Opinion
2015BX007287
05-14-2015
The People of the State of New York, v. Jorge Lugo, Defendant.
The People - Robert T. Johnson, District Attorney, Bronx County by Michael Das, Assistant District Attorney Defendant — Corey A. Sokoler, Esq.
The People - Robert T. Johnson, District Attorney, Bronx County by Michael Das, Assistant District Attorney
Defendant — Corey A. Sokoler, Esq.
Armando Montano, J.
Defendant is charged with one count of Assault in the Third Degree (PL § 120.00[1]) and three counts of Harassment in the Second Degree (PL § 240.26[1]).
Defendant moves for an order 1) dismissing count one, Assault in the Third Degree (PL § 120.00[1]), as facially insufficient; 2) suppressing statements allegedly made by defendant, or in the alternative, granting a Huntley hearing; 3) directing the People to provide defendant with all Brady material; 4) directing the People to preserve all evidence and make available all evidence for inspection; 5) directing the People to make available to defendant a record of judgment of conviction of the witness(es) they intend to call at trial and/or the existence of any pending criminal action against said witness(es) they intend to call at trial; 6) compelling the People to provide defendant with a list of any crimes, charged or uncharged, and any vicious or immoral acts which they intend to use at trial and requiring a hearing to determine the admissibility of any such testimony; and 7) granting defendant the right to make additional pretrial motions and the right to amend and/or supplement this motion if made necessary or appropriate by the People's future disclosure.
The factual allegations in the accusatory instrument made by the deponent, Esmerari Lugo, read as follows:
Deponent states that [on or about February 15, 2015 at approximately 8:50 PM at 510 East 142nd Street, County of Bronx, State of New York], deponent engaged in a verbal dispute with defendant and defendant struck deponent approximately five (5) times about the stomach and head with a closed fist.
Deponent further states that, as a result of defendant's aforementioned conduct, deponent suffered substantial pain to the stomach and head; and experienced annoyance, alarm, and fear for her public safety.
Motion to Dismiss
Defendant argues that count of one, Assault in the Third Degree (PL § 120.00[1]), should be dismissed as facially insufficient because the accusatory instrument fails to establish each and every element of the assault charge. Defendant asserts that the allegation that the complaining witness suffered substantial pain to her stomach and head and experienced annoyance and fear for her physical safety is insufficient to establish the element of "physical injury". Defendant notes that the extent and seriousness of the complaining witness' injuries are not specified. Moreover, there are no allegations of any continuing complaints of pain or residual effects from the alleged injuries the complaining witness sustained.
In opposition, the People aver that the Court of Appeals in People v. Henderson, 92 NY2d 677 (1999) has already rejected defendant's argument insisting that an information charging assault must contain allegations of pain treatment or pain subsequent to the assault in order to be facially sufficient. The People argue that the information need not allege facts to demonstrate the long-term effects of the complaining witness' alleged injuries nor any extensive description of what kind of pain she experienced.
Facial Sufficiency
It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15(3); People v. Dumas, 68 NY2d 729 [1986]) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40[1][c]). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b); Dumas, 68 NY2d 729. Reasonable cause to believe that a defendant committed the crimes charged "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. "In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged." People v. Hightower, 18 NY3d 249, 254 (2011).
In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15; People v. Mellish, 4 Misc 3d 1013(A) (Crim Ct, NY County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103 (1986). Moreover, "the Court is not required to ignore common sense or the significance of the conduct alleged." People v. Gonzalez, 184 Misc 2d 262, 264 (App Term, 1st Dept. 2000) quoting People v. Abdul, 157 Misc 2d 511, 514 (Crim Ct, NY County 1993).
Assault in the Third Degree (PL § 120.00[1])
A person is guilty of Assault in the Third Degree when "[w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person." PL § 120.00(1). The term "physical injury" is defined as "impairment of physical condition or substantial pain." PL § 10.00(9). While "substantial pain" must be "more than slight or trivial pain," the "pain need not ... be severe or intense to be substantial." People v. Chiddick, 8 NY3d 445, 447 (2007). Therefore, where a defendant is charged with Assault in the Third Degree, the information "must set forth sufficient factual allegations to warrant the conclusion that the victim suffered an impairment of physical condition or substantial pain and otherwise is fatally defective." Henderson, 92 NY2d at 680.
This Court agrees with defendant that the allegation that the complaining witness suffered substantial pain, standing alone, does not establish that defendant caused physical injury to the complaining witness. In People v. Perez, 40 Misc 3d 448 (Crim Ct, Queens County 2013), the defendant was charged with one count of Assault in the Third Degree. The complaint alleged that the defendant grabbed the complaining witness, pushed her and punched her in the back, causing her substantial pain. In granting the defendant's motion to dismiss, the Court held that the conclusory allegation that the complaining witness suffered substantial pain, without explanation or support, did not provide reasonable cause to believe that the defendant committed the offense of Assault in the Third Degree.
Although relied upon heavily by the People, Henderson, supra, does not support their arguments. In Henderson, the defendant attempted to pull a motor scooter away from the victim by kicking him about the legs, causing him to suffer contusions, and swelling about the legs, as well as causing the victim to suffer substantial pain. In finding the information to be facially sufficient to make out a prima facie case of Assault in the Third Degree, the Court of Appeals acknowledged that a victim would not know with certainty of the lasting effects of an attack shortly after the event and held that under those circumstances "allegations of substantial pain, swelling, and contusions, following kicks, must be deemed sufficient to constitute physical injury.'" Id. at 681. (Emphasis added).
In their papers in opposition, the People assert that "[t]he language in this case mirrors the language used in the Henderson information almost exactly." The People aver that the information herein reads in pertinent part that "[d]eponent suffered a contusion, bruising, swelling, bleeding, and substantial pain to her face, head and knees." Affirmation of ADA Michael Das at 4-5. However, no such language is contained in the instant accusatory instrument. Furthermore, there is no indication in the Court's file that the People filed and served a superseding information containing such language.
Rather, the first party complaint alleges that defendant struck the deponent about the stomach and head with a closed fist approximately five times thereby causing her to experience substantial pain to her stomach and head. The allegation that the complaining witness suffered substantial pain is wholly conclusory and merely tracks the language of the PL § 120.00(1). Absent any allegations of objective facts indicating an injury or the symptoms of an injury, such as redness or swelling, the accusatory instrument fails to establish the "physical injury" element of the assault charge. The failure of the accusatory instrument to establish all of the elements of Assault in the Third Degree (PL § 120.00[1]) requires this Court to grant defendant's motion to dismiss count one on the grounds of facial insufficiency. Motion to Suppress Statement Evidence
Statement notice was duly served at defendant's arraignment pursuant to CPL § 710.30(1)(a). The statement notice indicates that on February 15, 2015 at 9:00 p.m. at 510 East 142nd Street, defendant stated the following to Police Officer Lucas Alves: "I had an argument with my sister and I pushed her and punched her in the stomach once. Jaime hit me with a plate in the back of the head to defend my sister and break up the fight."
Defendant argues that his alleged statements must be suppressed because 1) the statements were made involuntarily and 2) the statements are the tainted fruits of his unlawful arrest. In the alternative, defendant requests a Huntley/Dunaway hearing to determine the admissibility of the statements.
The People oppose defendant's motion to suppress statement evidence as he has failed to allege any facts which demonstrate a sufficient legal basis for suppression as required by CPL § 710.60. Should a Huntley hearing be granted, the People request the Court to limit the scope of the hearing to determine only the voluntariness of defendant's statements.
A motion to suppress evidence "must state the ground or grounds of the motion and must contain sworn allegations of fact." CPL § 710.60(1). A motion to suppress must be summarily granted where the defendant alleges a legal ground warranting suppression and the People concede the truth of the factual allegations. CPL § 710.60(2)(a). A Court may summarily deny a motion to suppress if the defendant fails to allege a proper legal basis for suppression or if the "sworn allegations of fact do not as a matter of law support the ground alleged." CPL § 710.60(3)(b). "[T]he sufficiency of [the] defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) [the] defendant's access to information." People v. Mendoza, 82 NY2d 415, 426 (1993). However, even if the defendant's factual allegations are deficient, summarily denying a motion to suppress is disfavored. In Mendoza, supra, the Court of Appeals explained:
The CPL does not mandate summary denial of defendant's motion even if the factual allegations are deficient .If the Court orders a Huntley or Wade hearing, and defendant's Mapp motion is grounded in the same facts involving the same police witnesses, the court may deem it appropriate in the exercise of discretion to consider the Mapp motion despite a perceived pleading deficiency. Indeed, considerations of judicial economy militate in favor of this procedure; an appellate court might conclude that summary denial of the Mapp motion as improper, requiring the parties and witnesses to reassemble for a new hearing, often months or years later.
Although summary denial of a motion to suppress is disfavored, "[h]earings are not automatic or generally available for the asking by boilerplate allegations." Mendoza, 82 NY2d at 422. "It is fundamental that a motion may be decided without a hearing unless the papers submitted raised a factual dispute on a material point which must be resolved before the court can decide the legal issue." People v. Gruden, 42 NY2d 214, 215 (1977). In requesting a hearing, a defendant must "controvert the specific factual averments as to the circumstances of the crime and his arrest." People v. Doyle, 273 AD2d 69, 69 (1st Dept. 2000) quoting People v. Suggs, 268 AD2d 305, 305 (1st Dept. 2000). A motion to suppress supported solely by conclusory allegations is insufficient to satisfy the requirements of CPL § 710.60(1).
Here, defendant has failed to allege any facts to controvert the specific allegations as to his arrest so as to raise an issue of fact related to probable cause that must be determined at a hearing. Defendant merely asserts in a wholly conclusory fashion that the police lacked probable to effectuate his arrest and therefore his statements should be suppressed. This Court further notes that defendant does not even deny any of the allegations set forth in the accusatory instrument. Therefore, defendant's motion for a Dunaway hearing is denied.
In a motion to suppress a statement, all that is required to warrant a Huntley hearing is the mere claim that the defendant's statement was involuntary. People v. Weaver, 49 NY2d 1012 (1980); People v. Bingham, 144 AD2d 682 (2d Dept. 1988); Matter of Brian E., 206 AD2d 665 (3d Dept. 1994). Therefore, defendant's motion for a Huntley hearing is granted.
Sandoval /Molineaux/Ventimiglia
Defendant requests and the People consent to disclosure of defendant's past criminal history and/or prior bad or immoral acts which the People intend to use at trial and a pre-trial hearing pursuant to People v. Sandoval, 34 NY2d 371 (1974), People v. Molineaux, 168 NY 265 (1901), and People v. Ventimiglia, 52 NY2d 350 (1981). This hearing shall be held immediately before the commencement of trial.
Discovery
Pursuant to CPL § 240.45(1)(b), (c), after the jury has been sworn and before the People's opening statement, the People shall make available to defendant 1) a record of judgment of conviction of any witness they intend to call at trial and 2) the existence of any pending criminal action against any witness they intend to call at trial. The People are also reminded of their continuing obligation to supply all Rosario material and Brady material.
Future Motions
Defendant's reservation of right to file further motions is unauthorized pursuant to CPL § 255.20(3). Any future motions shall be summarily denied absent a showing of good cause.
Accordingly, defendant's motion to dismiss count one, Assault in the Third Degree (PL § 120.00[1]), as facially insufficient is granted. The People are granted leave to move to amend or otherwise cure the defects in the accusatory instrument consistent with CPL §§ 30.30 and 170.30. Defendant's motion for a Huntley hearing is granted. Defendant's motion for a Dunaway hearing is denied. Pursuant to CPL § 240.45(1)(b), (c), after the jury has been sworn and before the People's opening statement, the People shall make available to defendant 1) a record of judgment of conviction of any witness they intend to call at trial and 2) the existence of any pending criminal action against any witness they intend to call at trial. Defendant's motion for a Sandoval/Molineaux/Ventimiglia hearing is respectfully referred to the trial judge. Defendant's request to file additional motions is denied subject to rights under CPL § 255.20(3) to move for further leave upon good cause shown.
This constitutes the decision and order of this Court.
Dated:May 14, 2015
Bronx, New York
_______________________________
Hon. Armando Montano