Appeal from an order of the Criminal Court of the City of New York, Kings County (Robert D. Kalish, J.), dated June 17, 2011. The order granted defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30.

ORDERED that the order is reversed, on the law, defendant's motion to dismiss the accusatory instrument is denied and the accusatory instrument is reinstated.

In a misdemeanor complaint dated December 3, 2010, defendant was charged with, among other things, attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]), attempted criminal obstruction of breathing or blood circulation (Penal Law §§ 110.00, 121.11 [a]), resisting arrest (Penal Law § 205.30) and harassment in the second degree (Penal Law § 240.26 [1]). On February 14, 2011, the People filed an information dated February 10, 2011, together with a written statement of readiness. On April 13, 2011, the People filed a second information containing the same charges. Defendant moved to dismiss the accusatory instrument on speedy trial grounds (see CPL 30.30 [1] [b]). The Criminal Court granted the motion on the ground that the People's statements of readiness made on or before February 14, 2011 were illusory since the information dated February 10, 2011 was jurisdictionally defective, and thus, more than 90 days had elapsed from the date of the commencement of the action. [*2]

The accusatory portion of the information, dated February 10, 2011, provides that defendant did, "with intent to cause physical injury to another person, attempt to cause such injury to such person;" that, "with intent to impede the normal breathing or circulation of the blood of another person," defendant "attempted to apply pressure on the throat or neck of such person;" that defendant "intentionally prevent[ed] or attempt[ed] to prevent a police officer . . . from effectuating an authorized arrest . . .;" and that, "with intent to harass, annoy or alarm another person . . . [defendant did] strike, shove, kick or otherwise subject such other person to physical contact, or attempt[ed] or threatened to do the same." In the factual portion of the information, the complainant police officer stated that he had personally observed defendant place both of her hands around the neck of another person and begin to choke her. In addition, he alleged that he had heard defendant state that "[she] could kill her [the victim] sometimes."

Accusatory instruments are to be accorded "a fair and not overly restrictive or technical reading" and will be upheld so long as they serve the fundamental purposes of providing the accused "notice sufficient to prepare a defense" and are in a form sufficiently "detailed" to prevent a subsequent retrial for the same offense (People v Casey, 95 NY2d 354, 360 [2000]; People v Sylla, 7 Misc 3d 8, 10 [App Term, 2d & 11th Jud Dists 2005]). In order to be sufficient on its face, an information (and/or its supporting depositions) must allege, among other things, "facts of an evidentiary character" (CPL 100.15 [3]) that "establish, if true, every element of the offense charged" (CPL 100.40 [1] [c]; see People v Dumas, 68 NY2d 729, 731 [1986]). These requirements are jurisdictional (see People v Kalin, 12 NY3d 225 [2009]; People v Casey, 95 NY2d 354 [2000]; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d at 731) and may be asserted at any time.

For pleading purposes, the requisite mental state may be alleged on the basis of a logical implication of the act itself or upon the surrounding circumstances (e.g. People v Bracey, 41 NY2d 296, 301 [1977]; People v McGee, 204 AD2d 353 [1994]; People v Ramnauth, 8 Misc 3d 128[A], 2005 NY Slip Op 50968[U] [App Term, 9th & 10th Jud Dists 2005]). Moreover, "[s]ince intent' is an operation of the mind and cannot be the subject of a nonhearsay evidentiary allegation, it (is) not necessary to repeat the intent allegation in the factual part . . . It is necessary only that there be alleged evidentiary facts from which intent may be inferred" (People v Leiner, NYLJ, Oct. 15, 1997, at 34, col 5 [App Term, 2d & 11th Jud Dists]; see People v Jackson, 39 Misc 3d 138[A], 2012 NY Slip Op 52478[U] [App Term, 9th & 10th Jud Dists 2012]; People v Dreyden, 28 Misc 3d 5 [App Term, 2d, 11th & 13th Jud Dists 2010]; People v Prevete, 10 Misc 3d 78, 80 [App Term, 9th & 10th Jud Dists 2005]; People v Horner, 5 Misc 3d 134[A], 2004 NY Slip Op 51457[U] [App Term, 9th & 10th Jud Dists 2004], lv denied 4 NY3d 764 [2005]). In our view, the allegations contained in the information dated February 10, 2011 sufficiently alleged facts from which defendant's intent could be inferred.

"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" (Penal Law § 205.30). An authorized arrest is one for which the arresting officer had probable cause (see People v Peacock, 68 NY2d 675 [1986]). An information alleging resisting arrest (Penal Law § 205.30) must, in the factual part, set forth allegations sufficient to establish, if true, that defendant's arrest was lawful (People v Jensen, 86 NY2d 248, 253 [1995]; see also People v Lucas, 15 Misc 3d 139[A], 2007 NY Slip Op 50943[U] [App Term, 9th & 10th Jud [*3]Dists 2007]). In this case, the information alleged sufficient facts from which it could be rationally inferred that the officer had probable cause to arrest defendant for attempted assault in the third degree, attempted criminal obstruction of breathing or blood circulation, or harassment in the second degree (see Jensen, 86 NY2d at 253). Since the misdemeanor complaint was replaced by an information on February 14, 2011 (see CPL 170.65), the People's statement of readiness on February 14, 2011 was not illusory. In view of the foregoing, the People did not exceed the 90-day statutory speedy trial limit. Consequently, defendant's CPL 30.30 motion should have been denied.

Accordingly, the order is reversed and defendant's motion to dismiss the accusatory instrument is denied.

Rios and Aliotta, JJ., concur.

Weston, J.P., dissents in a separate memorandum.

Weston, J.P., dissents and votes to affirm the order in the following memorandum:

At issue on this appeal is whether the February 10, 2011 information alleged sufficient facts from which an inference of intent could be rationally drawn. Affording the factual allegations the "fair and not overly restrictive or technical reading" to which they are entitled (People v Casey, 95 NY2d 354, 360 [2000]), in my opinion, it did not. I would affirm the Criminal Court's order dismissing the accusatory instrument.

To support a charge of attempted assault in the third degree, the factual portion of the information must "provide reasonable cause to believe" (CPL 100.40 [1] [b]) and "establish, if true" (CPL 100.40 [1] [1]) that defendant had the intent necessary to "cause physical injury" (Penal Law § 120.00 [1]). Although intent can be inferred from the act itself or upon the surrounding circumstances (see People v Bracey, 41 NY2d 296, 301 [1977]), here, the arresting officer's factual allegations fall short of raising such an inference. The officer's statement that he observed defendant with her hands around the victim's neck, "choking" the victim is nothing more than a conclusory assumption of what the officer perceived defendant to be doing (see People v Kalin, 12 NY3d 225, 229 [2009] [conclusory statement that a substance seized from defendant was a type of controlled substance does not meet reasonable cause requirement], citing People v Dumas, 68 NY2d 729 [1986]). Without any additional facts, such as the victim's response, the victim's physical condition, or any other surrounding circumstances, it is unclear whether defendant acted with the requisite intent to support a charge of attempted assault. To the extent the majority concludes otherwise based on defendant's statement that she "could kill [the victim] sometimes," I agree with the Criminal Court that the statement is too ambiguous to establish reasonable cause to believe that defendant intended to cause physical injury.

Nor is there anything in the officer's observations to establish, if true, the intent necessary to sustain a charge of attempted criminal obstruction of breathing or blood circulation (Penal Law §§ 110.00, 121.11 [a]). As relevant here, a person is guilty of criminal obstruction of breathing or blood circulation when, "with intent to impede the normal breathing or circulation of the blood of another person, he or she . . . applies pressure on the throat or neck of such person . . ." (Penal Law § 121.11 [a]). While there is no requirement that the defendant cause any pain or injury, the allegations must demonstrate, prima facie, an intent to "impede the normal breathing or circulation of the blood" (Penal Law § 121.11 [a]). Here, again, the officer's [*4]conclusory statement that he observed defendant "choking" the victim is insufficient to sustain this element (see People v Kalin, 12 NY3d at 229). "Rather, the factual allegations must establish the basis of the arresting officer's belief [that defendant was choking the victim]" (id.). For instance, had the officer alleged that the victim was gasping for air or turning blue while defendant placed her hands around the victim's neck, an inference could rationally be drawn that defendant intended to impede the victim's breathing or circulation (see People v Bello, 92 NY2d 523 [1998]). Absent any allegations as to the victim's response or the surrounding circumstances, there is nothing to support the officer's belief that defendant was "choking" the victim.^[FN1]

Without sufficient factual allegations supporting the element of intent, there was no basis to infer that the officer had probable cause to arrest defendant for the crimes charged. Thus, the Criminal Court properly dismissed the charge accusing defendant of resisting arrest (see Penal Law § 205.30). Since the February 10, 2011 information was properly dismissed as jurisdictionally defective, and the People failed to state their readiness for trial within 90 days thereof, the court properly dismissed the subsequent information on speedy trial grounds (see CPL 30.30 [1] [b]).

Accordingly, I vote to affirm the order.
Decision Date: December 09, 2013