Opinion
2003-924 WCR.
Decided September 30, 2005.
Appeal from a judgment of the City Court of Mount Vernon, Westchester County (Adam Seiden, J., at plea; Brenda D. Rodriguez, J., at sentence), rendered June 12, 2003. The judgment convicted defendant, upon his plea of guilty, of assault in the third degree.
Judgment of conviction unanimously affirmed.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ.
Defendant was initially charged in a felony complaint with one count of assault in the second degree (Penal Law § 120.05) and one count of resisting arrest (Penal Law § 205.30) based upon his interference with the complainant police officer's investigation and lawful arrest of another. A superseding felony complaint was filed shortly after arraignment and only charged defendant with assault in the second degree, a class D felony. In the superseding complaint, the complainant police officer alleged that defendant, with intent to prevent complainant from performing a lawful duty, caused physical injury to complainant. The felony complaint provided, in pertinent part, as follows:
"The defendant(s) . . . with intent to prevent Police Officer Fox from making a lawful arrest of Joann [ sic] Gardner for the crime of assault in the second degree did intentionally push and tackle Police Officer Fox while Police Officer Fox was attempting to make an arrest of Joan [ sic] Gardner causing Police Officer Fox to fall backwards striking his head against a wall causing a laceration to the forehead of Police Officer Fox which required treatment at Mount Vernon Hospital Emergency Room and requiring four stitches to close the wound."
Subsequent thereto, defendant appeared in court with counsel. At that time, the court granted the People's motion to deem the superseding felony complaint a misdemeanor complaint charging defendant with assault in the third degree (Penal Law § 120.00), a class A misdemeanor. The court made the requisite notations on the complaint and modified the factual portion thereof by deleting the allegation that defendant "caused physical injury to such peace officer, police officer, fireman, paramedic or technician" and substituting the allegation that defendant caused "substantial pain to a police officer." As a result thereof, defendant agreed to plead guilty to the reduced charge. Defendant was properly allocuted and admitted signing and understanding the misdemeanor waiver of rights form.
Defendant on this appeal, in essence, contends that the initial felony complaint was facially insufficient and, as a result thereof, the court failed to acquire jurisdiction.
A felony complaint is a verified accusation filed with a local criminal court which charges a defendant with one or more felonies and "which serves to commence a criminal action but not as a basis for prosecution thereof" (CPL 1.20; see also CPL 1.20, [2]). The filing of a felony complaint merely vests the court with preliminary jurisdiction so as to commence the criminal action and to allow the court to conduct proceedings "which lead or may lead to prosecution and final disposition of the action in a court having trial jurisdiction thereof" (CPL 1.20; see also CPL 1.20). A felony complaint, or a count thereof, is sufficient when it substantially conforms to the requirements of CPL 100.15 and the allegations of the factual part and/or any supporting depositions which may accompany it, provide reasonable cause to believe that defendant committed the offense charged in the accusatory part (CPL 100.40). The factual part "must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15).
As relevant herein, a person is guilty of assault in the second degree (Penal Law § 120.05) when, with intent to prevent a police officer from performing a lawful duty, he causes physical injury to such police officer.
In the case at bar, the allegations in the initial felony complaint were sufficient to provide reasonable cause to believe that defendant committed the crimes charged and were of such an evidentiary character as to support or tend to support the charges ( see CPL 100.15; 100.40 [4]). The superseding felony complaint contained a more detailed factual description of the incident including evidentiary facts which further supported the charge of assault in the second degree (CPL 1.20; 100.05).
The reduction of the charge to assault in the third degree was in compliance with the procedures set forth in section 180.50 of the Criminal Procedure Law. The court, upon granting the People's motion to reduce the felony complaint, properly determined that the allegations in the complaint were sufficient to support the misdemeanor charge of assault in the third degree and converted the felony complaint to a misdemeanor complaint by making the appropriate notations thereon ( see CPL 180.50 [a] [iii], [b]). It should be noted that the court did not change an element of the crime by substituting the allegation of "substantial pain" in place of "physical injury" when it converted the felony complaint, since section 10.00 (9) of the Penal Law defines "physical injury" to mean impairment of physical condition or substantial pain.
In view of the foregoing, the judgment of conviction should be affirmed.