| People v Reyes |
| 2014 NY Slip Op 50789(U) [43 Misc 3d 1225(A)] |
| Decided on May 19, 2014 |
| Criminal Court Of The City Of New York, New York County |
| Statsinger, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
The People of
the State of New York
against Marqui A. Reyes, Defendant. |
Defendant, charged with Menacing in the Second Degree, in violation of Penal Law § 120.15 (Count One), Criminal Possession of a Weapon in the Fourth Degree in violation of Penal Law § 265.01(2) (Count Two), Criminal Obstruction of Breathing or Blood Circulation, in violation of Penal Law § 121.11(a) (Count Three), Menacing in the Third Degree, in violation of Penal Law § 120.15 (Count Four) and Harassment in the Second Degree, in violation of Penal Law § 240.26(1) (Count Five), moves to dismiss the accusatory instrument, arguing that it remains a Misdemeanor Complaint, not an Information, because it contains on hearsay statements of the complainant.
Defendant also moves, in the alternative, to dismiss Count Three, arguing that if the instrument is an Information, it is facially insufficient as to that Count.
For the reasons that follow, the Court finds no basis to reconsider the conclusion, rendered by a different judge, that the statements attributed to the complainant are excited utterances and thus that the accusatory instrument is an Information; accordingly, the Court DENIES the motion to dismiss the instrument in its entirety. Additionally, the Court rejects defendant's claim that Count Three is facially insufficient; the Court DENIES the motion to dismiss that Count.[FN1]
Defendant also moves for discovery and to suppress physical evidence and defendant's post-arrest statement. As to these motions, the Court GRANTS Dunaway/Huntley/Mapp hearings, and DENIES as moot the motion for discovery, since the People have filed and served a VDF.
According to the accusatory instrument, December 17, 2013, Police Officer Elvin
Gomez responded to a radio run at 717 West 177th Street, in Manhattan. When he
arrived, the complainant,
On December 18, 2013 , defendant was arraigned on a Misdemeanor Complaint charging him with Menacing in the Second Degree, in violation of Penal Law § 120.15 (Count One), Criminal Possession of a Weapon in the Fourth Degree in violation of Penal Law § 265.01(2) (Count two), Criminal Obstruction of Breathing or Blood Circulation, in violation of Penal Law § 121.11(a) (Count Three), Menacing in the Third Degree, in violation of Penal Law § 120.15 (Count Four) and Harassment in the Second Degree, in violation of Penal Law § 240.26(1) (Count Five). The Court set bail, issued a Temporary Order of Protection in favor of Ms. De Leon, and adjourned the case to December 23, 2013, for conversion.
On December 23, 2013, the People filed the Supporting Deposition of Officer Jimenez, but did not file one from Ms. De Leon. Nevertheless, the Court deemed the Complaint converted to an Information, noting defense counsel's objection, and set a motion schedule, under which motions were due on January 6, 2014. The case was adjourned to January 21, 2014, for response and decision.
Defendant posted bail on January 2, 2014, and defense counsel filed an Omnibus Motion off-calendar on January 17, 2014. On January 21, the People had not yet received the motion, and the Court adjourned the case to February 25, 2014. The People did not respond on that date, and the Court gave them a second opportunity to do so. On March 24, 2014, the People filed their response and a VDF. This motion has been sub judice since then.
Defendant makes two separate claims in this motion. First, he seeks reconsideration the Court's ruling that the statements attributed to Ms. De Leon were not excited utterances and argues, on this theory, that the accusatory instrument remains a Misdemeanor Complaint. In connection with this claim, he seeks dismissal of the entire instrument. Defendant argues in the alternative, that if the instrument is an Information, Count Three, which charges Criminal Obstruction of Breathing or Blood Circulation, in violation of Penal Law 121.11(a), is facially insufficient.
The Court, finding no legal ground on which to reconsider a different judge's rulingthat the statements attributed to the complainant are excited utterances, adheres to that ruling. In addition, the Court finds that the Information is facially sufficient as to Count Three. The motion to dismiss that Count is accordingly denied.
Because this motion requires a detailed emanation of the accusatory instrument, its entire text, as sworn out by Officer Elvin Gomez, is set out here:
Defendant acknowledges in his motion papers that this question whether the statements in the accusatory instrument attributed to the complainant, Ms. De Leon, were excited utterances was raised in at the December 23, 2013, calendar call, and that the parties had an opportunity to be heard the question before the Court ruled that they were. Citing no authority that reargument or reconsideration is even available at this stage of the case, defendant nevertheless seeks reconsideration of that ruling and, on reconsideration, dismissal of the accusatory instrument.[FN2] For the following reasons, the Court denies defendant's motion to dismiss.
As a preliminary matter, the Court notes that defendant seeks the wrong remedy. Even if the Court were to conclude both that reargument or reconsideration were available and that, on reconsideration, the statements attributed to the complainant were hearsay, dismissal would not be warranted. A Misdemeanor Complaint is not subject to dismissal merely because it contains hearsay in support of one or more elements. If the Court were to accept defendant's arguments, it would not dismiss; it would adjourn the case for conversion, subject to the usual CPL § 30.30 time parameters.
One case that illustrates that this would be the appropriate course is People v. Picado, 34 Misc 3d 660, 933 NYS2d 533 (Crim Ct Queens Co 2011). There, defendant moved to dismiss a count of Criminal Contempt in the Second Degree, arguing that an affidavit of service that ostensibly established defendant's knowledge of an order of protection, an element of the offense, was hearsay. The court agreed that the allegation that defendant was aware of the order remained "uncorroborated hearsay." Id. at 663, 536. But it did not dismiss that count; rather, it adjourned the case to give the People "an opportunity to cure the defect in the criminal contempt charge" via supporting deposition within the remaining speedy trial time. Id. at 537, 666.
In any event, however, the Court rejects defendant's effort to relitigate the excited utterance question at all, so neither dismissal nor an adjournment for conversion is warranted.[FN3]
Whether an out-of-court statement is an excited utterance requires a careful balancing of a number of factors to determine whether the statement was made without an opportunity to reflect and fabricate. People v. Johnson, 1 NY3d 302, 306 (2003); People v. Brown, 70 NY2d 513, 518 (1987); People v. Diaz, 21 AD3d 58 (1st Dept 2005). Those factors include the timing between the statement and the stimulus that prompted it, the nature of that stimulus and the declarant's physical and emotional state at the time of the statement. Id. This type of balancing is, in other words, a classic exercise of a court's discretion. Indeed, it is typically reviewed as such. See, e.g., People v. Cantave, 21 NY3d 374, 381 993 N.E.2d 1257, 1261, 971 N.Y.S.2d 237, 240 (2013) (reviewing for abuse of discretion trial court s exclusion of a 911 call because it was not an excited utterance); People v. Gabriel, 105 AD3d 650, 963 NYS2d 585 (1st Dept 2013) (decision to admit 911 call as excited utterance was a proper exercise of trial court's discretion).
Accordingly, defendant would only be entitled to reconsideration of the ruling here, if at all, if he could identify an abuse of discretion. A court abuses its discretion when it "commits a serious error of judgment, such as the failure to consider an essential factor," United States v. Lowe, 632 F.3d 996, 997 (7th Cir. 2011), or reaches "erroneous conclusions of law or premises its holding on a clearly erroneous assessment of the evidence," Gastineau v. Wright, 592 F.3d 747, 748 (7th Cir. 2010) (citation and internal quotation marks omitted), but not when it "chooses one of two plausible theories." Pickett v. Sheridan Health Care Ctr., 610 F.3d 434, 447 (7th Cir. 2010).
Here, defendant identifies no actual abuse of discretion in the initial determination that the statements attributed to the complainant are excited utterance, and the Court's own review of the record finds none. Nor does defendant claim that he was not given a fair opportunity to try to persuade the court, in the first instance, otherwise. Rather, he simply seeks to make for a second time the same arguments he made the first time the question came up, arguments that the Court, has already, after carefully considering the possibilities, rejected. Accordingly, defendant's request that the court take up the issue again is denied.
The Court did not abuse its discretion in reaching its initial conclusion that the
statements attributed in the accusatory instrument were excited utterances. There was no
mistake of law or fact, nor did the Court fail to consider any of the necessary factors that
go into the excited utterance calculus. The Court examined the factual record and, faced
Accordingly, defendant's request that the Court reconsider its ruling that the statements attributed to the complainant were excited utterances is denied.
Adhering to its ruling that the accusatory instrument is an Information, the Court finds that Count Three is facially sufficient. While the issue is close, the complainant's description of the defendant's conduct makes out a prima facie case of Criminal Obstruction of Breathing or Blood Circulation under Penal Law § 121.12(a).
1. Facial Sufficiency in General
To be facially sufficient, an Information must contain non-hearsay allegations providing reasonable cause to believe that the People can prove every element of the crime charged. CPL §100.40(1)(a)-(c). See also People v Dumas, 68 NY2d 729, 506 NYS2d 319, 497 NE2d 686 (1986); People v Alejandro, 70 NY2d 133, 517 NYS2d 927, 511 NE2d 71 (1988); People v McDermott, 69 NY2d 889, 515 NYS2d 225, 507 NE2d 1071 (1987); People v Case, 42 NY2d 98, 396 NYS2d 841, 365 NE2d 872 (1977). 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).
This standard does not require that the Information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115, 512 NYS2d 652, 657, 504 NE2d 1079, 1084 (1986). Rather, it need only contain allegations of fact that "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." People v Casey, 95 NY2d 354, 360, 717 NYS2d 88, 91, 740 NE2d 233, 236 (2000). A court reviewing for facial insufficiency must assume that the factual allegations contained in the Information are true and must consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747, 944 NYS2d 715, 721-22, 967 NE2d 1160, 1166-67 (2012). See also Casey, 95 NY2d at 360, 717 NYS2d at 91, 740 NE2d at 236. Under these standards, Count Three of Information is facially insufficient.
Penal Law § 121.11(a) provides that 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 ... applies pressure on the throat or neck of such person." As noted in the Practice Commentary to this section:
In New York, Penal statutes are not strictly construed; they are construed "according to the fair import of their terms to promote justice and effect the objects of the law." Penal Law § 5.00. Construing the statute under this standard, it is apparent that the Legislature intended for the offense made out by § 121.11(a) to be relatively easy for the People to plead and prove. The offense does not require the application of physical force, only the application of "pressure," however slight or short in duration. Indeed, courts have regularly held that "no minimum period of contact is required." People v. Figueroa, 40 Misc 3d 1010, 1018, 968 N.Y.S.2d 866, 872-73 (Rye City Ct 2013) (three seconds); People v. White, 100 AD3d 1397, 953 NYS2d 423 (4th Dept 2012) (two seconds) . And, as noted above, the statute does not require that the victim suffer pain or injury, and does not require the intent the intent to cause pain or injury. Figueroa, 40 Misc 3d at 1018, 968 NYS2d at 872. Rather, the offense requires only the intent that would naturally accompany the proscribed act; an intent that the pressure applied to the neck would impede breathing or the natural circulation of blood. Id. at 1019, 873 (testimony that defendant placed his hands around complainant's neck during an argument permitted trier of fact to "infer that defendant's actions were done with the conscious purpose of ending the argument with the victim by forcing her submission due to the inability to breath or loss of consciousness by the lack of flow of blood to the brain").
Under these standards, while the case is close, the description of the defendant's conduct in the Information is sufficient. First, the Information sufficiently alleges that the defendant applied pressure to the complainant's throat. Ms. De Leon reported that defendant "was holding" her "like this," then demonstrated by "gestur[ing] with her hands around her throat." These two allegations together create a reasonable inference that the defendant applied pressure to Ms. De Leon's throat, the first of the two elements of the offense. The use of the verb "to hold" reasonably implies some degree of pressure. If Ms. De Leon had been trying to describe physical contact with no pressure, she would have used the verb "to touch." And by gesturing to her throat, Ms. De Leon clearly conveyed that her throat was the part of the body that defendant held.
The Information also sufficiently pleads intent, since it pleads acts from which the "inference of intent ... can rationally be drawn." People v. Jordan, 43 Misc 3d 1210(A) (Crim Ct NY County 2014); People v. Kersch, 41 Misc 3d 1217(A) (Crim Ct NY County 2013). The Information alleges that defendant held the complainant by the neck while also threatening to kill her with a knife. There is a reasonable inference that defendant's plan to frighten and intimidate the complainant included the specific desire to impede her circulation or breathing, perhaps to minimize her ability to fight back.
Accordingly, the Court concludes that the Information is facially sufficient as to Count Three.
For the foregoing reasons, defendant's motions to dismiss are denied. The motion for
discovery is denied as moot and, as to the motion to suppress evidence, the Court grants a
Judge of the Criminal Court