Recitation, as required by CPLR 2219 [a], of the papers considered in the review of this (these) motion(s):

CPLR£2219 (a)

CPL£§ § 100.15 (3)

CPL£§ 100.40 (1)

CPL£§ 170.30

PapersNumbered

Def's n/m, Angharad Vaughan affirm.............................................................................................. 1 [*2]

Jonathan Dreyfuss affirm in response.............................................................................................. 2

CPLR£2219 (a)

CPL£§ § 100.15 (3)

CPL£§ 100.40 (1)

CPL£§ 170.30

LYNN R. KOTLER, J.:

The defendant is charged with assault in the third degree (PL § 120.00 [1]), attempted assault in the third degree (PL § 110/120.00 [1]), and harassment in the second degree (PL § 240.26 [1]). She has moved to dismiss count one, assault in the third degree, on the grounds that the charge is facially insufficient. The People oppose the motion. For the reasons that follow, the motion is denied.

To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged (CPL §§ 100.15[3]; 100.40[1][b]; 70.10). These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses (CPL § 100.40[1][c]). An information which fails to satisfy these requirements is jurisdictionally defective (CPL § 170.30 and § 170.35; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d 729 [1986]).

In reviewing an accusatory instrument for facial sufficiency, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense ...," the court should give it "a fair and not overly restrictive or technical reading" (People v. Casey, 95 NY2d 354, 360 [2000]). Moreover, the Court of Appeals has held that at the pleading stage, all that is needed is that the factual allegations are sufficiently evidentiary in character and tend to support the charges (People v Allen, 92 NY2d 378, 385 [1998]).

According to the information, on March 26, 2011, inside 2210 8th Avenue, New York, New York, Detective Roy Schmahl observed the defendant, together with a co-defendant, strike the informant, Diangela Saavendra, with a "closed fist about informant's arms and body causing lacerations, bruising, redness, swelling, and substantial pain." Detective Schmahl also observed the defendant kick the informant with her foot, "striking informant about informant's body causing lacerations, bruising, redness, and substantial pain."

"A person is guilty of assault in the third degree when... [w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person" (PL § 120.00 [1]). PL § 10.00 (9) defines "physical injury" as an "impairment of physical condition or substantial pain." The Court of Appeals has stated, "petty slaps, shoves, kicks and the like delivered out of hostility, [*3]meanness and similar motive are not within the statutory definition" of physical injury (People v. Henderson, 92 NY2d 677, 680 [1999]; People v. Rojas, 61 NY2d 726, 727 [1984]).

The defendant argues that the factual portion of the complaint fails to establish "physical injury" because there are no allegations that the informant's physical condition was impaired in any way. The defendant contends that the complaint is conclusory in nature, stating that the victim merely suffered "substantial pain" with no facts to support it. Further, the defendant argues that the informant did not seek medical attention for the alleged "lacerations, bruising, redness, [and] swelling" which would indicate substantial pain or physical impairment. The defendant relies on Matter of Robert M. (87 AD2d 987 [4th Dept 1982]) in support of her motion. In Matter of Robert M., the complainant was struck with a closed fist once above the eye. The blow caused "slight swelling [and] a little headache, but no bleeding." According to the Court, this blow was insufficient to establish that the complainant suffered "substantial pain." Here, the defendant argues that beyond the vague assertion of "redness, bruising, and lacerations," the factual allegations do no support the conclusion that the complainant suffered "substantial pain."

The defendant's motion must be denied for the following reasons. This case is factually similar to People v. Henderson, supra. In that case, the defendant and another individual pulled the informant from a motor scooter and kicked the informant about the legs. This caused the informant to suffer substantial pain and develop contusions and swelling on informant's legs. The Court of Appeals reasoned that these factual allegations satisfied the "physical injury" element of the offense, thereby surviving a facial sufficiency motion. "The information recites that defendant, together with another and in an attempt to steal the victim's property, attempted to pull the victim from his motor scooter and kicked him in the legs, causing him to suffer contusions and swelling. Accepting these allegations as true, a jury could certainly infer that the victim felt substantial pain (Henderson at 680)."

The defendant's remaining argument is based on the fact that the information does not allege that the informant sought medical treatment. In opposition, the People argue that this should not be fatal to their case, and they cite People v. Jones (NYLJ, 10/21/88 at 22, col. 1 [App Term 1st Dept]) for this proposition of law. The People maintain that while proof of medical treatment is helpful, it is not necessary to establish either "impairment of physical condition" or "substantial pain" under the PL § 10.00 (9) definition of "physical injury." The Court agrees. This is especially true, given the procedural posture of this motion, where a supporting deposition for a misdemeanor complaint will be secured within hours or days after the events complained of in PL § 120.00 case (see generally Henderson, supra; see also People v Pope (174 AD2d 319 [1st Dept [1991]). The existence, extent and duration of any medical attention a complainant may receive may be unknown at the time the information is drafted.

Accordingly, the defendant's motion to dismiss for facial insufficiency is denied.

Any requests for relief not expressly addressed herein have nonetheless been considered and are hereby expressly denied.

This constitutes the decision and order of the Court. [*4]

Dated:December 9, 2011So Ordered:

New York, New York

______________________

Hon. Lynn R. Kotler, J.C.C.