Opinion
XXXXX
07-26-2019
In the MATTER OF V.L-W., a Person Alleged to be a Juvenile Delinquent, Respondent.
The following papers were read on this Motion:
Respondent's Order to Show Cause and Support Papers 1
Petitioner Presentment Agency's Affirmation in Opposition to
Respondent's Order to Show Cause 2
The respondent in these juvenile delinquency matters has moved by Order to Show Cause filed June 10, 2019, for an order dismissing the petitioner presentment agency's three petitions filed against him pursuant to Article 3 of the Family Court Act. The respondent argues for dismissal based on two grounds: 1) that the petitions fail to state sufficient factual information necessary for the respondent to prepare a defense; and 2) that the petitions and supporting complainant statements fail to state each and every element of the crimes allegedly committed by the respondent. The respondent further seeks an order precluding the petitioner from introducing certain evidence and an order adjourning the fact finding on these matters. On June 24, 2019, the petitioner filed opposition. The respondent's motion to dismiss is determined as follows:
The presentment agency, Nassau County Attorney's Office, commenced these proceedings under Article 3 of the Family Court Act by filing three juvenile delinquency petitions on April 11, 2019. On June 7, 2019, the presentment agency moved by Order to Show Cause to consolidate the three dockets for fact-finding purposes. By Order dated June 7, 2019, this Court granted the application to the extent of consolidating the three matters for the purposes of fact-finding.
The presentment agency, Nassau County Attorney's Office ("presentment agency" or "petitioner"), alleges in its first petition that between November 2018 and March 2019, in the vicinity of F. High School, the respondent committed acts which if committed by an adult would constitute the crimes of: 1) Menacing in the Second Degree [ Penal Law § 120.14(2) ], an A Misdemeanor; 2) Stalking in the Third Degree [ Penal Law § 120.50 ], an A Misdemeanor; 3) Stalking in the Fourth Degree [ Penal Law § 120.45(1) ], a B Misdemeanor; 4) Harassment in the First Degree [ Penal Law § 240.25 ], a B Misdemeanor; and 5) Attempted Aggravated Harassment in the Second Degree [Penal Law §§ 110.00/240.30], a B Misdemeanor.
The presentment agency alleges in its second petition that on or about February 11, 2019, at about 2:30 PM at F. High School, the respondent committed acts which if committed by an adult would constitute the crimes of 1) Criminal Obstruction of Breathing or Blood Circulation [ Penal Law § 121.11 ], an A Misdemeanor; 2) Attempted Criminal Obstruction of Breathing or Blood Circulation [Penal Law §§ 110.00/121.11], a B Misdemeanor; 3) Menacing in the Third Degree [ Penal Law § 120.15 ], a B Misdemeanor; and 4) Attempted Assault in the Third Degree [Penal Law §§ 110.00/120.00], a B Misdemeanor.
The presentment agency alleges in its third petition that on or about February 25, 2019, at about "lunchtime" at F. High School, the respondent committed acts which if committed by an adult would constitute the crimes of 1) Criminal Obstruction of Breathing or Blood Circulation [ Penal Law § 121.11 ], an A Misdemeanor; 2) Attempted Criminal Obstruction of Breathing or Blood Circulation [Penal Law §§ 110.00/121.11], a B Misdemeanor; 3) Menacing in the Third Degree [ Penal Law § 120.15 ], a B Misdemeanor; and 4) Attempted Assault in the Third Degree [Penal Law §§ 110.00/120.00], a B Misdemeanor.
The three petitions against the respondent are all supported by the same sworn written statement from the complainant, who is a 16-year old female student who attends the same high school as the respondent. (Statement of I.M.A.B., dated 3/7/19 ["Complainant's Supporting Deposition"] ).
The respondent's counsel argues that the complainant's supporting deposition primarily consists of "conclusory allegations, hearsay and vague and non-specific statements". (See Affirmation of Marjorie G. Adler, Esq. in Support of Motion to Dismiss , dated June 10, 2019 ["Aff. in Support of Motion to Dismiss"], ¶¶ 5-10). Respondent's counsel further contends that the presentment agency has failed to respond to the respondent's discovery demands, including demands for names of witnesses and descriptions of the specific conduct for each act of criminal behavior alleged. (Aff. in Support of Motion to Dismiss , ¶¶ 10-11). According to the respondent's counsel, the presentment agency's "failure to provide specific details of the alleged crimes, the failure to provide dates and times, the names of witnesses and their contact information prevents respondent from being able to form a defense". (Aff. in Support of Motion to Dismiss , ¶ 12).
In their opposition, the presentment agency argues that the petitions are facially sufficient under FCA § 311.2(2). They further contend that certain allegations in the petitions and the supporting deposition do not contain any elements of a crime, but are included to provide context for the respondent's alleged course of conduct acts of juvenile delinquency. (Affirmation of Bradley N. Smith, Esq. , in Opposition to Respondent's Motion to Dismiss , dated June 24, 2019 [Aff. in Opp. to Motion ], ¶¶ 10-11). The presentment agency further contends that the details sought by the respondent constitute interrogatories, a discovery tool that is used in civil litigation which is inapplicable in the quasi-criminal context of juvenile delinquency proceedings. (Aff. in Opp. to Motion , ¶12). According to the presentment agency, the purpose of the juvenile delinquency petition is "simply to advise [the respondent] of the crime with which he is charged". (Aff. in Opp. to Motion , ¶12).
DISCUSSION
The respondent concedes that his motion to dismiss is untimely under FCA § 332.2[1] because it was filed more than 30-days after the initial appearance in these matters. However, the Court finds that the interests of justice warrant a disposition of the respondent's motion on its merits, particularly considering that the presentment agency did not oppose the respondent's motion due to untimeliness. (See FCA § 332.2[3] "Any other pre-trial motions made after such thirty-day period may be summarily denied, but the court, in the interest of justice and for good cause shown may, in its discretion, at any time before a finding is entered, entertain and dispose of the motion on its merits").
FCA § 332.2[1] provides, in pertinent part, that "all pre-trial motions shall be filed within thirty days after the conclusion of the initial appearance and before commencement of the fact-finding hearing, or within such additional times as the court may fix upon application of the respondent made prior to entering a finding".
"A petition is the sole instrument for the commencement, prosecution, and adjudication of a juvenile delinquency proceeding and it must include, among other things, ‘a plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the crime charged and the respondent's commission thereof with sufficient precision to clearly apprise the respondent of the conduct which is the subject of the accusation’ ". ( In re Christopher M. , 94 AD3d 1119, 1119 [2d Dept. 2012] ; FCA § 311.1[3][h] ). "A petition is sufficient on its face when ‘the allegations of the factual part of the petition, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that respondent committed the crime or crimes charged’ and the ‘non-hearsay allegations of the factual part of the petition or of any supporting depositions establish, if true, every element of each crime charged and the respondent's commission thereof’ ". ( In re Shakeim C. , 97 AD3d 675, 676 [2d Dept. 2012] ; see also Matter of Tyrone M. , 138 AD3d 1119, 1120 [2d Dept. 2016], lv to appeal den. , 27 NY3d 910 [2016] ; FCA §§ 311.2[2] and [3] ).
In this case, the Court finds that the petition under Docket No. D-0000-19 is facially sufficient as to the charges of A) Menacing in the Second Degree [ Penal Law § 120.14(2) ]; B) Stalking in the Third Degree [ Penal Law § 120.50(3) ]; C) Stalking in the Fourth Degree [ Penal Law § 120.45(1) ]; and D) Harassment in the First Degree [ Penal Law § 240.25 ]. The Court finds that, even after disregarding the petition's conclusory and/or hearsay-based allegations, the non-hearsay allegations set forth in the complainant's supporting deposition establish, if true, every element of each criminal act charged.
The Court is particularly mindful of the allegations that the complainant rejected the respondent's attempt to kiss her in February 2019, that on two separate dates the respondent allegedly grabbed the complainant around her neck/throat and pushed her against the wall , and that on March 3rd, 2019 the complainant allegedly observed a social media posting from the respondent in which he called her a "bitch" and used such violent/sexual language as "slap dick". These non-hearsay allegations, if true, establish that the respondent committed acts which, if he were an adult, would make him guilty of the crime of Menacing in the Second Degree, i.e., that he engaged in a course of conduct intentionally placing or attempting to place the complainant in reasonable fear of, at least, physical injury. ( Penal Law § 120.14[2] ; see also In re Kori W. , 40 AD3d 479, 480 [1st Dept. 2007] ).
It is alleged in the Petition under Docket No. D-3130-19, ¶ 4[a] and the Supporting Deposition of Isabelle Acevedo-Bermudez, pp. 2-3, that on February 11, 2019, the respondent grabbed the complainant around her neck, pushed her against the wall and held her there for a few seconds; and that on February 25, 2019, he grabbed the complainant around her throat and slammed her against a locker. (Petition Docket No. D-3130-19, ¶ 4[a]; Supporting Deposition of Isabelle Acevedo-Bermudez ["Complainant's Supporting Deposition"] pp. 2-3).
The charges of Menacing in the Second Degree [Penal Law § 120.14(2) ]; Stalking in the Third Degree [Penal Law § 120.50(3) ]; Stalking in the Fourth Degree [Penal Law § 120.45(1) ]; and Harassment in the First Degree [Penal Law § 240.25 ] all include a "course of conduct" as a required element of the crime. "A course of conduct is ‘a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose’ ". (People v. Kitsikopoulos , 47 Misc 3d 1220[A], *3 [Crim. Ct. New York Cty. 2015] ). "There is no statutory requirement that a course of conduct be of any particular type or duration" and " ‘the term course of conduct may reasonably be interpreted to mean a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose". (People v. Each , 25 Misc 3d 1217[A], *4 [Dist. Ct. Nassau Cty. 2009] ; see also In re C.A. , 11 Misc 3d 1057[A], *6 [Fam. Ct. Nassau Cty. 2006] ).
Additionally, the respondent's intent is an element of each of the criminal acts cited in the foregoing footnote. Intent is ultimately an issue to be resolved by the trier of fact and it can be inferred from the act itself or from his conduct and the surrounding circumstances. (see People v. Lamont , 25 NY3d 315, 319 [2015] ; People v. Douglas , 291 AD2d 455 [2d Dept. 2002] ; People v. Torres , 46 AD3d 925, 925-26 [2d Dept. 2007] ).
The Court likewise finds that the non-hearsay allegations, if true, establish each of the elements of the crime of Stalking in the Third Degree, i.e., that with intent to harass, annoy or alarm the complainant, the respondent intentionally engaged in a course of conduct directed at the complainant which is likely to cause her to reasonably fear physical injury. ( Penal Law § 120.50[3] ). Similarly, the non-hearsay allegations establish each of the elements of the crime of Stalking in the Fourth Degree, i.e., that the respondent intentionally, and for no legitimate purpose, engaged in a course of conduct directed at the complainant and that he knew or reasonably should have known that such conduct was likely to cause the complainant reasonable fear of material harm to her physical health. ( Penal Law § 120.45[1] ).
The Court is mindful that the Presentment Agency failed to set forth the specific applicable subsection of Penal Law § 120.50 when charging the respondent with Stalking in the Third Degree. However, the applicable factual portion of the petition cites the relevant language from subsection [3] and the other subsections of Penal Law § 120.50 are clearly inapplicable here.
The petition under Docket No. D-00000-19 is also facially sufficient as to the charge of Harassment in the First Degree, i.e. that the respondent intentionally and repeatedly harassed the complainant by engaging in a course of conduct which placed the complainant in reasonable fear of physical injury. ( Penal Law § 240.25 ). Harassment in the First Degree "requires an intent to harass with a consequence of the [respondent's] conduct being the placement of [complainant] in ‘reasonable fear’ of physical injury, irrespective of whether the [respondent] intended to cause such fear." (William C. Donnino, Practice Commentaries, McKinney's Cons Law of NY, 1999 Electronic Update, Penal Law §§ 120.14 and 240.25 ; Penal Law § 240.25 ).
Contrary to the respondent's arguments, none of the crimes described above require that the complainant sustained a physical injury or suffered physical pain in order for the respondent to have committed such an act. The Court is likewise not persuaded by the respondent's arguments that he could not have "reasonably known" that his conduct would be likely to cause the complainant reasonable fear of harm to her health because he flirted with her, asked her out and presented her with flowers. (Aff. in Support of Motion to Dismiss , ¶ 16). First, the respondent certainly should have reasonably known that grabbing the complainant around her neck and throwing or slamming her against the wall would likely cause her to fear material harm to her health. Moreover, Courts have recognized that "stalkers" can target individuals who are familiar to them, even individuals with whom they may have once had a romantic relationship. (See Matter of Luis A. , 223 AD2d 505, 506 [1st Dept. 1996] ["There is nothing in the statute itself to indicate a legislative intent to immunize stalkers who target persons familiar to them"] ).
While the Court finds that the petition under docket D-00000-19 is facially sufficient as to the criminal charges described above, the Court finds, in contrast, that the charge of Attempted Aggravated Harassment in the Second Degree must be dismissed because it is not a legally possible offense. "A person is guilty of aggravated harassment in the second degree when: 4. With the intent to harass, annoy, threaten or alarm another person, he or she strikes, shoves, kicks or otherwise subjects another person to physical contact thereby causing physical injury to such person". ( Penal Law § 240.30[4] ). Aggravated Harassment in the Second Degree requires that a respondent act with "an intent ‘to harass, annoy, threaten or alarm another person’ ", with physical injury being the consequence of the respondent's conduct, even if physical injury was not intended . (William C. Donnino, Practice Commentaries, McKinney's Cons Law of NY, Penal Law § 240.30[4] ; Penal Law § 240.30[4] )(emphasis supplied).
The Presentment Agency again failed to set forth the specific applicable subsection of Penal Law § 240.30 when charging the respondent with Attempted Aggravated Harassment in the Second Degree. However, as was the case with the charge of Stalking in the Third Degree [see Fn. 6, supra ], the applicable factual portion of the petition expressly cites the relevant language from subsection [4] and the other subsections of Penal Law § 240.30 are inapplicable in this case.
In this case, the respondent is charged with Attempted Aggravated Harassment in the Second Degree. The attempt to commit a criminal act is a separate offense, in that "[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime". ( Penal Law § 110.00 ). "The theory [of attempt] is that although the defendant may have failed in his purpose, his conduct is nevertheless culpable and if carried far enough causes a sufficient risk of harm to be treated as a crime in itself". ( People v. Bracey , 41 NY2d 296, 299 [1977] ; People v. Campbell , 72 NY2d 602, 605 [1988] ).
As the Court of Appeals has held:
"Because the very essence of a criminal attempt is the defendant's intention to cause the proscribed result, it follows that there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended ". ( People v. Campbell , 72 NY2d 602, 605 [1988] [emphasis supplied] ).
In Campbell , supra , 72 NY2d at 605, the Court of Appeals evaluated the legality of Attempted Assault in the Second Degree, a different charge than the Attempted Aggravated Harassment in the Second Degree at issue here. However, in both cases the relevant penal law provision proscribes the causing of physical injury, even if the injury is unintended or accidental . ( Penal Law §§ 120.05[3] and 240.30[4] ). In Campbell , the Court of Appeals held that there can be no attempt to commit assault, second degree, [ Penal Law § 120.05(3) ], because one "cannot have a specific intent to cause an unintended injury". ( Campbell , 72 NY2d at 605 ). This Court finds that the Court of Appeals' ruling in People v. Campbell applies with equal force to the charge of Attempted Aggravated Harassment in the Second Degree and that such charge is not legally possible. ( Campbell , supra , 72 NY2d at 605-606 ; see also People v. Plastik , 48 Misc 3d 406 [Crim. Ct. New York County 2015] [relying on People v. Campbell and holding that it is not legally possible to have an "attempt" to commit Aggravated Harassment in the Second Degree] ). Accordingly, the charge of Attempted Aggravated Harassment in the Second Degree is hereby dismissed.
Under Penal Law § 120.05(3), a defendant may be convicted of assault in the second degree for causing physical injury to a peace officer, police officer, fireman, paramedic or technician, even though the injury caused is unintended or accidental. (Campbell , supra , 72 NY2d at 604 ; Penal Law § 120.05[3] ).
The remaining two petitions filed under docket numbers D-0000-19 and D-0000-19 specifically relate to the two alleged incidents where the respondent grabbed the complainant around the neck and pushed her against the wall, first on February 11, 2019 [D-0000-19] and again on February 25, 2019 [D-0000-19]. Each petition charges the respondent with the criminal conduct of Criminal Obstruction of Breathing or Blood Circulation [ Penal Law § 121.11 ]; Attempted Criminal Obstruction of Breathing or Blood Circulation [Penal Law §§ 110.00/121.11]; Menacing in the Third Degree [ Penal Law § 120.15 ]; and Attempted Assault in the Third Degree [Penal Law §§ 110.00/120.00].
The Court finds that both remaining petitions are facially sufficient with respect to the charges of Criminal Obstruction of Breathing or Blood Circulation, in that the non-hearsay allegations, if true, establish each element of the crime, i.e., that "with intent to impede the normal breathing or circulation of the blood of another person, he or she: [a] applies pressure on the throat or neck of such person". ( Penal Law § 121.11 ). No pain, trauma or injury is required to sustain a charge for Criminal Obstruction of Breathing or Blood Circulation. ( Penal Law § 121.11 ; William C. Donnino, Practice Commentaries, McKinney's Cons Law of NY, Penal Law § 121.11 ; People v. Carte , 113 AD3d 191, 193 [3d Dept. 2012] ).
Likewise, the petitions are facially sufficient as to the respective charge of Attempted Criminal Obstruction of Breathing or Blood Circulation. (Penal Law §§ 110.00/121.11). The charge of Attempted Criminal Obstruction of Breathing or Blood Circulation requires a specific intent and it proscribes specific conduct committed with intent to achieve a certain result. ( People v. Mata , 122 AD3d 450 [1st Dept. 2014], leave to appeal den. , 25 NY3d 1204 [2015] ). Once again, contrary to the respondent's assertions, whether the respondent possessed the requisite specific intent is a factual issue to be determined at fact-finding.
The respondent is also charged with Menacing in the Third Degree. Penal Law § 120.15 provides that "[a] person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury". ( Penal Law § 120.15 ). Contrary to the respondent's assertions, the statutory provision does not require establishing that the complainant actually sustained any injury from the respondent's conduct. Rather, the test is whether the respondent intentionally placed or attempted to place the complainant in fear of imminent physical injury. ( Penal Law § 120.15 ). The respondent's intent is an issue to be determined during fact-finding, and it may be established by the respondent's conduct or inferred from his conduct and the surrounding circumstances. ( People v. Lamont , 25 NY3d 315, 319 [2015] ).
The final charge against the respondent is Attempted Assault in the Third Degree. Penal Law § 120.00[1] provides that "[a] person is guilty of assault in the third degree when: [1] with intent to cause physical injury to another person, he causes such injury to such person". ( Penal Law § 120.00[1] ). However, as the crime charged is an "attempt", it is not required that the complainant sustain a physical injury in order for the respondent to be found to have committed such an act. An attempt to commit Assault in the Third Degree is an "intent" to "cause physical injury" and an act in furtherance of that intent, regardless of whether the complainant actually sustained a resulting physical injury. (See Penal Law § 110.00 ; Campbell , supra , 72 NY2d at 605 ). In this case, the Court finds that both petitions are facially sufficient as to the charge of Attempted Assault in the Third Degree.
In both petitions (Docket Nos. D-03132-19 and D-03134-19) the presentment agency failed to set forth the specific applicable subsection of Penal Law § 120.00 when charging the respondent with Attempted Assault in the Third Degree. However, the factual portion of the petitions expressly cite the relevant language from subsection [1] and the other subsections of Penal Law § 120.00 are inapplicable in this case. [see Fns. 6 and 7 supra ].
Accordingly, the respondent's motion seeking dismissal on the basis of facial sufficiency of the petitions is GRANTED to the extent that the charge of Attempted Aggravated Harassment in the Second Degree is hereby dismissed, and the motion is otherwise DENIED .
The respondent's motion also seeks to preclude certain evidence from being introduced at the fact-finding hearing. The respondent requests, based on the presentment agency's alleged failure to disclose requested discovery, dismissal of the petitions or, in the alternative, an order precluding the presentment agency from using any of the information it has failed to provide to the respondent. (Aff. in Support of Motion to Dismiss , ¶ 12. However, the respondent has not cited to any legal authority or set forth any factual basis warranting dismissal of the petitions based on any such disclosure issues. Moreover, while the respondent's motion also seeks preclusion of certain evidence from being introduced at trial, the respondent has not followed the statutory procedure for obtaining discovery from the presentment agency, as it has not filed a motion for discovery upon court order pursuant to FCA § 331.3. Furthermore, the presentment agency contends in its opposition that on June 10, 2019, the presentment agency served the respondent with requested Rosario material. The respondent did not file any reply papers or otherwise address the presentment agency's contention on this matter. Accordingly, that portion of the respondent's motion seeking an order dismissing the petitions or precluding the presentment agency from introducing certain evidence at the fact-finding is DENIED .
That portion of the respondent's motion seeking an adjournment of the prior fact-finding hearing dates is DENIED as the originally scheduled dates have been adjourned so such is moot.
Accordingly, it is hereby
ORDERED , that the respondent's motion (Motion No. 2) to dismiss the presentment agency's petitions filed under Family Court Act Article 3 is GRANTED to the extent that the Attempted Aggravated Harassment in the Second Degree [Penal Law §§ 110.00/240.30(4) ] charge is hereby dismissed, and the motion is otherwise DENIED in its entirety; and it is further
ORDERED , that any other requested relief that is not addressed herein is deemed DENIED ; and it is further
ORDERED , that all parties and counsel are to appear for the fact-finding matter on these petitions on August 15, 2019, at 9:00 AM.
This constitutes the Decision and Order of the Court.