The People of
the State of New York, Plaintiff,
against
Ruben Reid, Defendant.
|
2014BX063411
Appearances of Counsel
The People - Robert T. Johnson, District Attorney, Bronx County by
Matthew Horowitz, Assistant District Attorney
Defendant — The Legal Aid Society by Alana Roth
Armando Montano, J.
Defendant is charged with one count of Criminal Mischief in the Fourth Degree (PL
§ 145.00[1]) and one count of Harassment in the Second Degree (PL §
240.26[1]).
Defendant moves for an order 1) dismissing count one, Criminal Mischief in the
Fourth Degree (PL § 145.00[1]), as facially insufficient; 2) suppressing any
identification of defendant, or in the alternative, granting a hearing to determine the
admissibility of such identification (Wade/Dunaway); 3) suppressing certain statements
allegedly made by defendant, or in the alternative, granting a hearing to determine the
admissibility of such statements; 4) granting a hearing to determine the voluntariness of
unnoticed statements allegedly made by defendant to law enforcement that the People
intend to use on cross-examination; 5) precluding the offering of any statements and/or
identification testimony for which defendant has not received notice pursuant to CPL
§ 710.30; 6) precluding the People from use at trial defendant's prior criminal
history or prior uncharged criminal, vicious, or immoral conduct; and 7) granting
defendant the right to make additional pretrial motions and the right to amend and/or
supplement this motion if made necessary or appropriate by the People's future
disclosure.
The factual allegations in the accusatory instrument, sworn to by Police
Officer Miguel Soares, read as follows:
Deponent is informed by Nagi Aezeh, that [on or about November 27, 2014
at approximately 2:00 a.m. at inside of 4192 White Plains Road, County of Bronx, State
of New York], defendant approached informant and stated, in sum and substance, IF I
SEE YOU AGAIN, I AM GOING TO HIT YOU. CALL THE POLICE THEY CAN'T
DO ANYTHING. I'M NOT SCARED. Deponent is further informed that defendant's
aforementioned conduct caused informant to experience annoyance, alarm, and fear for
his physical safety.
Deponent is further informed by informant that defendant struck two picture
frames, causing damage to said frames in that the glass in each was shattered.
Deponent is further informed by informant that informant is the lawful
custodian of said property, and as such, he did not give defendant permission or authority
to damage said property. Motion to
Dismiss
/i>
Defendant argues that count one, Criminal Mischief in the Fourth Degree
(PL § 145.00[1]), must be dismissed as facially insufficient because the complaint
fails to establish that defendant intentionally damaged property of another person.
Defendant notes that the complaint only alleges that he struck two picture frames and not
allege any facts from which to infer the specific intent to damage property. Even if true,
defendant maintains that the act of striking an object does not suggest any sort of intent
on the part of the actor. An individual could just as easily strike an object accidentally
and cause damage without having the intent to do so.
At the outset, the People argue that the instant motion should be denied
as untimely pursuant to CPL § 255.20(1) since it was filed approximately 116 days
after his arraignment. Since defendant has failed to request for an extension of time or
made a showing of good cause as to why the instant motion could not have been filed
sooner, the People argue that the instant motion should be denied.
However, should this Court entertain the instant motion, the People
contend that issues related to intent are to be determined at trial and not at the pleading
stage. Moreover, the People assert that defendant's intent to damage the picture frames
can be inferred from the surrounding circumstances.
Defendant was arraigned on November 28, 2014 on a misdemeanor
complaint and released on his own recognizance. The case was adjourned to January 5,
2015 for conversion as the People needed to secure a supporting deposition from the
complaining witness. On December 5, 2014, the People served on defense counsel and
filed with the Court a supporting deposition as well as a statement of readiness. On
January 5, 2015, a motion schedule was set and the case was adjourned to February 24,
2015 for response and decision. On February 24, 2015 the Court marked March 10, 2015
as the final date for the submission of defense motions. On March 24, 2015, defense
counsel informed the Court that the instant motion was filed and the People requested
time to respond to same. The stamp on the face of defendant's motion papers indicates
that the instant motion was filed on or about March 30, 2015.
CPL § 255.20(1) provides that "all pre-trial motions shall be served
or filed within forty-five days after arraignment and before commencement of trial, or
within such additional time as the court may fix upon application of the defendant
made prior to entry of judgment." (Emphasis added). Although untimely, the Court
provided defendant with additional time to file the instant motion. The Court also gave
the People additional time to submit responsive papers. In light of the foregoing, this
Court shall decide the instant motion on its merits.
It is well settled that an accusatory instrument must contain facts of an
evidentiary nature that support or tend to support the crimes charged (CPL §
100.15[3]; People v. Dumas, 68 NY2d 729 [1986]) and contain non-hearsay
allegations that establish, if true, every element of the crimes charged (CPL §
100.40[1][c]). Further, an accusatory instrument must provide reasonable cause to
believe that the defendant committed the crimes charged. CPL § [*2]100.40(1)(b); Dumas, 68 NY2d 729. Reasonable
cause to believe that a defendant committed the crimes charged "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. "In order for the
reasonable cause standard to be met, the factual portion of the accusatory instrument
must describe conduct that constitutes the crime charged." People v. Hightower, 18 NY3d
249, 254 (2011).
In reviewing an accusatory instrument for facial sufficiency, the court must
assume the truth of the factual allegations and consider all favorable inferences drawn
therefrom. CPL §§ 100.40 and 100.15; People v. Mellish, 4 Misc 3d 1013(A) (Crim Ct, NY
County 2004). The facts alleged need only establish the existence of a prima facie case,
even if those facts would be insufficient to establish guilt beyond a reasonable doubt.
People v. Jennings, 69 NY2d 103 (1986). Moreover, "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, NY County 1993).
A person is guilty of Criminal Mischief in the Fourth Degree when "having no right
to do so nor any reasonable ground to believe that he or she has such right, that person
intentionally damages property of another person." PL § 145.00(1). The term
"property" is broadly defined and incudes "any money, personal property, real property,
computer data, computer program, thing in action, evidence of debt or contract, or any
article, substance or thing of value, including any gas, steam, water or electricity, which
is provided for a charge or compensation." PL § 155.00(1). While the term
"damages" is not defined by statute, it has been recognized that the term contemplates
"injury or harm to property that lowers its value or involves loss of efficiency."
People v. Collins, 288 AD2d 756, 758 (3d Dept. 2001); People v. Washington, 46 Misc
3d 1210(A) (Crim Ct, NY County 2015). "Because intent' .cannot be the subject of
a nonhearsay evidentiary allegation, it is necessary only that there be alleged evidentiary
facts from which intent may be inferred." People v. Spiegel, 181 Misc 2d 48, 52
(Crim Ct, NY County 1999) quoting People v. Leiner, NYLJ, Oct. 15, 1997, at
34, col 5 (App Term, 2d & 11th Jud Dists) lv denied 91 NY2d 894 (1998).
Intent can be implied from the defendant's conduct and/or the surrounding circumstances.
People v. Collins, 178 AD2d 789 (3d Dept. 1991); People v. Hawkins, 1 Misc 3d
905(A) (Crim Ct, NY County 2003).
While it is entirely plausible that defendant may have accidentally struck the
picture frames, thereby causing the glass to shatter, an accusatory instrument need not
allege facts that only support the inference of guilt. People v. Washington, 46 Misc 3d 1210(A), *4 (Crim Ct,
NY County 2015). Here, it appears that defendant was engaged in a verbal altercation,
albeit one-sided, with the informant where he made threats to hit the informant if he ever
saw him again. Defendant's intent to damage the picture frames can be inferred from his
lodging of verbal threats at the complaining witness coupled with his act of striking the
two picture frames. As such, this Court finds that the accusatory instrument is facially
sufficient as the factual portion contains non-hearsay allegations which provide
reasonable cause to believe that defendant struck two picture frames with the specific
intent to damage the frames. Accordingly, defendant's motion to dismiss count one of the
accusatory instrument is denied. Motion to Suppress
Statement Evidence
/i>
Statement notice was duly served at defendant's arraignment pursuant to
CPL § [*3]710.30(1)(a). The statement notice
indicates that on November 28, 2014 at 12:00 a.m. at 758 East 233rd Street, defendant
stated the following to Police Officer Miguel Soares: "Yeah I had a problem with him the
other night."
Defendant moves to suppress the statement he allegedly made because
such evidence was obtained in violation of his rights under the state and federal
constitutions. Defendant contends that the statement was illegally obtained on the
following grounds: 1) he was not advised of his Miranda rights prior to being subjected
to custodial interrogation; 2) the statement was involuntarily made; and 3) the statement
is the tainted fruit of an unlawful arrest. In the alternative, defendant requests a
Huntley/Dunaway hearing.
As defendant has not been provided with any police reports or other
information within the exclusive custody and control of the People, defendant avers that
he is unable to establish the basis for his seizure and search by the police. Defendant
asserts that on November 27, 2014 at approximately 2:00 a.m., he was in the vicinity of
4192 White Plains Road. Defendant contends that he is innocent of all charges and
denies engaging in any unlawful or suspicious activity prior to his arrest. Therefore,
defendant argues that his warrantless seizure and arrest was unjustified in that the police
lacked reasonable suspicion or probable cause.
The People consent to defendant's request for a Huntley hearing solely
upon the issue of voluntariness. However, the People oppose defendant's request for a
Dunaway hearing as he has failed to allege any facts which demonstrate a sufficient legal
basis for suppression as required by CPL § 710.60.
A motion to suppress evidence "must state the ground or grounds of the motion
and must contain sworn allegations of fact." CPL § 710.60(1). A motion to suppress
must be summarily granted where the defendant alleges a legal ground warranting
suppression and the People concede the truth of the factual allegations. CPL §
710.60(2)(a). A Court may summarily deny a motion to suppress if the defendant fails to
allege a proper legal basis for suppression or if the "sworn allegations of fact do not as a
matter of law support the ground alleged." CPL § 710.60(3)(b). "[T]he sufficiency
of [the] defendant's factual allegations should be evaluated by (1) the face of the
pleadings, (2) assessed in conjunction with the context of the motion, and (3) [the]
defendant's access to information." People v. Mendoza, 82 NY2d 415, 426
(1993). However, even if the defendant's factual allegations are deficient, summarily
denying a motion to suppress is disfavored. In Mendoza, supra, the Court
of Appeals explained:
The CPL does not mandate summary denial of defendant's motion even if
the factual allegations are deficient .If the Court orders a Huntley or Wade
hearing, and defendant's Mapp motion is grounded in the same facts involving
the same police witnesses, the court may deem it appropriate in the exercise of discretion
to consider the Mapp motion despite a perceived pleading deficiency. Indeed,
considerations of judicial economy militate in favor of this procedure; an appellate court
might conclude that summary denial of the Mapp motion as improper, requiring
the parties and witnesses to reassemble for a new hearing, often months or years
later.
In a motion to suppress a statement, all that is required to warrant a Huntley
hearing is the mere claim that the defendant's statement was involuntary. People v.
Weaver, 49 NY2d 1012 (1980); People v. Bingham, 144 AD2d 682 (2d
Dept. 1988); Matter of Brian E., 206 AD2d 665 (3d Dept. 1994). Therefore,
defendant's motion for a Huntley hearing is granted.
Although summary denial of a motion to suppress is disfavored, "[h]earings
are not [*4]automatic or generally available for the asking
by boilerplate allegations." Mendoza, 82 NY2d at 422. "It is fundamental that a
motion may be decided without a hearing unless the papers submitted raised a factual
dispute on a material point which must be resolved before the court can decide the legal
issue." People v. Gruden, 42 NY2d 214, 215 (1977). In requesting a hearing, a
defendant must "controvert the specific factual averments as to the circumstances of the
crime and his arrest." People v. Doyle, 273 AD2d 69, 69 (1st Dept. 2000)
quoting People v. Suggs, 268 AD2d 305, 305 (1st Dept. 2000). A motion to
suppress supported solely by conclusory allegations is insufficient to satisfy the
requirements of CPL § 710.60(1).
This Court finds that defendant's moving papers are "minimally sufficient"
to warrant a hearing on the issue of suppression. See, People v. Harris,
160 AD2d 515, 515 (1st Dept. 1990). "When the validity of a warrantless arrest is
challenged, the presumption of probable cause disappears and the People bear the burden
of coming forward with evidence showing that it was supported by probable cause."
People v. Chaney, 253 AD2d 562, 564 (3d Dept. 1998). Accordingly, defendant's
motion for a Dunaway hearing to determine whether there was probable cause to
effectuate his arrest is granted.Motion for a
Voluntariness Hearing Regarding
Unnoticed Statements to
Law Enforcement
Defendant asserts that he was questioned by police officers and corrections officers
subsequent to this arrest regarding the offenses charged. Defendant maintains that those
statements were involuntarily made. As such, defendant moves for a hearing to determine
the voluntariness of any unnoticed statements that the People intend to use solely on
cross-examination or on rebuttal, or of any noticed statement that the People
subsequently withdraw their intent to use on its direct case.
The People failed to specifically address this branch of defendant's motion.
However, as stated above, the People did oppose defendant's motion to suppress
statements for which notice was given and denied any and all allegations in support
thereof.
"A written or oral statement made by a defendant with respect to his participation or
lack of participation in the offense charged, may not be received in evidence against him
if such statement was involuntarily made." CPL § 60.45(1). As such, an
involuntarily made statement may not be used at trial, whether it be during the People's
case in chief, on cross-examination, or in rebuttal.
Nonetheless, there is no indication that the People intend to use any such
unnoticed statement at trial. Therefore, defendant's motion for a voluntariness hearing as
to any unnoticed statements to law enforcement which the People intend to use at trial is
denied, with leave granted for defendant to renew this branch of the motion upon
learning that the People intend to introduce any such evidence at trial.Motion to Suppress Identification Evidence
/i>
At arraignment, the People served identification notice pursuant to CPL
§ 710.30(1)(b). The identification notice indicates that on November 28, 2014 at
7:30 p.m., the complaining witness positively identified defendant by a single photo
display.
Defendant asserts that any and all testimony regarding prior noticed
identifications as well as, all in-court identification testimony, and any other testimonial
fruits of his illegal seizure should be suppressed. Since the identification of defendant
occurred as a direct result of his unlawful arrest, defendant argues that any identification
evidence must be suppressed as the fruit [*5]of the
poisonous tree. In the alternative, defendant requests a hearing to determine whether
testimony of the out-of-court identification and the prospective in-court identification
should be admitted at trial.
In opposition, the People argue that a hearing is unnecessary as defendant
and the complaining witness were known to each other prior to the events that
precipitated the instant action. In fact, defendant is being prosecuted in a separate matter
(docket no.: 2015BX007580) for assaulting the same complaining witness on November
26, 2014, one day before the crime in the instant case took place. Therefore, the People
aver that the identification was merely confirmatory and in no way was tainted by police
conduct. However, should this Court grant a Wade hearing, the People request for the
hearing to be limited to resolve only issues related to the suggestiveness of the
identification procedure. The People reiterate that there is no probable cause issue in this
instant case and defendant has failed to set forth sworn allegations of fact that would give
rise to a Dunaway hearing.
In a motion to suppress identification testimony resulting from improper
procedures, sworn allegations of fact are not required. CPL §§ 710.60(3)(b),
710.20(3); People v. Jones, 95 NY2d 721 (2001); People v. Weaver, 49
NY2d 1012 (1980). "[T]he purpose of the Wade hearing is to test identification
testimony for taint arising from official suggestion during police-arranged
confrontations between a defendant and an eyewitness.'" People v. Dixon, 85
NY2d 218, 222 (1995) quoting People v. Gissendanner, 48 NY2d 543, 552
(1979). There are two narrowly construed exceptions to the general requirement of a
Wade hearing, where either the prior identification was merely confirmatory or where the
individuals are known to each other. See, People v. Dixon, 85 NY2d 216
(1996); People v. Wharton, 74 NY2d 921 (1989); People v.
Gissendanner, 48 NY2d 543 (1979).
"A court's invocation of the confirmatory identification' exception is thus
tantamount to a conclusion that, as a matter of law, the witness is so familiar with the
defendant that there is little or no risk' that police suggestion could lead to a
misidentification." People v. Rodriguez, 79 NY2d 445, 450 (1992). In other
words, prior to summarily denying a Wade hearing, the Court must conclude as a matter
of law that there was "no degree of police suggestiveness that could possibly have tainted
the identification." People v. Lawhorn, 192 AD2d 359, 360 (1st Dept. 1993). In
addition, the People bear the burden of demonstrating that the identification procedure
used was in fact confirmatory. Rodriguez, 79 NY2d at 452.
Defendant's motion to suppress identification testimony is hereby denied.
Defendant's failure to challenge the People's assertion that he and the complaining
witness were known to each other so as to render the identification merely confirmatory
obviates the need for a hearing. See, People v. Marte, 103 AD3d 470 (1st Dept. 2013);
People v. Murray, 247 AD2d 292 (1st Dept. 1998); People v. DeJesus,
244 AD2d 244 (1st Dept. 1997). Motion to Preclude
Statement and Identification Evidence
/i>
Defendant's motion to preclude the introduction of unnoticed statements
and identification evidence is denied, with leave granted for defendant to renew this
branch of the motion upon learning that the People intend to introduce any such evidence
at trial.Sandoval/Molineaux/Ventimiglia
/i>
Defendant requests and the People consent to disclosure of defendant's
past criminal history and/or prior bad or immoral acts which the People intend to use at
trial and a pre-trial hearing pursuant to People v. Sandoval, 34 NY2d 371 (1974),
People v. Molineaux, 168 NY 265 (1901), and People v. Ventimiglia, 52
NY2d 350 (1981). This hearing shall be held immediately [*6]before the commencement of trial.Future Motions
/i>
Defendant's reservation of right to file further motions is unauthorized pursuant to
CPL § 255.20(3). Any future motions shall be summarily denied absent a showing
of good cause.
Accordingly, defendant's motion to dismiss count one, Criminal Mischief in
the Fourth Degree (PL § 145.00[1]), as facially insufficient is denied. Defendant's
motion for a Huntley/Dunaway hearing is granted. Defendant's motion for a
voluntariness hearing as to any unnoticed statements to law enforcement which the
People intend to use at trial is denied, with leave granted for defendant to renew this
branch of the motion upon learning that the People intend to introduce any such evidence
at trial. Defendant's motion to suppress identification testimony is denied. Defendant's
motion to preclude the introduction of unnoticed statements and identification evidence
is denied, with leave granted for defendant to renew this branch of the motion upon
learning that the People intend to introduce any such evidence at trial. Defendant's
motion for a Sandoval/Molineaux/Ventimiglia hearing is respectfully referred to the trial
judge. Defendant's request to file additional motions is denied subject to rights under
CPL § 255.20(3) to move for further leave upon good cause shown.
This constitutes the decision and order of this Court.
Dated:May 12, 2015
Bronx, New York
_______________________________
Hon. Armando Montano