Opinion
2010NA012954.
Decided December 3, 2010.
Hon. Kathleen Rice, Nassau County District Attorney.
Alan B. Hodish, Esq., Attorney for Defendant
The information charging the Defendant with assault in the third degree, in violation of Penal Law § 120.00(1), alleges that on May 5, 2010, at about 7:30 a.m., the Defendant "in concert with a juvenile co-defendant, did punch the victim in the face and neck area causing the victim to fall to the ground. The victim sustained a laceration to the back of his head, a contusion to his right eye and substantial pain. The victim was transported to NUMC for treatment." In his supporting deposition, given at 8:45 a.m. on May 5, 2010, which is annexed to the information, the complaining witness, Matthew Meyers, alleges, inter alia, that "Patrick Wong then started to punch me also in the face and surrounding area of the neck and back. At this point I fell to the floor and had substantial pain in the right eye, and a laceration in the back of my head." In a further supporting deposition, given at 9:55 a.m. on May 5, 2010, Mr. Meyers further alleges, inter alia, "I identified a male Asian known to me as Patrick Wong as one of the two males that assaulted me. I know Patrick Wong as a student at the high school." Mr. Meyers gave a further supporting deposition at 10:00 a.m. on the same date alleging, "I did identify a male Asian in a police show up that I now know to be K., D. DOB XX-X-94 who assaulted earlier in the day inside Syosset H.S. with another student I know to be Patrick Wong. The show up was conducted in front of the Syosset H.S. and I was lying immobilized inside of NCPD Ambulance 2352 when I identified the two students who assaulted me."
The Defendant now moves for an order dismissing the charge against him, pursuant to CPL §§ 100.15, 100.40 and 170.30 alleging that the information is defective within the meaning of CPL §§ 170.35. The Defendant further moves for an order compelling production of a Bill of Particulars pursuant to CPL § 200.95 and Discovery and Inspection pursuant to CPL §§ 240.20 and 240.40. The People oppose the Defendant's motion in its entirety.
FACIAL SUFFICIENCY
The information will be found facially sufficient if, in conformity with CPL §§ 100.15 and 100.40, it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereof, People v. Hall, 48 NY2d 927, 425 NYS2d 56 (1979), and a factual part containing "a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]" CPL § 100.15(3), based upon either the complainant's personal knowledge or upon information and belief. CPL § 100.15(3) The factual part, taken together with any supporting depositions, must contain non-hearsay allegations which, if true, establish every element of the offense charged, People v. Moore , 5 NY3d 725 , 800 NYS2d 49 (2005); People v. Thomas , 4 NY3d 143 , 791 NYS2d 68 (2005), "provid[ing] reasonable cause to believe that the defendant committed the offense[.]" People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987); CPL § 100.40(4)(b) "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 § 70.20
Penal Law § 120.00(1) provides: "A person is guilty of assault in the third degree when: 1. With intent to cause physical injury to another person, he causes such injury to such person or a third person[.]" "Physical injury" is defined in Penal Law § 10.00(9) as "impairment of physical condition or substantial pain." To survive this challenge to its facial sufficiency, the information herein must properly allege that the Defendant intended to cause physical injury and caused such injury.
The Defendant alleges that the "accusatory instrument herein is legally insufficient and defective within the meaning of C.P.L. § 100.15, 100.40 and 170.30, since it alleges only conclusory allegations and fails to articulate non-hearsay allegations of an evidentiary character for each element of the charge alleged; Specifically for the element of physical injury'." ( Hodish Affirmation 10/1/10, ¶ 39) The Defendant succinctly summarizes the issue before this court as "whether the allegations contained in the accusatory instrument are sufficient to establish the essential element of physical injury'." ( Hodish Affirmation 10/1/10, ¶ 42)
Citing cases such as Matter of Philip A., 49 NY2d 198, 424 NYS2d 418 (1980); People v. McDowell, 28 NY2d 373, 321 NYS2d 894 (1971) the Defendant argues that allegations of "petty slaps, punches, shoves, kicks, and the like delivered out of hostility, meanness and similar motives, are not within the definition of physical injury' sufficient to overcome a motion to dismiss." This court would note that neither Matter of Philip A., supra. nor People v. McDowell, supra. includes "punches" im the litany of conduct which is "exclude[d] from the ambit of the assault statute[,]" Matter of Philip A., supra., as the Defendant erroneously suggests. Compare, People v. Calixto, 29 Misc 3d 798, 908 NYS2d 339 (Crim.Ct.NY Co. 2010) wherein the court found that punches to the head were "not petty slaps."
In addition to these cases, the Defendant relies on cases such as Matter of Robert M., 87 AD2d 987, 450 NYS2d 118 (4th Dept. 1982); People v. Melcherts, 147 AD2d 594, 537 NYS2d 889 (2nd Dept. 1989) lv. den. 74 N.Y.2.d 743, 545 NYS2d 118 (1989); People v. Douglas, 143 AD2d 452, 532 NYS2d 446 (3rd Dept. 1998); Application of Derrick M., 63 AD2d 932, 406 NYS2d 88 (1st Dept. 1978); Matter of John G., 82 AD2d 861, 440 NYS2d 41 (2nd Dept. 1981); and People v. Marrero, 88 AD2d 998, 451 NYS2d 836 (2nd dept. 1982) for the general propositions that "allegations of swelling, contusions, redness, lacerations, without more are insufficient[,] . . . that descriptions of the duration of pain, medical treatment, and to (sic) the extent of medical treatment needed, time out of work and descriptions as to how and why the pain was substantial and the need for actual impairment of a physical condition are required to sustain the element of physical injury . . . [and] [i]n deciding whether there is substantial pain, there is an objective level, below which the question is one of law and if not present, the charge of Assault in the third degree must be dismissed. ."[emphasis in original] ( Hodish Affirmation 10/1/10, ¶¶ 44, 45 and 47)
The Defendant's reliance on each of these cases, however, is misplaced. None of these cases addresses the sufficiency of an accusatory instrument; rather, they each address the sufficiency of proof adduced at hearing or trial. It is well recognized that pleading sufficiency is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Swamp, 84 NY2d 725, 622 NYS2d 472 (1995); People v. Porter, 75 AD2d 901, 428 NYS2d 63 (2nd Dept. 1980).
Additionally, many of the cased cited by the Defendant are otherwise factually distinguishable. In People v. Marrero, supra., the complaining witness only testified to suffering discomfort, not pain. In Matter of Philip A., supra. the testimony addressed "pain, the degree of which was not spelled out." In People v. McDowell, supra. there was no "suggestion of pain," only a black eye. In Matter of Robert M., supra., there was only "slight swelling [and] a little headache.'" In People v. Melcherts, supra . there was no testimony concerning the severity of the pain alleged. In Application of Derrick M., supra. there was no mention of pain at all.
The only case to which the Defendant cites involving the question presented on this motion is People v. Dipoumbi, 23 Misc 3d 1127, 889 NYS2d 506 (Crim. Ct. NY Co. 2009), wherein the court held, "Merely invoking the statutory language without providing any factual support from which a finding of substantial pain could arise will not cure an otherwise defective complaint." The Defendant's reliance on this case is misplaced as well.
In Dipoumbi, id., where the allegation was that the defendant opened a car door into the complaining witness' arm, the court therein, citing to People v. Malone, 180 Misc 2d 744, 693 NYS2d 390 (Crim.Ct. NY Co. 1999), specifically noted that the allegations before the court were "[u]nlike with a punch to the face[,]" as we have herein. In Malone, id., wherein the complaining witness alleged he was punched in the face, resulting in swelling, bruising and substantial pain, the court denied the defendant's motion to dismiss for facial insufficiency, noting, "Termination of the assault charge at this juncture would deprive the People of the opportunity at trial to detail the nature and extent of the injury by introducing medical evidence or any other relevant proof that the victim suffered impairment of physical condition' or substantial pain.'"
Moreover, completely overlooked by the Defendant is the Court of Appeals' decision in People v. Henderson, 92 NY2d 677, 685 NYS2d 409 (1999), wherein the court was "called upon to assess the facial sufficiency of an accusatory instrument, here an information-a misdemeanor complaint supplemented by a supporting deposition-filed in a local criminal court." The information in Henderson, id. alleged, inter alia, "the defendant and the other individual 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, alarm and annoyance.'" (emphasis in original) In sustaining the facial sufficiency of that accusatory instrument the court specifically noted, contrary to the Defendant's argument herein, that "[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, . . ., must be deemed sufficient to constitute physical injury' to support a facially valid local criminal court information." "Whether the substantial pain' necessary to establish an assault charge [may be] proved is generally a question for the trier of fact (citation omitted)." People v. Rojas, 61 NY2d 726, 472 NYS2d 615 (1984); See also: People v. Guidice, 83 NY2d 630, 612 NYS2d 350 (1994); People v. Krotoszynski , 43 AD3d 450 , 840 NYS2d 627 (2nd Dept. 2007)
Viewing the allegations contained in Mr. Meyer's supporting depositions in a light most favorable to the People, People v. Martinez, 16 Misc 3d 1111(A), 847 NYS2d 898 (Table), (Dist.Ct. Nassau Co. 2007); People v. Delmonaco , 16 Misc 3d 526 , 837 NYS2d 869 (Dist.Ct. Nassau Co. 2007); People v. Mendelson , 15 Misc 3d 925 , 834 NYS2d 445 (Dist.Ct. Nassau Co. 2007) and without giving them an overly restrictive or technical reading, People v. Casey, 95 NY2d 354, 717 NYS2d 88 (2000); People v. Baumann Sons Buses, Inc. , 6 NY3d 404 , 813 NYS2d 27 (2006), the court finds that the allegations concerning the Defendant punching Mr. Meyer in the face, neck and back, causing substantial pain in the right eye and a laceration in the back of the head, may ultimately sustain a conviction of the Defendant for assault in the third degree. See: People v. Chiddick , 8 NY3d 445 , 834 NYS2d 710 (2007) [a broken fingernail and pain described as "between [a] little' and a lot[]'" sufficient to sustain conviction]; People v. Williams , 23 AD3d 589 , 806 NYS2d 610 (2nd Dept. 2005) [scraped and cut legs resulting in "a lot' of pain" sufficient to sustain conviction]; People v. Tomczak, 189 AD2d 926, 592 NYS2d 486 (3rd Dept. 1993) [testimony by complainant that he suffered "a lot of pain . . . is legally sufficient to establish substantial pain]; People v. Greene, 70 NY2d 860, 523 NYS2d 458 (1987) [complainant's testimony "that he was in terrible pains' and had a lot' of pain from his injuries" was sufficient to establish a physical injury]; People v. Winchell , 46 AD3d 1096 , 847 NYS2d 732 (3rd Dept. 2007) [even in the absence of medical treatment a head-butt causing nasal swelling a two black eyes could sustain a conviction for assault in the third degree]
In light of the foregoing, while questions concerning the duration of the complainant's pain, whether or not he sought medical attention, used pain killers or had any physical limitations are issues which may be explored at trial, to be considered by the trier of fact, the allegations contained in the supporting depositions properly establish, if true, every element of the crime charged and are sufficient to serve the purpose of providing the Defendant with notice enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from again being tried for the same offense. People v. McDermott, 69 NY2d 889, 515 NYS2d 225 (1987); People v. McGuire, 5 NY2d 523, 186 NYS2d 250 (1959)
BILL OF PARTICULARS
CPL § 100.45 provides that the provisions of CPL § 200.95 governing bills of particulars shall apply to informations, misdemeanor complaints and prosecutor's informations. CPL § 200.95(3) provides that a request for a bill of particulars shall be timely if made before the commencement of trial and within thirty (30) days of arraignment or the appearance of counsel, whichever comes later. "Only if this procedure is tried and fails does motion practice become available." People v. Vaccarielli, 120 Misc 2d 1092, 467 NYS2d 158 (Co.Ct. Saratoga Co. 1983)The Defendant's request for a bill of particulars was not served until the Defendant served the instant motion, on or about October 1, 2010, more than four (4) months after the Defendant's arraignment and the appearance of counsel on May 21, 2010. Clearly, the Defendant's request for a bill of particulars is untimely; and, he has failed to demonstrate any reason why the court should permit the service of such a request at this time. Additionally, the Defendant's service of his request for a bill of particulars with, and as a part of, the instant motion is contrary to the procedure contemplated by the Criminal Procedure Law and inappropriate. See: People v. Preston, 141 Misc 2d 551, 533 NYS2d 681 (Crim.Ct. Bronx Co. 1988)
DISCOVERY RESPONSES As with requests for bills of particulars, CPL § 240.80 provides that a demand to produce must be served before the commencement of trial and within thirty (30) days of arraignment or the appearance of counsel, which ever is later. Serving discovery demands with, and as a part of, the instant motion is contrary to the procedure contemplated by the Criminal Procedure Law and inappropriate. See: People v. Preston, supra.
The Defendant's discovery demand herein was not served until the Defendant served the instant motion, on or about October 1, 2010, more than four (4) months after his arraignment and the appearance of counsel on May 21, 2010. Clearly the Defendant's discovery demand is untimely. Additionally, the Defendant's incorporation of his discovery demand into his prayer for relief in the instant motion is contrary to the procedure contemplated by the Criminal Procedure Law and inappropriate. Clearly, the Defendant's discovery demands are untimely; and, he has failed to demonstrate any reason why the service of such demands should be permitted at this time.
The above notwithstanding, the Defendant alleges that the People have served a Voluntary Discovery Form ("VDF") which is incomplete. Specifically, the Defendant complains that, while the People have disclosed the existence of photographs of the defendant, photographs of the injuries allegedly sustained by the complaining witness, medical records, inventoried property recovered from the Defendant at the time of his arrest, 911 recordings and surveillance video, none of these items, save one picture of the complaining witness, has been provided.
In response, the People indicate that all of the above items are available to the Defendant for inspection upon request, except for "every picture of the complainant detailing his injuries[.]" ( Finley Affirmation 11/12/10, ¶ 25) As to these photographs the People contend that the Defendant's demand therefor is untimely. The People apparently have forgotten that in their VDF they affirmatively represented that they are "disclosing to the defendant and making available for inspection, photographing, copying or testing, the following property: . . . Photographs of: Pictures of CW/Injuries."
As acknowledged by the People in their VDF, photographs of the defendant, all photographs of the injuries allegedly sustained by the complaining witness, medical records, inventoried property recovered from the Defendant at the time of his arrest, 911 recordings and surveillance video are discoverable pursuant to CPL § 240.20 and must be made available to the Defendant. There has been no indication by either side whether or not the Defendant has sought to inspect, photograph, copy or test any of these disclosed items.
SUPPRESSION OF DEFENDANT'S STATEMENTS
While the Defendant has not included a prayer for such relief in his Notice of Motion, the affirmation in support of the Defendant's motion represents that the People have consented to a Huntley hearing with regard to the statements disclosed in the notice served by the People pursuant to CPL § 710.30. The People neither admit nor deny this allegation; and, by their silence have impliedly conceded its truthfulness. See: People v. Ciaccio, 47 NY2d 431, 418 NYS2d 371 (1979); People v. Gruden, 42 NY2d 214, 397 NYS2d 704 (1977); People v. Wright, 86 NY2d 591, 635 NYS2d 136 (1995) Rather than elevate form over substance, the Defendant shall be entitled to a hearing concerning the voluntariness of the disclosed statement.
People v. Huntely, 15 NY2d 72, 255 NYS2d 838 (1965)
FUTURE MOTIONS
The Defendant has indicated that he may seek to make further motions to suppress physical evidence and to challenge identification procedures. Any future motions will be determined on an individual basis, based upon the timeliness and merits thereof and will not be addressed at this time.
CONCLUSIONS
That branch of the Defendant's motion seeking to dismiss due to the alleged facial insufficiency of the information is denied.
That branch of the Defendant's motion seeking to compel the People to serve a Bill of Particulars is denied.
That branch of the Defendant's motion seeking to compel the People to respond to his Demand to Produce is denied, except to the extent that it is hereby
ORDERED, that on or before January 9, 2011 the People shall make available for inspection, photographing, copying or testing all photographs of the defendant, all photographs of the injuries allegedly sustained by the complaining witness, medical records, inventoried property recovered from the Defendant at the time of his arrest, 911 recordings and surveillance video relating to this prosecution.
That branch of the Defendant's motion seeking to suppress the statement disclosed in the People's notice served pursuant to CPL § 710.30 is granted to the extent of directing that a hearing be held regarding the voluntariness of such statement; and, it is hereby
ORDERED, that this hearing shall be held on the next calendar date, January 10, 2011.
This constitutes the decision and order of the court.