Opinion
2014BX063411
05-12-2015
The People of the State of New York, Plaintiff, v. Ruben Reid, Defendant.
Appearances of Counsel
The People - Robert T. Johnson, District Attorney, Bronx County by Matthew Horowitz, Assistant District Attorney
Defendant — The Legal Aid Society by Alana Roth
Armando Montano, J.
Defendant is charged with one count of Criminal Mischief in the Fourth Degree (PL § 145.00[1]) and one count of Harassment in the Second Degree (PL § 240.26[1]).
Defendant moves for an order 1) dismissing count one, Criminal Mischief in the Fourth Degree (PL § 145.00[1]), as facially insufficient; 2) suppressing any identification of defendant, or in the alternative, granting a hearing to determine the admissibility of such identification (Wade/Dunaway); 3) suppressing certain statements allegedly made by defendant, or in the alternative, granting a hearing to determine the admissibility of such statements; 4) granting a hearing to determine the voluntariness of unnoticed statements allegedly made by defendant to law enforcement that the People intend to use on cross-examination; 5) precluding the offering of any statements and/or identification testimony for which defendant has not received notice pursuant to CPL § 710.30; 6) precluding the People from use at trial defendant's prior criminal history or prior uncharged criminal, vicious, or immoral conduct; 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, sworn to by Police Officer Miguel Soares, read as follows:
Deponent is informed by Nagi Aezeh, that [on or about November 27, 2014 at approximately 2:00 a.m. at inside of 4192 White Plains Road, County of Bronx, State of New York], defendant approached informant and stated, in sum and substance, IF I SEE YOU AGAIN, I AM GOING TO HIT YOU. CALL THE POLICE THEY CAN'T DO ANYTHING. I'M NOT SCARED. Deponent is further informed that defendant's aforementioned conduct caused informant to experience annoyance, alarm, and fear for his physical safety.
Deponent is further informed by informant that defendant struck two picture frames, causing damage to said frames in that the glass in each was shattered.
Deponent is further informed by informant that informant is the lawful custodian of said property, and as such, he did not give defendant permission or authority to damage said property.
Motion to Dismiss
Defendant argues that count one, Criminal Mischief in the Fourth Degree (PL § 145.00[1]), must be dismissed as facially insufficient because the complaint fails to establish that defendant intentionally damaged property of another person. Defendant notes that the complaint only alleges that he struck two picture frames and not allege any facts from which to infer the specific intent to damage property. Even if true, defendant maintains that the act of striking an object does not suggest any sort of intent on the part of the actor. An individual could just as easily strike an object accidentally and cause damage without having the intent to do so.
At the outset, the People argue that the instant motion should be denied as untimely pursuant to CPL § 255.20(1) since it was filed approximately 116 days after his arraignment. Since defendant has failed to request for an extension of time or made a showing of good cause as to why the instant motion could not have been filed sooner, the People argue that the instant motion should be denied.
However, should this Court entertain the instant motion, the People contend that issues related to intent are to be determined at trial and not at the pleading stage. Moreover, the People assert that defendant's intent to damage the picture frames can be inferred from the surrounding circumstances.
Defendant was arraigned on November 28, 2014 on a misdemeanor complaint and released on his own recognizance. The case was adjourned to January 5, 2015 for conversion as the People needed to secure a supporting deposition from the complaining witness. On December 5, 2014, the People served on defense counsel and filed with the Court a supporting deposition as well as a statement of readiness. On January 5, 2015, a motion schedule was set and the case was adjourned to February 24, 2015 for response and decision. On February 24, 2015 the Court marked March 10, 2015 as the final date for the submission of defense motions. On March 24, 2015, defense counsel informed the Court that the instant motion was filed and the People requested time to respond to same. The stamp on the face of defendant's motion papers indicates that the instant motion was filed on or about March 30, 2015.
CPL § 255.20(1) provides that "all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment." (Emphasis added). Although untimely, the Court provided defendant with additional time to file the instant motion. The Court also gave the People additional time to submit responsive papers. In light of the foregoing, this Court shall decide the instant motion on its merits.
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).
A person is guilty of Criminal Mischief in the Fourth Degree when "having no right to do so nor any reasonable ground to believe that he or she has such right, that person intentionally damages property of another person." PL § 145.00(1). The term "property" is broadly defined and incudes "any money, personal property, real property, computer data, computer program, thing in action, evidence of debt or contract, or any article, substance or thing of value, including any gas, steam, water or electricity, which is provided for a charge or compensation." PL § 155.00(1). While the term "damages" is not defined by statute, it has been recognized that the term contemplates "injury or harm to property that lowers its value or involves loss of efficiency." People v. Collins, 288 AD2d 756, 758 (3d Dept. 2001); People v. Washington, 46 Misc 3d 1210(A) (Crim Ct, NY County 2015). "Because intent' .cannot be the subject of a nonhearsay evidentiary allegation, it is necessary only that there be alleged evidentiary facts from which intent may be inferred." People v. Spiegel, 181 Misc 2d 48, 52 (Crim Ct, NY County 1999) quoting People v. Leiner, NYLJ, Oct. 15, 1997, at 34, col 5 (App Term, 2d & 11th Jud Dists) lv denied 91 NY2d 894 (1998). Intent can be implied from the defendant's conduct and/or the surrounding circumstances. People v. Collins, 178 AD2d 789 (3d Dept. 1991); People v. Hawkins, 1 Misc 3d 905(A) (Crim Ct, NY County 2003).
While it is entirely plausible that defendant may have accidentally struck the picture frames, thereby causing the glass to shatter, an accusatory instrument need not allege facts that only support the inference of guilt. People v. Washington, 46 Misc 3d 1210(A), *4 (Crim Ct, NY County 2015). Here, it appears that defendant was engaged in a verbal altercation, albeit one-sided, with the informant where he made threats to hit the informant if he ever saw him again. Defendant's intent to damage the picture frames can be inferred from his lodging of verbal threats at the complaining witness coupled with his act of striking the two picture frames. As such, this Court finds that the accusatory instrument is facially sufficient as the factual portion contains non-hearsay allegations which provide reasonable cause to believe that defendant struck two picture frames with the specific intent to damage the frames. Accordingly, defendant's motion to dismiss count one of the accusatory instrument is denied.
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 November 28, 2014 at 12:00 a.m. at 758 East 233rd Street, defendant stated the following to Police Officer Miguel Soares: "Yeah I had a problem with him the other night."
Defendant moves to suppress the statement he allegedly made because such evidence was obtained in violation of his rights under the state and federal constitutions. Defendant contends that the statement was illegally obtained on the following grounds: 1) he was not advised of his Miranda rights prior to being subjected to custodial interrogation; 2) the statement was involuntarily made; and 3) the statement is the tainted fruit of an unlawful arrest. In the alternative, defendant requests a Huntley/Dunaway hearing.
As defendant has not been provided with any police reports or other information within the exclusive custody and control of the People, defendant avers that he is unable to establish the basis for his seizure and search by the police. Defendant asserts that on November 27, 2014 at approximately 2:00 a.m., he was in the vicinity of 4192 White Plains Road. Defendant contends that he is innocent of all charges and denies engaging in any unlawful or suspicious activity prior to his arrest. Therefore, defendant argues that his warrantless seizure and arrest was unjustified in that the police lacked reasonable suspicion or probable cause.
The People consent to defendant's request for a Huntley hearing solely upon the issue of voluntariness. However, the People oppose defendant's request for a Dunaway hearing as he has failed to allege any facts which demonstrate a sufficient legal basis for suppression as required by CPL § 710.60.
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.
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.
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).
This Court finds that defendant's moving papers are "minimally sufficient" to warrant a hearing on the issue of suppression. See, People v. Harris, 160 AD2d 515, 515 (1st Dept. 1990). "When the validity of a warrantless arrest is challenged, the presumption of probable cause disappears and the People bear the burden of coming forward with evidence showing that it was supported by probable cause." People v. Chaney, 253 AD2d 562, 564 (3d Dept. 1998). Accordingly, defendant's motion for a Dunaway hearing to determine whether there was probable cause to effectuate his arrest is granted.
Motion for a Voluntariness Hearing Regarding
Unnoticed Statements to Law Enforcement
Defendant asserts that he was questioned by police officers and corrections officers subsequent to this arrest regarding the offenses charged. Defendant maintains that those statements were involuntarily made. As such, defendant moves for a hearing to determine the voluntariness of any unnoticed statements that the People intend to use solely on cross-examination or on rebuttal, or of any noticed statement that the People subsequently withdraw their intent to use on its direct case.
The People failed to specifically address this branch of defendant's motion. However, as stated above, the People did oppose defendant's motion to suppress statements for which notice was given and denied any and all allegations in support thereof.
"A written or oral statement made by a defendant with respect to his participation or lack of participation in the offense charged, may not be received in evidence against him if such statement was involuntarily made." CPL § 60.45(1). As such, an involuntarily made statement may not be used at trial, whether it be during the People's case in chief, on cross-examination, or in rebuttal.
Nonetheless, there is no indication that the People intend to use any such unnoticed statement at trial. Therefore, defendant's motion for a voluntariness hearing as to any unnoticed statements to law enforcement which the People intend to use at trial is denied, with leave granted for defendant to renew this branch of the motion upon learning that the People intend to introduce any such evidence at trial.
Motion to Suppress Identification Evidence
At arraignment, the People served identification notice pursuant to CPL § 710.30(1)(b). The identification notice indicates that on November 28, 2014 at 7:30 p.m., the complaining witness positively identified defendant by a single photo display.
Defendant asserts that any and all testimony regarding prior noticed identifications as well as, all in-court identification testimony, and any other testimonial fruits of his illegal seizure should be suppressed. Since the identification of defendant occurred as a direct result of his unlawful arrest, defendant argues that any identification evidence must be suppressed as the fruit of the poisonous tree. In the alternative, defendant requests a hearing to determine whether testimony of the out-of-court identification and the prospective in-court identification should be admitted at trial.
In opposition, the People argue that a hearing is unnecessary as defendant and the complaining witness were known to each other prior to the events that precipitated the instant action. In fact, defendant is being prosecuted in a separate matter (docket no.: 2015BX007580) for assaulting the same complaining witness on November 26, 2014, one day before the crime in the instant case took place. Therefore, the People aver that the identification was merely confirmatory and in no way was tainted by police conduct. However, should this Court grant a Wade hearing, the People request for the hearing to be limited to resolve only issues related to the suggestiveness of the identification procedure. The People reiterate that there is no probable cause issue in this instant case and defendant has failed to set forth sworn allegations of fact that would give rise to a Dunaway hearing.
In a motion to suppress identification testimony resulting from improper procedures, sworn allegations of fact are not required. CPL §§ 710.60(3)(b), 710.20(3); People v. Jones, 95 NY2d 721 (2001); People v. Weaver, 49 NY2d 1012 (1980). "[T]he purpose of the Wade hearing is to test identification testimony for taint arising from official suggestion during police-arranged confrontations between a defendant and an eyewitness.'" People v. Dixon, 85 NY2d 218, 222 (1995) quoting People v. Gissendanner, 48 NY2d 543, 552 (1979). There are two narrowly construed exceptions to the general requirement of a Wade hearing, where either the prior identification was merely confirmatory or where the individuals are known to each other. See, People v. Dixon, 85 NY2d 216 (1996); People v. Wharton, 74 NY2d 921 (1989); People v. Gissendanner, 48 NY2d 543 (1979).
"A court's invocation of the confirmatory identification' exception is thus tantamount to a conclusion that, as a matter of law, the witness is so familiar with the defendant that there is little or no risk' that police suggestion could lead to a misidentification." People v. Rodriguez, 79 NY2d 445, 450 (1992). In other words, prior to summarily denying a Wade hearing, the Court must conclude as a matter of law that there was "no degree of police suggestiveness that could possibly have tainted the identification." People v. Lawhorn, 192 AD2d 359, 360 (1st Dept. 1993). In addition, the People bear the burden of demonstrating that the identification procedure used was in fact confirmatory. Rodriguez, 79 NY2d at 452.
Defendant's motion to suppress identification testimony is hereby denied. Defendant's failure to challenge the People's assertion that he and the complaining witness were known to each other so as to render the identification merely confirmatory obviates the need for a hearing. See, People v. Marte, 103 AD3d 470 (1st Dept. 2013); People v. Murray, 247 AD2d 292 (1st Dept. 1998); People v. DeJesus, 244 AD2d 244 (1st Dept. 1997).
Motion to Preclude Statement and Identification Evidence
Defendant's motion to preclude the introduction of unnoticed statements and identification evidence is denied, with leave granted for defendant to renew this branch of the motion upon learning that the People intend to introduce any such evidence at trial.
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.
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, Criminal Mischief in the Fourth Degree (PL § 145.00[1]), as facially insufficient is denied. Defendant's motion for a Huntley/Dunaway hearing is granted. Defendant's motion for a voluntariness hearing as to any unnoticed statements to law enforcement which the People intend to use at trial is denied, with leave granted for defendant to renew this branch of the motion upon learning that the People intend to introduce any such evidence at trial. Defendant's motion to suppress identification testimony is denied. Defendant's motion to preclude the introduction of unnoticed statements and identification evidence is denied, with leave granted for defendant to renew this branch of the motion upon learning that the People intend to introduce any such evidence 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 12, 2015
Bronx, New York
_______________________________
Hon. Armando Montano