People v. Ngom (Bassirou)

72 Misc. 3d 142(A), 2021 NY Slip Op 50863(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: September 16, 2021
• Docket: 570894/16
• Status: Unpublished

Opinion

People v Ngom (2021 NY Slip Op 50863(U)) [*1]

People v Ngom (Bassirou)

2021 NY Slip Op 50863(U) [72 Misc 3d 142(A)]

Decided on September 16, 2021

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 16, 2021

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Edmead, P.J., Brigantti, Hagler, JJ.
570894/16

The People of the State of New York, Respondent,

against

Bassirou Ngom, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Ushir Pandit-Durant, J.), rendered November 21, 2016, convicting him, upon a plea of guilty, of disorderly conduct, and imposing sentence.

Per Curiam.

Judgment of conviction (Ushir Pandit-Durant, J.), rendered November 21, 2016, affirmed.

Since defendant waived prosecution by information, the accusatory instrument is assessed under the reasonable cause standard applicable to a misdemeanor complaint (see People v Dumay, 23 NY3d 518, 522 [2014]). So viewed, the accusatory instrument was jurisdictionally valid at least with respect to one, if not all of the charged misdemeanors (i.e. unlicensed general vending and trademark counterfeiting).

The instrument recited that the arresting officer observed defendant standing on a public sidewalk on Fifth Avenue, in front of a sheet upon which more than two dozen handbags were laid out in four neat rows; that the handbags bore trademarks of Louis Vuitton, Michael Kors and Tory Burch that were determined to be counterfeit based upon specifically enumerated features distinguishing them from genuine handbags; that the allegedly counterfeit trademarks were registered and in use; and that defendant was not displaying a license issued by the Department of Consumer Affairs and admitted that he did not have one. These factual allegations were sufficient to support the charged offenses since they provided adequate notice to enable defendant to prepare a defense and invoke his protection against double jeopardy (see People v Kasse, 22 NY3d 1142 [2014]; People v Abdurraheem, 94 AD3d 569 [2012], lv denied 19 NY3d 970 [2012]). Defendant's argument that the instrument failed to allege that he was actually selling or offering for sale the handbags ignores the inference of an offer of sale that can be drawn from the factual context - a large number of handbags set forth on a sheet on a Fifth Avenue sidewalk, that were displayed in a manner indicating that they were for sale (see People v Murphy, 31 Misc 3d 141[A], 2011 NY Slip Op 50827[U] App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011], lv denied 17 NY3d 820 [2011]; see also People v Drelich, 32 NY3d 1032 [2018]) - as well as the [*2]officer's statement, based upon his training and experience, that the display is consistent with an offer of sale.

Since at least one of the charged misdemeanor offenses was jurisdictionally valid, the court had jurisdiction to accept defendant's plea to the uncharged lesser offense of disorderly conduct (see People v Keizer, 100 NY2d 114, 117-119 [2003]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: September 16, 2021