Opinion
No. 2010RI002291.
2010-09-28
The PEOPLE of the State of New York, v. Jermaine SCOTT, Defendant.
Assistant District Attorney Guy Tardanico, Office of the Richmond County District Attorney, Daniel M. Donovan Jr., District Attorney, for the People. Gary Kaufman, Esq., Battiste, Aronowsky and Suchow, Staten Island, NY, for Defendant.
Assistant District Attorney Guy Tardanico, Office of the Richmond County District Attorney, Daniel M. Donovan Jr., District Attorney, for the People. Gary Kaufman, Esq., Battiste, Aronowsky and Suchow, Staten Island, NY, for Defendant.
DIANA M. BOYAR, J.
An accusatory instrument was filed with the Court on March 8, 2010, charging defendant with one count each of Assault in the Third Degree (P.L. § 120.00(1)), Criminal Possession of a Weapon in the Fourth Degree (P.L. § 265.01(2))—both class A misdemeanors—and Harassment in the Second Degree (P.L. § 240.26(1))—a violation. On June 16, 2010, the People filed a Prosecutor's Information charging defendant with Attempted Assault in the Third Degree (P.L. §§ 110/120.00(1)), Criminal Possession of a Weapon in the Fourth Degree (P.L. § 265.01(2)) and Harassment in the Second Degree (P.L. § 240.26(1)). In a motion filed July 13, 2010, defendant moved to dismiss the accusatory instrument as facially insufficient and on grounds his speedy trial rights had been violated. The People oppose the motion.
The factual portion of the accusatory instrument, alleges on October 12, 2009, at approximately 11:40 a.m., inside 180 Park Hill, Apartment 5J, on Staten Island:
Deponent [Detective Jeffrey Aust] is informed by Zenalta Fermin that at the above date, time and location, defendant struck the informant on or about the head with a Playstation Gaming Console causing informant to suffer physical injuries, including, but not limited to a laceration to informant's head as well as substantial pain, annoyance, and alarm.
FACIAL SUFFICIENCY
When a defendant is charged in a misdemeanor complaint, unless he pleads guilty or waives prosecution by information, the misdemeanor complaint must be replaced prior to trial with an information meeting the requirements for facial sufficiency. C.P.L. §§ 170.65; 100.40(1)(c); 100.15(3); 170.35; People v. Alejandro, 70 N.Y.2d 133 (1987). The information must, for jurisdictional purposes, contain non-hearsay factual allegations sufficient to establish a prima facie case. People v. Alejandro, 70 N.Y.2d at 137. Furthermore, both informations and misdemeanor complaints must allege or be based upon “reasonable cause to believe” the defendant committed the offense charged. People v. Dumas, 68 N.Y.2d 729 (1986). “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 ...” C.P.L. § 70.10(2). A conclusory allegation that a defendant committed each and every element of a crime, standing alone, does not meet the reasonable cause requirement. People v. Kalin, 12 NY3d 225, 229 (2009).
In reviewing an accusatory instrument for facial sufficiency, “[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense ...,” the court should give it “a fair and not overly restrictive or technical reading.” People v. Casey, 95 N.Y.2d 354, 360 (2000). Moreover, the Court of Appeals in People v. Allen, 92 N.Y.2d 378, 385 (1998), held that at the pleading stage, all that is needed is that the factual allegations are sufficiently evidentiary in character and tend to support the charges.
Defendant herein argues the Domestic Incident Report (“D.I.R.”) the People filed with the accusatory instruments is insufficient to support both the assault and weapon charges.
(Defendant's Affirmation at pp. 4–5). The D.I.R. reflects the same date and time as that alleged in the accusatory instruments and recites similar facts: “I ask[ed] Jermaine to leave. I told him I did not want to fight. [H]e started to take the playstation I told him he could not so I threw it on the floor. [H]e picked it up and hit me in the head.” Criminal Possession of a Weapon
Since the parties do not contest the propriety of the harassment charge and this Court previously found the allegations supporting the charge sufficient, it will not be discussed further herein.
To be guilty of criminal possession of a weapon as relevant herein, a person must possess a dangerous or deadly instrument or weapon with intent to use the same unlawfully against another. P.L. § 265.01(2).
Dangerous instrument' means any instrument, article or substance, including a vehicle' as that term is defined in this section, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury.
P.L. § 10.00(13).
It is, therefore, the manner in which the instrument is used, not its inherent nature, which makes an object a dangerous instrument. People v. Carter, 53 N.Y.2d 113 (1981); People v. Wilkerson, 184 Misc.2d 949 (Crim. Ct. New York Co.2000). An innocuous object intentionally used to injure or kill is, therefore, a dangerous instrument pursuant to statute. People v. Krotoszynski, 43 AD3d 450 (2nd Dept.2007) (television remote control used as a dangerous instrument). The Court finds the Playstation console may be considered a dangerous instrument under the circumstances alleged. Assault and Attempted Assault
This Court agrees with defendant that the D.I.R. did not serve to convert the assault charge and the speedy trial clock continued to run as to that count. The People's failure to convert that count, however, did not affect their ability to subsequently file a superseding instrument. C.P.L. § 100.50. The People have the discretion to determine how and when to prosecute a case, including the right to reduce, add or amend charges. People v. Burke, 186 Misc.2d 278, 280 (Crim. Ct. Kings Co.2000).
By operation of law, upon defendant's arraignment on the new accusatory instrument, the initially filed document is dismissed and replaced. C.P.L. § 100.50(1). Since defendant appears to have been arraigned on the new instrument, the Court must analyze the facial sufficiency of the attempted assault charge. This Court finds the D .I.R. sufficiently converted the attempted assault charge.
To be guilty of attempted assault, a person must intend to commit a crime and engage in conduct when tends to effect the commission of that crime. P.L. § 110.00. In this case, the intended crime was assault which is committed when a person, intending to cause physical injury to another person, causes that injury. P.L. § 120.00(1). A person's intent can be inferred from the act itself and the surrounding circumstances. People v. Steinberg, 79 N.Y.2d 673 (1992). According to the D.I.R., the complainant, who was attempting to avoid a fight, threw the Playstation video game to the floor. Defendant then picked up the gaming console and allegedly hit her on the head with it. Based upon defendant's actions and the surrounding circumstances, this Court believes defendant intended to physically injure the complainant and took steps toward that end. Hence, the attempted assault charge is sufficiently pled.
In sum, the superseding instrument was a fully converted information when it was filed.
SPEEDY TRIAL
In a motion pursuant to the C.P.L. § 30.30 speedy-trial statute, defendant bears the burden of going forward with sworn allegations of fact showing there has been an inexcusable delay beyond the time allowed by statute. The People have the burden of justifying that delay. People v. Santos, 68 N.Y.2d 859 (1986). Since defendant is charged with at least one class-A misdemeanor, the People are afforded ninety (90) days within which to proceed to trial. C.P.L. § 30.30(1)(b).
In an effort to stop accrual of speedy trial time, the People must answer ready by announcing their readiness on the record, or by filing a statement of readiness and serving a copy on defense counsel within a reasonable time thereafter. See, People v. Anderson, 252 A.D.2d 399 (1st Dept.1998); see also, People v. Kendzia, 64 N.Y.2d 331 (1985). The statute contemplates an announcement of present readiness, not a prediction or expectation of future readiness. People v. Kendzia, 64 N.Y.2d at 337.
Based upon a review of the parties' submissions, the Court file, and minutes from various court proceedings, the Court determines the following time periods are chargeable to the People for purposes of calculating the accrual of speedy trial time:
March 8, 2010—March 12, 2010 4 Days Chargeable
Case adjourned for conversion.
March 12, 2010—April 29, 2010 48 Days Chargeable
Case adjourned for conversion.
April 29, 2010—June 16, 2010 0 Days Chargeable
48 Days Chargeable
The People served and filed the D.I.R. in an effort to convert the complaint into a trial-ready information. The D.I.R. sufficiently converted the weapon possession and harassment charges but did not convert the assault charge.
Consequently, the speedy trial clock stopped as to the two converted charges but continued to run on the unconverted assault charge. The action was adjourned for full conversion.
The Court in People v. Minor, 144 Misc.2d 846 (App. Term 2nd Dept.1989), stated, albeit in dicta, “... that a defect in one count does not necessarily require dismissal of all counts of a multicount accusatory instrument.” Id. at 848. This rationale is in keeping with the statutory language of C.P.L. § 170.30(1)(e) permitting a court to dismiss an accusatory instrument in its entirety or any count thereof should a defendant be denied his/her right to a speedy trial. The Court went on to note, “Speedy trial computations must, as a matter of course, often involve distinct considerations with respect to individual counts of a single accusatory instrument.” Id.; see also, People v. Gray, 7 Misc.3d 127(A) (App. Term 2nd and 11th Jud. Dists.2004). Accordingly, the People may be ready to proceed to trial on a partially converted accusatory instrument. In other words, should the People have trial-ready counts in an accusatory instrument as well as counts that are not trial-ready, the People can effectively announce their readiness to proceed to trial on the converted counts while the speedy trial clock continues to run on any unconverted charges. See also, People v. Brooks, 190 Misc.2d 247 (App. Term 1st Dept.2001); People v. Rodriguez, 15 Misc.3d 1146(A) (Crim. Ct. Kings Co.2007); People v. Shadrin, 2002 W.L. 31748580, 2002 N.Y. Slip Op. 50468(U) (Crim. Ct. Kings Co. Nov. 26, 2002).
June 16, 2010—August 25, 2010 0 Days Chargeable
The People served and filed a Prosecutor's Information charging defendant with Attempted Assault in the Third Degree (P.L. §§ 110/120.00(1)) and retaining the weapon possession and harassment charges. The People also served and filed the same D.I.R. they had filled with the initial complaint in support of the new accusatory instrument.
The filing of a new accusatory instrument directly derived from the first instrument relates back to the filing of the initial instrument for purposes of calculating excludable speedy trial time. People v. Sinistaj, 67 N.Y.2d 236 (1986). “... [E]ach criminal action generally has only one date of commencement for purposes of the CPL 30.30 readiness rule, regardless of how many times the accusatory instrument is amended or replaced.” People v.. Cooper, 98 N.Y.2d 541, 543 (2002); People v. Farkas, 65 AD3d 700 (2nd Dept.2009) (applying statement of readiness and excludable time periods to new charges which were based upon the incident originally charged); People v. Lungo, 122 Misc.2d 316 (Crim. Ct. Kings Co.1983). Moreover, “So long as the statements of readiness are genuine, present statements of readiness, ... then the time should be tolled for that criminal action.” People v. McGowan, 2002 N.Y. Slip Op. 40330(U) *4 (Crim. Ct. Richmond Co.2002). When the excludable time periods and the People's effective statement of readiness as to the weapon and harassment charges are applied to the attempted assault charge, the filing of the new charge is timely.
The Court then set a motion schedule and adjourned the case for decision.
August 25, 2010—October 4, 2010 0 Days Chargeable
The case was again adjourned for decision.
Conclusion
The Prosecutor's Information was properly and timely filed; the D .I.R. sufficiently converted all charges contained therein.
Accordingly, it is hereby:
ORDERED, defendant's motion is denied.
This opinion shall constitute the Decision and Order of the Court.