Defendant, charged with assault in the third degree, attempted assault and harassment, moves for an order deeming the misdemeanor complaint unconverted. For the reasons that follow, the motion is DENIED. The supporting deposition here did indeed convert the misdemeanor complaint into an information, and the information is facially sufficient. Defendant also moves to suppress certain post-arrest statements. As to that, the Court grants a Dunaway/Huntley hearing.

According to the misdemeanor complaint, at 1:57 a.m. on February 25, 2015, the defendant pushed the complainant, his girlfriend, to the ground and kicked her, causing her substantial pain.

Defendant filed the instant motion on April 23, 2015, and the People responded on May 6. The motion has been sub judice since then.

The misdemeanor complaint, sworn out by Police Officer Patricia DeJesus, provides, in relevant part, that:

Defendant complains that the additional and different facts in the supporting deposition somehow nullified it and that, accordingly, the misdemeanor complaint was never converted. Defendant suggests that, even if the supporting deposition did convert the misdemeanor complaint, the information is facially insufficient. The Court disagrees with both claims.

CPL § 100.20 provides that a

Accordingly, it is permissible for a supporting deposition to contain "additional and different facts which support the charges contained in the accusatory instrument." People v. Modica, 187 Misc 2d 635, 636, 724 N.Y.S.2d 825, 827 (Crim Ct Richmond County 2001). See also People v. Ochoa, 23 Misc 3d 1102(A), 881 N.Y.S.2d 366 (Crim Ct NY County 2009) (that supporting deposition and complaint contained differing factual allegations as to where marijuana was recovered did "not render the accusatory instrument facially insufficient"); People v. Donadeo, 44 Misc 3d 1202(A), 997 N.Y.S.2d 100 at *6 (Crim Ct Queens County 2014) ("variations between an accusatory instrument and any supporting deposition are not fatal"); People v. Blake, 6 Misc 3d 958, 791 N.Y.S.2d 912 (Crim Ct NY County 2005) (lab report that identified a drug different than that described in the complaint still converted complaint into an information).

Here, the supporting deposition converted the misdemeanor complaint into an information, even though it contains a narrative of the alleged assault that varies, to some degree, from that set out in the complaint, and identifies additional criminal conduct. The supporting deposition is signed by the complainant, which means it is "subscribed," and sworn to, which means it is "verified," and "tend[s] to support the" charges contained in the misdemeanor complaint. That is all that CPL § 100.20 requires. Although the supporting deposition also "supplements," id., the factual allegations of the misdemeanor complaint, this is clearly permitted under the statute.

The misdemeanor complaint, read together with the supporting deposition, is not only an information, it is a facially sufficient information. Even though the facts in the supporting deposition vary from those alleged in the misdemeanor complaint, the supporting deposition does not negate a necessary element of one or more of the charged offenses. This Court has very recently observed that this can render an information facially insufficient. People v. Harrison, ___ Misc 3d ___, Docket No. 2015NY 010604 (Crim Ct NY Count July 6, 2015) (Statsinger, J.) But that is not the case here.

Defendant argues that the factual differences between the supporting deposition and the misdemeanor complaint cast doubt as to two elements - defendant's identity as the person who pushed the complainant down the stairs, and intent to injure. Gomez Aff. at ¶¶ 16, 17. But the supporting deposition, read in its totality, sufficiently makes out those elements.

1. Defendant's Identity as the Perpetrator Is Sufficiently Pled

First, as to defendant's identity, it is of course true that a defendant's identity as the perpetrator, as with any other element, must be sufficiently pled. See, e.g., People v. Garcia, ___ Misc 3d ___, 2015 WL 3915768 (Crim Ct NY County June 26, 2015) (dismissing information that did not sufficiently plead identity). Here, even though in the supporting deposition the complainant explains that she did not actually see the defendant push her down the stairs, it still sufficiently pleads identity. The complainant knew that defendant was the person who "chase[d her] down the stairs," knew that they were the only two people in the stairwell, and felt someone push her. These allegations are enough to create a "reasonable inference," People v. Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721-22, 967 N.E.2d 1160, 1166-67 (2012), that defendant is the person who pushed the complainant down the stairs.

This is not, as defense counsel colorfully describes it, a case involving a "phantom push," Gomez Aff. at ¶ 16, that might reasonably have been committed by someone other than the defendant. This Court has dismissed in assault cases where the facts alleged in an information could not reasonably eliminate the possibility that someone other than the defendant injured the complainant. For example, in People v. Miller, 45 Misc 3d 1209(A), 3 N.Y.S.3d 286 (Crim Ct NY County 2014), the court dismissed where the only facts alleged were that a police officer encountered the defendant and a person who was injured and upset alone together in an apartment:

The instant case is clearly distinguishable, even though as in Miller, there remains some theoretical possibility that there was a third person present who might have committed the assault and then left before the police arrive. Here, the allegations that defendant was chasing the complainant down the stairs and that, as he did so, the complainant felt someone push her, unlike the facts in Miller, sufficiently eliminate the possibility that a someone other than the defendant committed the assault. The information is accordingly facially sufficient as to defendant' s identity.

2. The Information Sufficiently Pleads Intent

For different reasons, the Court reaches the same conclusion with respect to the defendant's intent. The supporting deposition does more than simply allege that the defendant pushed the complainant, which the defense argues, could have been accidental. [*4]See, e.g., People v. Dipoumbi, 23 Misc 3d 1127(A) (Crim Ct NY County 2009) (dismissing where facts alleged rendered equally likely the inference that injury was accidental). Here, the information alleges that about an hour before he pushed the complainant down the stairs, defendant threw the complainant's dresser down the (presumably same) stairs, damaging it, and that about fifteen minutes afterwards he destroyed the defendant's phone, probably as she was attempting to call for help. Defendant's violent behavior before he pushed the complainant down the stairs and his callous behavior shortly afterward together sufficiently negate the inference that the defendant accidentally pushed the complainant down the stairs.

Finally, defendant observes that the additional facts contained in the supporting deposition allege offenses with which he is not charged. Gomez Aff. at ¶ 15. But defendant can hardly be heard to complain about that, since the logical remedy would be for the People to supersede and charge him with those additional offenses. See CPL 100.50(1)(a superseding information can contain additional charges as long as it includes as least one of the charges alleged in the original information). That would, of course, make things worse for the defendant, not better.

In any event, this Court has already concluded that the additional facts in the supporting deposition are not mere surplusage. They are material facts that help establish defendant's intent.

The supporting deposition here converted the misdemeanor complaint into an information, and that information is facially sufficient. Defendant's motion is accordingly denied.

For the foregoing reasons, defendant's motion to deem the complaint unconverted is denied, as is the motion to dismiss for facial insufficiency. The Court grants a Dunaway/Huntley hearing.