By notice of motion and supporting affirmation from John Clarke, Esq., dated February 8, 2022, the defendant moves to dismiss the accusatory instrument for facial insufficiency and other forms of relief.

By an affirmation in opposition and memorandum of law submitted by Lily Gebru, Esq., dated February 21, 2022, the People oppose the defendant's motion to dismiss the accusatory instrument and address the defendant's other arguments.

To be sufficient on its face, an information must contain an accusatory section and a factual section. (CPL 100.15[1]). The accusatory section must specify the offenses charged. (CPL 100.15[2]). The factual section must contain a statement from the complainant "alleging facts of an evidentiary character supporting or tending to support the charges." (CPL 100.15[3]). The factual section, along with any supporting deposition, must "provide reasonable cause to believe that the defendant committed the offenses charged." (CPL 100.40[1][b]).

The prima facie case requirement does not insist that the information allege facts that would prove defendant's guilt beyond a reasonable doubt (People v. Jennings, 69 NY2d 103, 115 (1986)). Rather, the information 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 (2000). A court reviewing for facial insufficiency must subject the allegations in the information to a "fair and not overly restrictive or technical reading" id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them (CPL 100.40, 100.15, People v. Jackson, 18 NY3d 738, 747 (2012).

In this case, the Defendant is charged with violating Penal Law Section 145.00(1) (Criminal Mischief in the Fourth Degree) and Penal Law Section 120.00(1) (Assault in the Third Degree).

Addressing the charge of PL 145.00(1), to be facial sufficient, the complaint must allege that a person "when, having no right to do so nor any reasonable ground to believe that he or she has such right, he or she ... intentionally damages property of another person." (New York Penal Law 145.00(1)). The complaint addressing this charge indicates that three wine bottles with a value of $60.52 were damaged "when the defendant engaged in a physical altercation and assaulted the victim Patrick Germeus." A supporting deposition by Vijay Chintapatla was also filed in this matter. In this document, the complaining witness notes that "a physical altercation [*2]took place inside my busines . . . [and due] to the incident three wine bottles . . . were destroyed and unable to be sold in my store totalling 60.52 USD."

This charge is not facially sufficient as the complaint and supporting deposition do not make out the requisite intent to damage the property at question. See People v. Summer, 64 AD2d 658 (2nd Dept 1978); People v. Roberts 140 AD2d 961 (4th App. Div 1988). See Also People v. Terborg, 35 AD3d 1169 (4th App. Div 2006). The cases presented by the People in their opposition papers are distinguishable in that the property damaged in those cases was intentionally used as a form of makeshift weapon in an assault which does not appear to be the situation in the case at hand. Therefore, the charge of PL 145.00(1) is dismissed.

Moving on to the charge of PL 120.00(1), the complaint must allege that "[w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person." The Penal Law defines "physical injury" as "impairment of physical condition or substantial pain." The supporting deposition of the complaining witness, Patrick Germeus, alleges that the Defendant "pushed me and I slammed into another shelf" and then "we both lost our balance and fell onto the floor" at which point "Jones tried several times to slam my head on the floor causing severe pain redness and swelling" and "[d]ue to the physical altercation, I suffered lacerations to my elbow and leg."

In defining "physical injury," the Court of Appeals has held that "of course, 'substantial pain' cannot be defined precisely, but it can be said that it is more than slight or trivial pain. Pain need not, however, be severe or intense to be substantial." People v. Chiddick, 8 NY3d 445, 447 (2007). In addition, the "Legislature did not intend a wholly subjective criterion to govern. This is so both because it abjured the Model Penal Code's definition (section 210.0, subd [2], 'physical pain, illness or any impairment of physical condition'), and because the Revisors' notes state that 'petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives' are not within the definition (Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed Penal Law, p 330)." In re Philip A., 49 NY2d 198, 200 (1980). In reviewing the complaint and supporting deposition as a whole, the allegations are facially sufficient as to the charge of PL 120.00(1). The alleged injuries go beyond the "petty slaps, shoves, kicks and the like" described by the Court of Appeals in the above matter. Therefore, Defense motion to dismiss the charge of PL 120.00(1) as facially insufficient is denied.

As to the other arguments in the moving papers, any Sandoval/Ventimiglia issues would be more properly addressed as a motion in limine before trial. In their motion papers, the People have indicated that they have proved all Brady materials. The request by Defense to be permitted to order minutes after any hearings but before commencement of trial is granted. Lastly, Defense is ordered to provide any and all reciprocal discovery immediately.

The foregoing is the decision and order of the court.