Opinion
No. 2015KN021499.
10-14-2015
The PEOPLE of the State of New York, Plaintiff, v. Stephanie Heliane Mbida NDJIE,, Defendant.
Ruth Yang, Esq., New York, attorney for defendant. Kenneth Thompson, District Attorney, Kings County, by India Sneed Esq., Assistant District Attorney, Brooklyn, of Counsel for the People.
Ruth Yang, Esq., New York, attorney for defendant.
Kenneth Thompson, District Attorney, Kings County, by India Sneed Esq., Assistant District Attorney, Brooklyn, of Counsel for the People.
ANDREW BORROK, J.
The instant matter is before the court because the defendant seeks (i) Dismissal of the Information for Facial Insufficiency or in the Interest of Justice, and (ii) to suppress the statement made to Officer Ryan Riveron and the identification made by Vida Shammas (the CW), the complainant, pursuant to CPL § 710.20. In addition, the defendant asked the court to order the People to turn over further discovery not yet produced and to sign a Subpoena to the New York City Department of Human Resources Administration Adult Protective Services, Brooklyn Borough Office. For the reasons set forth below, the defendant's motion to (i) dismiss for facial insufficiency or in the interest of justice is denied in its entirety and (ii) to suppress the statement made to Officer Riveron and the identification made by the CW is denied at this time. However, the defendant's motion for a Dunaway/Huntley/Wade hearing to determine whether the statement made to the police officer was voluntary and the identification made to the CW was not unduly suggestive or otherwise in violation of the defendant's United States Constitutional rights is granted. The court executed the subpoena to the New York City Department of Human Resources Administration Adult Protective Services, Brooklyn Borough Office, attached as Exhibit D to the Defendant's Affirmation.
THE RELEVANT FACTS AND CIRCUMSTANCES
On April 9, 2015, the defendant was arraigned and charged with Assault in the Second Degree (Penal Law (PL) § 120.05[3] ), Assault in the Third Degree (PL § 120.00[1] ), Attempted Assault in the Third Degree (PL § 110/120.00[1] ), Obstructing Governmental Administration in the Second Degree (PL § 195.05), Menacing in the Third Degree (PL § 120.15) and Harassment in the Second Degree (PL § 240.26). The matter was adjourned until May 7, 2015 to Part AP1F for grand jury action.
On May 7, 2015, there was no grand jury action and the matter was adjourned to the felony dismissal calendar on October 30, 2015. The case was advanced however on June 5, 2015 so that the People could dismiss the felony charge of Assault in the Second Degree (PL § 120.05). On June 5, 2015, the People did dismiss the Felony charge of Assault in the Second Degree and served and filed a supporting deposition of Vida Shammas which supporting deposition converted all of the pending charges. The matter was adjourned until August 5, 2015 to Part AP2 for discovery by stipulation (DBS).
On August 5, 2015, the People served and filed DBS and the defendant made an application to the court for a motion schedule indicating that he planned on filing a motion to dismiss the pending charges. The defendant said that he would file this motion by August 24, 2015 and the People were given until September 16, 2015 to respond to the defendant's motion. The court adjourned the matter until October 14, 2015 for the court's decision on the defendant's motion.
I. DISMISSAL OF THE INFORAMTION FOR FACIAL SUFFICIENCY
An information is sufficient on its face when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof. CPL §§ 100.40(1), 100.15. Reasonable cause exists where there are sufficient facts set forth in the accusatory instrument which would convince a person of ordinary intelligence, judgment and experience that such offenses were reasonably likely to have been committed and that such offenses were committed by the defendant. CPL § 70.10(2) Provided that the factual allegations give the defendant sufficient notice to prepare a defense and are adequately detailed to prevent the defendant from being tried twice for the same offense, the allegations should not be given an overly restrictive or technical reading. People v. Casey, 95 N.Y.2d 354, 360 (2000). Although the requirement is not the same as the People's burden at trial to prove every element of the offenses charged beyond a reasonable doubt, the failure to satisfy the requirements of CPL § 100.40(1)(c) creates a jurisdictional defect to the criminal action requiring dismissal. See People v. Henderson, 92 N.Y.2d 677, 680 [1999] ); People v. Alejandro, 70 N.Y.2d 133, 137 (1987) ; People v. Kalin, 12 NY3d 225 (2009).
The factual portion of the instant accusatory instrument alleges that:
On April 8, 2015 at about 4:30 p.m. in front of 799 Eastern Parkway, in the County of Kings, State of New York:
Deponent [Police Officer Ryan Riveron] states that on the above mentioned time, date, and place of occurrence, deponent is informed by Vida Shammas that the informant identified herself as an adult protective services employee for the NYC Department of Human Resources to defendant and informed defendant that informant needed to enter the above-mentioned location to check on informant's client.
Deponent is further informed by informant that defendant did not allow informant to enter the above-mentioned location and defendant then pushed informant off of a stoop and informant fell to the ground.
Deponent is further informed by informant that the above described actions caused informant to suffer a laceration about the hand and pain about the hip, the suffer substantial pain, to fear further physical injury, to become alarmed and annoyed and to receive medical treatment from New York Methodist Hospital.
Obstructing Governmental Administration in the Second Degree (PL § 195.05)
A person is guilty of Obstructing Governmental Administration in the Second Degree "when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act ..." PL § 195.05. In order to be facially sufficient, the accusatory instrument must allege an act of either (i) intimidation, (ii) physical force or interference, or (iii) an independently unlawful act. People v. Stump, 129 Misc.2d 703, 704 (Dist Ct, Suffolk County 1985), affd 132 Misc.2d 3 (2nd Dept, 1986).
The defendant argues that the accusatory instrument is not facially sufficient because the accusatory instrument does not specify the manner in which the complainant identified herself as a public servant or allege the defendant's intent to prevent the complainant from performing an official function. Defense Affirmation, pg. 10–11 citing People v. Hutchinson, 39 Misc.3d 133(A) (N.Y. App Term 2013). The court does not agree.
The accusatory instrument indicates that the CW identified herself to the defendant as an adult protective services employee for the NYC Department of Human Resources and told the defendant that she needed to see her client inside the location. The accusatory instrument further provides that the defendant refused to allow the complainant inside the location and that, instead, the defendant pushed the complainant off of the stoop in front of the defendant's front door causing the complainant to fall to the ground . Additionally, it is well settled that intent may be inferred from the defendant's actions. People v. Makwana, 17 Misc.3d 296 (Crim Ct, Queens County 2007). The defendant's alleged act of pushing the CW off of the stoop to the ground, taken in a light most favorable to the People, supports the inference that the defendant intentionally prevented the CW, a public servant, from performing an official function, by means of physical force. Therefore, the defendant's motion to dismiss the charge of Obstructing Governmental Administration is denied.
The defendant's reliance on People v. Hutchinson is misplaced. The issue in Hutchinson was whether the conviction was sustained at trial for, among other charges, Obstructing Governmental Administration where the police officer testified that he did not identify himself as a police officer to the defendant. The facts in Hutchinson vastly differ from the facts in the instant case where Vida Shammas, the complainant, identified herself as an adult protective services employee to the defendant. Additionally, the standard for facial sufficiency is reasonable cause to believe that the defendant committed the crimes charges where as the standard at trial is whether the defendant is guilty beyond a reasonable doubt.
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Assault and Attempted Assault in the Third Degree
A person is guilty of Assault in the Third Degree "when with intent to cause physical injury to another person, he causes such injury to such person or to a third person." PL § 120.00(1). A person is guilty of an attempt to commit a crime "when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime." CPL § 110. The required element of "physical injury" is defined as "impairment of physical condition or substantial pain." PL § 10.00(9); see also People v. Henderson, 92 N.Y.2d at 680.
The defendant argues that the accusatory instrument is facially insufficient because it does not establish the defendant's conscious objective to cause impairment of physical condition or substantial pain and does not allege impairment of physical condition or substantial pain. The court does not agree.
The issue of "whether the substantial pain' necessary to establish an assault charge has been proved is generally a question for the trier of fact." People v. Rojas, 61 N.Y.2d 726, 727 (1984), citing Matter of Philip A., 49 N.Y.2d 198, 200 (1980). As the Court of Appeals has noted, "substantial pain' cannot be defined precisely" and, although "it is more than slight or trivial pain ... it need not ... be severe or intense...." People v. Chiddick, 8 NY3d 445, 447 (2007). In this case, the complainant suffered a laceration to the hand and pain to the hip and received medical treatment from New York Methodist Hospital. Taking these allegations in a light most favorable to the People, the court finds them sufficient at the pleading stage to support the reasonable inference that the complainant in this case suffered physical injury. Therefore, the defendant's motion to dismiss the charge of Assault in the Third Degree and Attempted Assault in the Third Degree is denied.
Menacing in the Third Degree
A person is guilty of Menacing in the Third Degree when "by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury, or physical injury. PL § 120.15. The defendant argues that the accusatory instrument is facially insufficient because that the facts alleged in the accusatory instrument do not support the "physical menace" or the "imminent physical injury" elements. The court does not agree.
The accusatory instrument states that the defendant pushed the complainant off of the stoop causing her to fall to the ground. These allegations would certainly permit a reasonable jury to conclude that there had been a physical menace and that the complainant feared imminent physical injury. Accordingly, the defendant's motion to dismiss the count of Menacing in the Third Degree is denied.
Harassment in the Second Degree
A person is guilty of Harassment in the Second Degree "when with intent to harass, annoy or alarm another person, he strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same." PL § 240.26(1). Many different levels of even minor physical contact can support a harassment charge. See People v. Simmons, 42 Misc.3d 462 (Crim Ct, Bronx County 2013). "It is apparent that the Legislature intended the language "or otherwise subjects another person to physical contact" to be a catchall provision. It would have been an impossible task for the Legislature to envision every possible underlying circumstance that could arise in connection with physical contact." People v. Carlson, 183 Misc.2d 630, 635 (Crim Ct, N.Y. County 1999).
The defendant argues that the accusatory instrument is not facially sufficient because it does not allege intent to harass annoy or alarm another person by striking, kicking or otherwise subjecting such other person to physical contact and that the defendant pushing the complainant off of the stoop could have been an accident.
In this case, the information alleges that the defendant pushed the complainant off of a stoop causing the complainant to fall to the ground. Taken in a light most favorable to the People, the act of pushing a complainant causing a complainant to fall to the ground gives rise to the inference that the defendant had an intent to harass, alarm or annoy. Although there may be a legitimate reason for which the defendant may have pushed the complainant, this is an issue for trial. Therefore, the defendant's motion to dismiss the charge of Harassment in the Second Degree as facially insufficient is denied.
II. DISMISSAL OF THE INFORMATION IN THE INTEREST OF JUSTICE
CPL § 170.30(1)(g) provides that, upon motion of a defendant, the court may dismiss an information in the interest of justice, within the meaning of CPL § 170.40(1). However, it is well established that a dismissal in the interest of justice is to be "exercised sparingly and only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations." People v. Insignares, 109 A.D.2d 221, 234, (1st Dept), lv denied 65 N.Y.2d 928 (1985), quoting People v. Belge, 41 N.Y.2d 60, 62–63, (1976). The decision to dismiss an information in the interest of justice is not "an untrammeled right to act on purely subjective considerations but requires a balancing of the interests of the individual and of the People." People v. Rickert, 58 N.Y.2d 122, 126–127 (1983). Rather, the court is required to consider the factors enumerated in the statute in deciding whether compelling considerations or circumstances clearly demonstrate that continued proceedings would result in injustice. People v. Velez, 111 AD3d 503 (1st Dept 2013). CPL § 170.40(1) requires that, when considering a motion to dismiss an information in furtherance of justice, it must "individually and collectively" consider the following factors:
(a)the seriousness and circumstances of the offense;
(b)the extent of harm caused by the offense;
(c)the evidence of guilt, whether admissible or inadmissible at trial;
(d)the history, character and condition of the defendant;
(e)any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;
(f)the purpose and effect of imposing upon the defendant a sentence authorized for the offense;
(g)the impact of a dismissal on the safety or welfare of the community;
(h)the impact of a dismissal upon the confidence of the public in the criminal justice system;
(I)where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;
(j)any other relevant fact indicating that a judgment of conviction would serve no useful purpose.
The seriousness and circumstances of the offense
Assault in the Third Degree (PL § 120.00[1] ) and Obstructing Governmental Administration in the Second Degree (PL § 195.05) are both Class A misdemeanors. They are without question serious offenses. If the People prove their case beyond a reasonable doubt, the defendant could face as much as one year imprisonment for each charge. In addition, the People allege that the defendant's actions physically harmed the CW sufficiently that she needed to go to the hospital for treatment. Accordingly, this factor does not favor dismissal of the charges pending against the defendant.
The extent of harm caused by the offense
Although harm need not be measured by physical injury alone and mental and emotional harm must also be considered, in this case, the CW went to the hospital and was treated for a laceration to her hand and pain to her hip. Accordingly, consideration of this factor does not favor dismissal.
The evidence of guilt, whether admissible or inadmissible at trial
In this case, the People's evidence includes the testimony of the CW, the testimony of the arresting officer, the medical records of the CW, and the defendant's admission that the defendant pushed the complainant. Nothing in the record suggests that any portion of the substantial body of evidence would be inadmissible at trial. The defendant argument amounts to "it's my word against hers (i.e., the CW)." This is of course a question of fact. A motion to dismiss an action in the interest of justice is not intended to be a substitute for trial. People v. Figueroa, 164 Misc.2d 814, 821 (Crim Ct, Kings County 1995) ; People v. McConnell, 11 Misc.3d 57, 61–62 (2d Dept 2006). Accordingly, this factor does not favor dismissal.
The history, character, and condition of the defendant
The defendant indicates that she is the executive director of a microfinance organization dedicated to helping the working poor by creating small businesses in third world countries. She does volunteer work, and indicates that she is married and has never been arrested before. There simply is nothing rare or unusual which "cries out for fundamental justice beyond the confines of conventional considerations" for the case to be dismissed. Insignares, 109 A.D.2d 221. Accordingly, this factor does not favor dismissal.
Any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant
The defendant does not claim any serious misconduct on the part of law enforcement in relation to this case. The defendant indicates only that the prosecution has failed to obtain exculpatory statements made by the defendant and the defendant's sister to the Department of Human Resources Administration, but concedes that this conduct does not rise to the level of serious misconduct of law enforcement personnel warranting dismissal. Accordingly, this factor does not favor dismissal.
The purpose and effect of imposing upon the defendant a sentence authorized for the offense
As discussed above, the defendant is charged, among other things, with Assault in the Third Degree (PL § 120.00[1] ), and Obstructing Governmental Administration in the Second Degree (PL § 195.05)-i.e., two Class A Misdemeanors. As stated above, if convicted of one of those charges, the statute authorizes a sentence of up to one year of incarceration. The defendant does not plead that this factor favors dismissal of the charges. In fact, the defendant merely points out that this is the defendant's first contact with the criminal justice system. This argument however is unavailing. People v. Berrios, 160 Misc.2d 612 (1994) ; People v. McGorman, 159 Misc.2d 736 (1993) ; People v. McIwain, 300 A.D.2d 320 (2002). It is more appropriately directed to the sentencing court should the defendant be convicted. The function of the criminal court is not only to provide protection, but also to provide deterrence, rehabilitation and retribution. People v. Berrios, 160 Misc.2d 612 (1994)citing People v. McConnell, 49 N.Y.2d 340 (1980). The sentencing court would have discretion in determining the appropriate sentence and whether any jail time would be an appropriate part of her sentence. Accordingly, consideration of this factor does not favor dismissal.
The impact of a dismissal on the safety or welfare of the community
The defendant does not discuss the impact of a dismissal or otherwise indicate that a dismissal would not have a deleterious effect on the safety or welfare of the community. Accordingly, this factor does not favor dismissal.
The impact of a dismissal upon the confidence of the public in the criminal justice system
The defendant does not discuss the impact of a dismissal or otherwise indicate that a dismissal would not have a deleterious effect upon the confidence of the public in the criminal justice system. Accordingly, this factor does not favor dismissal.
Where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion
The CW wants a full "stay away" order of protection barring this defendant from having any future contact with her and has not signed paperwork (i.e., a waiver of prosecution), recanting her story or other indicated that she would like to see the defendant's motion to dismiss granted. Accordingly, this factor does not favor dismissal.
Any other relevant fact indicating that a judgment of conviction would serve no useful purpose.
The defendant argues that the defendant faces potential negative immigration consequences which might induce deportation as a result of a conviction in this case. Potential immigration consequences to a defendant is not an appropriate reason to dismiss. See People v.. Reyes, 174 A.D.2d 87, 89 (1st Dept., 1992). Accordingly, this factor does not favor dismissal.
Having considered the factors set forth in CPL § 170.40, both collectively and individually, this Court finds in its discretion that the facts in this case weigh against dismissal in furtherance of justice.
IV. Motion to Suppress Statement and Identification
Inasmuch as the People consent in their moving papers to a hearing regarding the admissibility of the statement made to Officer Riveron and the identification made by Vida Shammas, the defendant's motion to preclude the statement that the defendant made to the police and the identification made at the scene pursuant to CPL § 710.30(2) is granted to the extent that a Dunaway/Huntley/Wade hearing is ordered to determine whether the People can meet their burden in establishing that the statement made to Officer Riveron was voluntary and the identification made by Vida Shammas was not unduly suggestive.
V. Motion for Discovery and Brady and Rosario Material
DBS is in lieu of motion practice in Kings County. Accordingly, the court orders the People to turn over all Rosario or Brady material and reminds the People that their failure to do so before the commencement of any hearings or trial would subject them to sanctions pursuant to CPL § 240.70.
VI. Motion to sign Judicial Subpoena
As indicated above, the defendant's motion requesting that the court sign the Judicial Subpoena to the New York City Department of Human Resources Administration Adult Protective Services, Brooklyn Borough Office is granted.
The foregoing constitutes the decision and order of the court.