Defendant Steven Fishman, was arraigned on January 17, 2014, and charged with petit larceny pursuant to Penal Law § 155.25; unauthorized use of a vehicle in the third degree (PL §165.05 [1]); criminal possession of stolen property in the fifth degree (PL § 165.40); and resisting arrest (PL § 205.30).

On April 23, 2014, after the passage of approximately 150 days, defendant filed a motion to dismiss the complaint for facial insufficiency of the accusatory instrument and/or for violation of the "speedy trial" statute, Criminal Procedure Law § 30.30.

The People oppose defendant's motion.

The court has reviewed the defendant's moving and reply papers, the People's response, and relevant statutes and case law, and we now deny defendant's motion to dismiss the charges for facial insufficiency but grant his motion to dismiss pursuant to CPL Section 30.30.

An accusatory instrument is a non-waivable jurisdictional prerequisite to a criminal prosecution. People v Case, 42 NY2d 98, 396 N.Y.S.2d 841 (1977). It must contain non-hearsay allegations which establish, if true, every element of the offense charged and the defendant's commission thereof, C.P.L. § 100.40 (1)(c). Mere conclusory allegations will render the instrument defective, People v Dumas, 68 NY2d 729, 506 N.Y.S. 2d 319 (1986).

The People filed a superseding information on March 11, 2014. A facially insufficient information may be cured by filing a superseding information which may allege new facts and bring additional charges (CPL 170.65[2]) at any time prior to the opening of trial. CPL 100.05; People v Thomas, 4 Misc 3d 57 (Appellate Term, 2nd Dept, 2004).

The superseding information charges defendant with attempted petit larceny pursuant to Penal Law §§ 110/155.25; attempted unauthorized use of a vehicle in the third degree (PL §§ 110/165.05 (1); attempted criminal possession of stolen property in the fifth degree (PL § 165.40); and resisting arrest (PL § 205.30). Upon the filing of a superseding information, the [*2]facial sufficiency of the superseding information becomes at issue in any facial sufficiency motion under consideration . (People v McDonald, 179 Misc 2d 479, 481 [Crim Ct, NY Co, 1999]).

In order to be considered facially sufficient, an accusatory instrument together with any supporting depositions, must allege facts of an evidentiary character supporting or tending to support the offenses charged, (C.P.L. § 100.15[3]), and provide reasonable cause to believe that the defendant committed the offense charged, (C.P.L. § 100.40[1][b]).

The Legislature's omission of the requirement that in order for someone to be guilty of an attempt, the underlying crime must not have been consummated permits the People to overprove their case, i.e., to prove the actual assault where a charge of attempted assault is brought. (See, Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 110.00, at 64; People v Burke, 186 Misc 2d 278 [Crim Ct, Kings Co, 2000]). This also means that for facial sufficiency considerations the elements required are the same for an attempt as for the underlying offense.

The elements of petit larceny, a Class A misdemeanor pursuant to Penal Law §§ 155.25 are presented in the statute as:

A person is guilty of petit larceny when he steals property.

The elements of unauthorized use of a vehicle in the third degree (PL §§ 165.05 (1) are presented in the statute as

The factual portion of the superseding accusatory instrument states, in pertinent part, that:

The elements of petty larceny are not met by these factual allegations. Courts have held that in order to establish a charge of petit larceny, the People are required to prove ownership of the property in question, a taking or asportation of that property, that the taking was without the owner's consent, that it was done by the defendant, and that it was done with the intent to deprive the owner of the property or to appropriate same to the defendant or a third person. People v Shurn, 69 AD2d 64 (Second Dept, 1979). There is no allegation here that the property or the vehicle was owned by another person. There are no facts supporting the allegation that defendant was stealing the property that he removed from the vehicle, only that he was seen to remove property.

The elements of unauthorized use of a vehicle are not met by these factual allegations. Courts have held that breaking into another's car and having a momentary presence therein, without obtaining the means to set the car in motion, does not constitute "use" in the sense of domain and control over the vehicle. People v Gray, 154 AD2d 547, (2nd Dept, 1989); In re Javier F., 3 AD3d 493 (2nd Dept, 2004).

The elements of criminal possession of stolen property are not met by the factual allegations above. As noted above, there are no allegations supporting the circumstance of the property as being stolen. For example, in People v Fortune, evidence was sufficient to sustain conviction of criminal possession of stolen property in the fifth degree when defendant was stopped on the street less than three and one half blocks away from a church center [and] he was carrying cans of beef stew that were property of the center. People v Fortune 190 AD2d 748 (2nd Dept, 1993; leave to appeal denied 81 NY2d 771, 1993)

The factual allegations presented do support the elements of resisting arrest. Courts have held that "... if a police officer had reasonable cause to believe that an offense was being committed at the time of confrontation then he has a right to arrest. People v Mohamadou, 182 Misc 2d 77, 81 (Crim Ct, NY County, 1999). In fact, a defendant can be convicted of Resisting Arrest even if he was never charged with the particular offenses for which he was being arrested at the time he resisted arrest. See, People v. Thomas, 239 AD2d 246, 247, (1st Dept, 1997), citing, Matter of James T, 189 AD2d 580, (1st Dept, 1993)

Viewing the allegations in a light most favorable to the People (People v Contes, 60 NY2d 620, 621[1983]), we find the accusatory instrument sufficient only on the charge of resisting arrest.

The offenses with which defendant is charged are all Class A misdemeanors. Pursuant to CPL 30.30 (1)(b), the People are allowed 90 days to prepare for trial. As defendant has shown that more than 90 days have passed since defendant's arraignment on January 17, 2014, it now falls to the People to show that portions of that time should be excluded from the time chargeable to them. People v Berkowitz, 50 NY2d 333, 349 (1980).

In their memorandum in opposition to the defendant's motion, the People did not respond to defendant's allegations regarding their violation of the speedy trial rule. The People have the burden to provide support for excludable time, so no time is excluded from the 150 days that [*4]have expired between January 17, 2014 and April 23, 2014, when defendant served and filed his motion to dismiss. The superseding information served and filed on March 11, 2014 may not be considered as having stopped the speedy trial clock because on the subsequent adjourn date of April 23, 2014, the Record of Court Action is silent and the People have not alleged that they answered ready on that date, as is required by People v Sibblies (22 NY3d 1174, 2014).

We therefore charge the People with the entire 150 days of delay.

Defendant's motion to dismiss all charges for facial insufficiency is denied. The remedy of dismissal for facial insufficiency would be far too extreme in any case, as a facially insufficient complaint may be cured by the People's filing of a superseding information. A superseding information may be filed at any time prior to the opening of trial and may allege new facts and bring additional charges (CPL 170.65[2]), and in fact, more than one such superseding accusatory instrument may be filed in the course of the same criminal action. CPL 100.05; People v Thomas, 4 Misc 3d 57 (Appellate Term, 2nd Dept, 2004).

Defendant's motion to dismiss the action on speedy trial grounds however, is granted. The people are charged with 150 days of delay. The dismissal is stayed for 30 days.

Brooklyn, New YorkDena E. Douglas