Opinion
No. 2015BX036646.
01-14-2016
The PEOPLE of the State of New York, v. Shakeya WOODWARD, Defendant.
Robert T. Johnson, District Attorney, Bronx County by Ketaki Chakrabarti, Assistant District Attorney, for People. Mangan Ginsberg LLP by Michael P. Mangan, for Defendant.
Robert T. Johnson, District Attorney, Bronx County by Ketaki Chakrabarti, Assistant District Attorney, for People.
Mangan Ginsberg LLP by Michael P. Mangan, for Defendant.
MARY V. ROSADO, J.
Defendant is charged with Assault in the Third Degree (Penal Law § 120.00[1] ), Petit Larceny (Penal Law § 155.25 ), Criminal Possession of Stolen Property in the Fifth Degree (Penal Law § 165.40 ), Menacing (Penal Law § 120.15 ) and Harassment in the Second Degree (Penal Law § 240.26[1] ). By Affirmation dated November 16, 2015, Defendant moves to dismiss the accusatory instrument for facial insufficiency and for other relief. By Affirmation in Opposition dated November 30, 2015, the People oppose dismissal, arguing that the accusatory instrument is facially sufficient. In rendering a decision, this court has reviewed Defendant's Affirmation dated November 16, 2015, the People's Affirmation in Opposition dated November 30, 2015, the court file, relevant statutes and case law.
Defendant's motion to dismiss for facial insufficiency is denied.
Factual Allegations
The information alleges that on or about May 29, 2015, at approximately 2:45 PM, in front of 1450 East Avenue, the following occurred:
Deponent states that at the above time and place, she and defendant engaged in a verbal altercation, after which defendant struck her several times with a closed fist on her face and her arms. Deponent further states that defendant then removed her gold chain from her neck.
Deponent further states that as a result of the defendant's aforementioned conduct, she suffered scratches to her arms, and a bump above her left eye, and redness, soreness, and substantial pain, as well as experienced annoyance, alarm and fear for her physical safety.
Deponent further states that she is the lawful owner of said gold chain and as a result she did not give the defendant permission or authority to take or remove said chain.
Facial Sufficiency
To be facially sufficient, an accusatory instrument “must designate the offense or offenses charged” (CPL § 100.15[2] ) and “must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges” (CPL § 100.15[3] ). More specifically, an information must provide “reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information” and must contain “non-hearsay allegations ... [that] establish, if true, every element of the offense charged and the defendant's commission thereof” (People v. Henderson, 92 N.Y.2d 677, 679 [1999] ; See CPL § 100.40[1] ).
The Court of Appeals has stated that CPL § 100.40(1) places “the burden on the People to make out their prima facie case for the offense charged in the text of the information” (People v. Jones, 9 NY3d 259, 261 [2007] ). It should be noted that the prima facie case requirement is not the same as the burden required at trial of proof beyond a reasonable doubt, “nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at the trial” (People v. Kalin, 12 NY3d 225, 230 [2009] ). Rather, what is required is that the factual allegations in the 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” (Id. at 230 [internal citations and quotations omitted] ). Ultimately, the information “should be given a fair and not overly restrictive or technical reading” (People v. Casey, 95 N.Y.2d 354, 360 [2000] ).
Assault in the Third Degree
A person commits Assault in the Third Degree when “with intent to cause physical injury to another person, he causes such injury to such person or to a third person” (Penal Law § 120.00[1] ). Therefore, the elements of Assault in the Third Degree are (1) the intent to physically injure another person and (2) causing physical injury to another person (See CJI2d [NY] Penal Law § 120.00[1] ).
The accusatory instrument establishes that Complainant was physically injured by Defendant's alleged conduct. Physical injury is the “impairment of physical condition or substantial pain” (Penal Law § 10.00[9] ). Pain does not have to be severe or intense to be considered substantial (People v. Chiddick, 8 NY3d 445 [2007] ). Since the lasting effects of an attack are not immediately known to a victim, “allegations of substantial pain, swelling and contusions must be deemed sufficient to constitute physical injury' to support a facially valid local criminal court information” (People v. Henderson, 92 N.Y.2d 677, 681 [1999] ).Complainant alleges that she experienced substantial pain, scratches to the arms, redness, soreness and received a bump over her eye due to being struck on the face and arms multiple times by Defendant's closed fist. These allegations are similar to the ones found in Henderson and upheld for facial sufficiency (Id. at 679 [1999] [“defendant kicked the informant about the legs, causing informant to suffer contusions, and swelling about the legs, as well as causing the informant to suffer substantial pain, alarm, and annoyance] ). As in Henderson, Complainant alleges substantial pain supported by physical manifestations of that pain, i.e. scratches, a bump over the eye, redness and soreness, from which a reasonable person may infer a physical injury.
Furthermore, the allegations that Defendant punched Complainant several times on the face is extreme enough to allow a reasonable inference that Complainant experienced substantial pain (See People v. Rumph, 2016 N.Y. Slip Op 5001 [U] [Crim Ct, New York County 2016] ). “While the most direct and strongest allegation about any physical injury suffered by a victim would typically come from the victim herself, there is an objective line above which one can reasonably infer the requisite level of physical injury based upon the specific allegations regarding the nature of the assault itself” (People v. Calixto, 29 Misc.3d 798, 802 [Crim Ct, New York County 2010] ).
Defendant's reliance on People v. Jimenez (55 N.Y.2d 895 [1982] ) is misplaced. That case dealt with the insufficiency of evidence to support a jury verdict convicting that defendant of Assault in the Third Degree. At the pleadings stage, the People have a lower burden than they would at trial. The People only need to allege reasonable cause to believe Defendant committed the charged offenses, and not proof beyond a reasonable doubt (Kalin, supra ).
The accusatory instrument also establishes Defendant's intent to physically injure Complainant. Intent may be inferred from a defendant's conduct and the surrounding circumstances in which the defendant acted (People v. Bracey, 41 N.Y.2d 296 [1977] ). There is a presumptive inference that a person intends the natural and probable consequences of his or her actions (People v. Getch, 50 N.Y.2d 456 [1980] ). Defendant's conscious desire to cause physical injury may be reasonably inferred from the allegations that she punched Complainant multiple times on the face and the arms.
The accusatory instrument is facially sufficient as to the charge of Assault in the Third Degree. The factual allegations provide reasonable cause to believe that Defendant committed the charged offense.
Harassment in the Second Degree
A person commits Harassment in the Second Degree when “with the intent to harass, annoy, alarm, another person [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same” (Penal Law § 240.26[1] ).
The accusatory instrument sufficiently alleges that Complainant was subjected to physical contact (See People v. Bartkow, 96 N.Y.2d 770 [2001] [prohibited conduct includes striking, shoving or kicking] ). The factual allegations state that Defendant struck Complainant on the face and arms with a closed fist. That contact is clearly within the scope of Penal Law § 240.26(1).
The accusatory instrument further establishes that Defendant struck Complainant with the intent to harass, annoy or alarm. Punching someone on the face and arms, at the minimum, allows a reasonable inference that the actor's conscious desire is to harass, annoy or alarm (See People v. Clergeot, 20 Misc.3d 87 [App Term 2d, 9th and 10th Jud Dists 2008] ).
The accusatory instrument is facially sufficient as to the charge of Harassment in the Second Degree. The factual allegations provide reasonable cause to believe that Defendant committed the charged offense.
Menacing in the Third Degree
Penal Law § 120.15 provides that “a person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.”
To be guilty of committing Menacing in the Third Degree “a defendant must commit a physical act which in and of itself places another person in fear of imminent injury” (People v. Martini, 36 Misc.3d 729, 734 [Crim Ct, Queens County 2013] ). Purely verbal threats are generally inadequate to support a Menacing in the Third Degree charge (In re Akheem B, 308 A.D.2d 402 [1st Dept 2003] ; In re Pedro H, 308 A.D.2d 374 [1st Dept 2003] ).
Here, Defendant struck Complainant with a closed fist. Striking another person is a physical act that goes beyond a mere threat.
Defendant's conduct also placed Complainant in fear of imminent physical injury. Defendant's argument that the accusatory instrument must allege that she placed Complainant in fear of death or imminent serious physical harm is without merit (See Defendant's Affirmation at ¶ 18). That a defendant causes another to fear physical injury is sufficient. In fact, Complainant actually suffered a physical injury due to Defendant's alleged conduct.
Intent is also satisfactorily alleged. It is reasonably inferable that by punching Complainant on the face and arms multiple times, Defendant's conscious goal was to place Complainant in fear of imminent physical injury.
The accusatory instrument is facially sufficient as to the charge of Menacing in the Third Degree. The factual allegations provide reasonable cause to believe that Defendant committed the charged offense.
Petit Larceny
Penal Law § 155.25 states that “a person is guilty of petit larceny when he steals property.” Property includes “any money, personal property, real property” (Penal Law § 155.00[1] ). “A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof” (Penal Law § 155.05[1] ).
The People must allege that Complainant (1) owned the property in question, (2) that there was a taking of said property, (3) that the taking was without the owner's consent, (4) that the taking was committed by the defendant and (5) that defendant acted with the intent to deprive the owner of the property or to appropriate the property to the defendant or another person (See People v. Shurn, 69 A.D.2d 64 [2d Dept 1979] ).
The property in question is a gold chain that Complainant was wearing around her neck. It is alleged that Complainant is the owner of the chain, and Defendant removed it without Complainant's consent. The mere act of removing personal property from the owner's person is sufficient to allow a reasonable inference that a defendant acted with larcenous intent (People v. Smith, 140 A.D.2d 259 [1st Dept 1988] [removal of a cosmetic bag from a shoulder bag on victim's person] ). It is insignificant that there are no allegations regarding Defendant's prolonged possession of the chain after removing it from Complainant's neck. The intent to deprive, and not the intent to possess, is necessary to support the charge of Petit Larceny (See In re Nehial W., 232 A.D.2d 152 [1st Dept 1996] ). Additionally, it can be inferred that Defendant's alleged assault on Complainant was committed to effectuate a taking of Complainant's chain, thus evincing an intent to deprive Complainant of her property.
The accusatory instrument is facially sufficient as to the charge of Petit Larceny. The factual allegations provide reasonable cause to believe that Defendant committed the charged offense.
Statements
Defendant's request for a Huntley/Dunaway hearing is granted.
Physical Evidence
Defendant's request for a Mapp/Dunaway hearing is granted.
Brady/Rosario Materials
The People are reminded of their continuing obligation to provide Defendant with all Brady and Rosario materials.
Prior Convictions and Bad Acts
Defendant's request for a Sandoval/Ventimiglia hearing is referred to the trial judge.
Bill of Particulars and Demand for Discovery
To the extent not already provided by the People's separate response dated December 4, 2015, the People are ordered to comply with Defendant's request for a Bill of Particulars and Demand for Discovery dated November 16, 2015.
Additional Pre-trial Motions
Defendant's application for extension of time to file additional motions or to renew is denied subject to CPL § 255.20(3) for further leave upon good cause shown.
Defendant's motion to dismiss for facial insufficiency is denied.
This constitutes the Decision and Order of the court.