Opinion
Docket No. CR-022982-21NY
02-18-2022
The PEOPLE of the State of New York, Plaintiff, v. Darwin ZHICAY, Defendant.
For the People: Alvin L. Bragg, Jr., NY County District Attorney's Office, by ADA Michael Chubinsky For the Defendant: New York County Defender Services, by Bethany Bonsu
For the People: Alvin L. Bragg, Jr., NY County District Attorney's Office, by ADA Michael Chubinsky
For the Defendant: New York County Defender Services, by Bethany Bonsu
Lumarie Maldonado-Cruz, J.
Defendant Darwin Zhicay, charged with one count of Forcible Touching [PL § 130.52(1)] and one count of Sexual Abuse in the Third Degree [PL § 130.55] moves, by notice of motion dated January 28, 2022, for an order: 1) dismissing the information for facial insufficiency; 2) dismissing the information pursuant to CPL § 30.30(1)(b) ; and 3) reserving the right to make further motions pursuant to CPL § 255.20(3).
For reasons that follow, Mr. Zhicay's motion to dismiss the information is DENIED in its entirety. The motion to reserve the right to make further motions is denied, subject to good cause shown, pursuant to CPL § 255.20(3).
Background and Procedural History
Mr. Zhicay was arrested on October 1, 2021, in connection with an incident that occurred on September 28, 2021, where he is alleged to have forcibly touched the complainant's buttocks, thighs and other intimate parts of her body over her clothing and without her consent in the subway station at Church Street and Chambers Street, in New York County.
Mr. Zhicay was arraigned on October 2, 2021 on a complaint in which the sole count was a class B Misdemeanor, Sexual Abuse in the Third Degree. The case was adjourned to November 4, 2021 for a supporting deposition. On November 4, 2021, the People did not have a supporting deposition, and indicated their intention to file a superseding information (SSI). The case was then adjourned for SSI to December 8, 2021. On December 8, 2021, the Court acknowledged the People's filing of an SSI and supporting deposition off-calendar on November 9, 2021, along with discovery, certificate of compliance (COC) and certificate of readiness (COR). The defendant was arraigned on the SSI, which now contained an additional charge of Forcible Touching, a class A misdemeanor. However, the defense argued that the SSI did not contain sufficient allegations, and the Court agreed and adjourned the case again for a new SSI to January 26, 2022. The Court also invalidated the People's COC and COR dated November 9, 2021.
On December 21, 2021, the People filed off-calendar a second SSI and supporting deposition along with a COC and COR. On January 26, 2022, the defense requested a motion schedule and the case was adjourned to February 18, 2022 for decision. The defense filed the instant motion to dismiss off-calendar on January 28, 2022. On February 4, 2022, the People filed a response off-calendar and on February 9, 2022, the defense filed a reply off-calendar.
Discussion
I. Facial Sufficiency
Facial sufficiency is a non-waivable, jurisdictional prerequisite to a misdemeanor prosecution. People v. Alejandro , 70 NY2d 133 (1979). To be facially sufficient, an information must, along with any supporting depositions, contain factual allegations of an evidentiary character demonstrating "reasonable cause" to believe the defendant committed the offense charged. CPL § 100.15(3) ; People v. Dumas , 68 NY2d 729 (1986) ; People v. Dreyden, 15 NY3d 100 (2010). Additionally, an information must contain non-hearsay allegations which establish, if true, every element of the offense charged and the defendant's commission thereof. CPL § 100.40(1).
However, the factual allegations contained within an accusatory instrument "should be given a fair and not overly restrictive or technical reading" and should simply "give an accused notice sufficient to prepare a defense and to prevent a defendant from being tried twice for the same offense." People v. Casey , 95 NY2d 354, 360 (2000). Although a court must assume that the factual allegations are true and must consider all reasonable inferences that flow from those allegations, a court's facial sufficiency analysis is limited to what is contained within "the four corners of the accusatory instrument." People v. Thomas , 4 NY3d 143, 146 (2005).
A person is guilty of Forcible Touching when he intentionally, and for no legitimate purpose, "forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor's sexual desire[.]" PL § 130.52(1). A person is guilty of Sexual Abuse in the Third Degree when he "subjects another person to sexual contact without the latter's consent." CPL § 130.55.
The information filed on December 21, 2021 in this case alleges that a person initially identified as a "white male individual wearing a green shirt, red shorts, and blue headphones" forcibly touched her thighs and buttocks without her consent in the subway station at Church Street and Chambers Street on September 28, 2021 at 7:10 AM. The deponent, Detective Marquis Cross, alleges that he reviewed video surveillance footage from that time, place and location and observed a "white male individual wearing a green shirt, red shorts, and blue headphones" on the video. He then states that he showed this video surveillance footage to the complainant, and that she identified the person on the video as the perpetrator of the offenses committed upon her. Finally, Detective Cross states that approximately thirty minutes later, at the 84th Precinct, he showed the same video surveillance footage to the defendant, and that the defendant stated to him: "that is me on the video."
Defendant argues that the information is facially insufficient because it fails to state that Mr. Zhicay is the perpetrator of the offenses charged. He argues that the defects from the first SSI were not adequately cured by the second SSI. The Court disagrees. There is a distinct and significant difference between the first and second SSI's. The first SSI states that only the deponent reviewed the video surveillance footage, then showed it to the defendant, whereupon he stated, "that is me on the video." The second SSI states that the deponent reviewed the video surveillance footage, and then showed that same video surveillance footage to the complainant, who identified the person in the video as the perpetrator. It then states that he showed that same video surveillance footage to the defendant, who has been identified in the caption as Darwin Zhicay, and that he identified himself in that video. This distinction is significant, because the allegations create a logical nexus between the incident and the description of the person who committed it, which arguably did not exist in the previous SSI.
Mr. Zhicay further argues that the SSI is defective because under CPL 60.50, a person may not be convicted of an offense solely upon evidence of his own confession or an admission. This argument is misplaced. CPL 60.50 states: "A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed (emphasis added)." CPL § 60.50. First, this statute governs evidence that results in a conviction. Second, the SSI does provide additional allegations, which, if true, provide proof that the offenses charged were committed and that the defendant was the person who committed them. The SSI provides a description of the incident as well as a physical description of the perpetrator, which purports to match the physical description of the defendant, and places him allegedly at the location of the incident. The complainant also signed a supporting deposition, swearing to the allegations in the complaint. The Court finds that the allegations in the complaint, together with the supporting deposition, are sufficient for pleading purposes and easily provide reasonable cause to believe that the offenses were committed and that the defendant was the perpetrator. CPL § 100.40(1)(b).
See also, People v. Suber , 19 NY3d 247, 250 (2012) ("Since this corroboration provision [CPL 60.50 ] refers only to convictions, it has no bearing on the adequacy of charging instruments that provide the bases for prosecutions.")
It is clear from Defendant's motion that he believes identification to be in issue in the case, but this is best litigated at trial, where the People would be required to prove beyond a reasonable doubt that Defendant is indeed the perpetrator of the offenses charged.
For the aforementioned reasons, the information is facially sufficient and this branch of Defendant's motion to dismiss is therefore denied.
II. Speedy Trial
Mr. Zhicay also moves to dismiss the information pursuant to CPL 30.30(1)(b). Mr. Zhicay is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony. Accordingly, the People are required to be ready for trial within 90 days from the commencement of the criminal action, less any excludable time. CPL § 30.30(1)(b).
Although commencement of a criminal action begins at the arraignment, computation for speedy trial purposes begins on the next day. People v. Stiles , 70 NY2d 765 (1987). Once a defendant has alleged that an excess of the allowable time has elapsed, the burden shifts to the People to demonstrate whether any periods are to be excluded from the calculation, such that the allowable time has not elapsed. People v. Santos, 68 NY2d 859 (1986) ; People v. Berkowitz , 50 NY2d 333 (1980).
Mr. Zhicay argues that more than 90 chargeable days have elapsed since the commencement of the case and that the People have failed to state their readiness for trial within the allowable time period. The People respond that only 80 chargeable days have elapsed. The Court agrees with the People, and makes the following speedy trial calculations with respect to each adjournment:
October 2, 2021 — November 4, 2021
The case was arraigned and adjourned for the People to provide a supporting deposition to November 4, 2021. This entire time period is chargeable as the case was not converted. 33 days charged.
November 4, 2021 — December 8, 2021
The People did not provide a supporting deposition, and indicated their intention to file an SSI. The case was adjourned for SSI to December 8, 2021. On November 9, 2021, the People filed off-calendar an SSI, supporting deposition, along with discovery, a COC and COR. The SSI contained an additional charge, one count of Forcible Touching, a class A misdemeanor. Accordingly, the allowable time within which the People must answer ready for trial increased from sixty days to ninety days, dating back to the original commencement of the case. See, People v. Armstrong, 163 Misc 2d 588 (App. Term 1st Dep't. 1994) ("an accusatory instrument which replaces an earlier one in the same criminal action is related back to the original accusatory instrument for purposes of determining the commencement of the statutory readiness period" (citing, People v. Sinistaj, 67 NY2d 236 (1986) ). As a result of the Court's ruling on December 8, 2021, explained below, the speedy trial clock continued to run during this period as the complaint was still not deemed converted. 34 days are charged.
December 8, 2021 — January 26, 2022
The defendant was arraigned on the SSI. Although the Court acknowledged the People's filings dated November 9, 2021, the Court made a ruling that the SSI was defective because the allegations failed to identify the defendant as the perpetrator of the offenses charged. Accordingly, the Court deemed the SSI not converted, and therefore invalidated the People's COC and COR. The case was then adjourned again for the People to provide a sufficient SSI, and the speedy trial clock continued to run.
On December 21, 2021, the People filed off-calendar and served upon defense counsel via the Electronic Document Delivery System (EDDS) a new SSI, supporting deposition, COC and COR. This Court has examined the SSI together with the supporting deposition and finds that the information is now facially sufficient. As a result, the People's COC and COR dated December 21, 2021 are deemed valid and did toll the speedy trial clock. 13 days are charged.
January 26, 2022 — February 18, 2022
Mr. Zhicay requested the opportunity to file motions, and the Court set a motion schedule, adjourning the case to February 18, 2022 for decision. On January 28, 2022, Mr. Zhicay filed the instant motion to dismiss off-calendar, and on February 4, 2022, the People filed their response off-calendar. On February 9, 2022, the defense filed a reply off-calendar. This time period is excludable motion practice. CPL § 30.30(4)(a). 0 days are charged.
By the Court's calculation, the total includable speedy trial time amounts to 80 days, which does not exceed the allowable time of 90 days permitted for a class A misdemeanor. Accordingly, Defendant's motion to dismiss is denied.
III. Defendant's remaining motions
Defendant's motion to reserve the right to make further motions is denied, without prejudice, subject to good cause shown, pursuant to CPL 255.20(3).
Conclusion
Mr. Zhicay's motion to dismiss is denied in its entirety.
This opinion constitutes the decision and Order of the Court.