Opinion
Docket No. CR-009951-21BX
03-10-2022
The PEOPLE of the State of New York v. Derrick Swann JACKSON, Defendant.
The prosecution—Darcel D. Clark, District Attorney, Bronx County, by Daniel Farrell, Assistant District Attorney Defendant—The Legal Aid Society by Katherine Burton, Esq.
The prosecution—Darcel D. Clark, District Attorney, Bronx County, by Daniel Farrell, Assistant District Attorney
Defendant—The Legal Aid Society by Katherine Burton, Esq.
Shari R. Michels, J.
By superseding information filed on August 10, 2021, Defendant is charged with two counts of criminal mischief in the fourth degree, in violation of PL § 145.00(1). By notice of motion filed on January 3, 2022, Defendant seeks an order dismissing the accusatory instrument as facially insufficient. Alternatively, Defendant moves for a Huntley/Dunaway hearing and other relief. The prosecution filed an affirmation in opposition on January 28, 2022.
Having reviewed the parties’ submissions, the Court file as well as the applicable law, the Court grants Defendant's motion, and dismisses the accusatory instrument for facial insufficiency.
MOTION TO DISMISS FOR FACIAL INSUFFICIENCY
A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution ( People v. Case , 42 N.Y.2d 98, 99, 396 N.Y.S.2d 841, 365 N.E.2d 872 [1977] ). A legally sufficient misdemeanor information must substantially conform to the requirements prescribed in CPL § 100.15 ( CPL § 100.40[1][a] ). Additionally, the factual part of a misdemeanor information "must allege facts of an evidentiary character demonstrating reasonable cause to believe that the defendant committed the crime charged" ( People v. Dumas , 68 N.Y.2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ; CPL § 100.40[1][b] ). The information must also set forth "non-hearsay, factual allegations which, if true, establish every element of the offense charged and the defendant's commission thereof" ( CPL § 100.40[1][c] ); People v. Inserra , 4 N.Y.3d 30, 790 N.Y.S.2d 72, 823 N.E.2d 437 [2004] ).
A court reviewing an accusatory instrument for facial insufficiency must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from them ( People v. Jackson, 18 N.Y.3d 738, 747, 944 N.Y.S.2d 715, 967 N.E.2d 1160 [2012] ; People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ). However, "[f]acial sufficiency, by definition, limits the Court's analysis to the four corners of the accusatory instrument" ( People v. Williams , 21 Misc. 3d 678, 684, 864 N.Y.S.2d 295 [City Ct. Albany City 2008] citing People v. Thomas , 4 N.Y.3d 143, 146, 791 N.Y.S.2d 68, 824 N.E.2d 499 [2005] ). The Court of Appeals has instructed that where "it cannot be determined upon the face of the information whether the pleading is in compliance with CPL 100.40(1)(c), the information is subject to a motion to dismiss" ( Casey, supra, 361, 717 N.Y.S.2d 88, 740 N.E.2d 233 ).
Under this legal framework, the Court finds that both counts of the accusatory instrument are facially insufficient and must be dismissed.
The accusatory instrument provides, in pertinent part, that:
PO VICTOR GONZALEZHERNAND [ ] states that on [ ] June 30, 2021 at approximately 3:00 AM [and on or about July 1, 2021 at approximately 4:15 AM] inside of 1560 Boone Avenue, County of the Bronx, State of New York, [ ] the Defendant committed [on each date] the offense of Criminal Mischief [in the fourth degree].
Occurrence One
Deponent is informed by Michael Healey, that at the above time and place, informant observed defendant via video surveillance to strike the facial recognition device with a closed fist multiple times. Deponent is further informed by informant that the aforementioned facial
recognition device was damaged in that the screen was cracked.
Deponent is further informed by informant that informant is the Video Investigator for the above location. Deponent is further informed by informant that he is the lawful custodian of the above location, and as such he did not give defendant permission or authority to damage said property.
Occurrence Two
Deponent is informed by Michael Healey, that at the above time and place, informant observed defendant via video surveillance to kick the front door of the above location. Deponent is further informed by informant that the aforementioned door was broken in that the glass in the bottom portion of the door was shattered.
Deponent is further informed by informant that informant is the Video Investigator for the above location. Deponent is further informed by
informant that he is the lawful custodian of the above location, and as such he did not give defendant permission or authority to damage said property.
Discussion
A person is guilty of criminal mischief in the fourth degree when, "having no right to do so, nor any reasonable ground to believe that he or she has such right, he or she (1) intentionally damages property of another person."
Here, Defendant argues that the accusatory instrument fails to allege any facts to establish that Defendant, Derrick Swann Jackson, is the person who committed the offenses charged therein. While the complainant alleges that he observed "the defendant" via video surveillance, allegedly damaging property on June 30, 2021, and July 1, 2021, the accusatory instrument is devoid of any facts, non-hearsay or otherwise, from which this Court can conclude that there is reasonable cause to believe that Derrick Swann Jackson is the person depicted in the video. The complainant was not present when the events transpired. Further, the accusatory instrument does not set forth that the complainant knew Derrick Swann Jackson, or that he had ever seen him before, or offer any other facts to explain how he was able to identify the person on the video as Derrick Swann Jackson. Indeed, the accusatory instrument does not even describe whether 1560 Boone Avenue is a private residence, commercial establishment, or some other type of building, from which this Court could make reasonable inferences.
In opposition, the prosecution argues that the allegations in the accusatory instrument are sufficient, and that the identification of the defendant is not relevant to this analysis. The prosecution maintains that the relationship between the parties is merely context and background, which is not necessary at this stage of the pleadings.
In the instant matter, the prosecution is mistaken. In various analogous situations, the prosecution must establish the deponent's or informant's basis for asserting that the defendant is the perpetrator (see, e.g., In re Jonathan YY. , 134 A.D.3d 1344, 22 N.Y.S.3d 614 [3rd Dept. 2015] ["Respondent's identity as the perpetrator is a fact that must be established by a nonhearsay allegation]; People v. Garcia, 48 Misc. 3d 1204[A], 2015 WL 3915768 [Crim. Ct. N.Y. Co. 2015] ["The allegation that defendant is the person who threatened the complainant over the telephone is clearly a ‘conclusory allegation,’ since it is utterly without any factual support. Defendant's identity as the caller, if indeed he was, must therefore derive solely from some other fact that is not pled. Perhaps defendant identified himself in the call, or perhaps the complainant recognized defendant's voice. But the issue remains shrouded in mystery, since no basis for the conclusion that defendant is the caller was pled"]; People v. Defreitas, 48 Misc. 3d 569, 9 N.Y.S.3d 822 [Crim. Ct. N.Y. Co. 2015] ["It is perfectly reasonable, and neither unfair nor hypertechnical that—somewhere in one of the documents set out in the CPL for this precise purpose—someone with actual knowledge swear that the defendant before the court is the person who committed the offense or offenses charged"]; People v. Frankiling , 48 Misc. 3d 1213[A], 2015 WL 4506367 [Crim. Ct., Bronx Co. 2015]. Cf. People v. Zhicay, 2022 N.Y. Slip Op. 50172(U), 2022 WL 628691 [Maldonado-Cruz, J. Feb. 18, 2022] ).
In the instant matter, the Court is unable to discern any fact in the accusatory instrument that might connect Defendant and the complainant, or any fact that might have explained how the complainant could identify the individual portrayed on the video as Defendant. Accordingly, the Court finds the accusatory instrument facially insufficient, and dismisses this matter. The Court need not consider Defendant's other motions and directs the parties to confer about speedy trial.
Defendant does not move to dismiss the instant matter pursuant to CPL § 30.30, and the Court does not reach the issue. The Court notes Defendant's assertion that the prosecution did not file its certificate of discovery compliance and statement of readiness until October 7, 2021, 89 days after Defendant's arraignment on July 10, 2021.
This constitutes the Decision and Order of the Court.