Opinion
2012-02-27
The PEOPLE of the State of New York, v. Arturo MORALES, Defendant.
Charles J. Hynes, District Attorney, Kings County, by Erin O'Connor, Esq., Assistant District Attorney, for the People. Hilda E. Quinto, Esq., Quinto Law, PC, for the Defendant.
Charles J. Hynes, District Attorney, Kings County, by Erin O'Connor, Esq., Assistant District Attorney, for the People. Hilda E. Quinto, Esq., Quinto Law, PC, for the Defendant.
JOHN H. WILSON, J.
Defendant is charged with Assault in the Third Degree (PL Sec. 120.00), and Endangering the Welfare of a Child (PL Sec. 260.10), both Class A misdemeanors; Attempted Assault in the Third Degree (110/120.00) and Menacing in the Third Degree (PL Sec. 120.15), both Class B misdemeanors.
Defendant was also initially charged with Assault in the Second Degree (PL Sec. 120.05), a Class D felony, however, that charge was dismissed on the motion of the People on June 23, 2011.
By omnibus motion dated December 6, 2011, Defendant seeks the following: dismissal of all charges, asserting that the People's complaint is facially insufficient; dismissal in the interests of justice; discovery; and suppression of all statements, and all physical evidence.
The Court has reviewed the Court file, Defendant's motion, and the People's Response dated January 26, 2012. For the reasons stated below, the motion to dismiss for facial insufficiency and in the interests of justice are denied.
The motion for 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, and the People are reminded of their continuing obligations under People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The motions for pre-trial hearings are 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 Criminal Court Complaint, dated May 12, 2011, between May 6, 2011 and May 8, 2011, at 1715 Bleecker Street, Brooklyn, NY, Defendant is alleged to have caused “bruising and redness” to the “buttocks and thighs” of his 2 year old son. The child's mother, Complainant Sasha Garcia, states that she took the child “to Defendant's home for the weekend, and that when (the child) returned from the weekend with Defendant, Informant observed numerous bruises and welts to (the child's) buttocks and thighs.”
Police Officer Vincent Campo also alleges in the Complaint, that he observed these marks on the child, and that “Defendant admitted to hitting” the young Complainant.
Defendant, was arrested on May 11, 2011, and arraigned on the next day. At the arraignment, Defendant received written notice of his statement, to the effect that he had spanked the child, pursuant to CPL Sec. 710.30(1)(a). He was released in his own recognizance, and remains at liberty in this matter to date.
On June 23, 2011, the corroborating affidavit of the child's mother was filed with the Court, and the Criminal Court Complaint was deemed to be an information.
LEGAL ANALYSIS
(A) Facial Sufficiency
Defendant asserts that the Criminal Court information is “insufficient on its face within the meaning of CPL Sec. 170.35(1)(a) in that each and every element of the offense charged is not supported by a non-hearsay allegation.” See, Defendant's motion dated December 6, 2011, p. 5 para (A)(1). In particular, Defendant asserts a violation of the “confession corroboration rule” of CPL Sec. 60.50. See, Defendant's motion dated December 6, 2011, p 13–14 para 3–6.
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, 497 N.E.2d 686 (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, 511 N.E.2d 71 (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, 504 N.E.2d 1079 (1986).
Applying these principles to the instant matter, the factual allegations contained in the misdemeanor information before this Court are facially sufficient.
Under CPL Sec. 60.50, “a person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.”
Known as the “confession corroboration rule,” “This section sets forth the ancient principle that a person cannot be convicted solely on the strength of his or her own statement.” See, Preiser, Practice Commentary, McKinney's Book 11A, p. 211.
For example, in People v. Booden, 69 N.Y.2d 185, 513 N.Y.S.2d 87, 505 N.E.2d 598 (1987), a prosecution for driving while intoxicated, the fact that there were no observable circumstances to show the cause of an accident was sufficient to corroborate the admission of an intoxicated person ... that he had been operating the vehicle. The Court explained that the circumstances may have been capable of innocent explanation, but they nonetheless supported an inference that a crime had been committed ... Defendant's admission was the key that explained those circumstances and established defendant's connection to the criminal act.' (69 N.Y.2d at 188, 513 N.Y.S.2d 87, 505 N.E.2d 598.)” See, Preiser, Practice Commentary, McKinney's Book 11A, p. 211.
The burden to establish corroboration of a confession is slight. All that is required is “some proof, of whatever weight that a crime was committed by someone.” See, People v. Chico, 90 N.Y.2d 585, 589, 665 N.Y.S.2d 5, 687 N.E.2d 1288 (1997).
Defendant asserts that since “the accusatory instrument is based entirely on (Defendant's) admissions,” the complaint is facially insufficient. See, Defendant's motion dated December 6, 2011, p. 13 para 3. In support of his argument, Defendant relies upon two cases; People v. Miedema, 24 Misc.3d 132(A), 899 N.Y.S.2d 62, 2009 WL 1926669 (App. Term, 9th and 10th Jud. Dists. 2009), and People v. Gundarev, 25 Misc.3d 1204(A), 901 N.Y.S.2d 909, 2009 WL 3028941 (Crim. Ct., Kings Cty. 2009). However, defense counsel's reliance on these matters is misplaced.
In Gundarev, a prosecution for Driving While Intoxicated, the Court held that the “confession corroboration rule” is limited in “its application to criminal convictions, and does not apply to Criminal Court accusatory instruments,” 25 Misc.3d at 1204(A) (emphasis in original). See, also, People v. Lopez, 34 Misc.3d 476, 931 N.Y.S.2d 478 (Crim. Ct., Richmond Cty. 2011).
This ruling is based on the theory that the “confession corroboration rule” “only expressly refers to the evidence underlying a conviction,” (See, Miedema, 24 Misc.3d at 132(A)) and is not be applied in determining the facial sufficiency of an accusatory instrument. However, Miedema, a ruling from the Appellate Term of the 9th and 10th District, stated that “the requirement that a defendant's confessions or admissions be corroborated has been extended to the accusatory instrument stage” of misdemeanor pleadings. 24 Misc.3d at 132, 886 N.Y.S.2d 547(A), citing People v. Walker, 21 Misc.3d 748, 751–752, 865 N.Y.S.2d 530 (Crim. Ct., Kings Cty. 2008).
The Gundarev court held “this Court is not bound to follow the decisions of the Appellate Term for the Ninth and Tenth Districts” since “this Court sits in the Second Judicial District.” 25 Misc.3d at 1204(A). However, this Court disagrees, and will accept the reasoning of Miedema and Walker. In this case, CPL Sec. 60.50 will be applied to determine whether or not the misdemeanor information in this case is facially sufficient. See, also, People v. Martz, 28 Misc.3d 1215(A), 2010 WL 2949939 (Dist. Ct., Nassau Cty. 2010) (“CPL Sec. 60.50 ... applies to the allegations contained in the information.”)
Here, the child's mother, Complainant Sasha Garcia, states that she took the child “to Defendant's home for the weekend, and that when (the child) returned from the weekend with Defendant, Informant observed numerous bruises and welts to (the child's) buttocks and thighs.”
Police Officer Vincent Campo also alleges in the Complaint, that he observed these marks on the child.
These observations from two witnesses are sufficient to corroborate the Defendant admission of striking his two year old son.
Therefore, Defendant's motion to dismiss for facial insufficiency is denied.
(B) Interests of Justice
Defendant asserts that “compelling factors and circumstances exist that clearly demonstrate that the prosecution of the defendant would constitute or result in an injustice.” See, Defendant's motion dated December 6, 2011, p. 8, para 12.
CPL Sec. 170.40(1) provides for a variety of factors which require dismissal of “an information, a simplified traffic information, a prosecutor's information or a misdemeanor complaint, or any count thereof as a matter of judicial discretion” if “some compelling factor, consideration or circumstance clearly demonstrate that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice.” See, also, CPL Sec. 170.30(1)(g).
The discretion of the Court to dismiss an information in the furtherance of justice is not absolute, nor is it uncontrolled. See, People v. O'Grady, 175 Misc.2d 61, 65, 667 N.Y.S.2d 895 (Crim. Ct., Bx. Cty. 1997), citing, People v. Wingard, 33 N.Y.2d 192, 351 N.Y.S.2d 385, 306 N.E.2d 402 (1973). In fact, this power is to be “employed cautiously and sparingly.” See, People v. Eubanks, 114 Misc.2d 1097, 1098, 454 N.Y.S.2d 768 (App.Term, 2d Dept.1982).
On a motion to dismiss in the interests of justice, the burden is on the Defendant to establish “some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant would constitute or result in injustice.” See, People v. Boulet, 88 Misc.2d 353, 355, 388 N.Y.S.2d 250 (City Ct., Rochester 1976); People v. Verardi, 158 Misc.2d 1039, 1042, 602 N.Y.S.2d 318 (Crim. Ct., Kings Cty. 1993).
When considering the motion, the court need not “engage in a point-by-point catechistic discussion of all ten statutory factors; instead, the court is required to consider the factors individually and collectively in making a value judgment that is based upon striking a sensitive balance between the interests of the individual and those of the state.” See, People v. Gragert, 1 Misc.3d 646, 648, 765 N.Y.S.2d 471 (Crim. Ct., N.Y. Cty. 2003).
Here, there is no basis under any factor enumerated in CPL Sec. 170.40 that would justify the dismissal of this matter in the interest of justice. In fact, “the dismissal of this matter in the interest of justice would send exactly the wrong message, make this community less safe, and undermine the public's confidence in our system.” See, People v. SH, 196 Misc.2d 754, 756, 766 N.Y.S.2d 520 (City Ct., Rye 2003). See, also, People v. Watson, 182 Misc.2d 644, 651, 700 N.Y.S.2d 651 (1999) (“dismissal of these charges would cause the public to lose confidence in the criminal justice system. The public would view the system as unconcerned or cavalier about the welfare of children.”)
Therefore, Defendant's motion to dismiss in the interest of justice is denied.
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, 173 N.E.2d 881 (1961) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Defendant has moved for suppression of any statements he allegedly made to law enforcement personnel. This motion is granted on the consent of the People to the extent of ordering a pre-trial hearing at which the issue of whether or not Defendant's statements are admissible.
Defendant seeks to suppress all evidence on the basis that there was no probable cause for his arrest. This motion is granted on the consent of the People to the extent of ordering a pre-trial hearing at which the issue of whether or not there was probable cause for Defendant's arrest.
Since the People do not seek to use any physical property as evidence against the Defendant, the motion to suppress physical evidence is denied.
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.