People v. Polianskaia

Henry I. Weil, New York City, for defendant. Robert M. Morgenthau, District Attorney of New York County, New York City (Kimberly Whiteman of counsel), for plaintiff.

OPINION OF THE COURT

NEIL E. ROSS, J. The defendant is charged in an information with prostitution, in violation of Penal Law § 230.00. In an omnibus motion, she moves to dismiss the information on the ground that it is not sufficient on its face. The information is a preprinted form. On top, it provides blank spaces for the name of the defendant and the deponent, and the date, time and place of the offense. In the center is the brokers between sellers and buyers without exchanging money (People v Starling, 85 NY2d 509, 514-515 [1995]). Under these circumstances, to ensure that the agreement or offer to sell the controlled substance is commercial, not casual, case law has imposed the requirement of proof of a bona fide offer or agreement to sell, an ability and intent on the part of the defendant to complete the transaction (People v Lawson, 84 Misc 2d 24 [Sup Ct, NY County 1975]). By contrast to the definition of "sell" contained in article 220 of the Penal Law, section 230.00 defines the crime of prostitution as an agreement or offer to engage in sexual conduct "in return for a fee." (Penal Law § 230.00.) Accordingly, by definition, the crime of prostitution requires proof of consideration and thereby encompasses only behavior with a clear commercial purpose. Under these circumstances, it is not necessary to impose an additional requirement of proof of intent and the ability to proceed. For these reasons, the court declines to follow People v A. S . In conclusion, the allegation that the defendant "agreed" to engage in sexual intercourse with the undercover officer in exchange for $700 is sufficiently evidentiary in character and tends to support the charge of prostitution. The motion to dismiss is denied.