Opinion
2015–2581 RI CR
06-29-2018
The PEOPLE of the State of New York, Respondent, v. Emilio TORO, Appellant.
New York City Legal Aid Society (Tomoeh Murakami Tse of counsel), for appellant. Richmond County District Attorney (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.
New York City Legal Aid Society (Tomoeh Murakami Tse of counsel), for appellant.
Richmond County District Attorney (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, J.P., MICHAEL L. PESCE, MICHELLE WESTON, JJ
Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Raymond Rodriguez, J.), rendered October 19, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal mischief in the fourth degree and imposed sentence.
ORDERED that the judgment of conviction is reversed, on the law, and, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed.
Defendant was charged with criminal mischief in the fourth degree ( Penal Law § 145.00[1] ) and harassment in the second degree ( Penal Law § 240.26[1] ). The accusatory instrument alleged that defendant had slapped the complainant in the face, causing her annoyance and alarm, and to fear for her physical safety, as a result of which the complainant's cell phone had dropped to the floor and its screen had shattered. After waiving prosecution by information, defendant pleaded guilty to criminal mischief in the fourth degree in satisfaction of the entire accusatory instrument and was sentenced to 20 days' imprisonment. On appeal, defendant challenges the facial sufficiency of the count to which he pleaded guilty, contending that the accusatory instrument failed to allege that he had intended to damage the complainant's cell phone.
Since defendant expressly waived prosecution by information, the accusatory instrument's legal sufficiency must be evaluated under the standards which govern that of a misdemeanor complaint (see People v. Dumay , 23 N.Y.3d 518, 524, 992 N.Y.S.2d 672, 16 N.E.3d 1150 [2014] ), which is sufficient on its face when it alleges facts of an evidentiary character supporting or tending to support the charge (see CPL 100.15[3] ) and provides reasonable cause to believe that the defendant committed the crime charged (see CPL 100.40[4][b] ; People v. Dumas , 68 N.Y.2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ). The facial insufficiency of an accusatory instrument constitutes a jurisdictional defect which is not forfeited by a defendant's guilty plea (see People v. Dreyden , 15 N.Y.3d 100, 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010] ; People v. Lucas , 11 N.Y.3d 218, 220, 868 N.Y.S.2d 570, 897 N.E.2d 1052 [2008] ; People v. Konieczny , 2 N.Y.3d 569, 573, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ). Nonetheless, so long as the factual allegations of an accusatory instrument provide an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (see Dreyden , 15 N.Y.3d at 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 ; Kalin , 12 N.Y.3d at 231–232, 878 N.Y.S.2d 653, 906 N.E.2d 381 ; Konieczny , 2 N.Y.3d at 576, 780 N.Y.S.2d 546, 813 N.E.2d 626 ; People v. Casey , 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ). We note that we must review the facial sufficiency of only the count challenged, to which defendant pleaded guilty (see People v. Dumay , 23 N.Y.3d 518, 992 N.Y.S.2d 672, 16 N.E.3d 1150 [2014] ; People v. Washington , 50 Misc. 3d 89, 25 N.Y.S.3d 523 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2015] ; but see People v. Lamb , 49 Misc. 3d 135[A], 2015 N.Y. Slip Op. 51483[U], 2015 WL 5827698 [App. Term, 1st Dept. 2015], lv denied 26 N.Y.3d 1089, 23 N.Y.S.3d 646, 44 N.E.3d 944 [2015] ; People v. Lineberger , 46 Misc. 3d 152[A], 2015 N.Y. Slip Op. 50335[U], 2015 WL 1257770 [App. Term, 1st Dept. 2015], lv denied 27 N.Y.3d 1001, 38 N.Y.S.3d 111, 59 N.E.3d 1223 [2016] ; People v. Acevedo , 46 Misc. 3d 150[A], 2015 N.Y. Slip Op. 50288[U], 2015 WL 1015829 [App. Term, 1st Dept. 2015], lv denied 26 N.Y.3d 1142, 32 N.Y.S.3d 56, 51 N.E.3d 567 [2016] ). Pursuant to Penal Law § 145.00(1), "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, he or she ... [i]ntentionally damages property of another person." Thus, to violate Penal Law § 145.00(1), the defendant must possess a specific intent to damage the property of another person (see People v. Roberts , 140 A.D.2d 961, 529 N.Y.S.2d 636 [1988] ; People v. Summer , 64 A.D.2d 658, 407 N.Y.S.2d 53 [1978] ). Pursuant to Penal Law § 15.05(1), "[a] person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct." Consequently, unintended property damage generally does not constitute a violation of Penal Law § 145.00(1) (see People v. Washington , 18 N.Y.2d 366, 275 N.Y.S.2d 508, 222 N.E.2d 378 [1966] ; People v. Clark , 19 Misc. 3d 134[A], 2008 N.Y. Slip Op. 50698[U], 2008 WL 905871 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2008] ). Furthermore, an intent to injure a person does not satisfy the mens rea requirement of intent to damage property simply because property is damaged in the course of the attack (see Washington , 18 N.Y.2d at 368, 275 N.Y.S.2d 508, 222 N.E.2d 378 ; Roberts , 140 A.D.2d at 961, 529 N.Y.S.2d 636 ; Matter of Daniel K. , 89 A.D.2d 630, 453 N.Y.S.2d 96 [1982] ; People v. Bryant , 85 A.D.2d 575, 445 N.Y.S.2d 711 [1981] ).
As correctly conceded by the People, based upon the factual allegations contained in the complaint, it is clear that defendant's intent was to injure the complainant, not to damage her phone. While it is the general rule that the requisite mental state may be alleged on the basis of a logical implication of the act itself or upon the surrounding circumstances (see People v. Bracey , 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094 [1977] ; People v. Stevens , 26 A.D.3d 396, 811 N.Y.S.2d 84 [2006] ; People v. McGee , 204 A.D.2d 353, 611 N.Y.S.2d 261 [1994] ), here, there were no factual allegations from which it can even be inferred that defendant's conscious objective was to damage the complainant's phone. Thus, the mens rea requirement of intent for establishing a violation of Penal Law § 145.00(1) was not sufficiently pleaded. Consequently, even when the complaint is given "a fair and not overly restrictive or technical reading" ( Casey , 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 ), the count charging defendant with criminal mischief in the fourth degree was facially insufficient, since it failed to allege "facts of an evidentiary character" ( CPL 100.15[3] ) supporting or tending to support that charge or demonstrating "reasonable cause" ( CPL 100.40[4][b] ) to believe that defendant had committed that offense (see Clark , 19 Misc. 3d 134[A], 2008 N.Y. Slip Op. 50698[U] ; People v. Turenne , 49 Misc. 3d 1203[A], 2015 N.Y. Slip Op. 51364[U], 2015 WL 5658682 [Glens Falls City Ct., Warren County 2015] ; People v. Taylor–Atkins , 42 Misc. 3d 1214[A], 2014 N.Y. Slip Op. 50040[U], 2014 WL 223374 [Crim. Ct., N.Y. County 2014] ).
There would be little penological purpose in remitting the case for further proceedings on the remaining count of the accusatory instrument, harassment in the second degree (see CPL 470.55[2] ), since that count is a violation and defendant has already served a 20–day jail sentence (see People v. Scott , 46 Misc. 3d 143[A], 2015 N.Y. Slip Op. 501987[U], 2015 WL 824231 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2015] ). Therefore, as a matter of discretion in the interest of justice, we dismiss the entire accusatory instrument (see People v. Hightower , 18 N.Y.3d 249, 938 N.Y.S.2d 500, 961 N.E.2d 1111 [2011] ; Dreyden , 15 N.Y.3d 100, 905 N.Y.S.2d 542, 931 N.E.2d 526 ; but see Lamb , 49 Misc. 3d 135[A], 2015 N.Y. Slip Op. 51483[U] ).
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
ALIOTTA, J.P., PESCE and WESTON, JJ., concur.