Facts
- Police observed Owen Johnson at the Port Authority Bus Terminal offering passersby international calls for a fee, stating “you can call the whole world for $8.00.”
- An officer watched Johnson approach an unidentified individual, remove a small scrap of paper from his pocket, and begin dialing a number from the paper into a public telephone.
- When Johnson noticed the officer, he tore the scrap of paper and threw it to the ground.
- The information alleged, based on an AT&T security representative, that the number on the paper had been used to make about 240 calls in the two hours before Johnson’s arrest.
- The AT&T representative, described as custodian of the “phone computer code system” and the credit card number, stated Johnson lacked permission or authority to access or attempt to access the system or to possess or use the credit card number.
- Johnson was charged by information with multiple offenses, including unauthorized use of a computer and criminal possession of stolen property in the fifth degree.
- Before trial, Johnson moved to dismiss those two counts for facial insufficiency.
Issues
- Whether the unauthorized use of a computer count was facially insufficient because it did not plead, in non-hearsay factual terms, that the computer had a “device or coding system designed to prevent unauthorized use.”
- Whether the criminal possession of stolen property count was facially insufficient because a telephone credit card number is not “property” under Penal Law § 155.00(1).
Decision
- The court denied the motion to dismiss the unauthorized use of a computer count.
- The court denied the motion to dismiss the criminal possession of stolen property in the fifth degree count.
- The court held both challenged counts were facially sufficient and could proceed.
Legal Principles
- An information is jurisdictionally sufficient only if it alleges, in non-hearsay factual form, facts that establish every element of the offense and the defendant’s commission of it (CPL §§ 100.15, 100.40; People v. Alejandro).
- For Penal Law § 156.05, the pleading must support that the defendant knowingly used a computer-related system without authorization and that the system employed a device or coding system designed to prevent unauthorized use.
- At the pleading stage, allegations that access occurred through a telephone company’s controlled “computer code system,” using an unauthorized calling-card number, can satisfy the “device or coding system” element.
- A telephone credit card number may constitute “property” under Penal Law § 155.00(1) as an intangible thing of value with economic utility, capable of being “stolen property” for purposes of Penal Law § 165.40.
Conclusion
The court held the information adequately pleaded that the calling-card number functioned as part of a coding system restricting access to AT&T’s computerized services and that the credit card number itself could constitute “property,” so neither the unauthorized use of a computer count nor the criminal possession of stolen property count was dismissed for facial insufficiency.