Defendant's Motion to Dismiss Pursuant to CPL 100.40 for Facial Insufficiency

Defendant is charged with Assault in the Third Degree, PL 120.00(1), Attempted Assault in the Third Degree, PL110/120.00(1), Menacing in the Third Degree, PL 120.15, Harassment in the Second Degree, PL 240.26(1), and three counts of Endangering the Welfare of a Child , PL 260.10(1), all stemming from an incident in which Defendant allegedly placed his hands about the complaining witness' face and pushed against her face, causing her to fall backwards towards the ground. The complaining witness further alleged that when she fell she hit her face against a dining room table, thereby suffering numbness about the jaw, redness and swelling about the face, substantial pain about the jaw and face, and to fear further physical injury and to become alarmed and annoyed.

Defendant filed an omnibus motion, all items of which have been disposed except for the instant motion to dismiss the counts of Assault in the Third Degree, Menacing in the Third Degree, and Harassment in the Second Degree for facial insufficiency. Each count will be discussed seriatim.

CPL 100.40(1)( c) states that:

An information, or a count thereof, is sufficient on its face when...

(a) it substantially conforms to the requirements prescribed in section 100.15; and

...

( c) Non-hearsay allegations of the factual part of the information and/or of

any supporting depositions establish, if true, every element of the offense

charged and the defendant's commission thereof.

CPL 100.15 requires that the factual allegations of an evidentiary character in the [*2]information provide reasonable cause to believe that the accused committed the offenses charged and that those nonhearsay factual allegations establish a prima facie case that the defendant is guilty. People v. Allen, 92 NY2d 378, 681 NYS2d 216 (1998). The information must state the crime or crimes with which the defendant is charged and the particular facts constituting that crime or crimes; the prima facie requirement is not the same as the burden of proof that would be required at the eventual trial. People v. Henderson, 92 NY2d 677, 685 NYS2d 409 (1999). As long as the factual allegations in the information are sufficient to give the accused sufficient notice to prepare a defense and are adequately detailed so as to prevent an accused from being tried twice for the same crime, they should be given a fair and not overly restrictive or technical reading. People v. Casey, 95 NY2d 354, 717 NYS2d 88 (2001).

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 to a third person.

PL 120.00

Defendant argues that the information is facially insufficient because the extent of the "substantial pain" allegedly suffered by the complaining witness is not precisely detailed.

In support of his position, Defendant cites Matter of Phillip A., 49 NY2d 198, 424 NYS2d 418 (1980), in which the court dismissed a charge of Assault in the Third Degree because the information only recounted the injuries suffered without specifying that the complainant suffered "substantial pain." However, that court stated that " the question of whether the substantial pain' necessary to establish assault in the third degree has been proved is generally a question for the trier of fact." In the instant case the information affirmatively states that the complaining witness suffered "substantial pain about the jaw and face," thereby meeting the minimum requirements for presenting a prima facie case. Whether the pain suffered by the complaining witness is in fact sufficient to rise to the level of "substantial pain" must now be left for the trier of fact to decide. Therefore, the court finds that this count is facially sufficient to meet the standards of CPL 100.40.

Under PL 120.15, a person is guilty of Menacing in the Third Degree when

by physical menace he intentionally places or attempts to place another

person in fear of death, imminent serious physical injury or physical

injury.

Defendant asserts that the information fails to show that he either placed or attempted to place the complaining witness in fear of physical injury. However, the accusatory instrument clearly states that the complaining witness said that she was put in "fear [of] further physical injury and to become alarmed and annoyed." Consequently, the information provides prima facie evidence of such fear emanating from Defendant's actions, and so this claim of facial [*3]sufficiency must be denied.

Finally, Defendant maintains that the charge of Harassment in the Second Degree should be dismissed as being facially insufficient.

PL 240.26 states that a person is guilty of Harassment in the Second Degree when

...with intent to harass, annoy or alarm another person:

1. He or she strikes, shoves, kicks or otherwise subjects another person to

physical contact, or attempts or threatens to do the same.

Defendant's argument rests on the fact that the instrument does not specify facts indicating Defendant's intent, an essential element of the charge. However, as the court stated in People v. Stevens, 26 AD3d 396, 811 NYS2d 84 (2d Dept. 2006), the intent to commit a crime may be implied by the act itself, or may be established by a defendant's conduct and the surrounding circumstances. A fair reading of the accusatory instrument supports a prima facie showing that, by the facts alleged, i.e., placing his hands on the complaining witness' face and pushing her against her face, Defendant's intent to commit the crime may be inferred. See generally, People v. Wong, 3 Misc 3d 274, 776 NYS2d 194 (New York County 2004). Whether sufficient facts can be established to prove the requisite intent at trial is a question to be left for the trier of fact.

Based on the foregoing, the court denies Defendant's motion to dismiss the above-discussed charges as being facially insufficient.

Dated: April 19, 2007

__________________________

EILEEN N. NADELSON, J.C.C.