Opinion
No. 2014NY045073.
11-25-2014
The PEOPLE of the State of New York v. Donell SEAWARD, Defendant.
New York County Defender Services, by Anton Robinson, Esq., for defendant. Cyrus R. Vance, Jr., New York County District Attorney, by ADA Bryan Connor, for the People.
New York County Defender Services, by Anton Robinson, Esq., for defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by ADA Bryan Connor, for the People.
Opinion
STEVEN M. STATSINGER, J.
Defendant, charged with Criminal Contempt in the Second Degree, moves to dismiss, arguing that the Information is facially insufficient. For the reasons that follow, defendant's motion to dismiss for facial insufficiency is GRANTED. Sealing is stayed for 30 days.
I. FACTUAL BACKGROUND
A. The Allegations
According to the accusatory instrument, on March 31, 2014, defendant placed a telephone call to Melissa Seward, his sister, in violation of a Full and Final Order of Protection (“F.F.O.P.”) in Ms. Seward's favor that was entered in connection with Docket No. 2011NY066926. The F.F.O.P. expired on April 3, 2014, and ordered the defendant to, amongst other things, refrain from communicating with Ms. Seward by telephone.
B. The Underlying Order
With respect to docket number 2011NY066926, defendant pled guilty to Disorderly Conduct (Penal Law § 240.20 ) on April 4, 2012, and was sentenced to a conditional discharge that required him to complete a short anger management program and abide by a F.F.O.P., which was entered on that date.
On August 3, 2012, after defendant had completed the anger management program, the Court entered a modified F.F.O.P. The modified F.F.O.P., which is at issue here, continued to forbid the defendant from contacting Ms. Seaward either in person or electronically, including by telephone. However, the F.F.O.P., which was signed by Judge Amaker, contains a handwritten endorsement that provides as follows:
Incidental contact allowed at 868 Amsterdam Ave Apt 2G on weekdays between 10:00AM and 4PM only if Melissa Seward is working. Otherwise the defendant may not visit said location. Additionally, the defendant may call the home telephone at said location at any time.
Emphasis added. The expiration date of the modified F.F.O.P. remained April 3, 2014.
C. Legal Proceedings
Defendant was arraigned on June 16, 2014, on a Misdemeanor Complaint charging him with one count of Criminal Contempt in the Second Degree, in violation of Penal Law § 215.50(3). The People filed and served the underlying F.F.O.P., and the Court released the defendant on his own recognizance and adjourned the case to July 24 for conversion.
On July 24, 2014, the People filed and served the Supporting Deposition of the complainant, which converted the Misdemeanor Complaint into an Information. Defendant filed the instant motion on August 12, and the People responded on September 24. The matter has been sub judice since then.
II. THE INFORMATION
The Information, sworn out by Detective Nicole Talleur, provides that
I am informed by Melissa Seward ... that the defendant called her on the phone at [about 7:00 p.m. on March 31, 2014]. I am informed that the call came from a blocked number, but she recognized the voice to be that of the defendant[ ].
The defendant's conduct is in direct violation of a valid Order of Protection, issued in new York County Criminal Court by Hon. Judge Amaker on August 3, 2012 in conjunction with Docket No. 2011NY066926. The order expires on April 3, 2014, and orders the defendant to stay away from Ms. Seaward and to refrain from communicating with her via telephone. The Order of Protection was signed by the defendant.
The conduct was alleged to have occurred “inside 868 Amsterdam Ave, 2G” in New York County.
III. DISCUSSION
Defendant argues that the Information is facially insufficient because he is accused of violating the F.F.O.P. by telephoning the complainant, but the hand written endorsement on the F.F.O.P. permitted him to call the “home telephone” at 868 Amsterdam Avenue, Apt 2G, the same address where the offense is alleged to have occured. On the facts alleged here, there are two possibilities. Either defendant called the home telephone at that address, which would not violate the order of protection, or he called the sister on her personal cell phone, while she happened to be inside of that location, which would. But since the evidence is in complete equipoise on this question, the Information is facially insufficient.
On facial sufficiency review, all that is required is that the People plead a prima facie case: the Information must contain “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof.” People v. Kalin, 12 NY3d 225, 228–29, 906 N.E.2d 381, 383, 878 N.Y.S.2d 653, 655 (2009) (citing People v. Henderson, 92 N.Y2.d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40(1)(c) ). The Information need not establish the defendant's guilt beyond a reasonable doubt; it need only establish “reasonable cause' to believe that the defendant committed the charged offense. Kalin, 12 NY3d at 228, 906 N.E.2d at 382, 878 N.Y.S.2d at 654. 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.” CPL § 70.10(2).
The phrases “reasonable cause” and “probable cause” are generally considered to be synonymous. People v. Omowale, 83 AD3d 614, 618, 923 N.Y.S.2d 442, 447 (1st Dept 2011) ; People v. Lloyd, 31 Misc.3d 1223(A), 929 N.Y.S.2d 202 (Just. Ct Town of Webster (2011)). For either to exist, the evidence must be strong enough to support a finding that it was more likely than not that the defendant committed an offense. People v. Mercado, 68 N.Y.2d 874, 877, 501 N.E.2d 27, 30, 508 N.Y.S.2d 419, 422 (1986) (probable cause existed where it was “more probable than not” that criminal activity was taking place); People v. Carrasquillo, 54 N.Y.2d 248, 254, 429 N.E.2d 775, 778, 445 N.Y.S.2d 97, 100 (1981) (probable cause for an arrest requires facts establishing that it is “at least more probable than not that a crime has taken place and that the one arrested is its perpetrator”); People v. Carpenter, 213 A.D.2d 747, 623 N.Y.S.2d 361 (3d Dept 1995) (reversing denial of suppression motion where search warrant affidavit did not establish that it was “more probable than not” that defendant was selling drugs out of the target location); People v. Skrine, 125 A.D.2d 507, 509 N.Y.S.2d 589 (2d Dept 1986) (where defendant was one of several people matching description in radio run, evidence failed to establish that it was “more likely than not” he was the person who committed the crime); People v. Miranda, 106 A.D.2d 407, 409, 482 N.Y.S.2d 328, 330 (2d Dept 1984) (same).
Carrasquillo instructs that “conduct equally compatible with guilt or innocence will not suffice” to establish probable cause. 54 N.Y.2d at 254, 429 N.E.2d at 778, 445 N.Y.S.2d at 100. Accordingly, when the facts are in equipoise-that is, so evenly balanced such that there can be no finding that the necessary inference of criminality is more likely true than not-there can be no finding of reasonable cause or probable cause. See, e.g., United States v. Martinez, 643 F3d 1292, 1299 (10th Cir.2011) (affirming lower court's conclusion that, where evidence was in equipoise as to whether exigent circumstances existed, warrantless search was unlawful).
Accordingly, if the allegations in a misdemeanor information create a complete equipoise between the inference of guilt and any innocent inferences, there can be no basis for a finding of reasonable cause. This Court examined such an equipoise situation in People v. David, 44 Misc.3d 1212(A), 2014 WL 3583535 (Crim. Ct. New York County 2014) (Statsinger, J.). There, a police officer placed two individuals in an otherwise empty holding cell in a station house, then noticed a bag of drugs on the floor of the cell. The Court dismissed an Information that charged one of those individuals with possessing the drugs:
The only reasonable inference that can be drawn from the facts in the Information is that either defendant or the ... individual with whom he shared a holding cell dropped a bag of cocaine to the floor. However, absent any fact that would tend to show that it was the defendant, and not the other person, who did so ... the Information is facially insufficient.
This “perfectly balanced” evidence reflected an “an exact fifty percent chance that either defendant or the other person [possessed the drugs] and the Information contain[ed] no fact that might tip the scale, even slightly, in favor of the conclusion that it was more likely than not the defendant.” Id. at *3.
As in David, the facts alleged in the Information here are “perfectly balanced.” There is an exact fifty percent chance that defendant either called the complainant on her cell phone while she happened to be present in Apartment 2G at 868 Amsterdam Avenue, which would violate the F.F.O.P., or that defendant called the home phone in that apartment and the complainant happened to pick up, which would not. Absent the existence of any fact that might “tip the scale, even slightly,” id., in favor of the conclusion that it was more likely than not that defendant called the complainant's cell phone, the Information is facially insufficient.
III. Conclusion
For the foregoing reasons, defendant's motions to dismiss for facial insufficiency is granted. Sealing is stayed for 30 days.
This constitutes the Decision and Order of the Court.