The defendant, Sergio Garcia, is charged with violating Penal Law (PL) §120.00[1], assault in the third degree; PL §120.00[3], assault in the third degree; and PL § 205.30, resisting arrest. The defendant filed an omnibus motion seeking: (1) Dismissal of the accusatory instrument as facially insufficient, pursuant to CPL §§ 170.30[1][a] and 170.35[1]; (2) Suppression of statement evidence or a Huntley/Dunaway hearing; (3) Preclusion of identification evidence and statements for which proper notice was not given by the People; (4) Preclusion of evidence of defendant's prior convictions pursuant to People v. Sandoval; (5) a bill of particulars; (6) discovery pursuant to CPL § 240.40; and (7) any such other relief the court may deem proper. Upon the foregoing, the defendant's motion is granted in part, and denied in part.

For jurisdictional purposes a criminal court information is sufficient on its face when it contains non-hearsay factual allegations that establish, if true, every element of the crimes charged and the defendant's commission thereof. Criminal Procedure Law (CPL) §§ 100.15[3], 100.40[4][b]; People v Henderson, 92 NY2d 677, 679 [1999]; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d 729 [1986]). When considering a facial sufficiency claim, this Court must read the allegations in the light most favorable to the People. (CPL § 170.45; People v Jennings, 69 NY2d 103, 114 [1986]). In general, as long as the factual allegations of an information conform to the pleading requirements of Article 100 of the CPL, and the allegations contained in an information "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should [*2]be given a fair and not overly restrictive or technical reading" (People v Baumann & Sons Buses, Inc., 6 NY3d 404, 408 [2006]; People v Casey, 95 NY2d 354, 360 [2000]).

Penal Law 120.00 provides that "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; . . . or 3. with criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument." PL § 120.00[1] and [3].

The relevant portion of the accusatory instrument reads as follows:

"Deponent states that he and Officer Smith are employed as Corrections Officers in the pens at the above location. Deponent and other officers ordered the defendant and other inmates to move from one holding pen to another. As defendant exited one holding pen, deponent observed the defendant punch Officer Smith in the chest, thereby causing Smith to appear to lose his breath momentarily. When deponent and other officers attempted to subdue the defendant for the above actions, the defendant flailed his arms and struggled in order to avoid being apprehended, thereby pulling several officers, including Officer Smith, to the ground. Deponent further observed that as a result of this altercation, Officer Smith had swelling and redness to the hand."

Defendant argues the allegation that defendant "punched Officer Smith in the chest, thereby causing Smith to appear to lose his breath momentarily" is insufficient inasmuch as, the allegations fail to establish the victim's impairment of physical condition or substantial pain. Reading this case in the light most favorable to the People , the court disagrees with defendant's contentions, finding the allegations sufficient to support impairment of physical condition or substantial pain. Causing someone to be unable to breath, albeit momentarily, clearly supports an impairment of a person's physical condition, i.e. - breathing, which in the case at bar is directly attributable to the defendant's alleged actions. In the medical field (and as every First Class Boy Scout is trained) it is well settled that among the three most exigent medical "hurry cases" for first aid purposes are 1) heart attack, 2) severe bleeding and 3) impairment of breathing. Such conditions are considered to be potentially life threatening as they relate to fundamental systems necessary to the continuation of bodily function. The even momentary compromise of any such function, is of great concern to the overall integrity of the human body. Such compromise therefore clearly fits within the meaning of the statue.

Accordingly, defendant's motion to dismiss PL § 120.00[1], assault in the third degree is denied.

Defendant also argues that the count charging defendant with violating PL § 120.00[3] is insufficient inasmuch as, the complaint fails to contain allegations establishing he used a deadly weapon or dangerous instrument. As stated above, PL § 120.00[3] requires that a defendant cause "physical injury to another person by means of a deadly weapon or a dangerous instrument." In the case at bar, the court finds the allegation that the deponent observed the defendant "punch Officer Smith in the chest" fails to support conduct that remotely alleges the use of a deadly weapon or a dangerous instrument. Accordingly, the count charging the defendant with violation PL [*3]§ 120.00[3] must be dismissed for lack of facial sufficiency.

A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person. PL § 205.30. Defendant argues that the count charging the defendant with resisting arrest is insufficient. Specifically, defendant states that resisting arrest involves conduct occurring at the time of arrest itself. Defendant argues:

"that at the time Mr. Garcia is alleged to have resisted arrest he was in the pens at 100 Centre Street awaiting arraignment, the Corrections Officers could not have been effecting an arrest of him, but were instead retaining him in custody. He had already been deprived of his liberty when he was originally arrested and remained in custody when he was placed in the pens. Therefore, the Corrections Officers' actions were not depriving him of liberty and cannot meet the definition of effecting an arrest."

First, the complaint is silent as to when in the arrest to arraignment process this alleged altercation occurred. Defendant contends that the altercation occurred while he awaited arraignment. However, based on the allegations contained in the complaint, if the defendant was not released after arraignment, the altercation could have easily taken place after the defendant's arraignment. Furthermore, a defendant's status of awaiting arraignment or trial while incarcerated does not preclude the state from taking action against such a defendant who allegedly commits a new and separate crime while incarcerated.

In the instant matter defendant was in the custody of the department of corrections. Whether he was awaiting arraignment or being processed after arraignment is unclear from the complaint and of no importance in judging the sufficiency of the complaint. While in the pens defendant is alleged to have assaulted a New York City Corrections Officer. When the Correction Officers attempted to arrest defendant for allegedly committing this new assault, defendant is alleged to have "flailed his arm and struggle to avoid being" arrested for this assault and "thereby pulling several officers to the ground."

Accordingly, the court finds the allegations when read in the light most favorable to the People, "given a fair and not overly restrictive or technical reading," People v. Casey, 95 NY2d 354, 360 [2000], are sufficiently evidentiary in character, for pleading purposes, to support the charge of resisting arrest, as well as sufficiently evidentiary in character to give the defendant notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense. People v. Casey at 360. Therefore, defendant's motion to dismiss the charge of resisting arrest must be denied.

REMAINING MOTIONS

The defendant's request to suppress statements allegedly made by the defendant is granted to the extent of ordering a Huntley/Dunaway hearing; defendant's request for a bill of particulars and discovery pursuant to CPL § 240.40 is granted to the [*4]extend provided for in the People's voluntary disclosure form (VDF); defendant's request for a Sandoval and Molineux hearing is deferred to the trial court; defendant's request reserving the right to make additional motions as necessary is granted to the extent provided for by CPL § 225.50.

The foregoing constitutes the decision and order of the Court.

June 10, 2009

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HON. MARC J. WHITEN, JCC