When, precisely, is a fact that is alleged in an Information an insufficient "conclusory allegation"? This is the primary question that defendant, charged with Criminal Mischief in the Fourth Degree, Penal Law § 145.00(1), poses in his motion to dismiss for facial insufficiency. For the reasons that follow, defendant's motion is DENIED.^[FN1]

According to the accusatory instrument, on July 26, 2014, defendant kicked the door to his girlfriend's apartment and damaged the chain lock. He did so without his girlfriend's permission or authority.

Defendant filed the instant motion on October 30, 2014, and the matter has been sub judice since then.

The Information, sworn out by Detective Vito Ragolio, provides that

Defendant argues that two elements of criminal mischief are insufficiently pled - damage to property and intent. As to the damage element, defendant complains that the Information contains a conclusory allegation of damage that is insufficiently specific. As to intent, defendant argues that the Information does not allege "facts of an evidentiary nature establishing the culpable mens rea of intent." For the reasons that follow, the Court disagrees with both of these arguments.

A person commits Criminal Mischief in the Fourth Degree under Penal Law § 145.00(1), when "having no right to do so nor any reasonable ground to believe that he or she has such right, he ... [i]ntentionally damages property of another person." While the statute itself does not define the term "damages," it is beyond dispute that the term has its ordinary meaning: "injury or harm to property which reduces its value or usefulness." People v. Collins, 288 AD2d 756, 733 N.Y.S.2d 289 (2d Dept 2001). See also People v. Stockwell, 18 Misc 3d 1145(A), 859 N.Y.S.2d 898 (Watertown City Ct. 2008). As for the intent element, the statute requires that the defendant's "conscious objective" be to cause damage to the property of another person. Penal Law § 15.05(1).

A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518 ( 2014); People v Alejandro, 70 NY2d 133, 138-39, 517 N.Y.S2d 927, 930-31, 511 N.E.2d 71, 74 (1987) . Accordingly, a misdemeanor Information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." Kalin, 12 NY3d at 228-29, 906 N.E.2d at 383, 878 N.Y.S.2d at 655 (citing People v Henderson, 92 NY2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40 (1)(c)). This is known as "the prima facie case requirement." Kalin, 12N.Y.3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.

The prima facie case requirement does not necessitate that the Information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the information need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v Casey, 95 NY2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236. A court reviewing for facial insufficiency must subject the allegations in the information to a "fair and not overly restrictive or technical reading," id., assume that those allegations are true, and consider all reasonable inferences that may be drawn [*2]from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721-22, 967 N.E.2d 1160, 1166-67 (2012). See also Casey, 95 NY2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236. Under these principles, the Information is facially sufficient.

1. The Allegation of Damage Is Not a "Conclusory Allegation"

For the "damages" element of criminal mischief, as for any other, the accusatory instrument must contain "facts of an evidentiary character" that support it. CPL § 100.15(3). The Court of Appeals has repeatedly held that "conclusory allegations" are not "facts of an evidentiary character." Thus, for example, in People v. Dumas, 68 NY2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986), an accusatory instrument was insufficient when it contained "a conclusory statement that the defendant sold marihuana, but [was not] supported by evidentiary facts showing the basis for the conclusion that the substance sold was actually marihuana." Similarly, in People v. Dryden, 15 NY3d 100, 104, 905 N.Y.S.2d 542, 931 N.E.2d 526 (2010), the same was true for a "conclusory statement that an object recovered from a defendant is a gravity knife." At a minimum, the accusatory instrument should have "explain[ed] briefly, with reference to [the deponent's] training and experience, how he or she formed the belief that the object observed in defendant's possession was a gravity knife." Id. Finally, In People v. Lebron, 22 Misc 3d 217, 220—21, 866 N.Y.S.2d 560 (Crim Ct NY County 2008), the court found facially insufficient a complaint charging the defendant with possessing drugs and drug paraphernalia recovered from "the defendant's apartment," absent "evidentiary facts" that would support the conclusion that the defendant "owned or occupied" the apartment. See also People v. Taylor-Atkins, 42 Misc 3d 1214(A), 986 N.Y.S.2d 867 (Crim. Ct. NY County 2014) (same, where allegation was that police officer found marijuana in "defendant's locker").

But what, then, is the missing fact of an "evidentiary character" that rendered these particular allegations insufficient?

A fact of an "evidentiary character" is a "nonconclusory description[] of what the deponent personally observed, heard or experienced." People v. Concepcion, 36 Misc 3d 551, 945 N.Y.S.2d 543 (Crim. Ct. NY County 2012) (citing Dumas). It is "the written equivalent of competent and relevant testimony which the deponent could give orally if called as a witness." People v. Phillipe, 42 Misc 2d 574, 578, 538 N.Y.S.2d 400, 404 (Crim. Ct. Kings County 1989 ). Thus, where the fact at issue is a conclusion that derives solely from another fact or facts that have not been alleged, that fact is a "conclusory allegation" - whether it be the claim that a substance is marijuana or the claim that a knife is a prohibited gravity knife. But where the fact at issue derives directly from the deponent's own experience, or can naturally be determined from other facts alleged, it is not.

Taylor-Atkins provides one example of this distinction. An officer's allegation that a particular locker was "defendant's locker" was a conclusory allegation because it derived from some other fact - perhaps "the defendant's name was on the locker ... defendant admitted the locker was his or was seen using it, ... the officer reviewed a document or record establishing that the defendant had rented the locker, or ... defendant had the key or the combination to its lock" - that had not been alleged. 42 Misc 3d at 1214(A), 986 N.Y.S.2d at 867. On the other hand, if the officer had alleged that he found something in his own locker, that fact would not be a conclusory allegation, since it would have derived from his own personal experience.

Another example is People v. Morris, 44 Misc 3d 810, 991 N.Y.S.2d 288 (Crim. Ct. NY [*3]County 2014). There, deponent's allegation that she suffered "substantial pain" was not a "conclusory allegation" because it could naturally be determined from other facts that were alleged; specifically, that the defendant "slapped the complainant and bit her in the shoulder" in the context of an "argument" in which the parties were "fighting."

The instant case is in this latter category. The allegation that the defendant "damaged" the chain lock to his girlfriend's door flows naturally from another fact alleged - that the defendant kicked that same door. It is therefore not an insufficient "conclusory allegation."

Nor is there a problem with a lack of specificity. Defendant is correct that the Information does not allege precisely how his conduct damaged the chain lock. But there is no requirement that it do so. Criminal Mischief in the Fourth Degree under Penal Law § 145.00(1) occurs whenever a person intentionally damages someone else's property without permission or authority, regardless of the nature or degree of the damage. Compare § 145.00(1) with § 145.00(3) (requiring that the facts establish a particular degree of damage) and § 145.00(4) (requiting that the facts establish a particular type of damage). The Information here alleges that the defendant intentionally damaged someone else's property; it identifies what was damaged and how he is alleged to have damaged it. It therefore provides him with "sufficient notice to prepare a defense and [is] adequately detailed to prevent [him] from being tried twice for the same offense." People v Casey, 95 NY2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236.

For all of the above reasons, the Information sufficiently pleads the "damages" element, and is not based on an insufficient "conclusory allegation."

2. The Information Sufficiently Pleads Intent

More easily dispatched is defendant's secondary argument that the Information insufficiently pleads intent. There is a reasonable inference that when defendant "kicked" his girlfriend's door, thereby damaging the lock, he did so deliberately - that is, his goal was to cause damage - and not recklessly or by accident.

Once again, Taylor-Atkins provides a helpful frame of reference. There, this Court found that an Information charging criminal mischief did not sufficiently allege intent, where it provided merely that the defendant "forcefully open[ed] the door " of a building "causing the glass in the door to shatter." 42 Misc 3d at 1214(A), 986 N.Y.S.2d at 867. The Court noted that:

This case clearly is one of those "ordinary" cases. While "doors are meant to be opened," id., they are not meant to be kicked. Accordingly, the allegation that the defendant kicked a door and that this caused its chain lock to break sufficiently pleads intent. To be sure, that is not the only inference that can be drawn. Perhaps, as defendant suggests, he did so with some intent other than to damage [*4]it, such as to catch the complainant's attention, or prop it open. But an Information need not allege facts that only support the inference of guilt. As long as a reasonable inference supporting a prima facie case can be drawn - as it can here - it is facially sufficient.

Accordingly, the Information here sufficiently pleads intent.

For the foregoing reasons, defendant's motions to dismiss for facial insufficiency is denied