Appeals from judgments of the Criminal Court of the City of New York, Kings County (Evelyn J. Laporte, J.), rendered August 12, 2010. The judgments convicted defendant, upon his pleas of guilty, of criminal sale of marihuana in the fourth degree (Appeal No. 2011-1966 K CR) and theft of services (Appeal No. 2011-2137 K CR), respectively.

ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the judgments of conviction are affirmed.

In a misdemeanor complaint dated May 4, 2010, a New York City police officer alleged that he was on duty at the Fulton Street and Ralph Avenue subway station on that date and observed defendant and another person purchase a single-fare metrocard and proceed to a turnstile. The companion used the card to go through the turnstile and enter the subway system, and handed the card back to defendant, who had remained on the other side of the turnstile. Defendant then presented the card to an MTA booth clerk, and, after a conversation with defendant, the substance of which was inaudible to the officer, the clerk allowed defendant to enter the subway system via an exit gate. The accusatory instrument further alleged that the arresting officer had been told by the booth clerk that defendant had represented to the clerk that he had purchased the metrocard and that it was "not working," which was the reason the clerk had permitted defendant to enter the system. The complaint charged defendant with, among other things, theft of services (Penal Law § 165.15 [3]). On May 28, 2010, following an unrelated incident, the People charged defendant, in a separate accusatory instrument, with criminal sale of marihuana in the fourth degree (Penal Law § 221.40) and other marihuana-related offenses.

On July 7, 2010, purporting to convert the first misdemeanor complaint to an information via the arresting officer's supporting deposition, the prosecutor asked that the reference to the booth clerk's statement be redacted. Although defense counsel questioned whether, absent that statement, the accusatory instrument was facially sufficient to allege theft of services, the Criminal Court allowed the redaction and pronounced the redacted document an information. Subsequently, before a different judge, defendant waived the right to be prosecuted by information and pleaded guilty to theft of services in satisfaction of one of the accusatory [*2]instruments and to criminal sale of marihuana in the fourth degree in satisfaction of the other accusatory instrument.

On appeal, defendant contends that, absent the clerk's statement, the factual portion of the first accusatory instrument, charging, among other offenses, theft of services, was insufficient to establish reasonable cause to believe that defendant had entered the subway system by deception. Defendant also argues that, should the theft of services count in the first accusatory instrument be found jurisdictionally defective and the judgment convicting him of theft of services reversed, the judgment convicting him of criminal sale of marihuana in the fourth degree must also be reversed.

As defendant waived the right to be prosecuted by information, the instrument charging defendant with theft of services need only satisfy the criteria for a misdemeanor complaint. A misdemeanor complaint is sufficient on its face when it substantially conforms to the requirements of CPL 100.15 (CPL 100.40 [4] [a]) and when the factual portion provides reasonable cause to believe that the defendant committed the offense charged (CPL 100.40 [4] [b]). The factual allegations may be "based either upon personal knowledge of the complainant or upon information and belief" (CPL 100.15 [3]). Reasonable cause exists "when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10 [2]).

Thus, to establish reasonable cause, which the courts equate with probable cause to arrest (People v Maldonado, 86 NY2d 631, 635 [1995] People v Johnson, 66 NY2d 398, 402 n 2 [1985]), there is no requirement that the facts, whether hearsay or otherwise, be sufficient to allege a prima facie standard for informations (CPL 100.15 [3] 100.40 [1] [c] People v Jones, 9 NY3d 259, 261-262 [2007]). Probable cause determinations require that the "articulated, objective facts" and "the reasonable inferences to be drawn therefrom" (People v Mercado, 68 NY2d 874, 877 [1986]) suffice to "lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed" (People v McRay, 51 NY2d 594, 602 [1980] see also People v Carrasquillo, 54 NY2d 248, 254 [1981] [a reasonable belief that there is probable cause for an arrest requires that "it must appear to be at least more probable than not that a crime has taken place and that the one arrested is the perpetrator"]). While "conduct equally compatible with guilt or innocence will not suffice" (People v Carrasquilo, 54 NY2d at 254), it is not necessary that all conceivable innocent explanations for the accused's conduct be eliminated (e.g. People v Omowale, 83 AD3d 614, 618 [2011] ["innocent explanations for behavior do not prevent police officers from acting on their well-founded suspicions"], citing People v Daye, 194 AD2d 339, 340 [1993] see also Villalobos v County of Nassau, 15 Misc 3d 135[A], 2007 NY Slip Op 50751[U], *2 [App Term, 9th & 10th Jud Dists 2007]).
The redacted misdemeanor complaint states that the arresting officer observed defendant and a companion purchase a single-fare metrocard, which the companion used to enter the transit system. The companion handed the same card back to defendant, who then "present[ed]" the card to an MTA booth clerk. After a conversation with defendant, the clerk allowed defendant to enter the subway system through an exit gate. As the arresting officer knew that defendant and his companion had purchased a single-ride metrocard, which the companion had already successfully used, it was reasonable for the officer to infer that, whatever defendant told the clerk in relation to that card to induce the clerk to admit him into the subway system, defendant's conduct was more likely than not to be a "deception" within the meaning of the statute (Penal Law § 165.15 [3]). Reasonable cause/probable cause determinations are governed by " a flexible common-sense standard' " (People v Batista, 261 AD2d 218, 221 [1999], quoting Texas v Brown, 460 US 730, 742 [1983]), and giving these facts "a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]), we are satisfied that the [*3]misdemeanor complaint was facially sufficient to allege the offense of theft of services.

Accordingly, the judgments of conviction are affirmed.

Weston, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: April 18, 2014