People v. Mitchell
| Decision Date | 24 May 2022 |
| Docket Number | 44 |
| Citation | 38 N.Y.3d 408,194 N.E.3d 708,174 N.Y.S.3d 1 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Marc MITCHELL, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
38 N.Y.3d 408
194 N.E.3d 708
174 N.Y.S.3d 1
The PEOPLE of the State of New York, Respondent,
v.
Marc MITCHELL, Appellant.
No. 44
Court of Appeals of New York.
Decided May 24, 2022
Janet E. Sabel, The Legal Aid Society, New York City (Ying-Ying Ma and Richard Joselson of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York City (Philip V. Tisne and Alan Gadlin of counsel), for respondent.
OPINION OF THE COURT
GARCIA, J.
Defendant waived prosecution by information, pleaded guilty to fraudulent accosting ( Penal Law § 165.30[1] ), and was sentenced to time served. He argues on appeal that the term "accost" should be narrowly construed to require "a physical approach and an element of aggressiveness or persistence" that is "directed toward a specific individual, rather than the public at large." We reject that proposed definition, hold that the complaint was facially sufficient, and affirm.
Because defendant waived prosecution by information, we judge facial sufficiency by the standard applied to a misdemeanor complaint (see CPL 170.65[3] ; People v. Kalin, 12 N.Y.3d 225, 228, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009] ), namely that the accusatory instrument "need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense" ( People v. Dumay, 23 N.Y.3d 518, 522, 992 N.Y.S.2d 672, 16 N.E.3d 1150 [2014] ; see
CPL 100.40[4][b] ). "Reasonable cause" exists when "evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" ( CPL 70.10[2] ). The complaint in this case met that standard.
A person is guilty of fraudulent accosting when he or she "accosts a person in a public space with intent to defraud him of money or other property by means of a trick, swindle or confidence game" ( Penal Law § 165.30[1] ). In pertinent part, the complaint alleged that defendant was standing on a Manhattan street corner next to two milk crates set up as a table. On the table was a black box with a slot for money and fliers describing how to donate to homeless shelters. According to the complaint, defendant positioned the table in a way that "blocked" the sidewalk, causing at least 75 pedestrians to have to "walk around" him in order "to continue walking on the sidewalk." As pedestrians did so, defendant asked them to " ‘[h]elp the [h]omeless.’ " In response to a question by a police officer, defendant said that " ‘donations go to a Church on 116 Street,’ " but he "was unable to state the name of the church or the name of the person that receives the money." Although defendant told the officer that he was " ‘the [p]resident of the NYC Homeless Outreach’ " and gave the officer "a laminated card which stated he was affiliated with" that organization, he later admitted that " ‘[m]ost of the proceeds’ " went to him.
On appeal following his plea, defendant claimed that the accusatory instrument was facially insufficient as to the fraudulent accosting charge. The Appellate Term affirmed, holding that the "accosting" element was "satisfied by allegations that defendant ‘ask[ed] passing pedestrians to ‘[h]elp the [h]omeless,’ " citing language from a criminal court case to the effect that this element " ‘requires that ... defendant take some affirmative action to make contact with the victim for the purpose of involving the individual in the scam’ " (
69 Misc.3d 133[A], 2020 N.Y. Slip Op. 51240[U], *1, 2020 WL 6278767 [App. Term, 1st Dept. 2020], citing People v. Morrison, 58 Misc.3d 19, 20, 66 N.Y.S.3d 586 [App. Term, 1st Dept. 2017], quoting People v. Tanner, 153 Misc.2d 742, 746, 582 N.Y.S.2d 641 [Crim. Ct., New York County 1992] ). A Judge of this Court granted defendant leave to appeal ( 36 N.Y.3d 1052, 140 N.Y.S.3d 884, 164 N.E.3d 971 [2021] ).
In interpreting a statute, we look to effectuate the intent of the legislature (see Patrolmen's Benevolent Assn. of City of N.Y. v. City of New York, 41 N.Y.2d 205, 208, 391 N.Y.S.2d 544, 359 N.E.2d 1338 [1976] ). "[T]he clearest indicator of legislative intent is the statutory text," and we therefore start with the plain meaning of the language itself (see Majewski v. Broadalbin–Perth Cent. School Dist., 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978 [1998] ). Applying that well-settled standard leads us to reject defendant's argument that "accost" as used in the statute requires "a physical approach and an element of aggressiveness or persistence."
"Accost" is not defined in the Penal Law, and, accordingly, to discern its meaning here, we look to dictionaries from the time of the statute's enactment as well as the statute's purpose and history (see Yaniveth R. v. LTD Realty Co., 27 N.Y.3d 186, 192, 32 N.Y.S.3d 10, 51 N.E.3d 521 [2016] ;
People v. Ocasio, 28 N.Y.3d 178, 181–184, 43 N.Y.S.3d 228, 65 N.E.3d 1263 [2016] ; McKinney's Cons Laws of NY, Book 1, Statutes §§ 232; 234). During the relevant period in 1952, when the legislature created the offense of fraudulent accosting (see L 1952, ch 640), contemporary dictionaries defined "accost" to mean either to "approach," to "speak to first," or to "address" (see e.g. Webster's New World Dictionary of the American Language [1951] ["to approach and speak to; speak to first before being spoken to"]; Webster's New Collegiate Dictionary [1949] ["(t)o approach" or "(t)o speak first to; to greet"]). Indeed, a California appellate court looking for the meaning of "accost" in a 1961 statute noted that the definition " ‘to approach, to speak to, to address’ " was found in "10 of 12 dictionaries" cited by the lower court and "in all 6 of those dictionaries that were in print at the time the statute was enacted" ( Ulmer v. Municipal Ct., 55 Cal. App. 3d 263, 266, 127 Cal.Rptr. 445 [Ct. App. 1976] ). No dictionary cited from the relevant time period limits the term to an aggressive or persistent physical approach.1 All the dictionaries cited by defendant in support of his proposed definition
were published decades after the statute's enactment and, therefore, are inapt.
Defendant's definition of "accost" as including only persistent or aggressive conduct is also inconsistent with the Bartlett Commission's2 understanding of the term. In 1964, the Commission made a proposal—later withdrawn—to place the offense within a new "harassment" section of the Penal Law, so that it would apply only when the perpetrator acted with the intent "to harass, annoy or alarm another person" (Bartlett Commission, Staff Notes on Proposed Penal Law § 250.10, at 387–390 [1964]). It is inconceivable that the Commission would require such intent as a separate element if "common usage" (dissenting op. at 419–421, 174 N.Y.S.3d at 10-11, 194 N.E.3d at 717-18) defined "accost" to mean essentially the same thing (see McKinney's Cons Laws of NY, Book 1, Statutes § 231).
As to the purpose in enacting the fraudulent accosting statute, the goal was to protect the public against "the swindler who proposes by his acts to defraud innocent victims of property" (Mem of the Citizens Union of the City of NY, Bill Jacket, L 1952, ch 640, at 12) and to "aid police in stamping out an ever-increasing number of swindle rackets," of which there are "many variations" (Mem of the City of NY, Bill Jacket, L 1952, ch 640, at 7). Many of those swindles involved an initial approach that was benign. For example, the "handkerchief switch" begins with the perpetrator "inform[ing]" the victim that he has "occult powers" that enable him to increase the denomination of dollar bills (Mem of the City of NY, Bill Jacket, L 1952, ch 640, at 8–9). In the "pocket-book drop" scam, the perpetrator tells the victim that he "just found a substantial sum of money in a pocket-book" and does not know what to do with it (id. at 7). A narrow interpretation of the fraudulent accosting statute, requiring an aggressive or persistent physical approach, would make it impossible for the statute to reach such conduct and would run contrary to the
statute's intended purpose (see McKinney's Cons Laws of NY, Book 1, Statutes § 234, Comment).
This point is brought home by the 1965 amendment of the statute (see L 1965, ch 1030), a "noteworthy feature" of which was the inclusion of language to allow for the perpetrator to
manifest the requisite culpable intent either "at the time and place of the original ‘accosting’ ‘or subsequently in any place’ " (Richard G. Denzer & Peter McQuillan, Practice Commentary to Penal Law § 165.30, McKinney's Cons Laws of NY, Book 39, at 515). This language "embraces" the fact that a swindler may engage in an "initial approach" that is "ostensibly innocent from a conversational standpoint"—rather than "aggressive or persistent"—and, later, manifest the requisite intent to defraud "at another time and place" (id. ).
Lower courts have uniformly applied an interpretation of "accost" that does not require any aggressive or persistent approach. Instead, to establish the offense's "accost" element, courts have required only that the defendant initiate contact with a potential victim through an affirmative act (see e.g. People v. Bannister, 37 Misc.3d 1229[A], 2012 N.Y. Slip Op. 52240[U], *2–3, 2012 WL 6171953 [Crim. Ct., N.Y. County 2012] ; People v. Mellish, 4 Misc.3d 1013[A], 2004 N.Y. Slip Op. 50869[U], *4, 2004 WL 1797568 [Crim. Ct., N.Y. County 2004] ). Indeed, "stationing" (dissenting op. at 426, 174 N.Y.S.3d at 14-15, 194 N.E.3d at 721-22), with no accompanying affirmative action to make contact with a potential victim, is insufficient, as evidenced by the legislature's decision to remove that term from the statute (see L 1965, ch...
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