Opinion
Docket No. CR-002434-23KN
06-28-2023
The People of the State of New York v. Steven Mackie, Defendant.
Eric Gonzalez, District Attorney, Kings County, Molly A. Sheehan, Esq., Assistant District Attorney Brooklyn Defender Services, Harley Levinsons, Esq., of counsel, for the Defendant.
Unpublished Opinion
Eric Gonzalez, District Attorney, Kings County, Molly A. Sheehan, Esq., Assistant District Attorney
Brooklyn Defender Services, Harley Levinsons, Esq., of counsel, for the Defendant.
Patrick Hayes Torres, J.C.C.
Defendant was charged with Assault in the Third Degree Penal Law §120.00 (1) among other charges.Defendant now moves to dismiss the accusatory instrument as facially insufficient. For the reasons set forth below, the defendant's motion is denied.
Procedural History
On January 21, 2023, the defendant was arraigned on a misdemeanor complaint, charging him with Assault in the Third Degree Penal Law §120.00 (1); Menacing in the Second Degree, Penal Law §120.14 (1), Criminal Mischief in the Fourth Degree, Penal Law §145.00 (1); Menacing in the Third Degree, Penal Law §120.15.
When a defendant is charged with a misdemeanor punishable by a sentence of imprisonment of more than three months, the People must declare readiness to proceed to trial within 90 days of the filing of the accusatory instrument. CPL §30.30 (1) (b), CPL §245.50 (1), CPL §245.50 (3), CPL §30.30 (5), CPL §30.30 (5-a).
On March 29, 2023, the People served a superseding information ("SSI"), mandatory discovery materials, a COC, and A Statement of Readiness for trial, ("SOR") off calendar. The SSI added an additional complainant, a second count of Assault in the Third Degree, Attempted Assault in the Third Degree, and Endangering the Welfare of a Child, Penal Law §260.10 (1).
The defense waited more than 1 month to file their instant motion asserting that the People failed to file a facially sufficient accusatory instrument as required by CPL §§100.15 (3) and 100.40 (1) (c) and that the accusatory instrument must be dismissed pursuant to CPL §170.30 (1) (a), §170.35 (1) (a) and §30.30. The defense claimed that Criminal Mischief in the Fourth Degree, Menacing in the Third Degree and Endangering the Welfare of a Child were not facially sufficient.
The SSI states in relevant part as follows:
Deponent is informed by JWF that, at the above time and place, the defendant did grab a can of Raid Roach Spray Defendant extended Defendant's arm and spraid the informant about the face, and the Defendant took the informant's cell phone and threw it down to the ground and stepped on said cell phone.
The deponent is further informed by informant JWF that the above-described actions caused informant to suffer irritation to the eyes and trouble breathing, to suffer substantial pain, to fear further physical injury and to become alarmed and annoyed.
The Deponent is further informed by informant JWF that the informant is the custodian of the above-described property, and that the defendant did not have permission or authority to damage that property.
The Deponent is further informed by informant JC, that, at the above time and place, the defendant did spray the above -mentioned roach spray about the informant's face and did grab the informant about the arm.
The Deponent is further informed by informant JC that the above-described actions caused informant JC to suffer pain and irritation to the eyes and pain to the arm, to suffer substantial pain, to fear further physical injury, and to become alarmed and annoyed.
The Deponent is further informed by informant JC that informant's child, JF was present at the above time and place.
The Deponent is further informed by informant JC that informant's child's date of birth is xx/xx/ 2022.
On May 23, 2023, the People filed opposition to the motion.
At issue here is whether the charges of Criminal Mischief in the Fourth Degree, Menacing in the Third Degree and Endangering the Welfare of a Child are facially sufficient.
Facial Sufficiency
A sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution. People v Case, 42 N.Y.2d 98 (1977). A legally sufficient misdemeanor information must substantially conform to the requirements prescribed in CPL §100.15 and CPL §100.40 (1) (a). Every information must contain an accusatory part and a factual part (CPL §100.15 (1) and the factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges (CPL §100.15 [3]).
The requirement that an accusatory instrument contain nonconclusory allegations is part of the prima facie case requirement. People v Jackson, 18 N.Y.3d 738, 746 (2012) . The requirement of a prima facie case does not necessitate that the Information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 115, (1986). A court reviewing an accusatory instrument for facial sufficiency must assume that the factual allegations are true and "the basis for such an allegation can be discerned by drawing reasonable inferences from all the facts in the accusatory instrument." People v Jackson, 18 N.Y.3d 738, 747 (2012), People v Casey, 95 N.Y.2d 354, 360 (2000). "So long as the factual allegations give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." (People v Konieczny, 2 N.Y.3d 569, 575, [2004] quoting People v Casey. 95 N.Y.2d 354, 360 [2000]).
Criminal Mischief in the Fourth Degree, Penal Law §145.00 (1)
Penal Law §145.00 (1) states: "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, he or she: (1) intentionally damages property of another person."
In the instant case, the accusatory instrument provided sufficient notice for defendant to prepare a defense. The accusatory instrument stated that during defendant offense he grabbed a can of Raid extended his arms and sprayed the complainant in the face and then grabbed the complainants cell phone and the threw the said cell phone on the floor and then stepped on the said phone. Further, the accusatory instrument stated that defendant did not have permission or authority to damage the said cell phone. The allegation of damage to the cell phone can be discerned by drawing reasonable inferences from all the facts in the accusatory instrument. Thus, satisfying the elements of Criminal Mischief in the Fourth Degree by alleging that defendant intentionally damaged the phone of another, which was the complainant's cell phone.
The case of People v Washington, 46 Misc.3d 1210(A) (Crim. Ct. New York County 2015) is similar to the instant matter. In Washington the defendant kicked the complainant's door causing the chain lock to become damaged. The Washington court reasoned that the evidentiary character of what the complainant observed, heard, and experienced was a non-conclusory description. The Washington court reasoned that the damaged chain can be derived by inference from the fact that the defendant kicked the door that was attached to the chain lock.
In this case the accusatory instrument stated that defendant grabbed a can of Raid extended his arms and sprayed the complainant in the face and then grabbed the complainant's cell phone and threw the said phone on the floor and then stepped on the said cell phone. The intent to damage the cell phone can be discerned from the defendant's act. The factual allegation in the accusatory instrument alleged that defendant after spraying Raid on complainant, grabbed complainant's cell phone, threw the cell phone on the floor, and then stepped on the cell phone. The accusatory instrument further identified what was damaged and how defendant is alleged to have damaged the cell phone. It therefore provides defendant with "notice sufficient to prepare a defense and [is] adequately detailed to prevent [him] from being tried twice for the same offense." People v Casey, 95 N.Y.2d 354, 360 (2000). Therefore, the defendant's motion to dismiss the charge of Criminal Mischief in the Fourth Degree, Penal Law §145.00 (1) as facially insufficient is denied.
Menacing in the Third Degree, Penal Law §120.15
Penal Law §120.15 states that a "a person is guilty of Menacing in the Third Degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury." The "physical menace" requires a physical act of some sort, whether accompanied by words or not; however, words alone will not suffice. See In Re Mondy E., 121 A.D.3d 785 (2nd dept 2014) (Verbal threats to knock complainant's glasses off was not sufficient to sustain menacing) In re Jacob S., 77 A.D.3d 523, 524 (1st Dept. 2010) ("Appellant's offensive comment, by itself, was insufficient to support the charge, which requires 'physical menace'"); People v Amakaye, 65 Misc.3d 128(A) (App Term 1st Dep't 2019) (Accusatory instrument was jurisdictionally defective, since it failed to allege any threatening behavior); People v Vega, 46 Misc.3d 144 (A) (App. Term 2nd Dep't 2015) (Verbal threats do not establish the offense, some physical act is required.)
In the instant case the factual allegation relating to the charge of Menacing in the third degree alleged the physical act. The allegation in the accusatory instrument is that defendant grabbed a can of Raid and extended his arm towards the complainant. Thus, establishing the physical act that is necessary for Menacing in the Third Degree. The fact that defendant then sprayed the toxic fumes of Raid on complaint's face while grabbing the complainant's arm established the other charges such as Assault in the Third Degree. Thus, defendant was on notice to charge of Menacing in the Third Degree which would have allowed defendant to prepare a defense. Therefore, the defendant's motion to dismiss the charge of Menacing in the Third Degree as facially insufficient is denied.
Penal Law §260.10 (1) Endangering the Welfare of Child
A person is guilty of endangering the welfare of a child in pertinent part when: "[h]e or she knowingly acts in a manner likely to be injurious to the physical, mental, or moral welfare of a child less than seventeen years old..." Penal Law 260.10 (1) The Court of Appeals has noted that when evaluating the sufficiency of Penal Law §260.10 (1) Endangering the Welfare of Child that its sufficient to show the "defendant acted in a manner which is likely to result in harm to the child" and not necessary to show actual harm to the child for criminal liability to attach. See, People v. Johnson, 95 N.Y.2d 368, 371 (2000); People v Hitchcock 98 N.Y.2d 586 (2002).
The People need only assert that defendant engaged in conduct that is likely to result in harm to a child (i.e., with an awareness of the potential for harm.)" People v. Johnson, 95 N.Y.2d 268, 371 (2000); People v Villatoro 44 Misc.3d 133 (A) (2d Dept 2014); People v Lowe, 47 Misc.3d 843 Crim Ct., New York County 2015).
Assuming the factual allegations are true it is reasonable to infer that defendant committed an act likely to be injurious to a child. It's difficult to imagine that the defendant would not be aware that releasing toxic fumes from a can of Raid at the complainant, while a 6-month-old child was present, would likely be injurious to the child. Raid is a pesticide that is used to exterminate insects and bugs that has side effects that are harmful to humans. The factual allegations demonstrated the harmfulness of releasing the toxic fumes of Raid when the complainant sustained eye irritation, difficulty breathing and pain.
Thus, spraying Raid on complainant's face while the 6-month-old child was present was sufficient to charge defendant with Endangering the Welfare of a Child. The factual allegation provided defendant with sufficient notice to prepare a defense and is adequately detailed to prevent defendant from being tried twice for the same offense. Therefore, the defendant's motion to dismiss the charge of Endangering the Welfare of a Child as facially insufficient is denied.
In sum, defendant's motion to dismiss the accusatory instrument is denied. The accusatory instrument, charging defendant with Criminal Mischief in the Fourth Degree, Menacing in the Third Degree and Endangering the Welfare of a Child, is facially sufficient and the Statement of Readiness is valid under CPL §30.30 (5-a).
The foregoing constitutes the opinion, decision, and order of the Court.