The People of
the State of New York, Plaintiff,
against
Serge Mathurin, Defendant.
|
2013BX070314
Appearances of Counsel
The People — Robert T. Johnson, District Attorney, Bronx County by
Rinerys J. Garcia, Assistant District Attorney
Defendant — The Legal Aid Society by Vanessa Burdick
Armando Montano, J.
Defendant is charged with two counts of Menacing in the Second Degree (PL §
120.14), one count of Criminal Possession of a Weapon in the Fourth Degree (PL §
265.01[2]), one count of Resisting Arrest (PL § 205.30), one count of Trespass (PL
§140.05), one count of Disorderly Conduct (PL § 240.20[1]), and two counts
of Harassment in the Second Degree (PL § 240.26[1]).
Defendant moves for an order, pursuant to CPL § 170.40(1), dismissing
the complaint in the interest of justice.
The complaint alleges that on December 8, 2013 at approximately 3:00 p.m.
inside of a grocery store located at 920 East 174th Street in Bronx County, defendant,
when asked to leave the premises, pulled out a pair of scissors from her [FN1]
pocket and stated to Nooradein Arobye Salah, one of the store employees, "If anyone
comes near me, I'm going to stab him." Subsequently, when repeatedly ordered to drop
the pair of scissors by Officer Pena, defendant refused to comply and instead approached
the officer with scissors in hand. Defendant then stopped and ran away from the store.
After Officer Pena gave chase, the officer sustained an injury to her knee while placing
defendant under arrest.
In stark contrast to the allegations set forth in the complaint, defendant, who
goes by the name of Ember, asserts that she was the victim of a hate crime and was
merely defending herself. Defendant avers that she entered the bodega to purchase a pack
of cigarettes when the store employees referred to her as a "batiman [FN2]
" and ridiculed her for dressing as a female. The [*2]store
employees then proceeded to assault defendant with a baseball bat and chased her out of
the store. While running away from the store, defendant heard a female voice yelling
"hey." In fear for her life, defendant chose not to turn back to see who had yelled at her.
Thereafter, a group of people, who turned out to be police officers, jumped on top of her
and placed her under arrest.
Defendant asserts that she has endured a lifetime of abuse, harassment, and
discrimination for being a transgendered female. She characterizes herself as a victim in
the instant case, who is being wrongfully prosecuted. Defendant notes that none of the
store employees have been charged with any wrongdoing for attacking her with a
baseball bat. With respect to Officer Pena and her injuries, defendant argues that she had
no intent to injure the officer. Rather, defendant contends that all of her actions were
defensive in nature.
Defendant does not dispute the seriousness of the weapons charge. However,
defendant contends that the offense charged, Criminal Possession of a Weapon in the
Fourth Degree, is the least serious of any weapons charge with no required showing of
intent to use the weapon. Defendant also points out that the complaint fails to allege that
she ever used or attempted to use the pair of scissors against anyone. Defendant
maintains that she never removed the pair of scissors from her purse and no one was
harmed by the pair of scissors. Defendant stresses that she was only "trying to get away
from the bat wielding thugs who were chasing her." Affirmation of defendant's counsel,
at 4. In addition, although Officer Pena claims to have injured her knee, defendant avers
that the People have yet to provide any discovery regarding the officer's injuries.
Defendant argues that the store employees will not appear at trial to testify as
the People have lost contact with them. Therefore, defendant contends the counts that
apply to the complaining witness, counts one, four, and six must be dismissed. The only
witness who will appear at trial will be Officer Pena. Defendant argues that the People
will be unable to prove beyond a reasonable doubt that defendant intended to unlawfully
use the pair of scissors against another. Consequently, defendant avers that there was no
legitimate basis to arrest her and therefore the remainder of the charges must also be
dismissed.
Finally, defendant avers that she presents no risk to the safety and welfare of
the public at large. Since her arrest, defendant has not had any other problems with the
law and has continued to attend school and work during the pendency of this action.
Should the instant case not be dismissed in the interest of justice, defendant argues that it
will prove all but impossible for her to be gainfully employed, especially as a
transgendered woman. In addition, defendant contends that no legitimate purpose would
be served if she were convicted and sentenced.
In opposition, the People argue that the instant motion should be denied
without a hearing as defendant has failed to demonstrate the existence of a compelling
factor which would warrant outright dismissal. The People assert that at the time and
place of the occurrence, defendant was observed by Officer Pena exiting the bodega
carrying a pair of scissors in her hand. When Officer Pena asked defendant to drop the
scissors, defendant came towards her with the scissors in hand and stated, "Fuck you
bitch." Defendant then ran away with scissors in hand through a crowded street. Officer
Pena gave chase and attempted to place defendant under arrest. During the ensuing
struggle, defendant flailed her arms, kicked her legs, and twisted her body, and refused to
be handcuffed. Due to defendant's actions, Officer Pena sustained an injury to her knee
which required treatment at a local hospital. Upon further investigation, Officer Pena was
informed by the complaining witness that defendant was asked to leave the bodega [*3]after being disruptive. Defendant refused to do so and
pulled out a pair of scissors from her pocket and pointed it at him.
The People aver that defendant has been charged with three Class A misdemeanors
and three violations that are serious by their nature and do not warrant dismissal. The
People further note that the complaint specifically alleges that defendant not only
possessed the pair of scissors but used it to threaten both the complaining witness and
Officer Pena. Moreover, although defendant alleges that she was attacked by a group of
men and subsequently chased out of the bodega, there is no record of defendant
exhibiting any physical injuries at or near the time of her arrest. Similarly, although
defendant alleges that she was unaware that the she was being chased after by an officer,
the People point out that the complaint explicitly alleges that defendant approached
Officer Pena with scissors in hand in a threatening manner.
Contrary to defendant's characterization of her actions, the People argue that
defendant's conduct injured Officer Pena and placed other individuals in fear for their
physical safety. Furthermore, the charge of Menacing the Second Degree does not
require the showing of the infliction of an actual physical injury. Rather, a person is
guilty of Menacing in the Second Degree when he or she intentionally places or attempts
to place another person in reasonable fear of physical injury by displaying a deadly
weapon. Therefore, the fact that no one sustained an actual physical injury is of no
consequence with respect to the menacing charge.
As to evidence of defendant's guilt, the People argue that they will be able to prove
their case and meet their burden of proof by way of Officer Pena's testimony. Officer
Pena personally observed defendant's conduct and recovered the pair of scissors from her
person. The People reiterate that there is no evidence that defendant was attacked with a
baseball bat nor placed in fear for her life.
While the People acknowledge the difficulties defendant has faced in her past, her
struggles as a transgendered woman should not act as a shield from criminal prosecution.
The People also argue that the dual purposes of sentence, to punish and to deter future
criminal conduct, would be served with the continued prosecution of the instant case. A
sentence would demonstrate to defendant that her conduct is neither acceptable nor
lawful.
CPL § 170.40 provides that a Court may dismiss an accusatory
instrument in the interest of justice where there exists "some compelling factor,
consideration or circumstance clearly demonstrating that conviction or prosecution of the
defendant upon such accusatory instrument or count would constitute or result in
injustice." CPL § 170.40 lists 10 factors which the Court must consider when
determining whether to grant dismissal in the interest of justice [FN3]
. The court need not "engage in a point-by-point catechistic discussion of all ten statutory
factors; instead, the court is required to consider the factors individually and collectively
in making a value [*4]judgment that is based upon
striking a sensitive balance between the interests of the individual and those of the state."
People v. Gragert, 1 Misc
3d 646, 648 (Crim Ct, NY County 2003); see also, People v. Rickert,
58 NY.2d 122 (1988).
Where the defendant fails to meet his burden of demonstrating by the
preponderance of the evidence that a compelling factor exists to warrant dismissal in the
interest of justice, the Court may summarily deny the motion. People v. Schlessel,
104 AD2d 501 (2d Dept. 1984). "The power to dismiss on such ground is, as provided in
the statutory text, committed to the trial court's discretion; it should be exercised
sparingly and only in that rare and unusual case where it cries out for fundamental justice
beyond the confines of conventional considerations." People v. Harmon, 181
AD2d 34, 36 (1st Dept. 1992) (internal quotation marks omitted).
After considering the enumerated factors, individually and collectively, this Court
finds that none of the factors provides a basis for dismissal pursuant to CPL §
170.40.
The seriousness and circumstances of the offense
The offenses charged arise out of an alleged incident where defendant is
accused of possessing a pair of scissors with the intent to use same in an unlawful
manner against a store employee and a police officer. Although defendant attempts to
downplay the seriousness of the offenses charged, she is charged with three Class A
misdemeanors, PL §§ 120.14(1), 205.30, and 265.01(2), each punishable by a
sentence of imprisonment of up to one year. Based upon the nature of the offenses
charged and the underlying factual allegations in support thereof, this Court finds that the
seriousness of the offenses charged do not warrant dismissal.
The extent of harm caused by the offense
The facts alleged in the complaint, if true, indicate that defendant threatened
a store employee and Officer Pena with a pair of scissors without provocation. After the
initial confrontation between defendant and the store employee, defendant attempted to
flee the scene when she was observed running away from the store by Officer Pena. A
jury could reasonably infer from the facts alleged that defendant's actions placed both the
store employee and Officer Pena in fear for their physical safety. Not only did
defendant's actions cause the store employee and the officer to fear for their physical
safety, but Officer Pena also sustained an actual injury as she was placing defendant
under arrest.
The evidence of guilt, whether admissible or inadmissible at trial
The complaint alleges that defendant was the aggressor who brandished a
pair of scissors and threatened to use same against the complaining witness and Officer
Pena. The complaint further alleges that defendant was repeatedly ordered by Officer
Pena to drop the pair of scissors. Rather than complying with the officer's orders,
defendant approached Officer Pena with scissors in hand. Subsequently, defendant
turned around and ran away from the officer. Defendant's conduct of running away from
Officer Pena, rather than seeking assistance from the officer as a supposed victim of a
hate crime, could be admissible at trial as circumstantial evidence of her consciousness of
guilt. People v. Yazum, 13 NY2d 302 (1963); People v. Lendore, 26
AD3d 940 (2d Dept. 2007). "Certain postcrime conduct is indicative of a consciousness
of guilt, and hence of guilt itself.'" People v. Bennett, 79 NY2d 464, 469 (1992)
quoting People v. Reddy, 261 NY 479, 486 (1933). If defendant was in fact being
attacked by "bat wielding thugs" inside of the store, then one would expect defendant,
upon observing Officer Pena as she ran out of the [*5]store, to run towards the officer seeking protection and
making an immediate outcry. This failure undermines defendant's averments to the
contrary.
On the other hand, defendant unequivocally denies all of the allegations
contained in the complaint and steadfastly asserts that she was the victim of a hate crime
who reacted out of fear for her life and in self-defense. Due the markedly different
accounts of what transpired on the date of the alleged offense, it is evident that a trial
must be had to resolve numerous issues of fact.
The history, character, and condition of the defendant
While defendant's desire to continue to her education and to secure gainful
employment is laudable, these aspirations are insufficient to justify a dismissal in the
furtherance of justice. People v. Kelley, 141 AD2d 764 (2d Dept. 1988);
People v. Andrew, 78 AD2d 683 (2d Dept. 1980). Defendant's good character
and lack of a criminal record "does not immunize [her] from the normal processes of the
criminal law." People v. Varela, 106 AD2d 339, 340 (1st Dept. 1984).
Here, defendant essentially asks to receive preferential treatment from this
Court because she is a transgendered woman who has suffered a lifetime of abuse and
vitriol from society. This Court does not doubt that defendant has faced numerous
hardships throughout her life. However, due to the serious nature of the offenses
charged, this Court cannot justify an outright dismissal.
Any exceptionally serious misconduct of law enforcement personnel
Save for defendant's allegations to the contrary, there is no evidence to
demonstrate any serious misconduct on the part of law enforcement personnel.
The purpose and effect of imposing upon the defendant a sentence
authorized for the offense
An outright dismissal would only serve to demonstrate to defendant that she
is deserving of preferential treatment in the eyes of the law.
The impact of a dismissal on the safety and welfare of the community
The offenses charged when balanced against the interest of public safety
weighs heavily against dismissal.
The impact of a dismissal on the confidence of the public of the criminal
justice system
The importance of the even-handed dispensing of justice cannot be
overstated. The fairness of the criminal justice system is part of the bedrock upon which
our government was founded. Consistent application of the law not only reinforces the
notions of fairness and order, but it also sends a clear message to the public as to what
conduct is deemed acceptable in our society. In short, dismissal of the instant case would
only serve to undermine the public's confidence in the criminal justice system.
The attitude of the complainant/victim with respect to the motion
Both the complaining witness and Officer Pena expect defendant to be fully
prosecuted for her conduct.
Any other relevant factors that a judgment of conviction would serve no
useful purpose
In People v. Keith
R., 95 AD3d 65, 67 (1st Dept. 2012) (internal citations omitted), the Appellate
Division held that:
It is the District Attorney's prerogative to prosecute those who commit
crimes, to bring charges or discontinue criminal proceedings, and to determine the nature
of the charges preferred against a defendant. That prerogative should be lightly abrogated
by a court's exercise of its interest of justice, which we have cautioned "should be
exercised sparingly."
In her motion papers, defendant indicates that at some point during the
prosecution of this action, the People offered her a plea, which was subsequently
withdrawn for reasons unknown. A motion to dismiss in furtherance of justice is not be
used when plea negotiations have failed or as a substitute for a trial. Rather, a motion to
dismiss pursuant to CPL § 170.40 is intended to be used only where there exists
some compelling factor which requires the discontinuation of a prosecution.
In rendering this decision, this Court in no way seeks to diminish the
hardships defendant has undoubtedly faced as a transgendered woman. However, after
considering the enumerated factors set forth in CPL § 170.40, it cannot be said that
this case "cries out for fundamental justice beyond the confines of conventional
considerations." Harmon, supra.
Accordingly, defendant's motion to dismiss the instant action in the interest
of justice is denied.
This constitutes the decision of this Court.
Dated:July 13, 2015
Bronx, New York
_______________________________
Hon. Armando Montano
Footnotes
Footnote 1:The complaint filed in
the instant action uses the male pronoun and male possessive adjectives when referring to
defendant. However, as defendant is a transgendered woman, who uses the female
pronoun and female possessive adjectives throughout her papers, this Court will
respectfully use same when referring to defendant.
Footnote 2:According to defendant,
a "batiman" is Jamaican slang for a homosexual.
Footnote 3:These factors are: (a) the
seriousness and circumstances of the offense; (b) the extent of harm caused by the
offense; (c) the evidence of guilt, whether admissible or inadmissible at trial; (d) the
history, character and condition of the defendant; (e) any exceptionally serious
misconduct of law enforcement personnel in the investigation, arrest and prosecution of
the defendant; (f) the purpose and effect of imposing upon the defendant a sentence
authorized for the offense; (g) the impact of a dismissal on the safety and welfare of the
community; (h) the impact of a dismissal upon the confidence of the public in the
criminal justice system; (i) where the court deems it appropriate, the attitude of the
complainant or victim with respect to the motion; and (j) any other relevant fact
indicating that a judgment of conviction would serve no useful purpose.