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Defendant committed a larceny

Defendant’s motion for an order directing that the People make disclosure, directing that they serve a bill of particulars, dismissing the accusatory instrument as facially defective, dismissing it on the ground that prosecution is barred by a legal impediment, dismissing it on the ground that there is a lack of jurisdiction, dismissing it for failure to provide a speedy trial, suppressing identification testimony, and precluding or suppressing use of any statement Criminal Defendant made to police, is granted to the extent that the accusatory instrument is dismissed as facially defective.

Defendant was originally accused by felony complaint of grand larceny in the 4th degree, a class E felony. The complainant is Police Officer who thereby attests upon information and belief that, on August 20, 2004, Criminal Defendant removed a black 2004 GMC from an auto collision shop known as K&G Garage without making payment for the parts and repairs performed on it, that the Defendant drove around the employee who was attempting to stop her from leaving by placing his body in her path, that the Defendant owed the victim $3,648.66, and that Defendant left a check in the amount of $1,000 which, when deposited by the victim was returned for insufficient funds. By order dated January 21, 2005, the court converted the felony complaint to an information through notations and directed that upon the filing of the information the felony charge of 155.30(1) is reduced to the non-felony charge of 155.25, i.e. stealing property. The felony complaint itself bears the handwritten note converted to ct 2, 155.25. According to the notations on the court file, the People, also on January 21, 2005, filed a supporting deposition, which was annexed to the felony complaint, and Defendant was arraigned on the document, which thus became an information. By that supporting deposition, JW attests in pertinent part that: “I am the owner of K&G Garage, 656 Rockaway Tpke., N. Lawrence and was advised by one of my employees, Thomas Watson, that as he was moving cars around the shop this morning a female white, whom he knows to be the owner of a GMC 2004 Envoy Black, Vin No.1GKDT13S042349492, AK, did arrive at the shop and advised that she was here to pickup her car. My employee advised her that she would have to wait for me. With that, the female jumped into her auto and fled with it out of my lot, N/B Rockaway Tpke. I currently have an outstanding balance of $2175 plus parts 1201.72, total $3648 including tax, for a mechanics lien on this vehicle. I had advised the owner yesterday, that there was an outstanding balance. At that time she did possess a Florida Reg. Plate for the car. Today, when she fled with the car, there were no plates on the car. As she fled with the car, this female threw a white envelope containing a Fleet Bank check, with no name, signed but the signature was illegible, check # 94966-98094-0095 in the amount of $1,000.00. I do not give anyone permission to remove any car from my possession, without making full and complete payment for the work completed. I request the arrest of AK.”

This case, and others then pending against this criminal Defendant, were thereafter adjourned numerous times for assorted reasons. All of those other cases have been disposed of. Defendant has declined to make restitution as part of any plea agreement in this case, which then proceeded toward trial. But, by notice that is undated, Criminal Defendant made the present motion for the items of relief specified above. Because of my determination that the accusatory instrument is facially defective, I do not reach Defendant’s other requests for relief.

Defendant asserts that the underlying dispute is essentially civil, that the work performed by the complaining repair shop was unsatisfactory, that the complaining repair shop did not give her a written estimate, thereby depriving itself of a lien on her car, and that, in any event, the People accuse her of doing nothing more than stealing her own car. She thus seeks dismissal on a variety of grounds, including that the accusatory instrument is facially defective. The People in opposition assert that the entire motion is untimely because not made within 45 days of arraignment, and, among other things, that the arguments made by Defendant provide no basis for dismissal. They make reference to their having turned over a copy of a repair bill reflecting that Defendant owes $3,534.32, and posit that Mr. JW’ s attestations that the entire amount is still owed, together with the attestation that Defendant “fled from the repair shop with her automobile and without paying the owed amount demonstrate the existence of a prima facie case of petit larceny. The People are in error.

It is well settled that, in order to be sufficient, an information must both provide reasonable cause to believe that the defendant committed the offense charged, and contain sworn, non-hearsay allegations supporting every element of that offense, and the defendant’s commission thereof. The information thus must demonstrate the existence of a prima facie case, but the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt. When ruling on the sufficiency of an information, a court must accept the factual allegations as true, and, if the facts attested to by a complaining witness give rise to a reasonable inference that a defendant acted with the requisite mental culpability, an accusatory instrument will not be dismissed on the ground that the mental culpability element is inadequately premised. In determining whether an information is sufficient, the court is limited to reviewing the facts as they are set forth in the four corners of the document, but a court need not dismiss, and may allow the People time to formally cure, if they demonstrate both an intention, and an ability, to do so.

A prima facie case of petit larceny requires proof that the accused, acting with intent either to deprive another of property, or to appropriate that property to himself, herself or a third person, wrongfully takes, obtains or withholds that property from the owner thereof. For purposes of Penal Law Article 155, an owner is any person who has a right to possession superior to that of the person who takes it. A person or jural entity maintaining a garage for the repair of motor vehicles can acquire a lien on a car brought in for repair, and thus “may detain such motor vehicle until the amount due is paid, but in order for the lien to attach, the repair work must be at the request or consent of the owner. Moreover, the garage must be duly licensed. Indeed, a garage owner that refuses to return a car to its owner upon request where no valid lien exists has committed an act of conversion.

Insofar as Defendant’s pre-trial motion concerns the legal sufficiency of the accusatory instrument, the People’s assertion that the application is untimely is without merit. And since Mr. JW bases his supporting deposition not on what he witnessed, but on his having been advised that Defendant took her car from the garage, the information remains premised almost entirely on hearsay, thus rendering it defective. More to the point, however, is the failure of the accusatory instrument to demonstrate prima facie that the repair garage had a valid lien on the date of the incident, and that it thus also had a right of possession superior to Defendant’s. In addition to its other flaws, because it contains no attestations about the licencing status of Mr. JW or his garage, and because it contains no attestations that Defendant requested or consented to the repairs for which payment has not been made, the information before me fails to provide reasonable cause to believe that Defendant committed a larceny. And since the People have demonstrated neither an intention nor an ability to cure these defects, the motion must be granted.

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