Summary
In Morris v. Abney, 135 La. 302, 65 So. 315, 318, a case relied on by defendant, — the Court, in discussing the various articles of the Code dealing with natural obligations, i. e., Articles 1757, 1758, 1759, and 1846, stated: "Of the four kinds of natural obligations specified in article 1758, the first three have their origin in contract, but the fourth arises from donations, `defective for want of form only.'"
Summary of this case from Breaux v. BreauxOpinion
2015NY031585
11-04-2015
The People of the State of New York v. Morris Abney, Defendant.
For the People: Cyrus R. Vance, Jr., New York County District Attorney, by: ADA Daria AndryushchenkoFor the Defense: New York County Defender Services, by Hans Romo, Esq.
For the People: Cyrus R. Vance, Jr., New York County District Attorney, by: ADA Daria AndryushchenkoFor the Defense: New York County Defender Services, by Hans Romo, Esq.
Defendant, charged with assault in the third degree, Penal Law §§ 120.00(1) and (2), endangering the welfare of a child, Penal Law § 260.10(1), criminal obstruction of breathing and blood circulation, Penal Law § 121.11(a), attempted assault in the third degree, Penal Law §§ 110/120.00(1) and harassment in the second degree, Penal Law § 240.26(1), moves for a declaration that Domestic Incident Report (the "D.I.R.") does not convert the misdemeanor complaint into an information. For the reasons that follow, the motion is DENIED. The Court adheres to its initial oral ruling that the D.I.R. converted the misdemeanor complaint. I. FACTUAL BACKGROUND A. The Allegations
According to the information, on the morning of May 8, 2015, defendant struck the complainant, with whom he has a child in common, in the face with a closed fist and tried to choke her, all in the presence of the complainant's infant daughter. Defendant then struck the infant daughter in the head. B. Legal Proceedings Defendant was arraigned on May 20, 2015, on a misdemeanor complaint charging him with assault in the third degree, Penal Law §§ 120.00(1) and (2), endangering the welfare of a child, Penal Law § 260.10(1), criminal obstruction of breathing and blood circulation, Penal Law § 121.11(a), attempted assault in the third degree, Penal Law §§ 110/120.00(1) and harassment in the second degree, Penal Law § 240.26(1). The court set bail, which defendant immediately posted, and adjourned the case for conversion.
On July 21, 2015, the People filed and served the complainant's D.I.R., and the Court deemed the misdemeanor complaint an information.
Defendant filed the instant motion August 20, 2015. And, although the Court gave the People until September 17 to respond, they elected not to. The matter has been sub judice since September 17. II. THE INFORMATION
The misdemeanor complaint, sworn out by Detective James Quilty, provides that: I am informed by [the complainant that, at 10:34 a.m. inside an upper Manhattan apartment,] she observed the defendant use both of his hands to apply pressure to her neck by forcefully squeezing it. I am further informed that [the complainant] observed the defendant strike her about the face with his closed fist causing scratches and substantial pain to her face. I am further informed by [the complainant] that her daughter ... who was born [approximately eight months before May 8, 2015] was present during the above described incident. I am also informed by [the complainant] that she observed the defendant striking her daughter on the head with a closed fist.
In the Statement of Allegations/Supporting Deposition page of her D.I.R., the complainant identified the suspect as Morris Abney and wrote: I was arguing with my daughter's father and I took his phone because he kept disrespecting me so he said I'm not leaving his house until he get the phone. I sat on the bed with my baby laying on me he jumped on top of me chocked [sic] me. I pushed him off me he came back and hit me, then when he tried to hit me again he punched my daughter in the head. He got up and started running. III. DISCUSSION
It is defendant's contention that the D.I.R. does not fully convert the misdemeanor complaint because it does not provide non-hearsay support for the allegation that the child that it refers to was less than seventeen years old. The Court disagrees. There is a reasonable inference that the "baby" described in the D.I.R., who was "laying on" top of the complainant , was under seventeen.
Defendant is of course correct that an element of Penal Law § 260.10(1) is that the child be "less than seventeen years old." He is also correct in observing that an accusatory instrument is not an information unless "[n]on-hearsay allegations" establish, "if true," every element of each charged offense. CPL § 100.40(1)(c). However, this requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). All that is required is a "fair and not overly restrictive or technical reading," People v Casey, 95 NY2d 354, 360, 717 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (2000), in which "all reasonable inferences that may be drawn from" the allegations are considered. People v Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721-22, 967 N.E.2d 1160, 1166-67 (2012)
Here, the description in the D.I.R. of a "baby" small enough to lie on top of her mother leads to a "reasonable inference" that the child was less than seventeen years old. A contrary conclusion could only arise from an absurdly hyper-technical reading of the information.
The Court begins by noting that case law, while scant, fully supports the notion that some fact or combination of facts other than a date of birth can lead to a reasonable inference that a child is under the age of seventeen. For example, in People v. Gomez, 30 Misc 3d 643,917 N.Y.S.2d 507 (Sup Ct Bronx County 2010), the allegation that a police officer observed a child "inside a crib" wearing a "heavily soiled diaper" supported the "logical inference that [the child] was younger than 17 years old."
Of course, not every such fact or combination of facts will suffice. Thus, for example, in People v. Perez, 22 Misc 3d 1105(A),880 N.Y.S.2d 226 (Crim Ct NY County 2009), the defendant's admissions that the children at issue were hers and that she was responsible for their care were not, by themselves, enough to establish their age.
But this case is much more like Gomez than it is like Perez. Even though the term "baby" is frequently used as a term of endearment when referring to an adult, even by a parent, that term, combined with a description of a person small enough to lie on top of her mother, leaves no real doubt that the person referred to is an infant child. It is the only "reasonable" inference that can be drawn. One might stretch one's imagination to infer that the D.I.R. is actually referring to a very tiny adult who is both small enough to rest comfortably on top of her mother, and is endearingly referred to as a "baby," just as in Gomez, the information might conceivably have referred to a tiny adult, one small enough to fit inside a crib, and who, for some reason, needed to wear a diaper. But those are precisely the types of strained, hyper-technical readings that Casey forbids.
On the other hand, the difference between this case and Perez, where age was not established, is one of specificity. The allegation there was that the defendant admitted only that the complainants were her "children" and that she cared for them. 22 Misc 3d at 1105(A), 880 N.Y.S.2d at 226. Those words can lead to different, but equally reasonable, inferences. The term "children,"when used by their parent, can describe persons of any age. In addition, many parents continue to care for their children into adulthood, or at least young adulthood. Accordingly, in Perez the court could not draw a reasonable inference that the accusatory instrument referred to minor children. Here, by contrast, the language in the D.I.R. is more specific, and leads most reasonably only to the inference that the very small person who was referred to as a "baby" was indeed an infant child.
Finally, defendant complains that he has no way of knowing whether the "baby" named in the D.I.R. is the child mentioned by name in the misdemeanor complaint, and thus that the name of the child remains unconverted hearsay. Romo Aff. at ¶ 10. But this does not matter. The name of the child is not an element of the offense made out by § 260.10(1); only its age matters. Thus, the People are free to allege the name of the child through hearsay.
D. Conclusion
The court adheres to its original ruling - the D.I.R. converted the misdemeanor complaint into an information. IV. CONCLUSION
For the foregoing reasons, defendant's motion to for an order declaring the information unconverted is denied. Dated: November 4, 2015_______________________ New York County, New YorkSteven M. Statsinger Judge of the Criminal Court