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[T] People v. Farra S.6/1/2004
This opinion is uncorrected and will not be published in the printed Official Reports.
The defendant stands charged with Loitering for the Purpose of Engaging in Prostitution (Penal Law § 240.37 ) and Disorderly Conduct (Penal Law § 240.20 ). The information alleges that April 8, 2004, at approximately 1:20 a.m., on Park Avenue between 29th and 30th Streets, in New York County, Police Officer Pasquale Rocchio observed the defendant "remain and wander about the above vicinity, a public place, for a period of approximately thirty minutes during which time the defendant beckoned to passing traffic or motorists, stopped or attempted to stop approximately four passersby and three motorists and engaged in conversations with approximately one passerby and one motorist." The information further alleges that:
the defendant's general deportment and surrounding circumstances indicated that the defendant was loitering for the purpose of prostitution in that the defendant was wearing black leather pants, high heel shoes with chrome tipped stilettos, and a V-cut shirt, which was revealing in that the pants were tight to her legs and the cut of the shirt revealed the sides of the defendant's breasts, the defendant was in the street, there were no open stores or restaurants in proximity to the defendant, none of the motorists approached were livery, taxi or bus drivers, defendant was not waiting at a bus stop or taxi stand, defendant was at the above location on other occasions engaging in the same conduct and [Officer Rocchio] is experienced in the field of prostitution crimes in the [Officer Rocchio] has effected or assisted in over 200 prostitution arrests.
[Officer Rocchio] further states that he observed the defendant obstructing vehicular traffic by approaching motorists stopped at a traffic light. Defendant's conduct created a public disturbance/inconvenience in that it caused disruption of the normal flow of traffic when the light would turn green and other vehicles would have to honk their horns or drive around defendant.
The People have filed a supporting deposition of Assistant District Attorney Michael Sofia who alleges that the defendant's criminal record reveals that she was convicted of violating Penal Law § 230.00, Prostitution, on November 10, 2003.
In her omnibus motion, the defendant moves, inter alia, for an order dismissing as facially insufficient the loitering for the purpose of engaging in prostitution count. Upon consideration of the facts and the relevant law, the defendant's motion is denied.
A criminal court information is sufficient on its face if it contains non-hearsay factual allegations which, if true, establish every element of the crime charged and provides reasonable cause to believe that the defendant committed it. See CPL §§ 100.40 (1); 100.15(3); People v Alejandro, 70 NY2d 133 (1987); People v Dumas, 68 NY2d 729 (1986). Penal Law § 240.37(2) provides that " ny person who remains or wanders about in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of prostitution, or of patronizing a prostitute... shall be guilty of a violation and is guilty of a class B misdemeanor if such person has previously been convicted of a violation of this section or of sections 230.00 or 230.05 of the penal law."
The defendant argues that the information is facially insufficient in that it (1) fails to allege that she had the requisite prior conviction for a violation of Penal Law § 2
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