Opinion
No. 2012KN013315.
2012-10-18
The PEOPLE of the State of New York, v. Jose BARREIRO, Defendant.
Charles J. Hynes, District Attorney, Kings County, by Danielle Schiffman, Esq., Assistant District Attorney, for the People. Robert K. Fischl, Esq., for the Defendant.
Charles J. Hynes, District Attorney, Kings County, by Danielle Schiffman, Esq., Assistant District Attorney, for the People. Robert K. Fischl, Esq., for the Defendant.
JOHN H. WILSON, J.
Defendant is charged with Assault in the Third Degree (PL Sec. 120.00), Menacing in the Second Degree (PL Sec. 120.14), Endangering the Welfare of a Child (PL Sec. 260.10), and Criminal Possession of a Weapon in the Fourth Degree (PL Sec. 265.01), all Class A misdemeanors; Menacing in the Third Degree (PL Sec. 120.15), a Class B misdemeanor; and Harassment in the Second Degree (PL Sec. 240.26), a violation.
By omnibus motion dated April 17, 2012, Defendant seeks the following: dismissal of all charges, asserting that the People's complaint is facially insufficient; a Bill of Particulars and discovery, including all exculpatory material; and suppression of all statements.
The Court has reviewed the Court file, Defendant's motion, the People's Response dated June 5, 2012, and Defendant's Reply dated July 10, 2012. For the reasons stated below, the motion to dismiss for facial insufficiency is denied.
The motion for a Bill of Particulars and discovery is granted to the extent that the People are directed to provide pre-trial disclosure of all materials subject to CPL Sec. 240.20, as well as all exculpatory materials to the defense. The People are reminded of their continuing obligations under People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448 (1961) and Brady v. Maryland, 373 U.S. 83, 83 S Ct 1194 (1963).
The motion for a pre-trial hearing is granted, to the extent of ordering a hearing to determine if there was probable cause for Defendant's arrest and whether or not Defendant's statements were taken in violation of his rights under the United States and New York Constitutions.
FACTUAL STATEMENT
Pursuant to the superceding information dated February 24, 2012, on or about February 15, 2012, at 31 Schenck Avenue, Brooklyn, NY, Defendant is alleged to “strike (complainant), who is twelve years of age, about the legs with a belt.” Complainant further asserts that the above stated actions by the Defendant caused him “to suffer swelling and bruising to (complainant's) legs, to suffer substantial pain, to fear further physical injury and to become alarmed and annoyed.” See, superceding information dated February 24, 2012.
LEGAL ANALYSIS RE: FACIAL SUFFICIENCY
CPL Sec. 100.15 provides that every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319 (1986).
Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927 (1987).
On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court Complaint are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S.2d 652 (1986).
Defendant asserts that the Criminal Court Complaint is insufficient in that the factual portion of the accusatory instrument “does not provide facts giving reasonable cause to believe that the committed acts necessary to be charged with each and every offense contained in the accusatory part of the complaint.”
See, Defendant's motion dated April 17, 2012, p 3–4, para 7. However, applying the above-stated principles to the instant matter, the factual allegations contained in the misdemeanor information before this Court are facially sufficient.
Defendant also asserts that the “supporting deposition of (complainant) is in fact worthless” since it “provides no information and contains no factual allegations.” See, Defendant's motion dated April 17, 2012, p 4, para 9. However, as pointed out by the People, “the facts alleged ... are stated in the complaint itself and the supporting deposition need not contain additional facts.” See, People's Response dated June 6, 2012, p 7. See, CPL Sec. 100.15(3).
(A) Sufficiency of the charge under PL Sec. 260.10.
Under PL Sec. 265.01(1), a person is guilty of endangering the welfare of a child when, “(h)e knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old.” It is not necessary that the People prove that the child's mental or moral welfare actually be impaired. See, People v. Doe, 137 Misc.2d 582, 521 N.Y.S.2d 636 (Crim Ct, N.Y. Cty, 1987). Moreover, no injury or actual harm need result from the Defendant's action or inaction. See, People v. Watson, 182 Misc.2d 644, 646, 700 N.Y.S.2d 651 (Crim Ct, Bx Cty, 1999).
To establish the charge, the People need only assert that Defendant engaged in conduct “knowing it will present a likelihood' of harm to a child (ie, with an awareness of the potential for harm.)” See, People v. Hitchcock, 98 N.Y.2d 586, 590, 750 N.Y.S.2d 580 (2002). See, also, People v. Cruz, 10 Misc.3d 838, 839, 809 N.Y.S.2d 850 (Crim Ct, N.Y. Cty, 2005) (“a defendant must simply be aware that the conduct may likely result in harm to the child.”)
Defendant is alleged have struck the complainant, a twelve year old child, “about the legs with a belt.” Complainant further asserts that the above stated actions by the Defendant caused him “to suffer swelling and bruising to (complainant's) legs, to suffer substantial pain, to fear further physical injury and to become alarmed and annoyed.” See, superceding information dated February 24, 2012.
These allegations are sufficient to support the charge of Endangering the Welfare of a Child.
(B) Sufficiency of charge under PL Sec. 120.00.
“The prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial.” See, People v. Henderson, 92 N.Y.2d 677, 680, 685 N.Y.S.2d 409 (1999). Thus, allegations such as those made in the instant complaint, where Defendant is alleged to have struck the “(complainant), who is twelve years of age, about the legs with a belt” (See, superceding information dated February 24, 2012), are sufficient “to support a facially valid local criminal court information.” Henderson, 92 N.Y.2d at 680.
Further, PL Sec. 120.00(1) states that a Defendant is guilty of Assault in the Third Degree when he causes physical injury “to such person.” “The question of whether the substantial pain' necessary to establish assault in the third degree has been proven is generally a question for the trier of fact.” See, Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 48 (1980).
Defendant here is alleged to have caused complainant “to suffer swelling and bruising to (complainant's) legs, to suffer substantial pain, to fear further physical injury and to become alarmed and annoyed.” See, superceding information dated February 24, 2012. Clearly, these facts are sufficient to support the charge of Assault in the Third Degree.
(C) Sufficiency of Charges Under PL Sec. 265.01.
Criminal Possession of a Weapon in the Fourth Degree under CPL Sec. 265.01(2) requires a defendant to possess “any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another.”
In People v. Prue, 219 A.D.2d 873, 632 N.Y.S.2d 347 (4th Dept, 1995), the Court held that depending on “the manner in which it was used, (a) belt constituted a dangerous instrument.” In that case, defendant had “struck his 12 year old son ... with the leather belt he usually wore with his police uniform.”
Given the substantial similarity between the facts of Prue and the instant matter, the charge of Criminal Possession of a Weapon in the Fourth Degree is legally sufficient. See, also, People v. Rozanski, 209 A.D.2d 1018, 619 N.Y.S.2d 441 (4th Dept, 1994) (“Defendant hit the victim several times with an extension cord or belt ... evidence is sufficient to demonstrate that defendant intended to cause physical injury to the victim using a dangerous instrument”).
(D) Sufficiency of Charges Under PL Sec. 120.14, 120.15 and 240.36.
A charge of Menacing in both the Second and Third Degree requires physical menace, and not just verbal threats. See, People v. Sylla, 7 Misc.3d 8, 792 N.Y.S.2d 764, lv den, 4 N.Y.2d 857, 797 N.Y.S.2d 431. To subject a child to physical contact which causes the child “to fear further physical injury and to become alarmed and annoyed,” as is alleged in the superceding information dated February 24, 2012, constitutes menacing within the meaning of these statutes. See, Gil v. Gil, 55 AD3d 1024, 870 N.Y.S.2d 468 (3d Dept, 2008).
Harassment in the Second Degree, requires that a defendant “strikes, shoves, kicks or otherwise subjects such other person to physical contact.” (Emphasis added.) “Although not rising to the level of an assault causing physical injury, petty forms of offensive touching, such as striking, shoving and kicking are prohibited.” See, People v. Bartkow, 96 N.Y.2d 770, 772, 725 N.Y.S.2d 589 (2001) (Emphasis added).
Here, Defendant is alleged to have struck the “(complainant), who is twelve years of age, about the legs with a belt.” See, superceding information dated February 24, 2012. These allegations are sufficient to support the charge of Harassment in the Second Degree.
Therefore, Defendant's motion to dismiss for facial insufficiency is denied.
MOTION TO SUPPRESS STATEMENTS
Defendant has moved for suppression of any statements he allegedly made to a caseworker with the New York City Administration for Children's Services. Defendant asserts that he is entitled to notice of said statements within 15 days of his arraignment under CPL Sec 170.30, and since notice was not given within that time period, these statements must be suppressed.
The People assert that since the ACS worker is not law enforcement personnel, under CPL Sec. 170.30, the People are not required to give Defendant notice of any statements made to the caseworker.
In People v. Batista, 277 A.D.2d 141, 142, 717 N.Y.S.2d 113 (1st Dept, 2000), “the court reasoned that CPL Sec. 170.30 did not require the People to give defendant notice of statements made to an employee of (ACS) because the caseworker was not acting as an agent for the police in obtaining either the arrest or confession of the defendant.” See, People's Response dated June 6, 2012, p 13.
Here, Defendant asserts that the caseworker “discussed this matter” with the detective assigned to arrest defendant prior to defendant's arrest, and that in fact, the detective told the caseworker “it would be the responsibility of the caseworker to detain the defendant ... long enough so that he could be arrested.” Further, while defendant was awaiting the arrival of the detective, “he was being engaged in conversation at the direction of the ... detectives.” See, Defendant's Reply dated July 10, 2012 at p 8, para 12.
Where the actions of a non-police actor are “pervaded with governmental involvement,” that person could reasonably be viewed as an agent of the state. See, People v. Wilhelm, 34 AD3d 40, 46, 822 N.Y.S.2d 786 (3d Dept, 2006), citing People v. Ray, 65 N.Y.2d 282, 286, 491 N.Y.S.2d 283 (1985). See, also, CPL Sec. 60.45(2)(b) (“a confession, admission or other statement is involuntarily made' by a defendant when it is obtained from him ... by a public servant engaged in law enforcement activity or by a person then acting under his direction or in cooperation with him”).
Under these circumstances, Defendant has stated sufficient facts to warrant a pre-trial hearing at which the issue of whether or not Defendant's statements were given to an individual acting as an agent of the state. The issue of whether or not there was probable cause for Defendant's arrest will also be addressed at said hearing.
OTHER RELIEF REQUESTED
People are directed to provide pre-trial disclosure of all materials subject to CPL Sec. 240.20, as well as all exculpatory materials to the defense, and the People are reminded of their continuing obligations under People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448 (1961) and Brady v. Maryland, 373 U.S. 83, 83 S Ct 1194 (1963).
All other arguments and requests for any additional hearings and relief that have been advanced by Defendant have been reviewed and rejected by this Court as being not applicable, or without merit.
This shall constitute the opinion, decision, and order of the Court.