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People v W.J.
2010 NY Slip Op 50693(U) [27 Misc 3d 1212(A)]
Decided on April 12, 2010
Criminal Court Of The City Of New York, New York County
Yavinsky, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 12, 2010
Criminal Court of the City of New York, New York County


The People of the State of New York

against

W.J., Defendant.




2010NYXXXXXX



For the Motion:

Michael Caracta, Esq., Attorney for defendant W.J.

80 Wall Street, Suite 815

New York, New York 10005

Opposing the Motion:

Honorable Cyrus R. Vance, Jr., District Attorney New York County

One Hogan Place

New York, New York 10013

Michael J. Yavinsky, J.



The defendant is charged with one count of Assault in the Third Degree (PL § 120.00[1]).

Defendant, in an omnibus motion, seeks: (1) Dismissal of the Information for Facial Insufficiency, (2) an Order to Compel a Bill of Particulars and Discovery, (3) a Huntley/Dunaway Hearing, (4) a Wade Hearing, (5) a Sandoval Hearing, and (6) Reservation of Rights.

The defendant's omnibus motion is decided as follows:



DISMISSAL OF THE INFORMATION FOR FACIAL INSUFFICIENCY

The defendant moves to dismiss the information for facial insufficiency pursuant to Criminal Procedure Law §§ 170.30 (1)(a) and 170.35. For the reasons stated herein, the defendant's motion is granted.

Section 100.40(1) of the Criminal Procedure Law states that an information is sufficient on its face when it substantially conforms with the requirements of CPL § 100.15, when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof. "So long as the factual allegations of an information give an [*2]accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v Casey, 95 NY2d 354, 360 (2000); People v Kalin, 12 NY3d 225 (2009). While this "prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial," see People v Henderson, 92 NY2d 677, 680 (1999), the failure to satisfy the requirements of CPL § 100.40(1)(c) creates a jurisdictional defect to the criminal action. People v Alejandro, 70 NY2d 133, 137 (1987); Kalin, 12 NY3d 225.

When analyzing the factual allegations of an information, and whether or not those allegations provide reasonable cause to believe the defendant committed the charged offense, it is important to keep in mind the definition of reasonable cause that the Legislature has provided us in Criminal Procedure Law section 70.10(2):

"Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. . . .


CPL § 70.10(2).

The factual portion of the instant accusatory instrument alleges that on January 10, 2010 at about 3:40 a.m. inside [an apartment] in the County and State of New York:

Deponent [Police Officer Reginald Cooley] states that when deponent approached the above location from the street, deponent heard yelling and screaming coming from inside the above location. Deponent further states that as deponent approached [the apartment], the noise level grew louder. Deponent further states that when the defendant opened the door to [the apartment] at the above location, only two persons were present - the defendant, and J.W. Deponent further states that deponent observed blood on J.W.'s shirt and lacerations and bleeding on J.W.'s face.

A person is guilty of 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." PL § 120.00[1]. It is important to keep in mind that "in assessing the facial sufficiency of a misdemeanor complaint, the court is not required to ignore common sense or the significance of the conduct alleged.'" People v Gonzalez, 184 Misc 2d 262, 264 (App Term, 1st Dept 2000), quoting People v Abdul, 157 Misc 2d 511, 514 (Crim Ct, New York County 1993). Rather, a "court must look to the confluence of events and circumstances.'" People v Hitchcock, 98 NY2d 586, 591 (2002). Certainly one could envision sitting around their kitchen table having coffee with friends, discussing the facts alleged in this case, and finding themselves saying "I bet you that what happened was that she beat him up." However, this court is not sitting around the kitchen table, and the rules establishing the pleading requirements in the State of New York for a criminal court information - as fair and not overly restrictive or technical as they have become since People v Casey - require more than the typical coffee conversation.

More specifically, the "prima facie case requirement" created by CPL § 100.40(1)(c) demands that a facially sufficient information contain non-hearsay allegations that establish, if true, every element of the offense charged and the defendant's commission thereof. Considering this requirement in light of the instant allegations, the defendant's motion to dismiss must be [*3]granted for two reasons. First, taken in the light most favorable to the People, there are no allegations of any actus reus committed by the defendant that would have caused the injuries of the complainant. The information in this case does not even contain an attempt at speculating what conduct the defendant engaged in that was assaultive. Second, there are no allegations that the complainant suffered physical injury as defined by the Penal Law (i.e. impairment of physical condition or substantial pain; see PL § 10.00[9]). While it is interesting to circumstantially analyze the allegations of blood on the complainant's shirt and face, the allegations of blood alone cannot compensate for the complete lack of allegations to establish two essential elements of Assault in the Third Degree.

Accordingly, this court finds that the allegations are insufficient at the pleading stage to support each essential element of Assault in the Third Degree. As such, the defendant's motion to dismiss is granted.

MOTION TO COMPEL A BILL OF PARTICULARS AND DISCOVERY

The branch of the defendant's motion seeking a Bill of Particulars and Discovery is to be regarded as a Request for a Bill of Particulars pursuant to CPL 200.95 and a Demand for Discovery pursuant to CPL 240.20. The motion is granted to the extent that the People have provided already in both their response and the Voluntary Disclosure Form that they turned over in this case.

The People are reminded of their continuing obligations under Brady v Maryland, 373 US 83 (1963).

MOTION TO SUPPRESS STATEMENTS

The branch of the defendant's motion that is to suppress evidence of statements allegedly made by the defendant to law enforcement personnel (CPL § 710.20[3]) is granted to the extent that a Huntley/Dunaway hearing is ordered to be held before trial. CPL § 710.60(4). The motion to suppress such statements is otherwise held in abeyance pending this hearing and is referred to the hearing judge for determination.

MOTION TO SUPPRESS IDENTIFICATION EVIDENCE

The branch of the defendant's motion that is to suppress evidence of pretrial identification procedures (CPL § 710.20[6]) is granted to the extent that a Wade hearing is ordered to take place before trial. CPL § 710.60(4). The motion to suppress the identification procedure is otherwise held in abeyance pending this hearing and is referred to the hearing judge for determination.

MOTION FOR A SANDOVAL HEARING

The branch of the defendant's motion that is to preclude the People from introducing, for the purpose of impeaching the defendant's credibility at trial, evidence of the defendant's prior uncharged criminal, vicious or immoral acts is granted to the extent that the People are directed to provide written notice to the defendant of all such acts, if any, that they intend to introduce at the defendant's trial (CPL § 240.43) no later than three days prior to jury selection (excluding Saturdays, Sundays, and court holidays). The defendant is granted leave to renew the branch of this motion that is for a Sandoval hearing upon receiving such notice.

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RESERVATION OF RIGHTS

Except as otherwise specified in this order, the branch of the defendant's motion that is to enlarge the time within which the defendant may file additional motions is denied subject to the rights under CPL § 255.20(3) to move for further leave upon good cause shown.

The foregoing constitutes the opinion, decision, and order of the court.

Dated:April 12, 2010

New York, New York

E N T E R:

_____________________________

Michael J. Yavinsky, J.C.C.