Opinion
No. 2008NA006851.
2010-07-28
The PEOPLE of the State of New York, v. David MARTZ, Defendant.
Kathleen Rice, Nassau County District Attorney–Steven Schwartz, Esq, ADA. Agulnick & Gogel, LLC–Attorneys, for defendant.
ANDREW M. ENGEL, J.
The Defendant is charged with Endangering the Welfare of a Child, in violation of Penal Law § 260.10(1), and two counts of Public Lewdness, in violation of Penal Law § 245.00. Count Four, a superceding count replacing the original Count Two ( see:CPL § 100.50), charging the Defendant with Public Lewdness, alleges that on March 15, 2008, at approximately 2:40 p.m., in a public men's room at the Roosevelt Field Mall (“the Mall”), the Defendant “did expose his penis and masturbate his penis with his hand in clear view of the victim, a 13 year old boy.” ( District Court Information, 3/15/08) Count Three, charging the Defendant with a second count of Public Lewdness, alleges that the Defendant committed the same conduct on the same date and at the same location, at approximately 2:10 p.m. Count One, charging Endangering the Welfare of a Child, refers to both of these alleged incidents.
The Defendant moved to dismiss “one or more” ( Notice of Motion 5/5/10) of the charges, alleging that the accusatory instruments are facially insufficient. The Defendant argues that the supporting deposition of the 13 year old in question, the only person with first hand knowledge of the Defendant's alleged conduct, addresses only one of the alleged acts of public lewdness. The Defendant further argues that, while the Defendant's written admission discusses two acts of alleged public lewdness, “there is a total lack of corroboration for the alleged confession by the defendant that he stroked himself and masturbated on a second occasion with the same complainant.” ( Agulnick Affirmation 5/5/10, ¶ 19)
In opposition to the Defendant's motion, the People do not contest the Defendant's underlying premise that the supporting deposition of the only eyewitness addresses only one of the alleged acts of public lewdness; nor do the People contest that an uncorroborated confession cannot render an otherwise facially insufficient accusatory instrument sufficient. The People, nevertheless, suggest that the Defendant's admission of a second act of public lewdness is sufficiently corroborated by the supporting depositions of the 13 year old boy and his mother.
On June 9, 2001 the court issued a preliminary order noting that the Defendant's admission was not annexed to the informations and that the complaining witness' supporting deposition was dated March 15, 2008, but alleged that the events in question took place on May 14, 2008. Given the fact that neither of these issues were addressed by the parties' motion papers, the court set the matter down for conference and oral argument on June 9, 2010.
On June 9, 2010 the Defendant argued that he was unaware that the admission was not annexed to the informations. He further argued that the complaining witness' supporting deposition should be deemed a nullity given that it alleged incidents occurring on a date other than the one for which the Defendant stands accused. According to the Defendant, without a proper supporting deposition from the complaining witness there are no non-hearsay allegations which could support the charges brought against him.
The People argue, on the one hand, that the filing of the Defendant's admission with the court is the same as annexing it to the informations. On the other hand, the People concede that, as of the time of the oral argument, there was no supporting deposition which laid a proper foundation for the consideration of the Defendant's admission in determining the facial sufficiency of the informations. The People further argue that the date of the alleged incident set forth in the complaining witness' supporting deposition is an obvious scrivener's error, it being impossible for the events to have taken place two months after the date of the complaining witness' supporting deposition. Given this error, the People suggest that when the complaining witness' supporting deposition is read in conjunction with his mother's supporting deposition, which contains the correct date of the alleged crimes, they are sufficient to support the informations. The People further indicated that it was their intention to file new supporting depositions curing the defect in the complaining witness' supporting deposition and laying a proper foundation for the consideration of the Defendant's admission.
Following oral argument, the court reserved decision and indicated to the parties that if no new supporting depositions were filed before July 28, 2010 the court would render a decision based upon the papers previously submitted; if new supporting depositions were filed before that date the Defendant would be given the opportunity to address those papers.
On July 27, 2010 the People filed a superceding information, replacing Count 2 with Count 4, charging the Defendant with the aforesaid act of public lewdness. The new papers consist of a District Court Information subscribed by Detective Sergeant Curt. L. Beaudry, the Defendant's written admission of March 15, 2008, the supporting deposition of the complaining witness' mother, and the supporting depositions of the complaining witness dated March 15, 2008 and July 26, 2010. The Defendant has been arraigned on the superceding information and Count Two has been dismissed pursuant to CPL § 100.50. The parties have stipulated that the branch of the Defendant's motion to dismiss the superceded Count Two, and the People's opposition thereto, shall be applied to the newly filed Count Four.
The supporting deposition of the complaining witness dated July 26, 2010 alleges that the allegations contained in his supporting deposition dated March 15, 2008 are “true and accurate in all respects except that the events described occurred on March 15, 2008, not May 15, 2008. The complaining witness' supporting deposition dated March 15, 2008 alleges, in sum and substance, the following: at about 2:10 p.m., at the Roosevelt Field Mall, he went into the men's room near Nordstrom's where he noticed the Defendant, using the urinal to his left, staring at him. When the complaining witness went to dry his hands he noticed the Defendant stroking his own erect penis while he stared at the complaining witness. The complaining witness then left the men's room to look for his sister and his mother, who works at Nordstrom's. Upon finding his mother, the complaining witness could not speak with her because she was with a customer. After about one-half hour the complaining witness began to have a bad stomach ache so he returned to the same bathroom as earlier. Before entering the bathroom the complaining witness saw the Defendant exit, then turn around and re-enter the bathroom ahead of him. With his stomach hurting too badly to make it to another bathroom, the complaining witness entered the bathroom, went straight into a stall and locked the door. When done, the complaining witness immediately left the bathroom, without washing his hands. In the hallway, after exiting the bathroom, the Defendant approached the complaining witness and said, “Yo, do you want to go someplace?” The complaining witness said, “No,” and ran away crying.
The superceding District Court Information subscribed by Det. Sgt. Beaudry alleges that on March 15, 2008, at 2:40 p.m., in a public men's room at the Roosevelt Field Mall, the Defendant did “expose his penis and masturbate his penis with his hand in clear view of the victim, a 13 year old boy.” Det. Sgt. Beaudry further states that these allegations are based upon “information and belief, the source of said information, and the basis for said belief, the supporting depositions of the victim and complainant, and the defendant's Statement of Admission made to your deponent, which are annexed hereto and made a part hereof.”
The Defendant's admission states, in sum and substance, in pertinent part, that on March 15, 2008 at “around 2:00 p.m., maybe 2:30 p.m.” he entered the bathroom and used the second urinal next to the entrance. At that time there was a male thirteen to fourteen years old at the urinal to his immediate right. When the boy went to the sink to wash his hands the Defendant “got excited so [he] started to stroke [himself].” While doing so, the Defendant was standing away from the urinal so if anyone looked they could see him. The Defendant was looking at the boy; and, the boy saw the Defendant stroking himself. The boy then left the bathroom and the Defendant continued stroking himself for another minute or two. The Defendant then washed his hands, left the bathroom and continued to shop. About ten minutes later the Defendant returned to the same bathroom and went into a stall. Upon exiting the stall the Defendant went to the urinal and after urinating again started stroking himself. While this was going on the same boy exited a stall and saw the Defendant stroking himself. The boy then went to the sink, washed his hands and left the bathroom. The Defendant followed the boy, walked up to him and said, “Do I know you, do you want to go somewhere?” The boy said, “No,” and walked away. The Defendant returned to the bathroom and washed his hands.
The informations will be found facially sufficient where, in conformity with CPL §§ 100.15 and 100.40, they contain an accusatory part, designating the offenses charged, CPL § 100.15(2), setting forth every element thereof, People v. Hall, 48 N.Y.2d 927, 425 N.Y.S.2d 56 (1979), and a factual part containing “a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]” CPL § 100.15(3), based upon either the complainant's personal knowledge or upon information and belief. CPL § 100.15(3) The factual part, taken together with any supporting depositions, must contain non-hearsay allegations which, if true, establish every element of the offences charged, People v.. Moore, 5 NY3d 725, 800 N.Y.S.2d 49 (2005); People v. Thomas, 4 NY3d 143, 791 N.Y.S.2d 68 (2005) “provid[ing] reasonable cause to believe that the defendant committed the offense[.]” People v. Alejandro, 70 N.Y.2d 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 § 70.20
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) and should not be given an overly restrictive or technical reading, People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88 (2000); People v. Baumann & Sons Buses, Inc., 6 NY3d 404, 813 N.Y.S.2d 27 (2006). They must be sufficient to serve the purpose of providing the Defendant with notice enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from again being tried for the same offense. People v. Dreyden, 15 NY3d 100, 2010 N.Y. Slip Op. 05243, 2010 WL 2360610 (2010); People v. Kalin, 12 NY3d 225, 878 N.Y.S.2d 653 (2009)People v. McDermott, 69 N.Y.2d 889, 515 N.Y.S.2d 225 (1987); People v. McGuire, 5 N.Y.2d 523, 186 N.Y.S.2d 250 (1959) Such a showing is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Swamp, 84 N.Y.2d 725, 622 N.Y.S.2d 472 (1995); People v. Porter, 75 A.D.2d 901, 428 N.Y.S.2d 63 (2nd Dept.1980)
Count One, charging the Defendant with Endangering the Welfare of a Child, and Count 3, charging the Defendant with an act of Public Lewdness, allegedly occurring at 2:10 p.m., meet the prima facie requirements of CPL 100.15 and 100.40, as set forth in People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88 (2000) The non-hearsay allegations of the complaining witness set forth that on the date in question, at about 2:10 p.m., the defendant exposed himself and masturbated in a public place, in full view of the complaining witness, while staring at the complaining witness, and later tried to get the complaining witness to go somewhere with him. If these allegations are true, they provide reasonable cause to believe that the defendant “expose[d] the private or intimate parts of his body in a lewd manner ... in a public place,” See:Penal Law § 245.00, and “knowingly act[ed] in a manner likely to be injurious to the to the physical, mental or moral welfare of a child less than seventeen years old[.]” See:Penal Law § 260.10 For this reason, the court finds the informations charging Count One and Count Three to be facially sufficient.
The court reaches the opposite conclusion for Count Four. It is readily apparent that neither the supporting depositions of the complaining witness nor the supporting deposition of his mother contain any allegation concerning an act of public lewdness committed by the Defendant at or about 2:40 p.m, as alleged in this information. Instead, the People rely upon the defendant's written admission, which is now properly annexed by the subscribed statement of Det. Sgt. Beaudry, who personally took the statement, and the indirect allegations of the complaining witness, which the People believe adequately corroborate the Defendant's admission of a second act committed at or about 2:40 p.m.
CPL § 60.50 requires corroboration of a defendant's admission before he may be found guilty of the crime charged. The People do not contest that this requirement applies to the allegations contained in the informations as well. See: People v. Miedema, 24 Misc.3d 132(A), 899 N.Y.S.2d 62 (App.Term 9th & 10th Jud. Dists.2009); People v. Armenta, 27 Misc.3d 1218(A), Slip Copy, 2010 WL 1797031 (Crim.Ct. Kings Co 2010)
“The requirements of the rule are not rigorous; and, sufficient corroboration exists when the confession is supported' by independent evidence of the corpus delicti (see, People v. Safian, 46 N.Y.2d 181, 187 cert denied sub nom. Miner v. New York, 443 U.S. 912;cf. People v. Brasch, 193 N.Y. 46, 60–65;People v. Jaehne, 103 N.Y. 182, 199–200).” People v. Booden, 69 N.Y.2d 185, 513 N.Y.S.2d 87 (1987) The statutory threshold for corroboration is low. See: People v. Chico, 90 N.Y.2d 585, 665 N.Y.S.2d 5 (1997) It does not require the submission of independent evidence of every component of the crime charged. See: People v. Chico, id. There must, however be some proof, of whatever weight', that the offense charged has in fact been committed by someone (People v. Daniels, 37 N.Y.2d 624, 629;see also, People v. Cuozzo, 292 N.Y. 85;People v. White, 176 N.Y. 331)[;]” People v. Booden, supra.; See also: People v. Miediema, supra.; People v. Zarif, 290 A.D.2d 401, 737 N.Y.S.2d 339 (1st Dept.2002), “and conduct of defendant indicating a consciousness of guilt, such as presence at the scene, proof of motive or flight....” People v. Lipsky, 57 N.Y.2d 560, 457 N.Y.S.2d 451 (1982); See also: People v. Mulgrave, 163 A.D.2d 538, 558 N.Y.S.2d 607 (2nd Dept.1990)
An analysis of prior cases applying these principles provides guidance for the application of these principles herein. In People v. Gundarev, 25 Misc.3d 1204(A), 901 N.Y.S.2d 909 (Crim.Ct.Kings Co.2009) the defendant admitted he had been operating a motor vehicle and the non-hearsay allegations of the investigating officer were that the defendant was present at the scene exhibiting signs of intoxication. There were no allegation of the officer having observed an accident or any vehicle driven by defendant. In finding that there was insufficient corroboration the court noted, “Our fact pattern does not meet the standard set forth in Booden, supra, in that there are no circumstances supporting the inference that a vehicle existed, or had been driven by anyone, let alone Defendant, to corroborate the occurrence of the offense of driving while impaired, and specifically the element that defendant was driving or otherwise operating a motor vehicle.”
In contrast, in People v. Booden, supra., the defendant admitted operation of the vehicle in question and the officer alleged that the defendant's father's vehicle was found in a ditch, facing the wrong direction of travel, that the pavement was dry, negating any suggestion of an accidental skid, that the defendant and his companions were standing next to the vehicle, that he smelled alcohol coming from defendant, and observed signs of the defendant's intoxication. In holding the officer's statements to provide sufficient corroboration the court found that the observations of the officer supported the inference that a crime had been committed because the car may have been driven by a person under the influence of alcohol. The defendant's admission “was the key' that explained those circumstances and established defendant's connection to the criminal act (citations omitted).” People v. Booden, id.
In the matter before this court, the circumstances are more like Gundarev than Booden. Here, while the complaining witness' supporting deposition places the defendant at the location in question, it fails to provide any indication whatsoever that an act of public lewdness may have taken place. As in Gundarev, corroboration of the defendant's mere presence at the scene is insufficient. As previously noted, People v. Lipsky, supra. would allow for proof of one's presence at the scene to serve as some form of corroboration only where it is accompanied by some proof, of whatever weight, that a crime was committed by someone.
A comparison of cases like People v. Cole, 24 AD3d 1021, 807 N.Y.S.2d 166 (3rd Dept.2005) and People v. Garcia, 160 A.D.2d 258, 553 N.Y.S.2d 367 (1st Dept.1990) with cases like People v. Fuller, 66 A.D.2d 27, 412 N.Y.S.2d 703 (1979)aff'd50 N.Y.2d 628, 431 N.Y.S.2d 357 (1980) and People v. Jones, 133 A.D.2d 972, 521 N.Y.S.2d 123 (3rd Dept.1987) yields the same conclusion.
In People v. Cole, supra., the defendant was convicted of sodomy, which required proof of anal sexual contact with an individual less than 11 years old. The court found that the child's mother's observations of the child in a closet with the defendant, although no sexual contact was seen, along with the child's underpants being pulled down under his clothes, and a finding of perianal tears consistent with the child's complaints of pain, amply corroborated that a crime was committed in conformity with the defendant's confession.
Similarly, in People v. Garcia, supra., the defendant was convicted of sodomizing a 7 year old child, although there was no direct proof of sodomy. The court found that the testimony of the child's 13 year old brother that he saw defendant leaning over the child with his head at her waist area was sufficient corroboration to establish the commission of the crime.
In contrast, in People v. Fuller, supra., where corroboration was required pursuant to Penal Law § 130.16, the underage complainant testified to having had sexual intercourse with defendant. The evidence of corroboration offered by the prosecution consisted of inconclusive medical testimony, the defendant's admission that he was in bed with the child, testimony from the defendant's mother that she saw the defendant in bed with the child and testimony from the child's grandmother that she called the police. The court found such evidence insufficient for corroboration, noting that it did not provide corroboration on the issue of penetration.
Likewise, in People v. Jones, supra., corroboration was required, pursuant to Penal Law § 130.16, to sustain the two counts of second degree rape with which the defendant was charged. Regarding the second count, the defendant's eleven year old daughter testified that the defendant took her under a trailer and forced her to have sexual intercourse. The corroborative evidence consisted of the testimony of the defendant's 12 year old daughter that she saw her sister and the defendant go under the trailer together and later emerge separately. Regarding the third count, the defendant's twelve year old daughter testified that while in a horse trailer with the defendant he forced her to engage in sexual intercourse. The corroborative evidence consisted of the testimony of defendant's ten year old son who said he was present and witnessed the sexual act. The court held that the testimony of the defendant's son was sufficient corroboration for count three, whereas the testimony of the defendant's twelve year old daughter was insufficient corroboration for count two. In so holding the court noted, “there is no corroborating evidence which would tend to establish that an attempt at sexual intercourse or sexual contact was made. Corroborative evidence on both points was essential (citations).”
In the matter sub judice, as in Fuller and Garcia, the corroborative allegations of the complaining witness merely place the defendant in the men's room at 2:40 p.m. Completely absent from his supporting deposition is any hint, allegation or suggestion that on this occasion the defendant exposed himself, touched himself, touched his belt, touched his zipper, touched his pants or performed any act which was remotely connected with an act of public lewdness at that time.
Based upon all of the foregoing, that branch of the Defendant's motion which seeks an order dismissing Count One and Count Three is denied. That branch of the Defendant's motion which seeks an order dismissing Count Four is granted; and, it is hereby
ORDERED, that Count Four is dismissed.
This constitutes the decision and order of the court.