People v. Montanez

• Decision Date: 29 May 1998
• Parties: , 1998 N.Y. Slip Op. 98,412 The PEOPLE of the State of New York, Plaintiff, v. Johnny MONTANEZ, Defendant.
• Court: New York City Court

Page 785

676 N.Y.S.2d 785

177 Misc.2d 506, 1998 N.Y. Slip Op. 98,412

The PEOPLE of the State of New York, Plaintiff, v. Johnny MONTANEZ, Defendant.

Criminal Court of the City of New York,

New York County.

May 29, 1998.

Legal Aid Society, New York City (Erica Perl, of counsel), for defendant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Katherine Lemire, of counsel), for plaintiff.

LUCY BILLINGS, Judge.

The people charge defendant Johnny Montanez with unlicensed general vending, a misdemeanor under N.Y.C. Admin. Code § 20-453. He moves to dismiss the accusatory instrument on the ground of facial insufficiency. He also moves for an order compelling a bill of particulars and discovery and for preclusion and suppression of various categories of evidence. Because the court grants the motion to dismiss, as discussed below, the other motions need not be discussed.

I. THE PLEADINGS

The misdemeanor complaint and supporting deposition allege that on January 8, 1998, at 4:05 p.m., at 3616 Broadway, New York County, a New York City Police Officer observed defendant "display and offer for sale clothing."

Specifically, the officer saw defendant holding the above-described merchandise in his hand.

The officer saw defendant showing the merchandise to numerous people.

On these facts the people charged defendant with violating Admin. Code § 20-453. That section provides: "It shall be unlawful for any individual to act as a general vendor without having first obtained a license." Administrative Code § 20-452(b) defines a "general vendor" as: "A person who hawks, peddles, sells, leases or offers to sell or lease, at retail, goods or services." To "vend" is to "hawk, peddle, sell, lease, offer to sell or lease, at retail, goods or services other than food in a public space," Admin. Code § 20- 452(h), and § 20-452(d) includes within the ambit of "public space":

All publicly owned property between the property lines on a street ... including but not limited to a park, plaza, roadway, shoulder, tree space, sidewalk or parking space between such property lines. It shall also include, but not be limited to, publicly owned or leased land, buildings, piers, wharfs, stadiums and terminals.

Defendant argues that the accusatory instrument fails to allege an essential element of the crime with the requisite specificity. He cites the absence of any allegations that defendant looked for possible customers, approached anyone, solicited any business, spoke any words of sale, displayed any price tags on the alleged merchandise, or acted in any other way indicative of intent to sell the merchandise. In sum, all the accusatory instrument alleges is that defendant was "holding" and "showing" "clothing" "to numerous people." The information does not even specify how many items defendant was holding and showing or how long he did so.

In response, the people concede that the conclusion defendant was selling or offering to sell goods requires an assessment of all the circumstances of his actions. The people also list various temporal, spacial, and behavioral factors, both quantitative and qualitative, relating to his interactions with the goods and passersby as relevant circumstances necessary to an assessment and conclusion of "vending." Admin. Code § 20-452(h). The people do not read anything more into the accusatory instrument than that defendant was holding and showing clothing to numerous people. They maintain those allegations are enough.

II. THE ACCUSATORY INSTRUMENT'S FACIAL SUFFICIENCY

An information is sufficient on its face if it contains non-hearsay allegations of an evidentiary nature that provide reasonable cause to believe defendant committed every element of the offense charged. N.Y.Crim. Proc. Law (C.P.L.) §§ 100.15(3), 100.40(1)(a) and (c); People v. Alejandro, 70 N.Y.2d 133, 137, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987); People v. Hall, 48 N.Y.2d 927, 425 N.Y.S.2d 56, 401 N.E.2d 179 (1979).

Under Admin. Code §§ 20-452(b) and (h) and 20-453 it is enough to be charged with unlicensed general vending if a person "offers to sell" "at retail, goods or services other than food in a public space." Thus, a person who offers to sell one item of clothing in a public space without a license engages in unlicensed general vending within the express terms of these Administrative Code provisions.

The information here does allege that defendant offered to sell clothing to other persons. As defendant points out, the information does not specify how many items defendant offered or how long he did so. Under a literal reading of the statutes, however, offering one item for sale in a public space is unlawful. The court determines that the allegations here are still insufficient, however, for three reasons.

A. Unlicensed General Vending Based on an Offer to Sell or a Sale

Both the Administrative Code provisions and the authority interpreting them support the proposition that one offer to sell goods in a public space without a license is sufficient basis for a charge of unlicensed general vending. In both People v. Sylla, 154 Misc.2d 112, 115, 584 N.Y.S.2d 985 (Crim.Ct.N.Y.Co.1992), and People v. Diouf, 153 Misc.2d 887, 889, 583 N.Y.S.2d 746 (Crim.Ct.N.Y.Co.1992), the court held that approaching one person and showing the person merchandise, indicia of an offer to sell, were sufficient evidence of vending under the same statute that defendant is charged with violating here.

Too broad an application of the statutory provisions and the standard suggested by these cases, however, would subject persons to criminal penalties merely because they engaged in a private transaction with another person, which happened to occur in a public place. In fact, the accusatory instrument in this case alleges nothing more, except that defendant showed the clothing he was holding "to numerous people." A person could not reasonably anticipate that such behavior would violate the law, and criminal penalties for such behavior might be vulnerable on overbreadth grounds. See, e.g., People v. Tichenor, 89 N.Y.2d 769, 776, 658 N.Y.S.2d 233, 680 N.E.2d 606 (1997). The court need not determine the constitutional issue in this case, however, because here the accusatory instrument fails to meet even the minimum requirements imposed by C.P.L. §§ 100.15(3) and 100.40(1)(a) and (c), Admin. Code §§ 20-452(b) and (h) and 20-453, and the authority interpreting them.

B. The Lack of Additional Evidentiary Support for Unlicensed General Vending

Here, there are insufficient specific facts, in addition to the allegation that defendant displayed clothing and offered it for sale, that defendant engaged in unlicensed general vending. The bare allegation that defendant displayed clothing and offered it for sale does not convey sufficient evidentiary definiteness to satisfy pleading requirements; by itself, that allegation is too conclusory. When it is taken together with the remainder of the pleadings, the accusatory instrument as a whole lacks enough additional specific evidence to support a conclusion that defendant was in fact offering goods for sale and thus engaging in prohibited activity.

A conclusory statement is a "conclusion of fact without stating the specific facts upon which the conclusion is based." R. Garner, A Dictionary of Modern Legal Usage 135 (1987). As the basis for the conclusion that defendant offered goods for sale, the accusatory instrument simply states that defendant was holding and showing clothing to numerous people. These non-hearsay facts, if proved, would not establish even the bare element of an "offer to sell" required by the unlicensed general vending statutes. Admin. Code §§ 20-452(b) and (h), 20-453.

Few published opinions address the facial sufficiency of accusatory instruments charging unlicensed general vending. The available authority, dealing generally with the standards for pleading in unlicensed vending and trademark counterfeiting cases, however, provides guidance concerning factors relevant to intentional vending within the meaning of the Administrative Code. These factors include the nature and number of the items offered, People v. Abdul, 157 Misc.2d 511, 514, 597 N.Y.S.2d 575 (Crim.Ct.N.Y.Co.1993); People v. Sylla, 154 Misc.2d at 115, 584 N.Y.S.2d 985; People v. Diouf, 153 Misc.2d at 890, 583 N.Y.S.2d 746; People v. Cisse, 171 Misc.2d 185, 188-89, 653 N.Y.S.2d 1017 (Crim.Ct.1996); the manner in which the goods were displayed; the defendant's conduct regarding his goods and the public, People v. Abdul, 157 Misc.2d at 514, 597 N.Y.S.2d 575; People v. Sylla, 154 Misc.2d at 116, 584 N.Y.S.2d 985; People v. Cisse, 171 Misc.2d at 189, 653 N.Y.S.2d 1017; and the time and location of the alleged offering of goods for sale. People v. Abdul, 157 Misc.2d at 514, 597 N.Y.S.2d 575; People v. Sylla, 154 Misc.2d at 115, 584 N.Y.S.2d 985.

The court agrees with the people that, contrary to defendant's assertion, it is not necessary for the people to allege that he exhibited such overtly commercial behavior as aggressively soliciting business from passersby. The court will not "ignore common sense or the significance of the conduct" that the information alleges defendant did exhibit. People v. Abdul, 157 Misc.2d at 514, 597 N.Y.S.2d 575. The allegations as to defendant's conduct in the information here, however, do not satisfy the people's burden to plead that defendant engaged in unlawful activity.

The people plead too few facts and circumstances from which the court might infer defendant's intent to offer his clothing for sale to the public. In stark contrast to People v. Sylla, 154 Misc.2d at 115-16, 584 N.Y.S.2d 985, and People v. Diouf, 153 Misc.2d at 889-90, 583 N.Y.S.2d 746, the information here does not allege that defendant approached members of the public, to present his articles of clothing to them for inspection. See also People v. Abdul, 157 Misc.2d at 514, 597 N.Y.S.2d 575. To the extent the...