People v. Hayward — 54 Misc. 3d 19

Majority

p. 19

[43 NYS3d 844]

The People of the State of New York, Respondent, v Enver Hayward, Appellant.

Supreme Court, Appellate Term, First Department,

October 21, 2016

APPEARANCES OF COUNSEL

Center for Appellate Litigation, New York City (Jan Hoth and Robert S. Dean of counsel), for appellant.

p. 20

Cyrus. R. Vance, Jr., District Attorney, New York City (Oliver McDonald of counsel), for respondent.

OPINION OF THE COURT

Judgment of conviction, rendered June 9, 2015, reversed, on the law, accusatory instrument dismissed, and surcharge, if paid, remitted.

The information charging defendant with aggressive begging (see Administrative Code of City of NY § 10-136 [b] [1]) was jurisdictionally defective, because it failed to allege facts establishing a required element of the charge—that defendant did “[s]olicit, ask or beg . . . with the purpose of obtaining an immediate donation of money or other thing of value or soliciting the sale of goods or services” (Administrative Code § 10-136 [a] [2]). In this regard, the sworn factual allegations that defendant was on a public sidewalk when he “approach [ed] pedestrians while holding CDs,” spoke to these individuals and followed them for approximately one block, were insufficient to support an inference that defendant’s purpose was to “obtain [ ] an immediate donation” or “solicit[ ] [a] sale” (compare People v Ananaba, 49 Misc 3d 127 [A], 2015 NY Slip Op 51376 [U], *1 [App Term, 1st Dept 2015] [defendant handed compact discs to pedestrians and asked “for five dollars”], lv denied 26 NY3d 1142 [2016]).

Lowe, III, P.J., Schoenfeld and Ling-Cohan, JJ., concur.