Far from the most common and equally far from being one of the more complex white collar fraud and theft crimes in New York, Fraudulent Accosting, pursuant to New York Penal Law 165.30, is nonetheless a serious offense. In fact, as a misdemeanor crime, NY PL 165.30 is punishable by up to one year in jail on either Rikers Island or the local jail in the county where you were arrested. Briefly, you are guilty of Fraudulent Accosting if and when, in a public place, you accost another person with the intent to defraud that person into giving you money or property by means of a trick, swindle or confidence game. Breaking this down further, in order for you to be guilty of Fraudulent Accosting you must (1) accost another person, (2) in a public place, (3) while having the intent to defraud that other person of money or property, and (4) do so by trick, swindle, or confidence game. See Jury Charges in NY Criminal Cases §35.08 (H. Leventhal ed. 1989).
As with many criminal statutes, a definition or statement of elements rarely, by itself, is clear enough to define a crime. To better understand criminal offenses, a review of court decisions is not merely helpful, but sometimes critical. To that end, a recent decision stemming from New York County (Manhattan) is worthy of review as it sheds greater light on New York Penal Law 165.30. In People v. Rodney Watts, 2011CN010203, NYLJ 1202556652476, at *1 (Crim., NY, Decided May 22, 2012), the prosecutors charged the defendant with Fraudulent Accosting after he allegedly sold four tickets to the Book of Mormon for $800. The tickets turned out to be fraudulent and counterfeit tickets. The criminal court complaint (actually called an information) stated that the incident occurred inside 335 Avenue of the Americas and when the defendant met with the undercover police officer he stated in substance that he was there to meet for the tickets. The question before the court was whether or not the information (complaint) was legally sufficient to establish the charge of Fraudulent Accosting. Although the court analyzed various elements, the main two it address involved the definitions of “accost” and “public place.”
First dealing with “accost,” the court examined People v. Tanner, 153. Misc.2d 742 (Crim. Ct. NY County 1992). There, a defendant was behind a table selling fake Hard Rock Cafe tee shirts. In dismissing that case, The Tanner Court reasoned that the defendant never approached any party or moved from the table. More specifically, the Tanner Court found that a “defendant, minimally, [must] take some affirmative action to make contact with the victim for the purpose of involving that individual in the scam” to establish “accosting.” See People v. Tanner, 153 Misc.2d at 746. Agreeing with the Tanner Court’s reasoning, the Watts Court found that the accost element of Fraudulent Accosting had been met. The statement made by Watts in the information, “I’m here to meet for the tickets” and the actual meeting of the undercover police officer to sell the same, indicated this was not a passive or uninvolved transaction.
Although the Watts court found that the element of “accost” was satisfied, the same could not be said for another element, “public place.” Examining New York Penal Law 240.00(1), a “public place” is “a place which the public or a substantial group of persons has access, and includes, but is not limited to…hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments not designed for actual residence.” While the information in Watts gave a precise location “inside 1335 Avenue of America’s,” no other statement or facts established any characteristics of that location and whether or not it was a “public place.” In short, the information was completely lacking in that regard. Certainly, the prosecution could have drafted language into the information as to the nature of the location and its public character, but, because it failed to do so, this lack of evidence resulted in the dismissal of the NY PL 165.30 charge.
There is one main lesson that is clear from the court’s decision beyond the fairly obvious defining of Fraudulent Accosting. Regardless of the crime charged against you in a misdemeanor complaint or information, prosecutors must satisfy their burden of establishing each and every element of the crime. Here, for example, three out of four is not sufficient. A failure of prosecutors to meet this burden should be your attorney’s avenue to seek dismissal of of the charges you face.
To learn more about white collar fraud crimes involving theft and larceny, please review either the NewYorkTheftAndLarcenyLawyers.Com website or our sister site at New-York-Lawyers.org.
Saland Law PC is a New York criminal defense firm established by two former Manhattan prosecutors. Our two New York criminal defense attorneys represent clients throughout the New York City area in white collar theft and fraud crimes.