People v. Mauro

• Decision Date: 15 March 1990
• Docket Number: AP-1
• Citation: 147 Misc.2d 381,555 N.Y.S.2d 533
• Parties: The PEOPLE of the State of New York v. Yibi MAURO
• Court: New York City Court

Page 533

555 N.Y.S.2d 533

147 Misc.2d 381

The PEOPLE of the State of New York v. Yibi MAURO.

Criminal Court of the City of New York,

New York County, Part AP-1.

March 15, 1990.

Robert M. Morgenthau, Dist. Atty., New York County by Rebecca Rothman, New York City, for the people.

Randy A. Dusek, New York City, for defendant.

PETER J. BENITEZ, Judge.

The defendant was originally charged with the felonies of Unauthorized Practice of a Profession in violation of the New York State Education Law, Sections 6512(1) and 6512(2). In essence, defendant was charged with practicing and aiding and abetting others to practice massage without being licensed to do so under the Education Law. Each of these two counts was later reduced on motion of the People to an Attempt to commit the crime of Unauthorized Practice of a Profession, a class A misdemeanor.

Defendant moves to dismiss the information on several grounds. First, defendant argues that the Education Law precludes the District Attorney from commencing a prosecution under these sections where the conduct alleged has not been first reported to the State Department of Education for that Department's investigation and referral to the Attorney General of the State for prosecution. Second, defendant moves to dismiss the information arguing that it is legally insufficient in that it contains uncorroborated allegations of admissions of the defendants to establish the element of the offense that the defendant was unlicensed or the others aided were unlicensed. Finally, defendant moves to dismiss the information pursuant to CPL 30.30, on the grounds that the People have not announced their readiness for trial within 180 days of the commencement of the criminal action.

Defendant's Motion that the District Attorney is Barred From Prosecuting the Instant Case

Defendant's motion to dismiss, alleging that, by virtue of the Education Law, the District Attorney does not have the authority to prosecute the offenses charged without having first referred the allegations to the State Department of Education for an investigation by that Department, presents a case of first impression. No decisional authority on this issue is cited by defendant or the People, nor has any been found by this court.

The State Education Law, sections 6514(1) and (2) provide:

(1) All alleged violations of section 6512 or 6513 of this article shall be reported to the department [of Education] which shall cause an investigation to be instituted. If the investigation substantiates that the violations exist, such violations shall be reported to the attorney general with a request for prosecution.

(2) The attorney general shall prosecute such alleged offenses in the name of the state, provided however, in the event of alleged violations of article 155 of this title [the practice of the profession of massage] occurring in cities with a population of one million or more, [the] district attorney may prosecute such alleged offenses in the name of the state....

Defendant does not challenge the jurisdiction of the District Attorney to prosecute this case. Rather, defendant argues that the allegations were not referred to the Education Department for its investigation prior to the District Attorney commencing the prosecution, and, therefore, such constitutes a bar to the prosecution. The People concede that the allegations were not referred to the Education Department prior to the commencement of the prosecution.

It is this court's view that, in the absence of a specific statutory provision limiting the authority of a prosecutor to prosecute an offense, a prosecutor is not barred from prosecuting an offense occurring within his jurisdiction. While Section 6514 requires a referral to the Education Department, it does not provide that non-compliance with that mandate bars prosecution by the Attorney General or District Attorney. Had the legislature intended to bar prosecutions that had not been preceded by an investigation by the Education Department, it would have specifically provided so. The referral provision appears intended to provide a mechanism for requiring the Education Department to investigate allegations of unlicensed practice of a profession when such allegations are referred to it. However, the District Attorney is not precluded from investigating such an allegation on his own initiative.

Education Law Section 6514(2) clearly authorizes the District Attorney to prosecute the offenses charged here, as New York City is a city having a population of over one million persons. The absence of a referral of the allegations to the Education Department does not constitute a bar to the prosecution. Accordingly, defendant's motion to dismiss is denied.

Defendant's Motion to Dismiss Alleging Facial Insufficiency

Before addressing defendant's claim that the information is legally insufficient in that it contains insufficient allegations of the lack of a license to engage in the practice of massage, this court observes that as to the second count, an Attempt to commit the crime of Unauthorized Practice of a Profession in violation of Education Law 6512(2), the accusatory instrument fails to allege facts constituting that offense. Education Law 6512(2) provides that a person violates that section when he or she "aids or abets three or more unlicensed persons to practice a profession or employs or holds such unlicensed persons out as being able to practice any profession in which a license is a prerequisite to the practice of the acts...." In this case, the accusatory instrument alleges that the defendant held two other persons out as being able to perform a massage. Accordingly, as the instrument only alleges that the defendant held out two persons, not the statutorily required three, as being able to engage in the profession, the second count of the information must be dismissed.

Defendant argues that the information is not sufficient on its face and is, therefore, defective as it does not contain a supporting deposition from the New York State Department of Education attesting to the fact that defendant or those she aided or abetted to attempt to engage in the practice of massage were unlicensed. The only allegations in the information concerning the lack of a license are the following allegations:

Deponent [police officer] is informed by defendant that she did has no license to practice massage [and] deponent observed no Department of Education license to practice massage posted at the above premises, and neither defendant nor [other person held out as able to perform the massage] produced one.

To be legally sufficient, a misdemeanor information and any supporting depositions filed therewith must set forth non-hearsay allegations of facts which "establish, if true, every element of the offense charged." (CPL 100.40(1)(c); 100.15(3); People v. Alejandro, 70 N.Y.2d 133, 136, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987)).

Two significant issues are presented in this case by defendant's motion to dismiss the information. First, if an element of the offense is based on defendant's admission, does such constitute a "non-hearsay" allegation of fact. Second, does the corroboration requirement of CPL 60.50 relating to required corroboration of admissions apply to the legal sufficiency of informations. This court holds that a confession is a "non-hearsay" allegation of fact and that the confession must be corroborated in an information for that information to be legally sufficient.

The "non-hearsay" requirement of CPL 100.40 has been construed to mean any evidence that would be admissible at trial even though such admissibility is subject to challenge by means of pre-trial motions. People v. Alvarez, 141 Misc.2d 686, 534 N.Y.S.2d 90 (Crim.Ct., N.Y.Co.1988) and cases cited therein; People v. Kaminiski, 143 Misc.2d 1089, 542 N.Y.S.2d 923 (Crim.Ct., N.Y.Co.1989). The Appellate Division First Department, in effect, approved of this interpretation in Matter of Rodney J., 108 A.D.2d 307, 311, 489 N.Y.S.2d 160 (1st Dept.1985), when it held that an allegation in a delinquency petition setting forth the defendant's admission was a non-hearsay allegation of fact. In reaching this conclusion, the Court noted that the Family Court Act provided, at Section 303.1(2), that judicial interpretations of appropriate provisions of the CPL could be used to interpret similar provisions of that Act. As Family Court Act Section 311.2 was identical to CPL 100.40 in requiring allegations of legally sufficient evidence in a delinquency petition as is required for informations, the Court, citing decisions of the Criminal Court interpreting CPL 100.40 to permit allegations of admissions by a defendant to satisfy the requirement of legal sufficiency, similarly interpreted the Family Court Act. See, Matter of Rodney J., supra, at 311, 489 N.Y.S.2d 160. Based on the cases cited with approval by the Appellate Division, it is this court's holding that an admission of a defendant alleged in an information or its supporting depositions is a non-hearsay allegation and that the facts admitted to in such statement may satisfy, if legally sufficient, the requirements of CPL 100.40.

Accordingly, in the instant case, this court finds that the allegation of defendant's admission that she did not possess a license to practice massage is a non-hearsay allegation of fact supporting one element of the offense of an Attempt to commit the offense of a violation of Education Law 6512(1), the element that the defendant be a person not authorized to practice the profession of massage. Before addressing the other elements of this offense, this court must rule on yet a further issue concerning the use of admissions in an information. While this court has ruled that a defendant's admission may be alleged in an information to satisfy the requirement that the instrument contain non-hearsay allegations of fact establishing the elements of the offense, it must...