Opinion
CR-021920-19KN
11-25-2019
The PEOPLE of the State of New York v. JELASSI, Defendant.
By a motion dated September 23, 2019 ("Dismissal Motion"), the Defendant moved to dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b) on speedy trial grounds asserting that the People were not ready for trial within ninety (90) days of the commencement of the criminal action and thus had failed to comply with the time limitations imposed upon them for a class A misdemeanor. Specifically, the Defendant questioned the sufficiency of the verification of the supporting deposition because it was signed by an eight-year-old. The Defendant contended that the eight-year-old complaining witness' supporting deposition was improperly verified pursuant to CPL 100.30 (1) (d) and thus, the People had failed to convert the misdemeanor complaint to a legally sufficient information within the time period required by CPL 30.30 (1) (b). The People have submitted an opposition ("Opposition Motion") dated and filed with the Court on October 11, 2019 to Defendant's Dismissal Motion.
I.
By a misdemeanor complaint (Docket No. CR-021920-19KN) filed on June 8, 2019("Complaint"), the Defendant was charged and arraigned in Kings County Criminal Court, Part AR 4 on six counts of endangering the welfare of a child in violation of Penal Law § 260.10 (1), six counts of menacing in the third degree in violation of Penal Law § 120.15, and six counts of harassment in the second degree in violation of Penal Law § 240.26 (1). The Defendant entered a plea of not guilty and was released on his own recognizance. The case was adjourned to July 8, 2019 in Part DV2 for conversion. On June 28, 2019, the People filed and served, off-calendar, a superseding complaint ("Superseding Complaint"), a statement of readiness and a supporting deposition ("Supporting Deposition") dated June 27, 2019 from [XXX], the complaining witness ("Complaining Witness").
The Superseding Complaint was signed by Assistant District Attorney ("ADA") Marina Sawires of the Kings County District Attorney's Office and charged the Defendant with one count of menacing in the third degree in violation of Penal Law § 120.15, one count of harassment in the second degree in violation of Penal Law § 240.26 (1), and one count of endangering the welfare of a child in violation of Penal Law § 260.10 (1). The Superseding Complaint alleged that on or about and between May 1, 2019 at approximately 12:00 AM and May 31, 2019 at approximately 11:59 PM at [XXX] in Kings County, New York ("Location"), the Defendant struck the Complaining Witness with an open hand about the face and hip, struck her with a shoe about the thigh, waived said shoe in front of her, threaten to hit her with said shoe and grabbed her about the face. The Superseding Complaint further alleged that the Complaining Witness' date of birth was July [XXX], 2010. The Superseding Complaint was corroborated by the Supporting Deposition which stated that the Complaining Witness had read the accusatory instrument and "the facts in that instrument stated to be on information furnished by [her] [were] true to [her] personal knowledge." At the bottom of the Supporting Deposition was a statement "false statements made in this document [were] punishable as a class A misdemeanor pursuant to section 210.45 of the Penal Law." The Defendant was arraigned on the Superseding Complaint on July 8, 2019 in Part DV2 before the Honorable Kimberley Petersen. Pursuant to the certified transcripts ("Transcripts") of the July 8, 2019 proceeding, at the time of Defendant's such arraignment, counsel for the Defendant objected to Defendant's arraignment on the Superseding Complaint and to its conversion to an information. Defense counsel argued that the Defendant was "not conceding that [the Supporting Deposition] convert[ed] the [c]omplaint because the declarant [was] an 8-year-child." Counsel for the Defendant further argued that, "[t]he form that [the People] used to convert, or attempt to convert [was] not appropriate with an 8-year-old child punishable by a misdemeanor, and that [couldn't] apply to an 8-year-old. It [was] a 2016 [d]ecision out of this [c]ourt, the Outley [d]ecision,[ ] that [spoke] exactly to that " (Transcripts at 2.) In his Dismissal Motion, the Defendant again argued that "at the time of the execution of the ‘supporting deposition’ in the within matter, the [complaining witness] in this case would have been 8 years old; and just as was the case in People v. Utley [2016 NY Slip Op. 26026 (Crim Ct, Kings County 2016) ], the supporting deposition was not sworn, but instead contained the ‘form notice’ that false statements made therein were punishable as a class A misdemeanor, pursuant to Penal law section 210.45," and that an eight-year-old could not be punished for a class A misdemeanor, therefore the Supporting Deposition was not sufficient. As a result, the Supporting Deposition did not convert the Superseding Complaint to an information within ninety (90) days of the commencement of the criminal action. (Dismissal Mot. at 9.) The People argued that on June 27, 2019 they conducted a swearability interview of the Complaining Witness pursuant to CPL 60.20, that it was determined that the Complaining Witness was swearable, that the Complaining Witness signed the Supporting Deposition on June 27, 2019 which was then served and filed on June 28, 2019 together with People's statement of readiness, that People's Superseding Complaint was converted with no facial defect, and that the People were only charged 20 days (Opposition Mot. at 10th page ).
New York Penal Law § 210.45 provides that "[a] person is guilty of making a punishable false written statement when he knowingly makes a false statement, which he does not believe to be true, in a written instrument bearing a legally authorized form notice to the effect that false statements made therein are punishable. Making a punishable false written statement is a class A misdemeanor."
People v. Outley , 80 N.Y.2d 702 (1993) is a 1993 and not a 2016 decision in which the New York State Court of Appeals ruled that when the validity of a post plea charge or arrest is called into question, "a court must conduct an inquiry at which the defendant has an opportunity to show that the arrest is without foundation." The holding and facts in Outley are inapplicable to the case herein. It is possible, however, that the defense counsel was referring to People v. Utley , 2016 NY Misc. LEXIS 263 (Crim Ct, Kings County 2016). See footnote 3.
People v. Utley , 2016 NY Misc. LEXIS 263 [Crim Ct, Kings County 2016] was a case decided by a judge of the concurrent jurisdiction in the Criminal Court of the City of New York, Kings County (2015KN058409) on January 19, 2016. A check on LEXIS of the subsequent history of this case indicates that the opinion was withdrawn from publication in the Miscellaneous Reports at the direction of that court. Accordingly, this decision has no binding, precedential or persuasive authority on this Court.
Opposition Motion is not paginated.
II.
Based on the facts before the Court and arguments presented by both parties, this Court has considered the following issues: (1) whether the Complaining Witness, at the time of her signing the Supporting Deposition, was competent to testify under oath; (2) whether the Complaining Witness, at the time of her signing the Supporting Deposition, was competent to verify the Supporting Deposition; (3) whether the Supporting Deposition, signed by the Complaining Witness, is facially sufficient; (4) whether the Superseding Complaint was properly converted by the Supporting Deposition; (5) whether the Superseding Complaint, corroborated by the Supporting Deposition, is facially sufficient; and (6) whether the Superseding Complaint was converted within the time period as required by CPL 30.30 (1) (b). Based on the analysis hereinafter, this Court finds (i) that the Complaining Witness was competent to verify the Supporting Deposition at the time of her signing the Supporting Deposition; (ii) that the signed Supporting Deposition states that the Complaining Witness has read the accusatory instrument confirming "the facts in that instrument stated to be on information furnished by [her] are true to [her] personal knowledge," and also bears "a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the Penal Law" ( CPL 100.30 [1] [d] ), therefore it is facially sufficient and converts the Superseding Complaint to an information; (iii) that the Superseding Complaint, corroborated by the Supporting Deposition, is facially sufficient; (iv) and that the People are charged a total of twenty (20) days of includable time and have not exhausted the speedy trial time provided to them by statute. This Court also finds that the important issue here is whether the Supporting Deposition is sufficient and converts the Superseding Complaint based on reasonable cause to believe that the Defendant has committed the alleged offenses, not whether the Complaining Witness, at the time of her signing the Supporting Deposition when she was eight-year-old, was competent to testify under oath at trial in order to prove Defendant's guilt beyond a reasonable doubt. As a result, this Court does not address the issue of whether the Complaining Witness was competent to testify under oath when she verified the Supporting Deposition; rather, this Court focus on the matter of whether the complaining witness was competent to verify the Supporting Deposition when she signed the Supporting Deposition.
III.
With respect to the issue of facial sufficiency and verification of the Supporting Deposition argued by both parties, CPL 100.30 states that, "(1). [a]n information, a misdemeanor complaint, a felony complaint, a supporting deposition, and proof of service of a supporting deposition may be verified in any of the following manners: ... (d) [s]uch instrument may bear a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law, and such form notice together with the subscription of the deponent constitute a verification of the instrument ..." ( CPL 100.30 [1][d] ). Court in Soler held that "there is no provision in [CPL] 100.30, or elsewhere in the Criminal Procedure Law ... [which addresses] the question of whether, or under what circumstances, a child ... [who is] presumed not competent to testify under oath pursuant to CPL 60.20 (2), may nonetheless be deemed competent to verify an accusatory instrument or supporting deposition" ( People v. Soler , 144 Misc. 2d 524 [Crim Ct., NY County, 1989] ). Under CPL 60.20 (2), there is a rebuttable presumption that a witness who is less than nine-year-old is not competent to testify under oath. That presumption may be overcome by a showing that the infant witness not only possess "sufficient intelligence and capacity" to give testimony, but also understands the "nature of an oath," "appreciates the difference between truth and falsehood, the necessity for telling the truth, and the fact that a witness who testifies falsely may be punished." ( CPL 60.20 [2] ; People v. Morales , 80 N.Y.2d 450 [1992] ; People v. Nisoff , 36 N.Y.2d 560 [1975].) Court in Delossantos held that "the verification of [a local criminal court] accusatory instrument by an infant may be effected by any of the methods permitted by CPL 100.30, without the need for the court to determine that an infant complainant is competent" ( People v. Delossantos , 62 Misc. 3d 141 (A) [App. Term, 1st Dept. 2019] ). Most courts have accepted the procedure described in People v. Soler , 144 Misc. 2d 524. The Soler court held that "the examination of a child [witness] may be done, in conjunction with any of the out-of-court methods enumerated in [CPL] 100.30 (1) (b) through (e), by an Assistant District Attorney, provided that the voir dire is recorded and made available to the court for review as to the propriety of the prosecutor's assessment of witness competence" ( People v. Soler , 144 Misc. 2d at 527 ).
This Court adopts the views of the Soler court and the Delossantos court. Here, the People have fulfilled the requirements established by the Soler court by taking appropriate steps and recording the voir dire ("Voir Dire") which was conducted by ADA Sawires on June 27, 2019 with the Complaining Witness. On October 28, 2019, the People provided the Court with a copy of the audio interview of the child Complaining Witness. This Court has reviewed the Voir Dire. During the Voir Dire, the Complaining Witness told ADA Sawires about her name, her date of birth, the name of her school, her grade at school, her teacher's name, her favorite subject which was math, where she lived and who she lived with, indicating that she possesses "sufficient intelligence" to give testimony ( CPL 60.20 [2] ). In addition, the Complaining Witness answered the following questions when asked by ADA Sawires:
...
Question: Can you tell me what it means to tell the truth?
Answer: Yes, to tell the truth is when you say something that is true.
Question: So, is telling the truth, what didn't happen or what did happen?
Answer: What did happen.
Question: Can you tell me what it means to tell a lie?
Answer: To tell a lie, you didn't say the truth.
Question: So, is telling a lie what did happen or what didn't happen?
Answer: What didn't happen.
Question: So, if I said that Kathleen was a boy, am I telling you the truth or am I telling you a lie?
Answer: You are telling me a lie.
Question: Why?
Answer: Because Mrs. Kathleen is not a boy.
Question: And if I say that Miss Tatiana has pink hair am I telling you the truth oram I telling a lie?
Answer: You're telling a lie.
Question: Why?
Answer: Because Mrs. Kathleen has brown, I mean black hair that she dyed brown.
Question: Okay.
Question: And if I say that you are 12 years old am I telling the truth or a lie?
Answer: You are telling a lie because I am eight years old and by the looks of it you can see cause I am very young.
Question: Is it a good thing or a bad thing to tell a lie?
Answer: Bad.
Question: Why?
Answer: Because if you tell a lie, something really bad could happen.
Question: Okay, what would happen if you told your mom a lie?
Answer: If I told my mom a lie then that would make stuff worst.
...
Question: What would happen if you broke a promise to a teacher?
Answer: I telled a lie.
...
Question: And if you go see a police officer and you promise to tell the truth what do you have to do?
Answer: You have to keep it.
Question: What can happen if you tell a police officer a lie?
Answer: Then you can get in deep trouble and that will make you look bad.
...
The questions and answers cited above indicate that the Complaining Witness "appreciates the difference between the truth and falsehood, the necessity for telling the truth." Furthermore, the Complaining Witness stated that it was a "bad thing" to tell a lie and that breaking a promise was bad indicating that she understands that telling a lie will be punished. ( CPL 60.20 [2].) "Witness competency is the province of the trial judge, not to be disturbed absent a clear abuse of discretion" (Handling a Criminal Case in New York, Gary Muldoon, Thomson Reuters 2018-2019 Edition, citing People v. McGrady , 45 A.D.3d 1395 [4th Dept. 2007]. See People v. Kolupa , 59 A.D.3d 1134 [4th Dept. 2009], order aff'd , 13 N.Y.3d 786 [2009] ). Here, after reviewing the Voir Dire, this Court finds that the responses from the Complaining Witness "during [the] voir dire indicate[s] [that she knew] the difference between truth and lie, the importance of telling the truth, and that [she] could be punished [for telling a lie]" ( People v. Velez , 222 AD2d 625 [2d Dept. 1995] ), therefore, the Complaining Witness is competent to verify the Supporting Deposition, if not more. Whether the Complaining Witness was competent to testify under oath at trial, when she verified the Supporting Deposition, is not relevant here, therefore this Court will not address such issue.
On June 28, 2019, the People declared their readiness for trial upon their finding that the child Complaining Witness was competent to verify the Superseding Complaint applying the enumerated method in CPL 100.30 (1) (d). As there was no legal obstacle to People's readiness for trial upon their finding by ADA Sawires that the Complaining Witness was competent to verify an instrument, the People's statement of readiness on June 28, 2019 must be accepted. Moreover, neither Delossantos nor Soler mandates that the People file a contemporaneous affidavit of swearability. Accordingly, there was no legal impediment for Judge Petersen not to arraign the Defendant on the Superseding Complaint on July 8, 2019 and deem the Superseding Complaint to have been converted.
Although this Court finds that the child Complaining Witness is permitted to verify the Supporting Deposition based on Court's foregoing analysis, "[a] defendant may not be convicted of an offense solely upon [an] unsworn evidence given ..." ( CPL 60.20 [3] ). In order to convict the Defendant of menacing in the third degree ( Penal Law § 120.15 ), harassment in the second degree ( Penal Law § 240.26 [1] ) and endangering the welfare of a child ( Penal Law § 260.10 [1] ), the People must prove their case beyond a reasonable doubt, which is a standard different from the facial sufficiency analysis.
Pursuant to CPL 100.40 (1), "an information ... is sufficient on its face when: (a) it substantially conforms to the requirements prescribed in section 100.15; and (b) 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; and (c) non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and defendant's commission thereof" ( People v. Alejandro , 70 N.Y.2d 133, 136 [1987] ). Pursuant to CPL 100.15 (3), the "factual part of [the] instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges ... the factual allegations may be based either upon personal knowledge of the complainant or upon information and belief."
The conversion sufficiency requirement "is not the same as the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial" ( People v. Kalin , 12 N.Y.3d 225, 230 [2009] ).
A misdemeanor complaint must "set forth facts that establish reasonable cause to believe that the defendant committed the charged offense" ( People v. Dumay , 23 N.Y.3d 518, 522 [2014] ) and provide "the defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy" ( id. at 527, quoting People v. Dreyden , 15 N.Y.3d 100, 103 [2010] ). "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] ).
Court in Delossantos held that "although CPL 60.20 (2) precludes a child less than nine years old from testifying under oath in a criminal proceeding unless the court has determined that the child understands the nature of an oath, this evidentiary rule, which ‘applies only to a witness actually testifying under oath’ ( People v. Hetrick , 80 N.Y.2d 344, 350[1992] ), does not apply to the verification of a misdemeanor complaint by a child under nine (see generally Matter of Gregory J. , 209 AD2d 191 [1994], lv denied 85 N.Y.2d 807 [1995] ). While the ‘legally sufficient’ evidence standard required to sustain a conviction after trial (see CPL 350.10 [6], 360.50[2] ) demands ‘competent evidence’ ( CPL 70.10[1] ), there is no similar evidence requirement for the ‘reasonable cause to believe’ standard under CPL 100.40 (b) for a local criminal court accusatory instrument, the latter requiring only ‘evidence or information which appears reliable’ ( CPL 70.10 [2] ; see Peter Preiser, Practice Commentaries, McKinney's Cons. Laws of NY, Book 11A, CPL 70.10, at 276-278)" ( People v. Delossantos , 62 Misc. 3d 141 (A) at 1).
In the instant case, the Superseding Complaint alleged that the child Complaining Witness told ADA Sawires that the Defendant struck her with an open hand about the face and hip, struck her with a shoe about the thigh, waived said shoe in front of her, threaten to hit her with said shoe and grabbed her about the face. The Superseding Complaint further alleged that the "above described actions caused [the Complaining Witness] to fear physical injury and to become alarmed and annoyed." The Complaining Witness, whom this Court finds to be competent to verify an accusatory instrument, has signed the Supporting Deposition which satisfies, on its face, the requirements of CPL 100.30 (1) (d). Here, the Superseding Complaint, corroborated by the Supporting Deposition, has established "reasonable cause to believe" that the Defendant has committed the alleged crime of one count of menacing in the third degree in violation of Penal Law § 120.15, one count of harassment in the second degree in violation of Penal Law § 240.26 (1), and one count of endangering the welfare of a child in violation of Penal Law § 260.10 (1) ( People v. Dumay , 23 N.Y.3d at 518 ). For conversion purpose, this Court finds that the Supporting Deposition is facially sufficient, therefore it converts the Superseding Complaint to an Information. In addition, this Court finds that the Superseding Complaint, corroborated by the Supporting Deposition, is facially sufficient. However, whether the People can prove Defendant's guilt beyond a reasonable doubt is a trial issue, where the People may be required to bring the child Complaining Witness, who is now older than nine years, to testify under oath, and to be cross examined if warranted.
IV.
With respect to speedy trial issue, on a motion to dismiss pursuant to CPL 30.30, a defendant bears the initial burden of demonstrating that the People have exceeded the applicable time to bring the action to trial. If such defendant makes said showing, the burden shifts to the People to establish that certain periods of time should be excluded from the calculation. Speedy time periods are generally calculated based on the most serious offense charged in the accusatory instrument and are measured from the date of the commencement of the criminal action ( CPL 30.30 [1] ). Under CPL 30.30 (1) (b), the People have ninety (90) days to announce readiness when the most serious offense is a class A misdemeanor. Here, menacing in the third degree ( Penal Law § 120.15 ) is a class B misdemeanor and harassment in the second degree ( Penal Law § 240.26[1] ) is a violation. As endangering the welfare of a child ( Penal Law § 260.10[1] ) is a class A misdemeanor, the People must be ready for trial within ninety (90) days from the commencement of the action ( CPL 30.30 [1] [b] ).
The following is Court's analysis of each adjourned period from the filing of the Complaint on June 8, 2019 until the filing of Defendant's Dismissal Motion on September 23, 2019.
June 8, 2019 to July 8, 2019 (30 days)
On June 8, 2019, the Defendant was arraigned on the Complaint. He was released on his own recognizance on People's consent. The People were not ready, and the case was adjourned to July 8, 2019 in Part DV2 for conversion on the Complaint. On June 28, 2019, the People filed and served, off calendar, a Superseding Complaint, a statement of readiness together with the Supporting Deposition. As there was no legal impediment to the People's readiness for trial upon their finding by ADA Sawires that the Complaining Witness was competent to verify an instrument, the People are charged 20 days from June 8, 2019 until the filing of their statement of readiness and the Supporting Deposition on June 28, 2019.
July 8, 2019 to August 15, 2019 (38 days)
On July 8, 2019, in Part DV-2, the Transcripts indicate that the Defendant was arraigned on the Superseding Complaint. The Defendant objected. The People indicated that they had served and filed a statement of readiness on June 28, 2019 and the case was adjourned to DV2 on August 15, 2019 for discovery by stipulation. This time is excluded. ( CPL 30.30 [4][a] ).)
August 15, 2019 to September 26, 2019 (42 days)
On August 15, 2019, the People filed and served discovery by stipulation and the case was adjourned to TRP2 on September 26, 2019 for hearing and trial. On September 23, 2019, defense counsel filed the Dismissal Motion. Discovery by stipulation is in lieu of motion practice and motion time is excluded. This time is excluded. ( CPL 30.30 [4] [a].)
September 26, 2019 to November 12, 2019 (47 days)
On September 26, 2019, the court file indicated that the People were ready while the defense counsel was not ready. The case was adjourned to November 12, 2019 for hearing and trial. This time is excluded.
In summary, the People are charged a total of twenty (20) days of includable time and have not exhausted the speedy trial time of ninety (90) days provided to them by statute.
V.
Defendant's Dismissal Motion is denied in its entirety.
Defendant's motion for leave to make further motions is granted to the extent afforded by CPL 255.20 (3).
This constitutes the DECISION and ORDER of the Court.