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Fraudulent Accosting: Must You Initiate Contact with a Complainant for an NY PL 165.30 Arrest to be Valid

Not necessarily the most serious of all theft and larceny related offenses in New York, Fraudulent Accosting is still a crime that not only can land you behind bars for up to one year, but a conviction for New York Penal Law 165.30 is permanent. In other words, it ain’t ever goin’ away! All humor aside, one who is accused of any crime must recognize the long term and collateral consequences of an arrest or conviction. Because of this, one must also pursue any legal defense available. In People v. Juan Bannister, 2012CN005065, NYLJ 1202582020231, at *1 (Crim. NY, Decided December 10, 2012), the defendant did just that when he actively exercised his rights with his criminal defense attorney to defend himself.

The complaint or information against Bannister alleged that he had committed the crime of NY PL 165.30. In legal terms it was alleged that he accosted a person in a public place with the intent to defraud or swindle that person by means of a trick or confidence game.

According to the information, the defendant waived down taxi cabs about one block from Penn Station. During a ten minute period, the defendant attempted to waive down numerous taxis while blocking traffic. At one point, the defendant successfully had a cab stop and he then assisted a passenger and his luggage into the taxi. The defendant received money for his services. While one might argue the defendant was merely being a good denizen of Gotham, the defendant was wearing an Amtrak lanyard around his neck, the end of which was tucked into defendant’s shirt pocket, where it could not be seen. The alleged trickery not ending there, “in place of any kind of official Amtrak identification at the end of [the] lanyard, there was a key which [the] defendant had placed in defendant’s chest pocket.”

In dismissing the misdemeanor crime of Fraudulent Accosting, the court zeroed in on the term or element of “accosting.” Yes, the defendant appeared to be tricking potential passengers into believing that he was an Amtrak employee in that he possessed proper identification (which turned out to be a key), but did the defendant accost these pedestrians? According to the court, “although fraudulent accosting is in essence ‘a theft offense aimed primarily at confidence artists who prey upon the gullible’ (William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law ยง165.30 at 238), evidence of fraud alone is not enough, since essential to the crime is an additional and distinct element of accosting. To accost means ‘to approach and speak to’; ‘speak to without having first been spoken to.’ (Webster’s Third New International Dictionary 12 [1993]).”

Because the information charging the defendant with NY PL 165.30 was devoid of any assertion that he “initiate[d] contact with the potential victim in some manner” (People v. Tanner, 153 Misc 2d 742, 745 [Crim Ct, NY County 1992]), the People failed to establish the facial sufficiency of the crime. Could the defendant have approached pedestrians? Alternatively, could those pedestrians have approached the defendant? Fortunately, for anyone charged with a crime, “[c]onduct equally compatible with guilt or innocence cannot supply reasonable cause” for an arrest (see People v. Carrasquillo, 54 NY2d 248, 254 [1981]).

While this defendant was not out of the water with a dismissal of the Fraudulent Accosting charge, the remaining offenses were non-criminal and of much less significance.

To learn more about any of New York’s theft and larceny crimes including Petit Larceny, Grand Larceny, Criminal Possession of Stolen Property, Theft of Services, Fraudulent Accosting and other offenses, a review of any of the sites listed below or links above will provide comprehensive information. Further, both this blog and the NewYorkCriminalLawyerBlog.Com contain analysis and review of criminal statutes, cases in the news and legal decisions.

A New York criminal law firm founded by two former Manhattan prosecutors, the New York criminal defense attorneys at Saland Law PC represents clients from investigation and arrest through hearing and trial throughout the New York City region.

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