People v. Hart, CR-2182-19

Decision Date23 December 2019
Docket NumberCR-2182-19
Parties The PEOPLE of the State of New York, Plaintiff, v. Sarah HART, Defendant.
CourtNew York City Court

Hon. Jason M. Carusone, Warren County District Attorney, (Lily Gebru, Esq., Assistant District Attorney, of counsel)

McPhillips, Fitzgerald & Cullum, LLP, Eric C. Schwenker, Esq., of counsel, attorneys for the Defendant

Gary C. Hobbs, J.

BACKGROUND FACTS

The defendant is charged in this Court with the crime of Unlawfully Dealing with a Child in the Second Degree [ Penal Law § 260.21(3) ]. The criminal complaint alleges that on or about September 17, 2019, at approximately 12:07 p.m., at 23 Park Street, Glens Falls, New York, the defendant did, while working as a sales clerk at 42 Degrees, L.L.C., "did intentionally, knowingly, and unlawfully commit the crime of Unlawfully Dealing with a Child in the Second Degree ... when: he sells or causes to be sold tobacco in any form to a child less than 18 years old."1 The factual portion of the criminal complaint alleges that the defendant, while working as a sales clerk at 42 Degrees LLC located at 23 Park Street in the City of Glens Falls, did "unlawfully sell a package of JUUL mint pods containing nicotine to a male whom [sic] was sixteen years old. The defendant did not verify or attempt to verify the age of the sixteen year old male."

According to the New York State Police Incident Report filed with the complaint, this charge resulted from an Underage Vaping Detail conducted at numerous establishments throughout northern Saratoga County and southern Warren County. An underage agent was employed by the Undercover Detail to purchase e-cigarettes from various retail establishment and the sales transaction was witnessed by the Department of Health Sanitarian, Joseph Pennisi, who was present inside the store for each transaction. A supporting deposition of the underage agent, which alleges in pertinent part that the agent purchased Juul mint pod, a tobacco product, from the defendant without having to produce any verification of age.

The defendant filed a timely omnibus motion to dismiss. In her motion to dismiss, the Defendant asserts, in pertinent part, that the complaint is legally insufficient because the factual portion of the complaint fails to allege non-hearsay facts demonstrating that the JUUL mint pod contains tobacco in any form. [Schwenker Affirmation, ¶30]. The defendant further asserts that, under New York law, e-cigarettes and e-cigarette products are "not the same or even substantially the same at [sic] alleging the sale of ‘tobacco in any form’." [Schwenker Affirmation, ¶28]. The defendant further claims that the factual assertion in the complaint stating that the JUUL mint pod contains nicotine does not demonstrate that the product is a tobacco product, as nicotine is not always derived from tobacco products and it can be synthetically produced. [Schwenker Affirmation ¶s 30-31]. Finally, the defendant asserts that any allegation that the nicotine in the JUUL mint pod purchased by the defendant was derived from tobacco is "based on multiple levels of hearsay." [Schwenker Affirmation, ¶33]. The People oppose the motion asserting that the criminal complaint and the underage agent's supporting deposition "unambiguously identified the ‘JUUL Mint Pods’ as ‘tobacco product’." [Gebru Affirmation ¶21].

ANALYSIS

The standard for the facial sufficiency of a criminal information is well settled. In order to be sufficient, the factual portion of an information "must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges." CPL § 100.15 [3]. In addition, under 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 the defendant's commission thereof."

Paragraphs (b) and (c) of CPL § 100.40 (1), when read in conjunction, places the burden on the People to make out their prima facie case for the offense charged in the text of the criminal complaint, when read together with any supporting depositions. People v. Jones , 9 N.Y.3d 259, 261, 848 N.Y.S.2d 600, 878 N.E.2d 1016 (2007). The failure to assert sufficient non-hearsay factual allegations in the complaint is a jurisdictional defect. People v. Alejandro , 70 N.Y.2d 133, 134-135, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987). Thus, unless the accusatory instrument alleges or is based upon reasonable cause to believe defendant committed the offense, the court has no authority to enter an order that restrains defendant's liberty, as this is a basic constitutional prerequisite. McKinney's CPL § 100.40, Practice Commentaries, Professor Peter Preiser, (2012), citing , People v. Dumas , 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ; County of Riverside v. McLaughlin , 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991).

While the burden is on the People to establish a prima facie case for the offenses charged in the accusatory instrument, this requirement "is not the same as the burden of proof beyond a reasonable doubt required at trial." People v. Kalin , 12 N.Y.3d 225, 230, 878 N.Y.S.2d 653, 906 N.E.2d 381 (2009). The law does not require a criminal information to contain the most precise words or phrases, rather "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v. Konieczny , 2 N.Y.3d 569, 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 (2004), quoting, People v. Casey , 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000) ; People v. Sanson , 59 Misc. 3d 4, 6, 71 N.Y.S.3d 797 (App. Term 2018), lv to appeal denied , 31 N.Y.3d 1086, 79 N.Y.S.3d 108, 103 N.E.3d 1255 (2018).

The requirement of non-hearsay factual allegations is satisfied by either a deponent's direct, firsthand observations, or by hearsay evidence that would be admissible at trial under some exception to the rule against hearsay. See : People v. Casey, 95 N.Y.2d 354, 361, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ; New York Pretrial Criminal Procedure § 3.7, at 109 [7 West's NY Prac. Series 1996] ; People v. Belcher, 302 N.Y. 529, 534–535, 99 N.E.2d 874 [1951] ). Examples of various hearsay allegations that fall under exceptions to the rule against hearsay, and have been held to provide legally sufficient support for an information charging a misdemeanor offense include a police detective's allegation that an order of protection was served on a defendant based on a certified copy of the order with defendant's signature acknowledging service, which is admissible under the public documents or official entry exception ( People v. Casey, 95 N.Y.2d at 361–362, 717 N.Y.S.2d 88, 740 N.E.2d 233 ) and a defendant's admission to an officer that he had been served with the order of protection ( Id. at 362, 717 N.Y.S.2d 88, 740 N.E.2d 233 ); and the police department records documenting car theft, which is admissible as business records ( People v. Fields, 74 Misc. 2d 109, 344 N.Y.S.2d 413 [Dist. Ct., Nassau County, 1973] ; and a copy of a temporary order of protection along with subscribed, certified stenographic transcripts of the proceeding at which the order was issued, which is admissible as business records and public documents ( People v. Henry, 167 Misc. 2d 1027, 641 N.Y.S.2d 1003 [Dist. Ct., Nassau County, 1996] ); and the defendant's own self-incriminating oral statements made to a deponent officer, admissible as an admission of a party ( People v. Alvarez, 141 Misc. 2d 686, 688, 534 N.Y.S.2d 90 [Crim. Ct., N.Y. County 1988] ); and a complainant's statement made at the scene of the crime to a police officer, which was admissible as excited utterance ( People v. Solomon, 2002 N.Y. Slip Op. 50712[U], 2002 WL 32157170 [Crim. Ct., Kings County, 2002] ).

Under our law, a person is guilty of Unlawfully Dealing with a Child in the Second Degree, in violation of Penal Law § 260.21(3), when that person "sells or causes to be sold tobacco in any form to a child less than twenty-one years old." Penal Law § 260.21(3). The charge of Unlawfully Dealing with a Child in the Second Degree has two essential elements:

1. That [name of child] was a child less than 18 years old at the time of the alleged incident; and
2. That the defendant sold or caused to be sold tobacco in any form to said child. See; Unlawfully Dealing with Child—second Degree—Model Charge, § 17:12.60. Pursuant to the Model Charge, the term "tobacco" refers to the leaves of the plant Nicotiana for use in smoking (as cigars or cigarettes) or chewing or as snuff.
A. Defendant's Claim that E-Cigarette Products Can Not Be Considered as Tobacco Products

The defendant claims that the JUUL mint pod is an e-cigarettes product that cannot be viewed to be "tobacco in any form" as that phrase is used in Penal Law § 260.21(3). [Schwenker Affirmation ¶s 18,28]. Here, the defendant asserts that the New York State Department of Health has given differing definitions between e-cigarettes and tobacco products under PHL § 1399-aa and 10 NYCRR 9-3. [Schwenker Affirmation ¶s 18-28]. Moreover, the defendant asserts that, since the Department of Health has provided different definitions for "tobacco" and "e-cigarettes," the Department of Health has deemed that e-cigarettes and e-liquids are not tobacco products. [Schwenker...

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