basis for a court to dismiss the accusatory instrument at the pre-trial motion stage. The Assistant District Attorney, in his answering Affirmation, after making the foregoing points, goes on to present factual information apparently intended to supplement the factual allegations contained in the Information.

CPL 100.40(1)(c) requires that the non-hearsay allegations of the factual part of an information and/or of any supporting deposition established, if true, every element of the offense charged and the Defendant's commission thereof. Thus, for an information to be sufficient, its non-hearsay factual allegations, together with those of any supporting depositions, must make a showing of a prima facie case and the failure to make such a showing is a jurisdictionally fatal defect. People v. Alejandro, 70 N.Y.2d 133, 136-138, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987).

In discussing the difference between the sufficiency requirements for a felony complaint and those for an information, the Commission Staff Notes following Consolidated Law Service CPL 100.40 point out:

"The lodging of the information is not, as in the case of a felony complaint, followed by a preliminary hearing and a grand jury proceeding, and nowhere at any time prior to pleading or trial are the people required to present actual evidence demonstrating a prima facie case. Under the circumstances, the least that should be required of them is an information containing sworn factual allegations of an evidentiary nature which, if given in the form of trial testimony, would spell out a legally sufficient case."

However, at odds with what is clearly required by CPL § 100.40(1)(c), are the provisions of Penal Law § 155.45 which provide that except in the case of extortion (where the indictment for larceny must so specify), an indictment, information or complaint for larceny is sufficient if it alleges that the defendant stole property of the nature or value required for the commission of the crime charged without designating the particular way or manner in which such property was stolen or the particular theory of larceny involved and proof that the defendant engaged in any conduct constituting larceny as defined in Penal Law § 155.05 is sufficient to support any indictment, information or complaint for larceny, other than when charging larceny by extortion.

Under the provisions of Penal Law § 155.45, if the Defendant in this action was charged with petit larceny, rather than attempted petit larceny, the Information would be sufficient if it merely alleged that the Defendant stole property, regardless of value, and alleged nothing more.

However, as the Defendant in this action is charged with attempted petit larceny, the question presented to this Court is whether, as the People in this action contend, the Information, which merely alleges that the Defendant "did attempt to steal property", is sufficient, relieving the People of the pleading requirements of CPL § 100.40(1)(c) discussed above by, in effect, extending the simplified pleading requirements of Penal Law § 155.45 to the crime of attempted petit larceny. The Court finds no authority for such a position.

In order for the Defendant to be convicted of attempted petit larceny, the People must prove each of the specific elements of the "attempt" aspect of the charge, i.e., first that the Defendant acted with the specific intent to commit petit larceny and, second, that the Defendant engaged in conduct which tended to effect the commission of that crime. In People v. Bracey, 41 N.Y.2d 296, 392 N.Y.S.2d 412, 360 N.E.2d 1094 (1977), the Court of Appeals, discussing attempt, stated:

"Thus it must first be...

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2 cases
  • People v. Smith
    • United States
    • New York Justice Court
    • 3 Octubre 1994
    ...v. Alejandro, supra 70 N.Y.2d at 135, 517 N.Y.S.2d 927, 511 N.E.2d 71). As previously cited by this court (see People v. Alessi, 159 Misc.2d 828, 830, 606 N.Y.S.2d 870), the Commission Staff Notes following CPL § 100.40 (reprinted in N.Y.Cons.Law Serv., Book 7A, at 49) point "The lodging of......
  • People v. Goshorn
    • United States
    • New York Supreme Court
    • 4 Junio 2012
    ...language in any pleading that, based on facts known only to the officer, a defendant committed the crime charged. See People v. Alessi, 159 Misc.2d 828, 831 (Justice Ct Monroe Cty 1993); Cf. People v. Rodriguez, 140 Misc.2d 1, 5–6 (Crim Ct N.Y. Cty 1988). Remarkably, the People also ask thi......

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