Opinion
2011 SU 053934
12-19-2011
People of the State of New York v. Sean Oree, Defendant
The People by Thomas J. Spota, District Attorney (Dana Gremaux, Assistant District Attorney).
Legal Aid Society of Suffolk County by Robert C. Mitchell (Angela Blekht, Associate Counsel).
Glenn A. Murphy, J.
Defendant is charged in an information with intentional assault in the third degree (PL § 120.00(1)) and seeks dismissal on the ground that neither the information nor the deposition supporting it contain nonhearsay allegations supporting his commission of the physical injury element of the charged offense, rendering it insufficient (see CPL §§ 100.40(1)(c), 170.30(1)(a), 170.35(1)(a)).
"Physical injury" is defined as "impairment of physical condition or substantial pain" (CPL § 10.00(9)). The misdemeanor information form itself is based solely on the information and belief of complainant, a police officer. It is entirely hearsay. The source of complainant's information and belief is a supporting deposition verified by the victim of defendant's alleged conduct. Because the deposition of this individual contains the only nonhearsay allegations of fact in the pleading, resolution of defendant's motion turns on whether they establish, if true, the physical injury element of intentional assault in the third degree.
In her supporting deposition, deponent avers she and defendant had an argument prior to the occurrence giving rise to this prosecution. Thereafter, while defendant was driving deponent in her automobile, he was angry and, swinging his arm, he hit her in the lip, splitting it open and resulting in bleeding. Deponent also asserts that her lip hurt and she wanted to go to the hospital.
CPL § 100.40(1) contains the sufficiency criteria for informations. One of these criteria, found in subdivision 100.40(1)(c), is the prima facie case requirement (see People v. Alejandro, 70 NY2d 133,137; see also People v. Henderson, 92 NY2d 677,680). It is satisfied if the nonhearsay allegations of fact set out in the factual part of the information and/or in any supporting depositions establish, if true, defendant's commission of every element of the charged offense. CPL § 100.40(1)(c) does not contain language requiring corroboration, as CPL § 70.10(1) does in defining legally sufficient evidence, and this appears to be the only difference between the two statutes. However, CPL § 100.40(1)(c) has been held to require corroboration of the nonhearsay allegations, apparently coextensive with the corroboration requirement in CPL § 70.10(1) for legally sufficient evidence (see People v. Suber,-—Misc 3d—-, 2011 NY Slip Op 21128 [Appellate Term, Second, Eleventh and Thirteenth Judicial Districts]; People v. Miedema,24 Misc 3d 132(A), 2009 NY Slip Op 51368(U) [Appellate Term, Ninth and Tenth Judicial Districts]). Consequently, the prima facie case standard must be met by legally sufficient nonhearsay allegations, although corroboration considerations are not implicated here. In applying this standard, a court is to give the allegations "a fair and not overly restrictive or technical reading," although the allegations cannot be so generally phrased that they fail to "give an accused notice sufficient to prepare a defense" and they must be "adequately detailed to prevent a defendant from being tried twice for the same offense" (People v. Casey, 95 NY2d 354,360).
In regard to the question how to apply the prima facie standard, the court observes this concept is employed elsewhere in criminal procedure jurisprudence. For example, it has been used to define the legally sufficient evidence required in grand jury procedure (see CPL § 190.65(1),210,.20(1)(b); People v. Swamp, 84 NY2d 725,730; People v. Mayo, 36 NY2d 1002,1004). The inquiry for the court reviewing grand jury minutes "is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference" (People v. Bello, 92 NY2d 523,526 [inner quotation marks and citation omitted]). This limitation on the inquiry applies equally here, because "there is a parallel between the function of a grand jury and that of the CPL 100.40(1)(c) prima facie requirement that makes it appropriate to apply the same definition of prima facie' in both contexts [citations omitted]" (People v. Dreyden, 28 Misc 3d 5,7-8 [Appellate Term, Second, Eleventh and Thirteenth Judicial Districts]). As a reformulation of the prima facie case standard of CPL § 100.40(1)(c) it changes nothing, but it does underscore the point that this standard is less than the degree of proof required to establish guilt at trial, beyond a reasonable doubt (see People v. Henderson, 92 NY2d 677,680,supra).
The inquiry for this court, then, is whether the nonhearsay allegations of fact, if proven, and the inferences that flow from them supply proof of all the elements of intentional assault in the third degree, and whether an inference of defendant's guilt rationally may be drawn from those allegations. The decision of the Court of Appeals in People v. Henderson (92 NY2d 677,supra) provides guidance in conducting this inquiry. In Henderson, the allegations of the information were that after defendant and another tried to pull the informant's motor scooter from him in an effort to steal it, they "did then kick the informant about the legs, causing the informant to suffer contusions and swelling about the legs, as well as causing the informant to suffer substantial pain" (People v. Henderson, 92 NY2d at 679). The court ruled that these allegations established a prima facie case of assault in the third degree, observing "[i]n the normal course of events, the deposition supporting a misdemeanor complaint will be secured within hours or days after the events complained of, thus satisfying the requirements for a valid information [citation omitted]. A victim would not necessarily know with any certainty, shortly after an attack, what its lasting effects will be. Under these circumstances, allegations of substantial pain, swelling and contusions, following kicks, must be deemed sufficient to constitute physical injury' to support a facially valid local criminal court information" (People v. Henderson, 92 NY2d at 680-681).
In the prosecution before this court, the supporting deposition was obtained within four hours of the alleged incident. The allegations of a split lip, bleeding, and deponent's desire to go to the hospital, made within hours of the incident, lift defendant's alleged conduct above the level of those petty slaps delivered out of hostility or meanness which do not constitute physical injury (see Matter of Philip A., 49 NY2d 198,200). They are a prima facie showing of physical injury by impairment of physical condition.
Even if impairment of physical condition had not been demonstrated, however, substantial pain has been shown. Although substantial pain is more than "slight or trivial pain," it "need not...be severe or intense to be substantial," and indeed allegations about the degree of pain are not always required, if the inference of substantial pain reasonably may be drawn from the account of the injury itself (People v. Chiddick, 8 NY3d 445,447). Deponent reports in her deposition her lip hurt. In the context of the other sworn facts she provided, such as the prior quarrel between defendant and deponent, defendant's anger, the swinging of his arm and hitting deponent on the lip, splitting it open, the bleeding, and deponent's desire to go to the hospital, a basis for a reasonable inference of substantial pain is demonstrated.
Defendant calls to the attention of the court several cases in support of his position that the allegations of physical injury in the deposition under review here do not satisfy CPL § 100.40(1)(c) (Matter of Philip A., 49 NY2d 198,supra; Matter of Mary Ellen P., 278 AD2d 750; People v. Franklin, 149 AD2d 617; People v. Goins, 129 AD2d 733; Matter of Shawn B., 152 AD2d 733; People v. Garguilo, NYLJ, May 15,1997, at 31, col 4; Matter of Antonio J., 129 AD2d 988; People v. McDowell, 28 NY2d 373; People v. Estes, 131 AD2D 872).
Defendant's reliance on these opinions is misplaced. All of them are appeals of either a criminal conviction after trial or a family court adjudication after a fact-finding hearing. None of them turn on the sufficiency of a pleading underlying an action or proceeding, which is what this court must address here; indeed, only two of the cases defendant cites mention the underlying pleading at all. The distinction is critical, for the prima facie case requirement by which the sufficiency of an information is to be measured "is not the same as the burden of proof beyond a reasonable doubt required at trial" (People v. Henderson, 92 NY2d 677,680,supra), and it does not "rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial" either (People v. Kalin, 12 NY3d 225,230; see CPL § 290.10). Consequently, these decisions have no applicability here, where the prima facie case standard of CPL § 100.40(1)(c) applies in determining sufficiency (see People v. Wong, 29 Misc 3d 1229(A), 2010 NY Slip Op 52088(U), at *2-3 [District Ct, Nassau County, Engel, J.]).
The allegations of deponent well may be inadequate to establish physical injury beyond a reasonable doubt when this prosecution goes to trial, but such a question is precisely that, an issue for determination at trial, and has no bearing now, during the pre-trial phase of this action (see People v. Jennings, 69 NY2d 103,115). The allegations establish for pleading purposes deponent suffered physical injury, and that is all they are required to do.
This information satisfies the prima facie case requirement of CPL § 100.40(1)(c). The deposition accompanying it contains nonhearsay allegations supporting defendant's commission of every element of intentional assault in the third degree. Consequently, the information is sufficient and the motion to dismiss it on the ground of insufficiency is denied.
[Portions of order omitted for purposes of publication].