Opinion
No. 2023-50967 Docket No. CR-008205-23SU
09-07-2023
People of the State of New York v. Malachi Maloney, Defendant.
Raymond A. Tierney, Esq. District Attorney of Suffolk County Janine Santorelli / Of Counsel District Court Bureau Pierre Bazile, Esq. Attorney for Defendant
Unpublished Opinion
Raymond A. Tierney, Esq. District Attorney of Suffolk County Janine Santorelli / Of Counsel District Court Bureau
Pierre Bazile, Esq. Attorney for Defendant
Eric Sachs, J.
Upon the following papers read on this motion for omnibus relief:
Notice of Motion/xxxxxxxxxxxxxxx and supporting papers X;
Notice of Cross Motion and supporting papers;
Answering Affidavits and supporting papers X;
Replying Affidavits and supporting papers X;
Filed papers;
Other Exhibits X; Certificate(s) of Compliance X
(and after hearing counsel in support of and opposed to the motion) it is,
ORDERED that this motion for omnibus relief by the defendant is decided as follows: The defendant's motion to disqualify the Suffolk County District Attorney's Office and appoint a special prosecutor pursuant to County Law § 701, et al. is DENIED. The defendant's motion to strike the CoC/SoR as illusory pursuant to CPL § 245.50(4) is DENIED. The defendant's motion to dismiss the accusatory instrument as facially defective pursuant to CPL § 170.35(1)(a) and CPL § 100.40 is DENIED. The defendant's motion to deem the People's CoC/SoR invalid pursuant to CPL § 30.30(5-a) is DENIED. The defendant's motion for various discovery is GRANTED. The defendant's motion for Sandoval, Ventimiglia and Molineaux hearings is GRANTED.
On March 17, 2023, the defendant was arrested and charged with one count of Assault in the Third Degree in violation of New York State Penal Law § 120.00(1), a class "A" misdemeanor. He was arraigned on April 6, 2023.
By motion dated June 16, 2023, the defendant now moves this court for an order: (1) disqualifying the Suffolk County District Attorney's Office and appointing a special prosecutor pursuant to County Law § 701, et al.; (2) striking the CoC/SoR as illusory pursuant to CPL § 245.50(4); (3) dismissing the accusatory instrument as facially defective pursuant to CPL § 170.35(1)(a) and CPL § 100.40; (4) deeming the People's CoC/SoR invalid pursuant to CPL § 30.30(5-a); (5) for various discovery and (6) requesting Sandoval, Ventimiglia and Molineaux hearings.
The Court addresses the parties' arguments, below.
A. Motion to Disqualify District Attorney's Office and Appoint a Special Prosecutor
The defendant first moves to disqualify the Suffolk County District Attorney's Office and appoint a special prosecutor pursuant to County Law § 701, et al. (See Def.'s Aff. at Point I, ¶¶ 5-29). In support of his motion, the defendant contends that the Suffolk County District Attorney's Office has a conflict of interest inasmuch as the complainant, in conjunction with his ex parte application for an order of protection, gave false testimony to the line attorney representing the People thereby rendering the line attorney a witness in this case. (Id. at ¶¶ 6-8; Reply at ¶ 3). Specifically, the defendant contends that the complainant's representations to the ADA (e.g., that defendant was not a student at Stony Brook University, that defendant had not been paying rent at the location where they both resided, that the complainant had a "superior proprietary interest" in the shared residency) were false. (Id. at ¶ 6; Reply at ¶ 3). The defendant intends to introduce these false statements to impeach the complainant's credibility. (Id.)
In general, criminal courts have inherent authority to determine whether a district attorney should be disqualified from prosecuting a case and may refer such cases to the superior court in the district to appoint a special district attorney. See County Law § 701; People v Nelson, 167 Misc.2d 665, 668, 647 N.Y.S.2d 438 [Crim Ct, Kings Cnty 1995]. Notably, however, "[a] court may not lightly undertake to disqualify a district attorney, since a constitutional officer chosen by the electorate and whose removal by a court implicates separation of powers considerations." People v Marrano, 78 Misc.3d 1235(A), 187 N.Y.S.3d 583 [Crim Ct, Warren Cnty 2023] [internal citations omitted]. Rather, "courts...should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence." People v Zimmer, 51 N.Y.2d 390, 434 N.Y.S.2d 206 [1980]. Thus, a defendant seeking disqualification of a District Attorney and appointment of a special prosecutor must "demonstrate actual prejudice or so substantial a risk thereof as could not be ignored." People v Fountain, 55 Misc.3d 211, 217-18, 42 N.Y.S.3d 772 [Rensselaer Cnty 2016] [internal citations omitted]. Moreover, the burden is on the defendant to show actual prejudice. People v Johnson, 20 A.D.3d 808, 799 N.Y.S.2d 276 [3d Dep't 2003].
In this case, the defendant has failed to sustain his burden. Even assuming, arguendo, that the complainant made false statements to the line attorney in conjunction with the ex parte application for an order of protection, that would render the line attorney subject to cross-examination and potentially conflicted. The defendant has stated no basis to disqualify the entire Suffolk County District Attorney's Office as a result of the conflict.
The defendant's motion to disqualify the Suffolk County District Attorney's Office is DENIED. This Court declines to refer the case to the superior (supreme) court to recommend appointment of a special prosecutor.
In light of the fact that the line attorney does not appear to be assigned to this case presently, the defendant's motion to disqualify the individual line attorney is DENIED, subject to renewal in the event that line attorney appears on the case in the future. In the event the defendant seeks to cross-examine the line attorney who handled the ex parte application for an order of protection, this Court will hear the People's hearsay objection at that time.
B. Motion to Strike the CoC/SoR
The defendant next contends that the People's CoC/SoR, filed on April 6, 2023 is invalid because the People failed to disclose discoverable material as required by CPL § 245.20 in that they failed to provide: (1) a complete set of medical records (see Def.'s Aff. at Point II, ¶ 65) and (2) records related to the complainant's ex parte order of protection (see Def.'s Aff. at Point II, ¶ 66).
In their opposition, the People argue that they have disclosed all records in their possession. Specifically, the People contend that (1) that they are in possession of no documents pertaining to the ex parte order of protection, except for the order itself, which was previously provided to the defendant at his April 6, 2023 arraignment and (2) they do not need medical records to certify an Assault in the Third Degree case, but the People nevertheless provided a one page record from Mather Memorial Hospital that has all the information regarding the victim's injuries. (See People's Mem. of Law, at Point II, pp. 8-9).
CPL article 245 requires the People to serve and file a CoC with the court prior to stating readiness under CPL § 30.30 [ see CPL § 245.50[3]]. In order for the People to be ready for trial, the People must: "(1) file a certificate of good faith discovery compliance; (2) file a valid statement of readiness; and (3) certify the facial sufficiency of the accusatory instrument." (People v Ramirez-Correa, Docket CR-018674-20QN [Crim Ct, Queens Cnty 2021]).
This Court accepts the People's representation that they are not in possession of any additional records pertaining to the complainant's ex parte application for a protective order, and that they made a good faith, diligent effort to determine whether such exists. Should the People seek to introduce at trial additional records pertaining to the complainant's ex parte application for a protective order, the defendant may renew his motion.
This Court also accepts the People's representation that they are not in possession of any additional medical records relating to the complainant, as such records (if any exist), are in the possession of a third-party medical provider. Pursuant to CPL § 245.20(2), the People are required to "make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control." CPL § 245.20(2). However, the statute further provides that "that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain." Id.
While the People may be correct that they do not need medical records to prove their case at trial (and therefore they have no obligation to subpoena the complainant's remaining medical records), in this case, they have disclosed a single medical record (a summary sheet). To the extent the People intend to use the single medical record disclosed, it is the opinion of this Court that such single record is inadmissible without the admission of a complete set of relevant medical records; thus, if the People intend to use the summary sheet, the defendant is entitled to discovery as to whether additional relevant records exist. In addition, while in general, the People have no obligation to subpoena medical records, this Court will deem disclosure of a complete set of medical records on the eve of trial to be late disclosure.
All parties are directed to appear before this Court for a hearing on the issue of which medical records the People intend to use in this case.
Accordingly, the defendant's motion to strike the CoC/SoR is DENIED, subject to renewal after the hearing.
C. Motion to Dismiss For Facial Insufficiency
Next, the defendant argues that the accusatory instrument is insufficient on its face because "each and every element of the offense charged is not supported by a non-hearsay allegation contained in the information" and therefore must be dismissed pursuant to CPL 170.35(1). (See Def.'s Aff. at Point III, ¶¶ 68-90).
In general, in order for a misdemeanor information to be facially sufficient, the information must meet three requirements: (1) it must state "facts of an evidentiary character supporting or tending to support the charges," [CPL § 100.15(3)]; (2) "[t]he allegations of the factual part...together with those of any supporting depositions... provide reasonable cause to believe that the defendant committed the offense charged" [CPL § 100.40(1)(b)] and (3) the "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 the defendant's commission thereof." [CPL § 100.40(1)(c)]. Moreover, "failure to comply with the 'prima facie case' requirement for facial sufficiency in CPL § 100.40(1)(c) and § 100.15(3) is a jurisdictional defect." People v Pearson, 78 A.D.3d 445, 445, 914 N.Y.S.2d 2, 3 [1st Dep't 2010]. Accord, People v Banville, 134 A.D.2d 116, 523 N.Y.S.2d 844, 846 [2d Dep't 1988] ["a valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to criminal prosecution"].
Courts have held that "[s]o long as the factual allegations of an information 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 Casey, 95 N.Y.2d 354, 360 [2000].
In this case, the defendant is charged with Assault in the Third Degree in violation of New York State Penal Law § 120.00(1), which provides, in pertinent part: "[a] person is guilty of assault in the third degree when with intent to cause physical injury to another person, [the person] causes such injury to such person or to a third person...." Penal Law § 120.00(1).
To prove that the defendant committed the offense charged, the People must establish: that the defendant (1) intended; (2) to cause physical injury; (3) to another person and (4) in fact caused such injury to such person (or to a third person).
In this case, the factual portion of the misdemeanor information states as follows:
***
To Wit: THE DEFENDANT, DURING THE COURSE OF A VERBAL DISPUTE, DID CAUSE PHYSICAL INJURY TO THE VICTIM, [NAME AND DOB], BY PUNCHING THE VICTIM IN THE NOSE WITH A CLOSED FIST CAUSING SUBSTANTIAL PAIN, SWELLING AND FRACTURED NASAL BONES AND MAXILLARY SINUS REQUIRING MEDICAL ATTENTION AT MATHER HOSPITAL.(Def.'s Aff., Ex. A).
Moreover, the supporting deposition of the complainant, set forth the following:
ON MARCH 13TH 2023, AT APPROXIMATELY 01:00 PM, WHILE INSIDE MY RESIDENCE LOCATED AT [ADDRESS], I GOT INTO AN ARGUMENT WITH MY HOUSEMATE [DEFENDANT'S NAME AND DOB], WHILE IN THE KITCHEN. [DEFENDANT] BEGAN TO GET IN MY FACE YELLING AT ME, INSULTING ME, ESCALATING THE SITUATION...HE THEN GOT PHYSICAL WITH ME PUNCHING ME WITH A CLOSED FIST WITH HIS RIGHT HAND TWICE IN MY NOSE. THIS CAUSED ME TO HAVE SUBSTANTIAL PAIN IN MY NOSE AND FACE...ON MARCH 14TH, 2023 I RESPONDED TO MATHER HOSPITAL WHERE THE HOSPITAL STAFF TOOK X-RAYS OF MY NOSE FROM [DEFENDANT] PUNCHING ME IN THE FACE. THE DOCTORS DIAGNOSED ME WITH A NASAL FRACTURE AND A DISLOCATED MAXILLARY SINUS. I AM ALSO STILL HAVING SUBSTANTIAL PAIN FROM THIS INCIDENT AND I DO NOT WISH TO PURSUE CHARGES AGAINST [DEFENDANT] FOR CAUSING ME TO HAVE PHYSICAL INJURY.(Def.'s Aff., Ex. B).
This Court finds that the misdemeanor information is facially sufficient. The allegations of the factual part of the accusatory instrument, together with those of the victim's supporting depositions, if true, provide reasonable cause to believe that the defendant committed the offense charged, see CPL § 100.40(1)(b)] and the "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 the defendant's commission thereof." CPL § 100.40(1)(c). Specifically, the accusatory instrument, together with the supporting deposition contain allegations that, if true, establish that the defendant (1) intended; (2) to cause physical injury; (3) to another person and (4) in fact caused such injury to such person.
The defendant's argument, that the accusatory instrument is facially insufficient because the defendant's allegations of substantial pain (i.e., a fracture and dislocated maxillary sinus) are hearsay allegations, is meritless. (See Def.'s Aff. at Point III, ¶¶ 73-74).
It is black letter law that physical injury is a necessary element of third-degree assault (Penal Law § 120.00[1]), and the penal law defines "physical injury" as "impairment of physical condition or substantial pain." (Penal Law § 10.00[9]). However, courts have held that a complainant's mere invocation of the term "substantial pain" is not, itself, sufficient to establish Assault in the Third Degree. See, e.g., People v Lugo, 47 Misc.3d 1222[A], at *2, 16 N.Y.S.3d 793 [Crim Ct, Bronx Cnty 2015] [noting that "substantial pain, standing alone, does not establish" physical injury]; People v Perez, 40 Misc.3d 448, 450-51, 965 N.Y.S.2d 702 [Crim Ct, Queens Cnty 2013] [same]; People v Dipoumbi, 23 Misc.3d 1127[A], at *2, 889 N.Y.S.2d 506 [Crim Ct, NY Cnty 2009] [same]; see also People v A.S., 28 Misc.3d 381, 383-85, 900 N.Y.S.2d 634 [Crim Ct, NY Cnty 2010] [finding facial insufficiency where the information alleged a shove and punch, resulting in substantial pain, but failed to describe any of the alleged injuries]). Rather, to render the accusatory instrument facially sufficient, the information should allege "facts that objectively support the claim of substantial pain." People v Harris, 78 Misc.3d 1206(A), 183 N.Y.S.3d 730 [Crim Ct, Queens Cnty 2023].
In this case, the information states that the defendant punched the victim in the nose with a closed fist causing substantial pain, swelling and caused the victim to present at the hospital. (Def.'s Aff., Ex. A). It is the opinion of this Court that those allegations alone, without the victim's statement of his medical diagnosis (fractured nasal bones and maxillary sinus), are sufficient to render the accusatory instrument facially sufficient. See People v Cruz, 22 Misc.3d 1110(A), 880 N.Y.S.2d 226 [Dist Ct, Nassau Cnty 2009] [concluding that statement in information that defendant dislocated victim's left elbow and shoulder was medical testimony and thus hearsay; holding that accusatory instrument was nevertheless facially sufficient to sustain assault charge where information stated that victim incurred substantial pain and received medical care after attack]. Accord, People v Carter, 76 Misc.3d 1206(A), 173 N.Y.S.3d 476 [Crim Ct, Kings Cnty 2022] [accusatory instrument was facially sufficient where complainant asserted that she was in substantial pain as a result of being punched in the face by the defendant with a closed fist which resulted in swelling to her face]; and People v Henderson, 92 N.Y.2d 677 [1999] [finding facial sufficiency where an information alleged "substantial pain," "contusions," and "swelling" after the complainant was kicked]).
Accordingly, the Court finds that the accusatory instrument is facially sufficient and not jurisdictionally defective.
C. Motion to Strike CoC/SoR as Defective Pursuant to CPL § 30.30(5-a)
In addition, the defendant contends that the People's CoC, filed on April 6, 2023, does not comport with CPL § 30.30(5-a). (See Def.'s Aff. at Point IV, ¶¶ 91-92).
Pursuant to CPL § 30.30(5-a), "a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charges in the accusatory instrument meet the requirements of section 100.15 and 100.40 of this chapter and those counts not meeting the requirements of section 100.15 and 100.40 of this chapter have been dismissed."
Based on this Court's independent review of the People's CoC, this Court has determined that the People's CoC/SoR does, in fact, contain the requisite language; the required language appears in the last paragraph of the CoC/SoR (in the paragraph after the checked box).
To the extent the defendant contends that the certification language contained in the CoC/SoR is improper because the accusatory instrument itself is facially insufficient, this Court has concluded that the accusatory instrument is, in fact, facially sufficient for the reasons discussed above.
Accordingly, the defendant's motion to strike the April 6, 2023 CoC/SoR as invalid is denied.
D. Motion for Discovery
Finally, the defendant moves this Court for an order that the People comply with their obligations pursuant to (1) People v Sandoval; (2) People v Ventimiglia and People v Molineux; and (3) Brady v Maryland. (See Def.'s Aff. at Point V, ¶¶ 93-96).
The defendant's motion for disclosure of Brady materials is GRANTED to the extent that, in the event that, in exercising its obligation of due diligence, the People obtain or discover any exculpatory materials, then the People are required to promptly disclose such exculpatory materials to the defendant to the extent they have not already done so.
The defendant's motion seeking to obtain notice from the People of any proposed trial issues pursuant to Ventimiglia or Sandoval or Molineux and their respective progeny is GRANTED, to the extent that, in the event that, in exercising its obligation of due diligence, the People obtain or discovery disclosable materials, the People are directed to provide such notice to the defendant no later than fifteen (15) business days prior to the trial date of this action.
E. Request for Hearings
The People have consented to the defendant's motion for Sandoval, Ventimiglia and Molineaux pre-trial hearings. (See Peoples Mem. of Law, Point V). Accordingly, the defendant's motion for such hearings is GRANTED, as unopposed.
By reason of the foregoing, the defendant's motion to disqualify the Suffolk County District Attorney's Office and appoint a special prosecutor pursuant to County Law § 701, et al. is DENIED. The defendant's motion to strike the CoC/SoR as illusory pursuant to CPL § 245.50(4) is DENIED. The defendant's motion to dismiss the accusatory instrument as facially defective pursuant to CPL § 170.35(1)(a) and CPL § 100.40 is DENIED. The defendant's motion to deem the People's CoC/SoR invalid pursuant to CPL § 30.30(5-a) is DENIED. The defendant's motion for various discovery is GRANTED. The defendant's motion for Sandoval, Ventimiglia and Molineaux hearings is GRANTED.
This shall constitute the decision and Order of the Court.