Opinion
2010NA009238.
Decided April 18, 2011.
Hon. Kathleen Rice, Nassau County District Attorney.
Law Offices of Frederick K. Brewington, Attorney for Defendant.
The Defendant is charged with assault in the third degree and resisting arrest, in violation of Penal Law §§ 120.00(1) and 205.30, respectively.
The Defendant now moves for an order dismissing the informations, or, in the alternative, granting a hearing, pursuant to People v. Huntley, 15 NY2d 72, 255 N.Y.S.2d 838 (1965), regarding statements disclosed by the People in a notice served pursuant to CPL § 710.30. The People oppose the motion in its entirety.
FACIAL SUFFICIENCY
To be facially sufficient, an information, must contain an accusatory part and a factual part. CPL § 100.15(1) Together with any supporting depositions, the information must allege facts of an evidentiary character supporting or tending to support the charges. CPL 100.15(3); People v. Jones , 9 NY3d 259 , 848 N.Y.S. 600 (2007) The factual allegations must "provide reasonable cause to believe that the defendant committed the offense[.]" People v. Alejandro, 70 NY2d 133, 517 N.Y.S.2d 927 (1987); CPL § 100.40(4)(b). "Reasonable cause to believe that a person has committed an offense' 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 information must also establish a prima facie case by including non-hearsay factual allegations, which, if true, establish every element of the offense charged. CPL 100.40(1)(a-c); People v. Moore , 5 NY3d 725 , 800 N.Y.S.2d 49 (2005); People v. Henderson, 92 NY2d 677, 685 N.Y.S.2d 409 (1999). A prima facie case requires "legally sufficient evidence," meaning competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof. See CPL 70.10(1) This is not the same thing as proof beyond a reasonable doubt. People v. Swamp, 84 NY2d 725, 622 N.Y.S.2d 472 (1995); People v. Porter, 75 AD2d 901, 428 N.Y.S.2d 63 (2nd Dept. 1980).
"So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (citations omitted)." People v. Casey, 95 NY2d 354, 717 N.Y.S.2d 88 (2000); People v. Kalin , 12 NY3d 225 , 878 N.Y.S.2d 653 (2009) The factual allegations in the accusatory instrument and supporting depositions should be viewed in a light most favorable to the People. People v. Martinez, 16 Misc 3d 1111(A), 847 N.Y.S.2d 898 (Table), (Dist.Ct. Nassau Co. 2007); People v. Delmonaco , 16 Misc 3d 526 , 837 N.Y.S.2d 869 (Dist.Ct. Nassau Co. 2007); People v. Mendelson , 15 Misc 3d 925 , 834 N.Y.S.2d 445 (Dist.Ct. Nassau Co. 2007)
Assault in the Third Degree
Penal Law § 120.00(1) provides: "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 or a third person[.]" "Physical injury" is defined as "impairment of physical condition or substantial pain." Penal Law § 10.00(9) To survive this challenge to its facial sufficiency, the information herein must establish that the Defendant intentionally engaged in conduct which caused a physical injury to a third person.
The information, based upon the personal observations of P.O. Kerry S. Harracksingh, charges that on April 8, 2010, at about 11:09 p.m., at 116-21 240th Street, Elmont, New York, "the defendant while being placed under arrest for striking the victim with a vase, did resist your deponents ( sic) attempts to handcuff him. During the struggle with the defendant your deponent in full uniform with shield displayed and county patches suffered a severe knee sprain requiring immediate medical attention."
The Defendant argues that the information is facially insufficient because it fails to contain any allegations from which the Defendant's intent may be inferred, fails to describe any assaultive conduct committed by the Defendant and fails to properly allege that Officer Harracksingh sustained a physical injury.
In opposing the motion, the People argue that the information clearly evidences the Defendant's intent by alleging that he struggled with P.O. Harracksingh to avoid being handcuffed, causing the officer to sustain a severe knee sprain.
The facial sufficiency of the information must be determined from "within the four corners of the instrument itself' or in annexed supporting depositions." People v. Thomas , 4 NY3d 143 , 791 N.Y.S.2d 68 (2005); See also: People v. Casey, 95 NY2d 354, 717 N.Y.S.2d 88 (2000) "Standing alone, a conclusory statement . . . does not meet the reasonable cause requirement ( see People v. Dumas, 68 NY2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686). Rather, the factual allegations must establish the basis of the arresting officer's belief. . . ." People v. Kalin, supra.; See also: People v. Justesen, 30 Misc 3d 38, 916 N.Y.S.2d 733 (App.Term 9th 10th Jud. Dists. 2010) [allegation that substance was marijuana, without more, found conslusory]; People v. Dreyden , 15 NY3d 100 , 905 N.Y.S.2d 542 (2010)[allegation that item was a gravity knife, without explanation for belief, was conclusory]; People v. Iftikhar, 185 Misc 2d 565, 713 N.Y.S.2d 671 (Crim.Ct. Queens Co. 2000)[allegation that the defendant "fired a gun," without evidentiary allegations concerning the proximity of the parties to each other, who the gun was pointed at or how the gun was used to put the complainant in fear could not support the facial sufficiency of an information charging menacing in the second degree]; People v. Campbell, 141 Misc 2d 470, 533 N.Y.S.2d 666 (Crim.Ct. NY Co. 1988) [allegations of "operat(ing) a game of chance" are conclusory, without evidentiary allegations concerning actions constituting "operation" and manner in which such operation would create or establish unlawful gambling activity]
While Officer Harracksingh's sworn statement contains the first hand allegation that the Defendant "struggle[d]"with him, which is further supported by the officer's sworn statement in the second count, that the Defendant "did flail his arms," it is bereft of any allegations in evidentiary form to support the officer's conclusory statement he sustained a "severe knee sprain." Although Officer Harracksingh concludes that he "requir[ed] immediate medical attention," there is no indication that he actually received same. Additionally, there is no indication that Officer Harracksingh has any medical training which would permit him to diagnose a "severe knee sprain;" nor is there any competent medical evidence annexed to the information verifying such an injury.
Moreover, there is no indication that Officer Harracksingh sustained any impairment of a physical condition or pain of any kind as a result of the knee injury allegedly sustained. In the absence of nonhearsay evidentiary allegations establishing that Officer Harracksingh sustained either an "impairment of physical condition" or "substantial pain," the charge of assault cannot be sustained. See: People v. McDowell, 28 NY2d 373, 321 N.Y.S.2d 894 (1971); Matter of Pernell, M., 98 AD2d 776, 469 N.Y.S.2d 795 (2nd Dept. 1983); People v. Jackson, 139 AD2d 766, 527 N.Y.S.2d 514 (2nd Dept. 1988); Matter of Shawnell UU, 240 AD2d 947, 659 N.Y.S.2d 531 (3rd Dept. 1997); People v. Williams, 101 AD2d 870, 476 N.Y.S.2d 19 (2nd Dept. 1984)
Accordingly, the information charging assault in the third degree must be dismissed.
Resisting Arrest
Penal Law § 120.00(1) provides, "A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person."
The information charging the Defendant with resisting arrest alleges that on April 8, 2010, at about 11:09 p.m., at 116-21 240th Street, Elmont, New York, "your deponent while performing his duties as a police officer in full uniform and affecting arrest of the defendant for striking the victim in the head with a vase. ( sic) The defendant did flail his arms and refused to be handcuffed causing several officers to restrain the defendant. During the struggle the defendant caused your deponent to suffer a severe knee sprain requiring immediate medical attention." Annexed to this information is the supporting deposition of Jasmine C. Johnson, which alleges, in pertinent part, that the Defendant "took a vase filled with water came back outside of the house and ran after me. He then poured the water on me and struck me in the head with the vase. Shattering the vase. ( sic) This caused a laceration to my forehead and behind my ear, both of which required medical attention as well as swelling to my head."
The Defendant argues that the information charging resisting arrest is facially insufficient because it fails to set forth allegations in evidentiary form establishing that the police were attempting to effectuate an authorized arrest. Specifically, the Defendant alleges that with the anticipated dismissal of the charges of assault in the third degree and attempted assault in the third degree under docket numbers 2010NA009236 and 2010NA009237, respectively, there can be no authorized arrest.
In opposition the People argue that the informations under docket numbers 2010NA009236 and 2010NA009237 are facially sufficient. Additionally, the People argue that the allegations contained in the information, to the effect that Officer Haracksingh "was placing the defendant under arrest for striking the victim in the head with a vase," is sufficient to establish an authorized arrest.
"It is an essential element of the crime of resisting arrest that the arrest be authorized . . . Thus, to comply with the statute, the factual part of the information for resisting arrest must contain [n]on-hearsay allegations [which would] establish, if true' (CPL 100.40[c]) that the underlying arrest was authorized." People v. Alejandro, 70 NY2d 133, 517 N.Y.S. 927 (1987); See also: People v. Peacock, 68 NY2d 675, 505 N.Y.S.2d 594 (1986); People v. Jensen, 86 NY2d 248, 630 N.Y.S.2d 989 (1995) An arrest will be authorized when it is based upon a warrant or probable cause. People v. Dennis, 13 Misc 3d 41, 823 N.Y.S.2d 830 (App.Term 9th 10 Jud. Dists. 2006)
Probable cause exists where "[t]he facts and circumstances known to the arresting officer would warrant a reasonable person, who possessed the same expertise as the officer, to conclude that a crime was being or had been committed by the defendant (citations omitted)." People v. Coulanges, 264 AD2d 853, 696 N.Y.S.2d 466 (2nd Dept. 1999); See also: In re Eric C., 281 AD2d 543, 722 N.Y.S.2d 61 (2nd Dept. 2001); Matter of Kara M., 242 AD2d 630, 662 N.Y.S.2d 541 (2nd Dept. 1997)
Contrary to the Defendant's argument, although the informations charging the Defendant with assault in the third degree and attempted assault in the third degree under docket numbers 2010NA009236 and 2010NA009237 have been found to be facially insufficient under separate Decisions and Orders issued this date, "the analysis does not end there. An information charging resisting arrest need not actually charge the underlying offense, so long as the accusatory instrument contains nonhearsay allegations establishing that the arresting officer had probable cause to believe that some offense was committed." People v. Richardson, 30 Misc 3d 1204(A), 913 N.Y.S.2d 549 (City Crim.Ct. NY Co. 2010); See also: People v. Thomas, 239 AD2d 246, 657 N.Y.S.2d 184 (1st Dept. 1997) lv. den. 90 NY2d 911, 663 N.Y.S.2d 523 (1997) ["Defendant was properly convicted of resisting arrest notwithstanding that he was acquitted of all other charges (citations omitted) and was never charged with the particular offenses for which he was being arrested at the time he resisted arrest (citations omitted)."]; People v. Martin, 222 AD2d 528, 635 N.Y.S.2d 246 (2nd Dept. 1995) lv. den. 88 NY2d 850, 644 N.Y.S.2d 696 (1996) ["the defendant's acquittal on the weapons possession charges did not preclude a conviction for resisting arrest"]; In re Quanel M., 8 AD3d 386, 777 N.Y.S.2d 726 (2nd Dept. 2004) [although finding of trespass vacated, finding of resisting arrest affirmed]; In re Terrance B., 40 AD3d 1083, 837 N.Y.S.2d 231 (2nd Dept. 2007) ["we find that it was legally sufficient to establish, beyond a reasonable doubt, that the appellant committed acts which, if committed by an adult, would have constituted the crime of resisting arrest (citation omitted) notwithstanding that the charge for which he was arrested was dismissed (citations omitted)."]
In the matter sub judice, the information and supporting depositions sufficiently allege that Officer Haracksingh was attempting to arrest the Defendant for striking Jasmine C. Johnson over the head with a vase, causing her to sustain lacerations. While the information and supporting depositions charging the Defendant with the alleged assault of Ms. Johnson have been found to be facially insufficient, the allegations in the information and supporting deposition charging the Defendant with resisting arrest provided Officer Haracksingh with probable cause to arrest the Defendant for, at the very least, attempted assault in the third degree, menacing in the second degree, menacing in the third degree and harassment in the second degree. See: Penal Law §§ 110/120.00(1); 120.14 (1); 120.15 and 240.26(1)Accordingly, the information charging the Defendant with resisting arrest shall not be dismissed.
HUNTLEY HEARING
The court notes that no notice pursuant to CPL § 710.30 was ever served by the People in this matter. Consequently, there are no statements which would be the subject of a Huntley hearing.
Based upon the foregoing, that branch of the Defendant's motion seeking the dismissal of the information charging the Defendant with assault in the third degree is granted; and, it is hereby
ORDERED, that Count 1 is hereby dismissed.
That branch of the Defendant's motion seeking the dismissal of the information charging the Defendant with resisting arrest is denied; and, the motion is denied in all other respects.
This constitutes the decision and order of the court.