Defendant was initially charged with two counts of Unlawful Receipt of Fare for Providing Access to Transit Authority Facilities (NYCRR Sec. 1050.4 ( c)), a violation , one count of Criminal Mischief in the Fourth Degree (PL Sec. 145.00), one count of Criminal Tampering in the Second Degree (PL Sec. 145.15), two counts of Petit Larceny (PL Sec. 155.25), two counts of Theft of Services (PL Sec. 165.15 (1)), thirteen counts of Criminal Possession of a Forged Instrument in the Third Degree (PL Sec. 170.20), and two counts of Obstructing Governmental Administration in the Second Degree (PL Sec. 195.05), all Class A misdemeanors.

By motion dated August 15, 2005, Defendant seeks the dismissal of all charges contained in the Criminal Court Complaint pursuant to CPL Sec. 100.40 and 170.35, asserting that the People's initial complaint was facially insufficient.

In response to Defendant's motion to dismiss, the People filed their Affirmation in Opposition dated September 13, 2005, as well as a Superceding Complaint, signed and dated September 12, 2005, which reiterated all of the charges stated above.

The Court has also reviewed Defendant's reply affirmation dated September 14, 2005, in which Defendant asserts that the Superceding Complaint is equally insufficient, and should be dismissed in its entirety. [*2]

Defendant's motion is granted in part, and denied in part for the reasons stated below.

FACTUAL STATEMENT

In both initial Criminal Court Complaint, as well as the Superceding Complaint the People assert that on May 18, 2005, at about 6:45 PM, Police Officer Hugo F. Cunto observed the Defendant at the Subway station located at Jay Street and Fulton Street, Brooklyn, NY. The officer allegedly watched the Defendant pick up a discarded Metrocard and "jam" the Metrocard vending machine by "placing the said Metrocard in the currency slot of the vending machine...causing the machine to no longer accept United States currency."

The officer then allegedly saw the Defendant receive United States currency from two individuals, "in exchange for which the Defendant swiped a Metrocard through the subway turnstile for each of these individuals, thereby allowing the said individuals to enter the transit system." This language is identical in both the initial complaint and the superceding complaint.

In both complaints, the Officer states that the Defendant himself did not enter the transit system beyond the turnstiles, and, at the time of his arrest, the Defendant was in possession of "thirteen altered Metrocards, a student Metrocard, and one full fare Metrocard." The Superceding Complaint adds that the "thirteen altered Metrocards" were "bent along the magnetic strip."

LEGAL ANALYSIS

Under CPL Sec. 100.15, every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729 (1986).

Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish; 1) each and every element of the offense charged, and 2) the Defendant's commission of said crime. If both these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 NY2d 133 (1987).

Applying these principles to the instant matter, the Unlawful Receipt, Criminal Mischief, Criminal Tampering and Petit Larceny charges are all facially sufficient. The Theft of Services, Possession of a Forged Instrument, and Obstructing charges are insufficient, and are dismissed.

(A)Obstructing Governmental Administration.

In People v. Zayas, 8 Misc 2d 879, 881, 797 NYS2d 897 (Crim. Ct., Kings Cty 2005), this Court reviewed the applicability of the Obstructing charge to a "Metrocard swipe" case. [*3]There, this Court found that "the obstructing statute, while broad, simply does not include the conduct asserted here." In fact, this Court asserted that for the People to charge a Defendant with Obstructing Governmental Administration for the actions alleged herein is to torture "the wording of the statute beyond meaning." 8 Misc 2d at 882.

This reasoning has been followed by a Court of concurrent jurisdiction, which conducted an extensive review of the legislative history of the Obstructing statute, and found nothing to support the novel interpretation of the statute advanced by the People. In fact, "the legislative history clearly shows that Obstruction of Governmental Administration involves violence or physical interference." See, People v. Verastegul, NYLJ, 8/22/05, p.20, col. 1-2.^[FN1]

There is no fact contained in either the People's initial complaint, nor in their Superceding Complaint, which would support an application of PL Sec. 195.05 to the actions of the Defendant alleged herein. The sale of Metrocard "swipes" simply does not "obstruct, impair and pervert the administration of the governmental function of the New York City Transit Authority of operating the transit facilities on a self-sustaining basis." It merely deprives the NYCTA (and/or the MTA) of revenue, in a non-violent fashion. Thus, the legislative history of the statute clearly does not support such an application of this law to this conduct.

Therefore, the charge of ObstructingGovernmental Administration in the Second Degree under PL Sec. 195.05 is hereby dismissed.

(B)Criminal Possession of a Forged Instrument

The People allege in their Superceding Complaint that at the time of his arrest, the Defendant was in possession of 13 Metrocards, all bent along the magnetic strip. On this basis, the People assert that the Defendant "with knowledge that it was forged, and with intent to defraud, deceive or injure another, utter(ed) or possess(ed) a forged instrument." See, PL Sec. 170.20.

In People v. Lopez, 8 Misc 2d 873, 876, 797 NYS2d 893 (Crim. Ct., Kings Cty 2005), this Court found that while a Metrocard was a "written instrument" under PL Sec. 170.00(1), the swiping of a bent Metrocard was neither forgery, nor possession of a forged instrument since a bent Metrocard "does not, and cannot, purport to be an authentic, fully authorized Metrocard as issued by the Transit Authority since once it is bent, it no longer resembles the card issued by the Transit Authority." 8 Misc 2d at 877-878.

Three Courts of concurrent jurisdiction have disagreed with this finding; Verastegul, and [*4]Dixon, supra, and People v. Roman, NYLJ 8/19/05, p. 21, col. 4-5, all on the basis that the bent Metrocard fools the "eye" of the turnstile reader machine into believing that the bent Metrocard is authentic. Thus, on the basis of this authority, the People assert here that the 13 bent Metrocards found on the person of the Defendant herein are forged written instruments.

Whether or not the bending of the Metrocard, and the swiping of the bent card through the turnstile constitutes forgery and/or possession of a forged instrument need not be addressed here. The 13 counts of Criminal Possession of a Forged Instrument in the Third Degree must be dismissed for a more basic reason.

Under CPL Sec. 170.20, a defendant is guilty of Criminal Possession of a Forged Instrument in the Third Degree "when, with knowledge that it is forged, and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument." (Emphasis added.) Case law is clear in establishing that the defendant's knowledge that an instrument is forged is an essential element of this offense. See, People v. Johnson, 65 NY2d 556, 560, 65 NYS2d 556 (1985), rearg. den., 66 NY2d 759, 497 NYS2d 1029 (1985); People v. DiMauro, 113 AD2d 840, 841, 493 NYS2d 506 (2d Dept., 1985), app. den., 67 NY2d 650, 499 NYS2d 1046 (1986).

In Johnson, the Court of Appeals specifically noted that several other courts had held that the "mere unexplained possession or negotiation of a forged instrument is itself a circumstance from which knowledge of its falsity may be presumed." However, "this court, following legislative intent Penal Law Sec. 15.15, 170.25) has implicitly rejected the rebuttable presumption approach toward establishing defendant's knowledge of forgery." 65 NY2d at 560-561.

Further, although knowledge that an instrument was forged "may be shown circumstantially by conduct and events, it may not be imputed solely from possession or presentation of the instrument." See, People v. Johnson, 124 AD2d 966, 967, 508 NYS2d 828 ( 4th Dept., 1986), app. den., 69 NY2d 829, 513 NYS2d 1036 (1987).

There is no fact alleged in either the People's initial complaint, nor in their superceding complaint, to support any inference that the defendant had knowledge that he was in possession of a forged instrument. While both complaints assert that the Defendant accepted United States currency from two individuals, and "swiped" both through the turnstile, neither complaint asserts that the Defendant made use of a bent Metrocard to allow his customers passage into the transit system. He is merely alleged to be in possession of 13 bent Metrocards at the time of his arrest.

Therefore, in the absence of any expression of the Defendant's purported knowledge that the 13 bent Metrocards were forged written instruments, the 13 counts of Criminal Possession of a Forged Instrument in the Third Degree are dismissed.

( C)Theft of Services

In Zayas, supra, this Court determined that the unauthorized sale of "swipes" from a defendant's unlimited use Metrocard constituted Petit Larceny in that by his actions, the defendant was depriving the Transit Authority of its property, that is, its profits. 8 Misc 2d at 884. This same result was reached in Dixon, supra. [*5]

The penal law recognizes a fundamental difference between a service and property. PL Sec. 155.25 defines Petit Larceny as the theft of property; PL Sec. 165.15 describes the theft of a service. PL Sec. 155.00(1) defines property as "any money, personal property, real property, computer data, computer program, thing in action, evidence of debt or contract, or any article, substance or thing of value..." Meanwhile, PL Sec. 155.00(8) defines a service as "labor, professional service, a computer service, transportation service, the supplying of hotel accommodations, restaurant services, entertainment, the supplying of equipment for use, and the supplying of commodities..." (Emphasis added.)^[FN2]

Here, Defendant is accused of accepting United States currency, and using a Metrocard to "swipe" these purchasers through the turnstile. If we view this act as a theft of the Transit Authority's property (profits), then it cannot be the theft of a service. Perhaps, if the Defendant were to "swipe" himself though the turnstile, then he could be seen as stealing a transportation service, but if he is selling the "swipe," under the facts alleged by the People herein, he is taking property. Simply put, a service is not property, and property is not a service, and the penal law recognizes the difference between the two.

A criminal defendant is entitled to receive fair notice of the nature of the charges against him, in order for he or she to prepare a defense against said charges. See, People v. Shack, 86 NY2d 529, 540, 634 NYS2d 660 (1995); People v. Fitzgerald, 45 NY2d 574, 579-580, 412 NYS2d 102 (1978), rearg. den., 46 NY2d 837, 414 NYS2d 1055 (1978). Yet, how is the Defendant to prepare for the trial of the charges alleged herein? He is charged with taking both a service and property. As discussed above, these are two legally inconsistent concepts. Yet, the People seek to apply both laws to the same act, that is, "swiping" individuals through a turnstile after accepting payment from these individuals.

Consistent with the analysis stated above, this Court has previously ruled that the act of selling a "swipe" of a Metrocard is a theft of property, and not the theft of a service (See Zayas, supra). Therefore, under the facts of this case, and in an effort to allow the Defendant a reasonable opportunity to prepare a defense consistent with the facts alleged by the People herein, the charge of PL Sec. 165.15, Theft of Services, is hereby dismissed.^[FN3]

(D) All Other Charges [*6]

The remaining charges on the docket are Unlawful Receipt of Fare, Criminal Mischief, Criminal Tampering, and Petit Larceny. Under the facts alleged in the Superceding Criminal Court Complaint, these charges are all sufficiently plead by the People.^[FN4]

The Defendant is accused of "jamming"a Metrocard into the currency slot of a Metrocard sales machine, thus rendering the machine inoperable, and then selling "swipes" to individuals who wished to pass through the turnstile and use the subway system.

Under PL Sec. 145.15, a Defendant is guilty of Criminal Tampering in the Second Degree when, "having no right to do so nor any reasonable ground to believe that he has such right, he tampers...with property of a...common carrier..." While it is an affirmative defense that "the defendant did not engage in such conduct for a larcenous or otherwise unlawful or wrongful purpose," a Defendant's intent to commit this crime can be inferred from the act itself. See, People v. Casey, 181 Misc 2d 744, 746, 698 NYS2d 404 (App. Term. 2d Dept., 1999), aff., 95 NY2d 354, 717 NYS2d 88 (2000). See, also, People v. Gittens, 279 AD2d 291, 719 NYS2d 230 (1st Dept., 2001), lve to app. den., 96 NY2d 829, 729 NYS2d 449 (2001)(Defendant engaged in tampering within the meaning of PL Sec. 145.15 when he pushes metal rod up and down inside subway turnstile's token slot.)

Further, under PL Sec. 145.00, a defendant is guilty of Criminal Mischief in the Fourth Degree when "having no right to do so nor any reasonable ground to believe that he has such right, he (1) intentionally damages property of another person."

Since the Metrocard vending machine is, without dispute, the property of the NYCTA, the alleged actions of the defendant, in "jamming" the vending machine with a discarded Metrocard, could be viewed as tampering with, and damaging the property of the NYCTA.

Further, as discussed above, under PL Sec. 155.25, a defendant is guilty of Petit Larceny when he steals property. Under NYCRR 1050.4( c), a defendant is guilty of Unlawful Receipt of Fare for Providing Access to Transit Authority Facilities when he "not being an employee of the (NYCTA)...sell...any version of any fare media or otherwise authorize access to or use of the facilities, conveyances or services of the (NYCTA) without...written permission of a representative of the (NYCTA)..."

Clearly, the alleged act of selling "swipes" of a Metrocard fits the definition of Unlawful Receipt of Fare described above, and, if we view the "swipe" of a Metrocard as also being the property of the NYCTA, then under the authority of Zayas, supra, the defendant could also be seen as stealing the property of the NYCTA.

Defendant cites the case of People v. Harris, NYLJ, 4/24/00, p. 35, col. 3, which dismissed a prosecution for violation of PL Sec. 155.25 and NYCRR 1050.4( c) due to the [*7]People's failure to allege "that the defendant obtained the Metrocard illegally, or that he was in unlawful possession of the Metrocard. It does not allege how much money he was receiving in exchange for a "swipe." As stated in Defendant's motion, "the complaint does not even distinguish between a pay-per-ride Metrocard and unlimited Metrocard, tell us which the defendant was in possession of, or tell us how many fares were contained on the card."

Defendant's reliance on Harris is misplaced. While the instant complaint does not provide any description of the Metrocard the Defendant herein allegedly used, under the totality of the circumstances, the People have provided sufficient facts to establish reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, Dumas, supra.

Officer Cunto states that he observed the Defendant render the Metrocard vending machine unusable, then accept United States currency from two individuals, then "swipe" those individuals through the turnstile. At the time of his arrest, the Defendant is alleged to have possessed a full fare Metrocard, as well as a student Metrocard.^[FN5] The People are afforded the opportunity to prove their allegations based upon these facts, just as the Defendant has a full opportunity to present his defense.

Therefore, the charges of Unlawful Receipt of Fare, Criminal Mischief, Criminal Tampering, and Petit Larceny are deemed sufficient, and Defendant's August 15, 2005 motion to dismiss these charges is denied.

All other arguments advanced by Defendant in his motion to dismiss have been reviewed and rejected by this court as being without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Brooklyn, New York October 24, 2005

_______________________________ Hon. John H. Wilson, JCC