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[T] People v. Farra S.6/1/2004
iction, and was not accompanied by a supporting deposition. The court found that, absent an allegation of the predicate conviction, the information was facially sufficient as to the violation only. The court reasoned that the purpose of requiring a special information for felony offenses was to prevent the prior crime from being presented to a jury. Since class B misdemeanors are tried only before a judge, there is no need to omit a prior conviction from the information, i.e., no prejudice would accrue to the defendant by the inclusion of the prior conviction in the accusatory instrument. The court's conclusion that the defendant's prior conviction must be alleged in the factual portion of the instrument or in a supporting deposition comports with the CPL provisions which define an accusatory instrument as including any supporting depositions and require a local criminal court, when determining facial sufficiency, to examine the accusatory instrument together with any supporting depositions. See CPL §§ 100.40; 170.65.
Based upon these principles of statutory construction and the reasoning set forth in People v Powlowski, supra, and People v Jackson, supra, the court concludes that the special information requirement of CPL § 200.60 is inapplicable to the prosecution of a violation of Penal Law § 240.37(2) as a misdemeanor and that a defendant's predicate conviction for violating Penal Law § 230.00 or § 230.05 may be alleged in a supporting deposition filed with the accusatory instrument. Therefore, contrary to the defendant's contention, the People's failure to allege her prior Penal Law § 230.00 conviction in the instant information does not render the information facially insufficient since the prior conviction is alleged in the supporting deposition of Assistant District Attorney Sofia.
(2) Sufficiency of Allegations Establishing Purpose of Prostitution
Nor is there any merit to the defendant's argument that the information fails to allege sufficient facts to establish that her purpose in loitering was for prostitution. An information charging a violation Penal Law § 240.37(2) is facially sufficient so long as it "details the prohibited conduct" by "delineation of specific conduct, in addition to the loitering, which the arresting officer must observe." People v Smith, 44 NY2d 613, 620 (1978). In Smith, the Court of Appeals upheld the facial sufficiency of the accusatory instrument where the "defendant's observed acts, superimposed on the arresting officer's knowledge of her previous arrest for prostitution, the general area known for its prostitution-related activities and the numerous arrests for prostitution at the spot where the operations took place, in combination, furnished" the basis for a finding of probable cause. People v Smith, supra at 622.
As set forth above, the instant information first tracks the language of Penal Law § 240.27(2) by alleging that Officer 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 passersby and one motorist." The information also alleges, in detail, the "the defendant's general deportment and surrounding circumstances", which support the charge that she was, in fact, loitering for the purpose of prostitution. These allegations include the defendant's attire (tight black leather pants, shoes with chrome tipped stiletto heels, and a V-cut shirt that revealed the sides of her breasts), the fact that she remained on the street rather than the side
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