People of the
State of New York
against
Tamara A. McCracken,
Defendant.
|
14050181
Roman Misula, Esq., Assistant District Attorney
Anthony R. Franco, Jr., Attorney for the Defendant
Thomas J. DiSalvo, J.
The defendant was charged with assault in the third degree,
pursuant to Penal Law § 120.00 [2].That statute states that "A person is
guilty of assault in the
third degree when: He recklessly causes physical injury to another person."
The information
charges the defendant with recklessly causing physical injury to the
complainant in the
accusatory part of the complaint. However, the facts alleged in the factual
part of the complaint
imply an intent to cause said physical injury by the defendant. Intentionally
causing assault in
the third degree is prohibited by Penal Law § 120.00 [1]. The complaint
signed by the arresting
officer states in factual part that "The defendant did strike Anthony W.
Viviani about the face
with a glass cup, causing pain and a laceration to the right cheek and
nose."The supporting
deposition alleges in pertinent part by the complainant that "Before I could
hit him [a third
individual involved] in the chin Tammy hit me in the face with a glass. She
hit the right side of
my face causing a cut to my upper check bone".
Defense counsel in his Omnibus Motions moved to dismiss the charge of
intentional
assault in the third degree, P.L. 120.00 [1] in the Notice of Motion, rather
than reckless assault in
the third degree, Penal Law § 120.00 [2] as charged in the information.
However, defense
counsel's affirmation correctly refers to reckless assault third degree, to wit:
Penal Law § 120.00
[2]. Defense counsel indicates in his moving papers that the basis of the
motion to dismiss for
insufficiency is the failure of the People to specifically allege physical
impairment or substantial
pain in the information.
Issue Presented.
Is an information accusing the defendant of recklessly causing physical injury in
the
accusatory part of the information but alleging that the defendant
intentionally caused said
physical injury to another person in the factual part of the information
sufficient on its face?
Legal Analysis.
Criminal Procedure Law § 100.40 [1] [b] sets out the second prong of the
requirements
for an information to be considered sufficient on its face. That sub-section
requires that "The
allegations of the factual part of the information, together with those of any
supporting
depositions which may accompany it, provide reasonable cause to believe
that the defendant
committed the offense charged in the accusatory part of the
information."Penal Law Section
15.05 [3] defines what is meant by "recklessly" as follows:
"A person acts recklessly with respect to a result or to a circumstance described
by a statute defining an offense when he is aware of and consciously disregards
a substantial and unjustifiable risk that such result will occur or that such
circumstances exist. The risk must be of such nature and degree that disregard
thereof constitutes a gross deviation from the standard of conduct that a
reasonable person would observe in the situation. A person who creates
such a risk but is unaware thereof solely by reason of voluntary intoxication
also acts recklessly with respect thereto."
On the other hand the term "intentionally" is defined by Penal Law §
15.05 [1] as follows:
"A person acts intentionally with respect to a result or to conduct described by a
statute
defining an offense when his conscious objective is to cause such result or
to engage in such conduct."
Certainly, intentionally causing
physical injury is not consistent with recklessly causing
physical injury to another person. Acting recklessly supposes that the
underlying activity
complained of would be legal and proper in the normal course of events, but
in the case at hand
the activity in question was conducted in a dangerous manner. For example,
driving a motor
vehicle is normally a legal and safe activity. However, driving that same
vehicle at an illegally
high rate speed in proximity to pedestrians or other vehicles could
reasonably be considered
reckless.
In the instant case the defendant is accused of striking the complainant with a glass
cup
causing a laceration to the face of that person. There is nothing in that action
that can be
considered a legal activity when conducted in a proper way that does not
cause injury to another
person. The actions of the defendant in the context presented can only be
described as
intentional not reckless.
As previously stated, Criminal Procedure Law § 100.40 [1] [b] requires that
"The
allegations of the factual part of the information, together with those of any
supporting
depositions which may accompany it, provide reasonable cause to believe
that the defendant
committed the offense charged in the accusatory part of the information."
That is clearly not the
case herein as the allegations in the factual part of the information describe
an intentional act.
However the offense charged in the accusatory part of the information
alleges reckless behavior.
Nor is the dichotomy between the accusatory and factual portions of the
information herein one
that results in a "... defect or irregularity [which] is of a kind that may be
cured by amendment...."
(C.P.L. § 170.35 [1] [a]) The difference in meaning between the
concepts of recklessness and
intent is too divergent to permit an amendment to the pleadings.
Conclusions of Law.
The information herein is dismissed as being insufficient on its face pursuant to
Criminal
Procedure Law § 100.40 [1] [b]. The remaining issues raised by
defense counsel need not be
addressed at this time. This constitutes the decision and order of this
court.
Dated: October 31, 2014
Webster, New York
_________________________________________
Hon. Thomas J. DiSalvo
Webster Town Justice