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State of New York

Court of Appeals

OPINION

This opinion is uncorrected and subject to revision 

before publication in the New York Reports.

No. 44 

The People &c.,

 Respondent,

 v.

Marc Mitchell, 

 Appellant.

Ying-Ying Ma, for appellant.

Philip V. Tisne, for respondent.

GARCIA, J.:

Defendant waived prosecution by information, pleaded guilty to fraudulent 

accosting (Penal Law § 165.30 [1]), and was sentenced to time served. He argues on appeal 

that the term “accost” should be narrowly construed to require “a physical approach and an 
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element of aggressiveness or persistence” that is “directed toward a specific individual, 

rather than the public at large.” We reject that proposed definition, hold that the complaint 

was facially sufficient, and affirm.

Because defendant waived prosecution by information, we judge facial sufficiency 

by the standard applied to a misdemeanor complaint (see CPL 170.65 [3]; People v Kalin, 

12 NY3d 225, 228 [2009]), namely that the accusatory instrument “need only set forth facts 

that establish reasonable cause to believe that the defendant committed the charged 

offense” (People v Dumay, 23 NY3d 518, 522 [2014]; see CPL 100.40 [4] [b]). 

“Reasonable cause” exists when “evidence or information which appears reliable discloses 

facts or circumstances which are collectively of such weight and persuasiveness as to 

convince a person of ordinary intelligence, judgment and experience that it is reasonably 

likely that such offense was committed and that such person committed it” (CPL 70.10 

[2]). The complaint in this case met that standard.

A person is guilty of fraudulent accosting when he or she “accosts a person in a 

public space with intent to defraud him of money or other property by means of a trick, 

swindle or confidence game” (Penal Law § 165.30 [1]). In pertinent part, the complaint 

alleged that defendant was standing on a Manhattan street corner next to two milk crates 

set up as a table. On the table was a black box with a slot for money and fliers describing 

how to donate to homeless shelters. According to the complaint, defendant positioned the 

table in a way that “blocked” the sidewalk, causing at least 75 pedestrians to have to “walk 

around” him in order “to continue walking on the sidewalk.” As pedestrians did so, 

defendant asked them to “‘[h]elp the [h]omeless.’” In response to a question by a police 
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officer, defendant said that “‘donations go to a Church on 116 Street,’” but he “was unable 

to state the name of the church or the name of the person that receives the money.” 

Although defendant told the officer that he was “‘the [p]resident of the NYC Homeless 

Outreach’” and gave the officer “a laminated card which stated he was affiliated with” that 

organization, he later admitted that “‘[m]ost of the proceeds’” went to him.

On appeal following his plea, defendant claimed that the accusatory instrument was 

facially insufficient as to the fraudulent accosting charge. The Appellate Term affirmed, 

holding that the “accosting” element was “satisfied by allegations that defendant ‘ask[ed] 

passing pedestrians to ‘[h]elp the [h]omeless,’” citing language from a criminal court case 

to the effect that this element “‘requires that . . . defendant take some affirmative action to 

make contact with the victim for the purpose of involving the individual in the scam’” (69 

Misc 3d 133[A], 2020 NY Slip Op 51240[U], *1 [App Term, 1st Dept 2020], citing People 

v Morrison, 58 Misc 3d 19, 20 [App Term, 1st Dept 2017], quoting People v Tanner, 153 

Misc 2d 742, 746 [Crim Ct, New York County 1992]). A Judge of this Court granted 

defendant leave to appeal (36 NY3d 1052 [2021]).

In interpreting a statute, we look to effectuate the intent of the legislature (see

Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208 

[1976]). “[T]he clearest indicator of legislative intent is the statutory text,” and we 

therefore start with the plain meaning of the language itself (see Majewski v BroadalbinPerth Cent. School Dist., 91 NY2d 577, 583 [1998]). Applying that well-settled standard 

leads us to reject defendant’s argument that “accost” as used in the statute requires “a 

physical approach and an element of aggressiveness or persistence.”
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“Accost” is not defined in the Penal Law, and, accordingly, to discern its meaning 

here, we look to dictionaries from the time of the statute’s enactment as well as the statute’s 

purpose and history (see Yaniveth R. v LTD Realty Co., 27 NY3d 186, 192 [2016]; People 

v Ocasio, 28 NY3d 178, 181-184 [2016]; McKinney’s Cons Laws of NY, Book 1, Statutes 

§§ 232; 234). During the relevant period in 1952, when the legislature created the offense 

of fraudulent accosting (see L 1952, ch 640), contemporary dictionaries defined “accost” 

to mean either to “approach,” to “speak to first,” or to “address” (see e.g. Webster’s New 

World Dictionary of the American Language [1951] [“to approach and speak to; speak to 

first before being spoken to”]; Webster’s New Collegiate Dictionary [1949] [“(t)o 

approach” or “(t)o speak first to; to greet”]). Indeed, a California appellate court looking 

for the meaning of “accost” in a 1961 statute noted that the definition “‘to approach, to 

speak to, to address’” was found in “10 of 12 dictionaries” cited by the lower court and “in 

all 6 of those dictionaries that were in print at the time the statute was enacted” (Ulmer v 

Municipal Ct., 55 Cal App 3d 263, 266 [Ct App 1976]). No dictionary cited from the 

relevant time period limits the term to an aggressive or persistent physical approach.1 All 

the dictionaries cited by defendant in support of his proposed definition were published 

decades after the statute’s enactment and, therefore, are inapt.

1 One Webster dictionary later added, as the second definition of “accost,” “to confront, 

usu[ally] in a somewhat challenging or defensive way” (Webster’s Third New International 

Dictionary [1961]; but see Webster’s Seventh New College Dictionary [1967] [listing the 

only definition of “accost” as “to approach and speak to; speak first to; address”]).
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Defendant’s definition of “accost” as including only persistent or aggressive 

conduct is also inconsistent with the Bartlett Commission’s2 understanding of the term. In 

1964, the Commission made a proposal—later withdrawn—to place the offense within a 

new “harassment” section of the Penal Law, so that it would apply only when the 

perpetrator acted with the intent “to harass, annoy or alarm another person” (Bartlett 

Commission, Staff Notes on Proposed Penal Law § 250.10, at 387-390 [1964]). It is 

inconceivable that the Commission would require such intent as a separate element if 

“common usage” (dissenting op at 8-9) defined “accost” to mean essentially the same thing 

(see McKinney’s Cons Laws of NY, Book 1, Statutes § 231).

As to the purpose in enacting the fraudulent accosting statute, the goal was to protect 

the public against “the swindler who proposes by his acts to defraud innocent victims of 

property” (Mem of the Citizens Union of the City of NY, Bill Jacket, L 1952, ch 640, at 

12) and to “aid police in stamping out an ever-increasing number of swindle rackets,” of 

which there are “many variations” (Mem of the City of NY, Bill Jacket, L 1952, ch 640, at 

7). Many of those swindles involved an initial approach that was benign. For example, 

the “handkerchief switch” begins with the perpetrator “inform[ing]” the victim that he has 

“occult powers” that enable him to increase the denomination of dollar bills (Mem of the 

City of NY, Bill Jacket, L 1952, ch 640, at 8-9). In the “pocket-book drop” scam, the 

perpetrator tells the victim that he “just found a substantial sum of money in a pocket2 The Bartlett Commission was tasked with studying and recommending a revised version 

of the Penal Law (see Interim Rep of Temp St Commn on Rev of Penal Law and Crim 

Code, 1962 NY Legis Doc No. 41 at 5).
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book” and does not know what to do with it (id. at 7). A narrow interpretation of the 

fraudulent accosting statute, requiring an aggressive or persistent physical approach, would 

make it impossible for the statute to reach such conduct and would run contrary to the 

statute’s intended purpose (see McKinney’s Cons Laws of NY, Book 1, Statutes § 234, 

Comment).

This point is brought home by the 1965 amendment of the statute (see L 1965, ch 

1030), a “noteworthy feature” of which was the inclusion of language to allow for the 

perpetrator to manifest the requisite culpable intent either “at the time and place of the 

original ‘accosting’ ‘or subsequently in any place’” (Richard G. Denzer & Peter 

McQuillan, Practice Commentary to Penal Law § 165.30, McKinney’s Cons Laws of NY, 

Book 39, at 515). This language “embraces” the fact that a swindler may engage in an 

“initial approach” that is “ostensibly innocent from a conversational standpoint”—rather 

than “aggressive or persistent”—and, later, manifest the requisite intent to defraud “at 

another time and place” (id.). 

Lower courts have uniformly applied an interpretation of “accost” that does not 

require any aggressive or persistent approach. Instead, to establish the offense’s “accost” 

element, courts have required only that the defendant initiate contact with a potential victim 

through an affirmative act (see e.g. People v Bannister, 37 Misc 3d 1229[A], 2012 NY Slip 

Op 52240[U], *2-3 [Crim Ct, NY County 2012]; People v Mellish, 4 Misc 3d 1013[A], 

2004 NY Slip Op 50869[U], *4 [Crim Ct, NY County 2004]). Indeed, “stationing” 

(dissenting op at 16-17), with no accompanying affirmative action to make contact with a 

potential victim, is insufficient, as evidenced by the legislature’s decision to remove that 
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term from the statute (see L 1965, ch 1030; see also Tanner, 153 Misc 2d at 745 [“Though 

defendant may have hoped that people would walk over to the table where he was seated, 

this essentially passive behavior was not ‘accosting’”]).

Here, the accusatory instrument contained factual allegations sufficient to establish 

reasonable cause that defendant accosted the potential victims of his scam. The complaint 

alleged that defendant set up a makeshift table that “blocked” the sidewalk, requiring 

pedestrians “to walk around [him] to continue walking on the sidewalk,” and asked the 

passersby to “‘[h]elp the [h]omeless.’” In other words, not only did the complaint establish 

that defendant spoke first to the pedestrians by calling out to them, but also that defendant 

engaged in an affirmative act tantamount to a physical approach, by blocking the sidewalk 

and forcing passersby to maneuver around him to proceed.3

Defendant, citing the statutory language requiring that the offender accost “a person 

in a public place” (Penal Law § 165.30 [1]), also argues that the approach must be directed 

toward a specific individual, rather than the public at large. It is a settled rule of statutory 

interpretation that “[w]ords in the singular number include the plural” (General 

Construction Law § 35; see also Antonin Scalia & Bryan A. Gardner, Reading Law: The 

Interpretation of Legal Texts 129-131 [2011]). This rule “is applicable to every statute 

unless its general object, or the context of the language construed, or other provisions of 

law indicate that a different meaning or application was intended” (General Construction 

Law § 110). There is no reason to apply that exception here, given that the statute was 

3 Accordingly, we leave for another day the question of whether a defendant “accosts” 

someone within the meaning of the statute solely by calling out to potential victims.
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aimed at preventing members of the public, going about their business in public places, 

from being lured into fraudulent schemes (see CIT Bank N.A. v Schiffman, 36 NY3d 550, 

559 [2021] [“words in the singular may generally be interpreted to encompass the plural, 

if doing so is consistent with the context and legislative intent”]; see e.g. Johnson v Joy, 48 

NY2d 689, 691 [1979] [interpreting a statutory term in the singular form to include the 

plural where such interpretation, “in context and in light of the purpose” of the statute, was 

“clearly reasonable”]).

A quick word about the dissent’s proposal to define “accost” to mean the following: 

to physically approach a specific member of the public in a persistent, aggressive, or 

otherwise particularly assertive manner that can also “take the form of the perpetrator 

insinuating themselves into the victim’s physical space” (dissenting op at 12). No relevant 

dictionary provides support for such a limiting interpretation. Nor has any court 

considering the issue applied anything remotely near that restrictive of a definition. As 

discussed above, adoption of the dissent’s approach would effectively make it impossible 

to prosecute the very schemes that the legislature sought to proscribe by enacting the 

provision (see dissenting op at 11-12 n 7). And, contrary to the dissent’s dramatic warning 

that we come “perilously close to criminalizing” protected speech (dissenting op at 2), 

“[w]here false claims are made to effect a fraud or secure money or other valuable 

considerations, . . . it is well established the [g]overnment may restrict speech without 

affronting the First Amendment” (United States v Alvarez, 567 US 709, 723 [2012] 

[plurality]). Addressing that potential constitutional infirmity was, of course, the purpose 

of the 1971 amendment adding the fraudulent intent element to the statute (see L 1971, ch 
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772; People v Harris, 64 Misc 2d 510, 515 [App Term 1st Dept 1969] [refusing to save the 

statute by reading into it “that acts be committed . . . or that there must be a coexistent 

fraudulent intent” (emphasis added)]). Lastly, dismissing the charges against a defendant 

who admitted that he falsely led members of the public to believe that they were donating 

to a legitimate charity that helps the homeless seems much more likely to undermine—

rather than advance—the laudable goals of such organizations (see dissenting op at 15-16).

Defendant’s remaining contentions have been considered and are without merit.

Accordingly, the order of the Appellate Term should be affirmed.
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RIVERA, J. (dissenting):

What does it mean to “accost a person” as target of a swindle for purposes of Penal 

Law § 165.30 (1), the fraudulent accosting statute? The majority has no clear answer but 

concludes that the term encompasses defendant’s act of standing on a public street corner, 
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calling out to no one in particular to “help the homeless” as pedestrians walked around him. 

That conclusion relies on an overly broad view of the phrase “accost a person” that is 

contrary to its commonly understood meaning of an affirmative, aggressive act, contact 

with a specific target, or a directed invitation to engage another. The legislature amended 

the statute to its current form in order to increase penalties on confidence artists—those 

who prey on victims by use of trickery and deceit, in an effort to gain the victim’s trust. 

The statute does not criminalize calling out to the general public simply because, as the 

majority concludes, the speaker happens to stand in someone’s preferred route through a 

crowded pedestrian sidewalk. The majority’s approach is perilously close to criminalizing 

speech protected by the First Amendment.1I dissent.

I.

Defendant Marc Mitchell was arrested on a New York City street corner near Times 

Square, in the heart of Midtown Manhattan. It was around 7:15 p.m. on February 16, 2016, 

a busy night in the neighborhood, as the Theater District opened its doors for the evening’s 

performances.

A misdemeanor complaint charged defendant with the class A misdemeanor of 

fraudulent accosting (Penal Law § 165.30 [1]) and disorderly conduct (Penal Law § 240.20 

1 The majority’s contentions—that false claims in furtherance of a fraud are not protected 

speech and that the intent element of the statute obviates First Amendment concerns (see

majority op at 8-9)—elide that this is a jurisdictional challenge based on the sufficiency of 

the factual allegations in the accusatory instrument. A challenge to the statute under the 

overbreadth doctrine would not be limited to the particular facts of defendant’s alleged 

conduct (see People v Marquan M., 24 NY3d 1, 8 [2014], quoting United States v Stevens, 

559 US 460, 473 [2010], and People v Stuart, 100 NY2d 412, 421 [2003]).
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[5]), a violation. As relevant to this appeal, Penal Law § 165.30 (1) provides that “[a] person 

is guilty of fraudulent accosting when [they] accost[] a person in a public place with intent 

to defraud [that person] of money or other property by means of a trick, swindle or 

confidence game.”

According to the complaint, an officer observed defendant “standing [on the corner 

of Broadway and West 48th street] . . . next to two milk crates that were set up like a table 

while asking passing pedestrians to ‘Help the Homeless.’” On the table was a black box 

with statistics about shelters in New York City and a paper explaining where donations 

would be directed and payment options. The officer alleged that defendant, upon 

questioning, stated “[t]he donations go to a church on [116th] Street,” although he could 

not name the church or who receives the money,2and that defendant was “President of the 

NYC Homeless Outreach.” The officer further alleged that defendant presented him with

a laminated card stating his affiliation with “NYC Homeless Outreach” and that the date 

2

In 2016, when defendant was arrested, there were no less than eight churches in 

Manhattan on 116th Street or an intersecting avenue, including Our Lady of Mount Carmel 

(see http://www.mountcarmelshrine.com/), the Canaan Baptist Church of Christ (see Our 

History, https://www.canaanbaptistcoc.com/our-history), the Salvation & Deliverance 

Headquarters Church (see Origin of the Ministry, https://www.sndhq.org/mission), the 

First Corinthian Baptist Church (see Our Story, https://fcbcnyc.org/about/our-story), the 

Second Providence Baptist Church (see Edgar Sandoval and Victoria Bekiempis, Historic 

Harlem Church Wants Judge to Allow Sale of Building for $6M to Condo Developer, NY 

Daily News [Jan 9, 2017], https://www.nydailynews.com/new-york/manhattan/harlemchurch-judge-6m-sale-building-article-1.2941974), the Mount Zion A.M.E. Church (see

Mount Zion A.M.E. Church Celebrating 100 Years, https://mountzionamenyc.org/ourhistory-honoring), the Primera Iglesia Bautista de Habla Española de Nueva York (De 1938 

a 1961, http://pibheny.nyc/de-1938-a-1961/), and the First Sharon Baptist Church (see

David W. Dunlap, From Abyssinian to Zion: A Guide to Manhattan’s Houses of Worship 

78-79 [2004]).
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of birth on that card did not, in some unstated way, match the date of birth on the benefits 

card defendant also presented to the officer. Defendant also stated that “most of the 

proceeds actually go to [him] because [he] is homeless.” The officer did not allege any 

facts contradicting defendant’s statements that the organization existed, that defendant was 

affiliated with it, that donations went to a church on 116th Street, or that defendant was in 

fact homeless. The officer did observe and allege that the milk crate set up blocked 

approximately 75 pedestrians who “had to walk around the defendant to continue walking 

on the sidewalk.” However, the officer did not allege that he observed a single pedestrian 

stop and interact with defendant, or that defendant made contact or otherwise approached 

or insinuated himself into the physical space of any person as they walked by.3

After being held a night in jail, defendant appeared for arraignment where the 

prosecution sought 90 days’ incarceration on the charges. The court instead offered 

defendant time served and expressed the court’s doubts as to the fraudulent accosting 

charge as described in the complaint:

“On these facts—look, I would understand if there were some 

threatening behavior done to another individual to get an 

individual to give money. I understand it is a crime, but there 

is nothing here. It says the only one that even went up to 

[defendant] was the officer and said to him, well, let me see 

your benefit card. He showed his benefit card. The officer said, 

well, it doesn’t match something you’re presenting to me. Why 

are you saying it goes to the homeless? And he says, because I 

am homeless.

“Look, you can’t do this.”

3 The misdemeanor complaint also states that defendant “obstructed vehicular . . . traffic” 

but provided no factual support for that allegation.
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After defendant pleaded guilty to the fraudulent accosting charge in satisfaction of the 

complaint, and before the court imposed sentence, the court again expressed its uncertainty 

that defendant had broken the law:

“I want to note, before I sentence you . . . that, I know the 

People’s position was they were trying to protect tourists, but 

there is nothing in this complaint that even says [defendant] 

went up to a tourist, and just used the word accosting. It says 

he asked pedestrians. I don’t know if that rises to the level of 

accosting.”

The Appellate Term affirmed the conviction, rejecting defendant’s claim that the 

accusatory instrument was jurisdictionally defective because it lacked sufficient facts to 

establish reasonable cause to believe he accosted or intended to defraud anyone (see 69 

Misc 3d 133[A], 2020 NY Slip Op 51240[U] [App Term, 1st Dept 2020]). As to that 

challenge, the court concluded that the instrument sufficiently alleged an affirmative act 

constituting “[t]he accosting element of the offense . . . by allegations that defendant 

‘ask[ed] passing pedestrians to ‘Help the Homeless’” (id. at *1).

I would reverse because the accusatory instrument is jurisdictionally defective, as it 

lacks any factual assertions that defendant accosted someone.4 The Appellate Term is 

correct that the statute requires an affirmative act, but mere passive speech without some 

physical contact or aggressive (in the sense of intrusive) behavior to engage a potential 

4 Unlike the majority, which rejects without explanation defendant’s alternative claim that 

the accusatory instrument fails to plead an intent to defraud another person (see majority 

op at 9), I have no occasion to opine on whether the instrument sufficiently alleges the 

requisite mens rea because, as I explain, the instrument is jurisdictionally defective for 

failing to set out facts constituting the actus reus.
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victim is legally insufficient to establish reasonable cause to believe that defendant 

fraudulently accosted some unknown person. Defendant did not “accost” a particular 

individual—indeed he did not make any attempt to target anyone—by calling out to the 

general public to act charitably; the fact that passersby sought to avoid contact with 

defendant by walking around him does not transform his speech into the required criminal 

actus reus.

II.

The majority correctly explains the standard and rules of construction we must apply 

on this appeal, and I have no quarrel with the articulation of these well-established legal 

principles. Rather, I take issue only with the majority’s application of the law to reach its 

ultimate conclusion that the accusatory instrument is facially sufficient. Although we 

usually begin with the statutory language, the Penal Law does not define “accost,” and so 

we cannot rely in the first instance solely on the plain text to resolve defendant’s 

jurisdictional challenge. Instead, we must fathom the legislative intent and determine the 

coverage of the statute by employing extrinsic aids to statutory construction.

As the Court has previously explained, “[i]n the absence of a statutory definition, 

‘dictionary definitions serve as useful guideposts in determining the word’s ordinary and 

commonly understood meaning. This follows from the principle that, generally, unless a 

contrary intent is clear, lawmakers employ words as they are commonly or ordinarily 

employed’” (People v Holz, 35 NY3d 55, 59 [2020], quoting People v Aleynikov, 31 NY3d 

383, 397 [2018]; see also McKinney’s Cons Laws of NY, Book 1, Statutes §§ 232, 234). 
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The majority and I consider the same guideposts but reach the opposite conclusion as to 

what definition those sources suggest applies here.

At the time the statute was enacted and later amended to its present version, accost 

was defined in multiple ways, all of which required initial affirmative, targeted conduct, 

but not necessarily physical contact. Dictionaries of the period included the broad 

definitions relied upon by the majority—to “approach,” “speak to first,” or “address” (see 

e.g. The American Heritage Dictionary of the English Language 9 [1969]; Webster’s 

Seventh New Collegiate Dictionary 6 [Merriam-Webster 1963]; 1 Webster’s New World 

Dictionary of the American Language 9 [1951]; Webster’s Sixth New Collegiate 

Dictionary 6 [Merriam-Webster 1949]). But along with these definitions, accost was also 

defined narrowly and discriminately as the following aggressive or offensive behavior 

towards another person: “to confront, usu. in a somewhat challenging or defensive way”; 

“to address abruptly (as in a chance meeting) and usu. with a certain degree of impetuosity 

or boldness” (Webster’s Third New International Dictionary 12 [Merriam-Webster 1961]). 

Moreover, at least one thesaurus from this period listed synonyms for accost based on 

aggressive conduct (see Webster’s First Dictionary of Synonyms 13 [Merriam-Webster 

1951] [affront, offend, and insult]). Thus, “accost” is a particularly assertive, often 

unexpected manner of “approach[ing],” “speak[ing] first to,” or “addressing” another.5

5 As is clear from the definitions in the above paragraph, the majority is incorrect that “[n]o 

relevant dictionary provides support” for my definition of accosting (majority op at 8). 

Moreover, as I discuss (see section III, infra), my definition is supported by the legislative 

history evincing a focus on confidence games and by lower court case law.
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Although the majority relegates the narrow definition to a footnote (see majority op 

at 4 n 1), that definition has historic and contemporary resonance. Indeed, the definition of 

accost as aggressive or offensive behavior that directly targets another comports with the 

common usage of the term, then and now (see e.g. 166 Cong Rec H3703 [July 23, 2020] 

[Representative Alexandria Ocasio-Cortez] [“I want to thank him (i.e., Representative Ted 

Yoho) for showing the world that you can be a powerful man and accost women”]; Senator 

John F. Kennedy, The Religion Issue in American Politics, Remarks at the American 

Society of Newspaper Editors [Apr. 21, 1960] [“I think they (i.e., voters) objected to being 

accosted by reporters outside of political meetings and asked one question only—their 

religion—not their occupation or education or philosophy or income—only their 

religion”], available at https://www.jfklibrary.org/archives/other-resources/john-fkennedy-speeches/american-society-of-newspaper-editors-19600421 [last visited May 4, 

2022]; see generally Yaniveth R. v LTD Realty Co., 27 NY3d 186, 192 n 2 [2016] 

[explaining that dictionary definitions “are a useful tool of statutory construction to the 

extent that they reflect the common meaning and usage of (a) term” at the time of 

enactment]). That common understanding survives and is reflected in dictionary editions 

from the time of defendant’s arrest (see e.g. Merriam-Webster Online Dictionary 

[https://web.archive.org/web/20160201154355/https://merriamwebster.com/dictionary/accost] [archived Feb. 1, 2016] [“to approach and speak to often 

in a challenging or aggressive way”]; The American Heritage Dictionary of the English 

Language 

[https://web.archive.org/web/2016/0408041836/https://www.ahdictionary.com/word/sear
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ch.html?q=accost] [archived Apr. 8, 2016] [“(t)o approach and speak to, especially 

aggressively or insistently, as with a demand or request”]; Oxford English Dictionary 

[https://www.oed.com/view/Entry/1184] [“(t)o approach and speak to, esp. (in later use) in 

a bold, hostile, or unwelcome manner; to waylay (a person) in this way”]). Present day 

thesauruses, as did their predecessors, reflect this same understanding of accost as a 

manifestation of aggressive behavior towards another (see e.g. Merriam-Webster Online 

Thesaurus [https://www.merriam-webster.com/thesaurus/accost] [e.g., affront, challenge, 

and corner]). As these sources make clear, “accost” as a descriptor of benign, general 

behavior—to merely approach, speak first to, or address another—is an overgeneralization 

that fails to express the nuance of conduct encompassed by the narrower, more 

particularized definition that focuses on the actor’s conduct towards a target.

There is no logical reason to rely, as the majority does, on the definition that was 

out of step with common usage at the time of the enactment and amendment of the statute, 

at the time of defendant’s arrest, and which continues to be today.6 Nor is there reason to 

assume that the legislature intended the broader meaning, notwithstanding the formally 

recognized and popular use of the other, narrower definition.

In any case, the majority misapplies the broad definition of accost that requires that 

a person “approach,” “speak first to,” or “address,” because the accusatory instrument here 

6 Because a definition with an element of aggression or assertion has consistently been 

recognized in print and common usage, there is no reason to consider defendant’s argument 

that dictionaries in print prior to defendant’s arrest are not relevant because we may only 

look to sources available at the time of defendant’s alleged criminal act.
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lacks sufficient factual support for reasonable cause to believe that defendant accosted 

within the meaning of the statute. Nowhere does the officer allege that he observed 

defendant approach anyone, and the majority does not contend otherwise. Nor did 

defendant speak first to or address a particular individual in order to engage a potential 

victim in the alleged scam. In fact, the officer did not observe a single person respond 

positively to defendant’s invitation to help the homeless. But the fraudulent accosting 

statute only applies if defendant “accosts a person in a public place with intent to defraud 

[that person].” Simply stated, the statute requires conduct focused on a victim, and the 

accusatory instrument lacks any factual assertion of defendant’s contact with anyone. 

Indeed, as the trial court explained, “there is nothing here” because the accusatory 

instrument did not allege that defendant interacted with another person. If defendant’s 

calling out to the general public falls within these definitions—and the majority specifically 

does not base its conclusion solely on defendant’s statement into the air—then to accost 

would be nothing more than a form of common speech, and the term would be rendered 

meaningless in application. It is the speaker’s targeting of a particular listener that 

distinguishes these definitions and constitutes the transitive verb—“to accost.” And, as I 

explain (see section III, infra), this meaning better comports with the actions of the 

swindlers and confidence artists that are the targets of the statute.

III.

As with its selective reference to historic dictionary entries, the majority’s reliance 

on the legislative history is misplaced; that history supports the conclusion that the 
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legislature drafted and adopted the statute cognizant of the dictionary definitions and 

common understanding that accost requires an affirmative, aggressive, or offensive contact 

aimed at a target. There is no dispute that the statute is intended to address a category of 

theft, namely scams employed by confidence artists who prey on human weakness (see

William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Penal Law § 

165.30 [“‘Fraudulent accosting’ is essentially a theft offense aimed primarily at confidence 

artists who prey upon the gullible”]; Mem of Legis Rep of City of New York at 3, Bill 

Jacket, L 1952, ch 640). In 1952, the legislature recognized that street swindles were 

difficult to prosecute, and the statute was passed to assist law enforcement. As New York 

City’s memorandum in support of the legislation discussed, the statute would address 

common confidence games or “swindle rackets,” including “‘pocket-book drops’[] [and] 

‘handkerchief switches’” (Mem of Legis Rep of City of New York at 1, Bill Jacket, L 1952, 

ch 640).7 These scams succeed by engaging the victim to gain their trust and confidence—

7 The memorandum first described the “pocket-book drop” as a swindle “ordinarily 

involv[ing] three participants, two swindlers working together and a victim” (Mem of Legis 

Rep of City of New York at 1, Bill Jacket, L 1952, ch 640). “Swindler No. 1, usually a 

woman, posts herself in the vicinity of a bank and waits for an aged, apparently gullible 

person to emerge” (id.). Then, she “approaches the victim with the story that she has just 

found a substantial sum of money in a pocket-book and that she does not know what to do 

with it” (id.). She shows the money to the victim, and then “swindler No. 2 approaches and 

swindler No. 1 suggests that they ask No. 2 what to do about the money and whether the 

matter should be reported to the police” (id.). Swindler No. 1 then relays the fake story to 

swindler No. 2, “who states that while he himself has no constructive suggestions to make, 

he will request the advice of the president of the corporation of which he himself is an 

officer,” pointing out a “well-established business firm” in the area and then walking 

towards it (id.). “After an appropriate interval, swindler No. 2 reappears” and tells swindler 

No. 1 and the victim that the president has suggested that the president hold the money 

while they “search for the owner,” with the caveat that the president will only do so if both 
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hence the label “confidence game” (see People v Williams, 93 Misc 2d 726, 733 [Crim Ct, 

NY County 1978] [“The essence of the classic confidence game is that the victim views 

the confidence (artist) as a protagonist, someone on (their) side”]). The actions of these 

perpetrators aligned completely with the definition of accost as affirmative contact, notable 

for aggressive behavior targeting a potential victim. That aggressive behavior is not always 

hostile but can take the form of the perpetrator insinuating themselves into the victim’s 

physical space, preying on the victim’s desire to acquire a significant sum of money with 

little effort or to assist a stranger.

Moreover, the majority’s characterization of the Bartlett Commission’s 

recommendations is mistaken. The Bartlett Commission initially proposed including 

fraudulent accosting under the heading of harassment offenses in order to make it easier to 

the finder (swindler No. 1) and the victim put up “cash security” (id. at 2). “Swindler No. 

1 pretends to object at first, then puts up a small sum and induces the victim to withdraw a 

substantial sum from the bank near which the swindle is being perpetrated. Often this 

represents the victim’s entire life savings” (id.). Thereafter, swindler No. 2 takes the cash, 

ostensibly to return to the office and obtain a receipt, after which swindler No. 1 creates an 

excuse to leave and look for swindler No. 2 (see id.).

The handkerchief switch was a confidence scheme in which “[a] swindler . . . poses as a 

possessor of occult powers and informs the victim” that the con artist can “increase the 

denomination of money in bill form” (id.). Thereafter, the swindler takes “one of the 

victim’s bills,” places it in a handkerchief, and “knot[s]” the handkerchief “so as to conceal 

he bill” (id.). “While the victim holds the handkerchief, the swindler recites incantations 

over it. During these fraudulent incantations, the swindler expertly substitutes a different 

handkerchief for the original. When the substituted handkerchief is opened, it contains a 

bill of a higher denomination” (id.). Thereafter, the now drawn-in victim is “told that the 

occult forces are especially favorable . . . and is induced to place a large sum of money in 

the handkerchief” (id.). After doing so, the con artist again changes the handkerchief with 

a slight of hand, gives the handkerchief to the victim, and tells the victim to “open it only 

at a specified later time” (id.). Upon opening the handkerchief, the victim is left with 

“nothing but waste paper” (id. at 3).
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prosecute the offense, as harassment crimes did not require an intent to defraud (see Staff 

Notes of Temp St Commn on Rev of Penal Law and Crim Code, 1964 Proposed NY Penal 

Law [Study Bill, 1964 Senate Intro 3918, Assembly Intro 5376] § 250.10 at 389-390; see 

also 3d Interim Rep of Temp St Commn on Rev of Penal Law and Crime Code, 1964 Legis 

Doc No. 14 at 26-27). There is no evidence to conclude, as the majority does, that the 

Bartlett Commission withdrew its proposal to include fraudulent accosting under the 

heading of harassment offenses because they viewed the general harassment intent 

provision as coextensive with the definition of the word accost (see majority op at 5, citing 

McKinney’s Cons Laws of NY, Book 1, Statutes § 231). Rather, the Bartlett Commission 

changed course after introduction of the 1964 Study Bill, explaining that several 

stakeholders had requested harsher punishments for the offense, which would have been 

impossible had it remained a harassment offense:

“Th[e] offenses [of jostling and fraudulent accosting] are 

substantially carried over to the old [proposed study] bill from 

the existing Penal Law’s ‘disorderly conduct’ statute, where 

they have been of great utility, in New York City at least, as 

the principal weapons against pickpockets and certain kinds of 

confidence [artists]. As ‘disorderly conduct,’ these offenses are 

punishable under the existing Penal Law by a term of 

imprisonment of up to six months; but, as ‘harassment’ in the 

old proposed bill—an offense graded a violation—the 

maximum prison term imposable is fifteen days. This is 

regarded as grossly inadequate by many judges, prosecutors 

and police officers familiar with the problems involved in 

apprehending, prosecuting and protecting society from the 

professional pickpocket and confidence [artist]” (4th Interim 

Rep of Temp St Commn on Rev of Penal Law and Crim Code, 

1965 Legis Doc No. 25, Staff Notes at 40).
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“Upon the premise that these are basically ‘theft’ offenses requiring fairly severe 

penalties,” the Bartlett Commission moved the crime of fraudulent accosting into the article 

dealing with theft in the Penal Law and upgraded the crime to a class A misdemeanor (id.). 

The change between 1964 and 1965 was solely related to sentencing and has no bearing on 

the meaning of the word “accost” or on the scope of the actus reus.8

The majority makes a final attempt to save the accusatory instrument by adopting 

an analysis different from the Appellate Term, concluding “not only did the complaint 

establish that defendant spoke first to the pedestrians by calling out to them, but also that 

defendant engaged in an affirmative act tantamount to a physical approach, by blocking 

the sidewalk and forcing passersby to maneuver around him to proceed” (majority op at 7). 

Because the majority holds open the question of whether someone accosts under Penal Law 

§ 165.30 (1) “solely by calling out to potential victims” (majority op at 7 n 3), the majority 

must mean that the factual allegation that defendant obstructed the passersby is essential to 

the sufficiency of the accusatory instrument. But defendant no more accosted the passersby 

than would a religious leader who stands on the corner requesting contributions to a place 

of worship or a local homeless shelter, the Salvation Army Officer who positions a bucket 

in front of a store and rings a bell asking for donations to help the needy, the peace activist 

8 Unlike the majority’s reimagining of the purpose animating the Bartlett Commission’s 

proposal, the majority’s citation to the contemporary Practice Commentary (see majority 

op at 6) is not inconsistent with the legislative history. Many confidence games begin as 

“ostensibly innocent” interactions (Richard G. Denzer & Peter McQuillan, Practice 

Commentary to Penal Law § 165.30, McKinney’s Cons Laws of NY, Book 39, at 515)—

for example, the pocket-book drop (see n 7, infra)—making it difficult to prove intent until 

the scam progresses. The intent provision has no bearing on the actus reus; the element of 

“accost” can be satisfied, notwithstanding a lack of mens rea (see infra at 20).
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who stands in front of an entrance to Central Park who calls for an end to war and for civil 

disobedience, or the person who stands in the middle of the block holding a sign asking for 

food because they are hungry. In each case, the individual makes a general request of 

anyone who can hear or see them to act on their conscience. The fact that a pedestrian must 

make a minor adjustment to their preferred street path does not turn the speech into an 

accosting or mean that they have accosted everyone who chose to avoid them by changing 

direction. Walking around people is part of daily coexistence in public spheres and we 

would be hard pressed to find a passerby who would think themselves accosted every time 

they had to walk around someone talking in the middle of the street or on the corner. People 

often have to bob and weave, duck and dive, maneuver and negotiate to make their way 

around others standing, walking, or sitting in their way. There is no unbroken line of 

passage on a New York City sidewalk, and certainly not one as busy as that found in the 

Theater District, or the exact street corner where defendant was observed—48th and 

Broadway—where, at the time of defendant’s arrest, large numbers of people were likely 

stepping on or off the curb shortly before curtains rose on the evening’s performances.9

The fact that defendant set up an immediate and convenient depository for anyone inspired 

to donate, while also allowing for pedestrians to avoid him completely by walking around 

9 For example, in the week ending February 21, 2016, Fiddler on the Roof grossed 

$977,197.82 in ticket sales at the Broadway Theatre, just up the street from where 

defendant was arrested (see Playbill, Broadway Grosses, 

https://playbill.com/production/gross?production=00000150-aea8-d936-a7fdeefc72e8000b [last accessed May 4, 2022]); but cf. Movieclips, Fiddler on the Roof (4/10) 

Movie CLIP - If I Were a Rich Man (1971) HD, 

https://www.youtube.com/watch?v=D1TC1n9lhXU [last accessed May 4, 2022]).
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a makeshift table, does not constitute accosting (cf. People v Argyris, 24 NY3d 1138, 1179 

[2014, Rivera, J., concurring in part] [“No quotidian moment escapes potential police 

intrusion”]).

The legislative history and case law support just this view. In addition to upgrading 

the severity of fraudulent accosting from a violation to a misdemeanor, the 1965 

amendment removed “stationing” from the same list that included accosting (see Penal 

Law former § 722 [6]; People v Yonko, 115 NYS2d 560, 564-566 [NY City Magistrates’ 

Ct 1952]).10 Dictionaries from this period defined stationing as “to assign to or set in a 

station or position,” and “station” as “1: the place or position in which something or 

someone stands or is assigned to stand or remain”; and “2: the act or manner of standing” 

(Webster’s Third New International Dictionary, Unabridged 2229 [Merriam-Webster 

1966]). As this history suggests, merely standing in the way of a passerby is not, as the 

majority concludes, “tantamount to a physical approach” (majority op at 7). Rather, it 

constitutes stationing—a separate actus reus from accosting. Lower courts have similarly 

required more than this type of passive behavior to establish that a defendant accosts within 

the meaning of Penal Law § 165.30 (1). For example, in People v Tanner, the court cited a 

1984 dictionary definition for accost—“to approach and speak to often in a challenging or 

aggressive way”—in support of its holding that the accusatory instrument did not 

10 The majority is correct that the legislature’s removal of the actus reus of “stationing” 

indicates an intent to limit the scope of the statute to accosting, and that stationing is not 

synonymous with accosting (see majority op at 6-7). As discussed, that history supports 

defining “accost” more narrowly, not so broadly as to encompass the actus reus of 

“stationing,” as the majority does.
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sufficiently allege that defendant accosted within the meaning of the statute simply by 

displaying counterfeit sweatshirts for sale at a table where he was seated (153 Misc 2d 742, 

745-746 [Crim Ct, NY County 1992]).11 As the court explained, “the complaint fail[ed] to 

indicate that [the] defendant approached anyone, called out to potential customers or made 

any effort to initiate contact with any passersby. Though defendant may have hoped that 

people would walk over to the table where he was seated, this essentially passive behavior 

is not accosting” (id. at 745). Similarly, here, the accusatory instrument does not state that 

defendant made an approach to any person on the street, that he called out to a potential 

victim, or that he initiated contact with any passerby. The only differences between the 

facts of Tanner and this case are that defendant Mitchell did not set up a table to display 

goods for sale and that, rather than relying solely on signage, he verbally invited the general 

public to act charitably and “Help the Homeless.” The Tanner dicta only encompasses 

calling out to a potential customer, which in the context of the court’s clear statement that 

“an essential element of [fraudulent accosting] is that the defendant initiate contact with 

the potential victim in some manner” (153 Misc 2d at 745) suggests the court was of the 

view that accosting required more than an untargeted verbalization of defendant’s signage. 

Put another way, defendant Mitchell’s plea to the general public is the same as defendant 

Tanner’s signage, and without a factual allegation of some aggressive act to insinuate 

11 Tanner relied in part on the criminal jury instruction, which at the time of the decision 

in 1992 defined “accost” as “to approach and speak to another person without first being 

spoken to” (153 Misc 2d at 745 [internal quotation marks omitted]). The current criminal 

jury instruction has removed any definition of accost (see CJI2d[NY] Penal Law § 165.30 

[1]), reflecting the obviousness of the meaning of accost to contemporary juries.
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himself into the physical space of a passerby or a specific invitation to a targeted individual, 

the accusatory instrument against defendant Mitchell—like the complaint in Tanner—is 

defective.

The cases relied on by the majority are factually distinct from the instant appeal, 

each involving direct contact with a victim. In People v Bannister (37 Misc 3d 1229 [A], 

2012 NY Slip Op 52240[U] [Crim Ct, NY County 2012]), a charge of fraudulent accosting 

was dismissed where the defendant hailed cabs in the hopes of obtaining tips from travelers 

while pretending to be an Amtrak worker, but where the accusatory instruments did not 

allege that defendant approached the victims while doing so (see also People v Morrison

(58 Misc 3d 19 [App Term, 1st Dept 2017] [holding same where defendant was 

impersonating a Port Authority employee]). People v Mellish involved a defendant who 

stood behind a table with signs stating “Animal Rights Lobby” and “Homeless Cats” and 

asked pedestrians to sign a petition and talked two people into giving money to what they 

had been misled to believe were genuine charities (4 Misc 3d 1013[A], 2004 NY Slip Op 

50869[U], *4 [Crim Ct, NY County 2004]).12

The majority’s description of the legislative history and reliance on decisions in the 

lower cases do not support the conclusion that the legislature intended “accost” to include 

12 The lower courts have routinely found the element of accosting satisfied in circumstances 

much narrower than the majority’s approach. For example, People v Lewis involved a fake 

ticket sale in which the accusatory instrument alleged that the defendant offered to sell 

someone a ticket, received money and the victim’s own ticket in exchange for the 

defendant’s ticket, and that the deponent officer recovered four additional forged tickets 

from the defendant’s hands (see 56 Misc 3d 126[A], 2017 NY Slip Op 50800[U], *1 [App 

Term, 1st Dept 2017], lv denied 30 NY3d 951 [2017]).
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statements to the general public on a street corner, without any aggressive act aimed at a 

potential victim, simply because passersby had to walk around defendant.

IV.

The majority’s decision here is troubling because it expands the definition of accost 

to include speech and conduct that the legislature did not intend to criminalize. Indeed, a 

prior version of the statute was struck down as unconstitutionally vague in 1969 because it 

lacked a mens rea element and did not sufficiently define the prohibited statements and 

conduct (see William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, 

Penal Law § 160.30; People v Harris, 64 Misc 2d 510 [App Term, 1st Dept 1969]).13 The 

legislature amended the statute in 1971, the version that exists today, to address those 

deficiencies (see Bill Jacket, Letter from City of NY, Off of Mayor, L 1971, ch 772 at 5). 

The majority’s construction of the statute to include standing on the street and making 

statements to the general public as an “accost” of some unknown person who has no contact 

at all with defendant sweeps too broadly and risks another constitutional challenge to the 

statute.14 It is no answer that the mens rea element protects against unlawful prosecution 

13 The previous statute provided: “A person is guilty of fraudulent accosting when [that 

person] accosts [another] person in a public place and, either at that time and place or 

subsequently in any place, [the person] makes statements to such [other] person of a sort 

commonly made or used in the perpetration of a known type of confidence game” (Penal 

Law former § 165.30).

14 This appeal hardly justifies the need for broad definitions to address street swindles, 

especially when other charges are more appropriate to the conduct as observed by the 

officer. Defendant told the officer that he was homeless and that he was affiliated with the 

organization referred to at the table. The officer did not contradict those statements. If 

defendant was lying about either or both points, but telling the truth that he would keep
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of those not involved in illegal activity; the actus reus element must be assessed and 

satisfied on its own (see Penal Law § 15.10; cf. e.g. People v Gaworecki, 37 NY3d 225, 

234 [2021] [declining to address causation element of offense where Court “concluded that 

the evidence presented to the grand jury was legally insufficient to establish the requisite 

mens rea for second-degree manslaughter or the lesser included offense of criminally 

negligent homicide”]). Put another way, for purposes of determining whether the 

accusatory instrument adequately alleged that a defendant accosted a target of a swindle, 

the factual allegations must describe the defendant’s contact with the intended victim. 

Here, as recognized by the arraignment court, there are no allegations that defendant 

approached anyone. The majority ignores this simple fact and collapses the actus reus and 

mens rea elements when it refers to defendant’s alleged admission rather than the officer’s 

actual observations (see majority op at 9).15

most of the donations if he successfully swindled victims into giving him money, he could 

have been arrested for an offense such as attempted petit larceny by false promise (see

Penal Law §§ 110.00, 155.05 [1], [2] [d], 155.25). If he was telling the truth, it is hard to 

see how defendant is the confidence artist targeted by the legislature. Rather, it seems he 

is a person in a desperate position seeking assistance from his fellow New Yorkers.

15 The majority fails to explain the source of the alleged admission but it cannot be 

defendant’s plea, as any statement to the court would be irrelevant to our analysis because 

defendant could not cure the inadequacy of the accusatory instrument’s factual allegations. 

And, of course, the accusatory instrument does not allege that defendant confessed to 

making false statements.
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Unfortunately, homelessness is now a familiar, perennial part of our society, one we 

have yet to properly address.16 The majority’s decision does nothing to resolve that 

problem, instead making it easier to penalize people who are attempting to survive. 

Recognition that the majority’s approach will expand the criminalization of homelessness 

does not “undermine . . . the laudable goals” of organizations that advocate for homeless 

16 In 2016, the Coalition for the Homeless—the court-appointed monitor pursuant to the 

consent decree in Callahan v Carey (Sup Ct, NY County, Aug. 26, 1981, Andrew Tyler, 

J., index No. 42582/79, available at https://dev-cfh.pantheonsite.io/wpcontent/uploads/2014/08/CallahanConsentDecree.pdf; see also Eldredge v Koch, 98 

AD2dd 675 [1st Dept 1983])—reported that “the shelter census remain[ed] at near record 

levels, with 60,400 individuals in shelter each night, including nearly 24,000 children” and 

approximately 14,700 family households (Coalition for the Homeless, State of the 

Homeless 2016, Beyond the Rhetoric: What Will Turn the Tide? at 2, 11 [Apr. 2016], 

available at https://www.coalitionforthehomeless.org/wpcontent/uploads/2016/04/SOTH-2016.pdf). Additionally, New York City surveyed 2,794 

homeless people on the streets during their annual nightly count in February 2016 (see

Press Release, City of New York, Office of the Mayor, 2016 Federally-Mandated Hope 

Count Finds 12 Percent Decline in Street Homeless on the Night of the Count [Apr. 28, 

2016], available at https://www1.nyc.gov/office-of-the-mayor/news/408-16/2016-

federally-mandated-hope-count-finds-12-percent-decline-street-homeless-the-night-the).

The Coalition for the Homeless estimated that, on each night in December 2021, an average 

18,704 homeless single adults and 10,221 homeless families slept in a New York City 

Department of Homeless Services (DHS) shelter, with Black and Hispanic populations 

disproportionately represented (see Coalition for the Homeless, State of the Homeless 

2022: New York at a Crossroads, at 20-21 [Mar. 2022], available at 

https://www.coalitionforthehomeless.org/wp-content/uploads/2022/03/StateofTheHomeless2022.pdf). The City counted 2,376 homeless people sleeping on the streets in 

January 2021 (see David Brand, NYC Touts Drop in Street Homelessness, But Advocates 

Say Count Obscures Extent of Crisis, City Limits [May 20, 2021], 

https://citylimits.org/2021/05/20/nyc-touts-drop-in-street-homelessness-but-advocatessay-count-obscures-extent-of-crisis/).

The Coalition for the Homeless has also noted that the “annual point-in-time estimate of 

unsheltered New Yorkers . . . is a vast undercount, and no accurate census of this population 

has ever been achieved” (State of the Homeless 2022 at 10).
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people (majority op at 9). We are not free to ignore the impacts of our decisions on our 

communities because “[c]ourts . . . do not sit or act in a social vacuum” (Cleburne v 

Cleburne Living Center, Inc., 473 US 432, 467 [1985, Marshall, J., concurring in judgment 

in part and dissenting in part]).

I dissent.

Order affirmed. Opinion by Judge Garcia. Chief Judge DiFiore and Judges Cannataro and 

Troutman concur. Judge Rivera dissents in an opinion, in which Judge Wilson concurs.

Judge Singas took no part.

Decided May 24, 2022