Opinion
No. 2014NY042622.
10-21-2014
The PEOPLE of the State of New York v. David MILLER, Defendant.
For the Defendant, Cohen and Forman, LLP by David J. Cohen, Esq. For the People: Cyrus R. Vance, Jr., New York County District Attorney, by ADA Sarah Walsh.
For the Defendant, Cohen and Forman, LLP by David J. Cohen, Esq.
For the People: Cyrus R. Vance, Jr., New York County District Attorney, by ADA Sarah Walsh.
Opinion
STEVEN M. STATSINGER, J.
This case requires the Court to consider the facial sufficiency of an Information in which all of the facts tending to demonstrate that an offense was committed and that defendant is the person who committed it are circumstantial.
Defendant, charged with Assault in the Third Degree, in violation of Penal Law § 120.00(1) and (2), Attempted Assault in the Third Degree, in violation of Penal Law § 110/120.00(1), and Harassment in the Second Degree, in violation of Penal Law § 240.26(1), moves to dismiss. For the reasons set out below, the motion to dismiss is GRANTED. Sealing is stayed for 30 days.
In deciding this motion, the Court has considered defendant's motion papers, the People's opposition and the relevant statutes and cases.
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I. FACTUAL BACKGROUND
A. The Allegations
Early in the morning of June 5, 2014, Police Officer Annalee Simon arrived at a Manhattan apartment soon after receiving a radio run. On scene, the officer saw the complainant, defendant's wife, visibly upset and cleaning fresh blood from her nose. Defendant was the only other person in the apartment.
B. Legal Proceedings
Defendant was arraigned on June 5, 2014, on a Misdemeanor Complaint charging him with two counts of Assault in the Second Degree (Penal Law §§ 120.00(1) and (2) ), and one count each of Attempted Assault in the Third Degree (Penal Law §§ 110/120.00(1)) and Harassment in the Second Degree (Penal Law § 240.26(1) ). The Court released the defendant and adjourned the case to July 17, 2014, for conversion.
On July 17, 2014, the People moved to strike from the Misdemeanor Complaint statements attributed to the complainant for which the People lacked corroboration. The Court granted the motion, and deemed the instrument an Information, observing-in response to defense counsel's oral motion to dismiss-that whether it was facially sufficient should be the subject of written motion practice. Defense counsel filed the instant motion to dismiss on September 8, 2014, and the People responded on September 17. The matter has been sub judice since then.
II. THE ACCUSATORY INSTRUMENT
The Information, sworn out Officer Simon, provides that on June 5, 2014:
I responded to a radio run for an assault in progress at [42 Jane Street, New York County] at approximately 2:11 a.m. When I arrived on scene approximately four minutes later, I observed that Ms. Andreea Miller ... was visibly upset in that she was shaking, crying, breathing heavily, while cleaning fresh blood from her nose. I observed that the defendant was the only other individual inside of the above location.
III. DISCUSSION
Defendant argues that the Information fails to make out a prima facie case that he committed any of the charged offenses. He argues that “[t]he mere observation of a police officer that a particular person had an alleged physical injury is wholly insufficient, without more, to charge another individual with having caused such an alleged injury.” The defendant is correct.
Determining facial sufficiency in a circumstantial assault case poses an unusual challenge because of the variety of ways that a person can be injured. Here, the Information alleges that a police officer entered an apartment and saw only two people, the complainant, who was injured, and the defendant, who was not. There are five primary inferences that can be drawn: (1) defendant intentionally injured the complainant; (2) defendant recklessly injured the complainant; (3) defendant accidentally injured the complainant; (4) the complainant caused her own injury, either deliberately or accidentally, and; (5) a third person, no longer present when the officer arrived, injured the complainant. Only the first two of these could lead to a finding that there is reasonable cause to believe that defendant committed a criminal offense. Here, the Court agrees with the defendant that the Information fails to make out a prima facie circumstantial case sufficient to support either of the first two of these inferences.
A. Facial Insufficiency in General
A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518 (2014) ; People v. Alejandro, 70 N.Y.2d 133, 138–39, 517 N.Y.S2d 927, 930–31, 511 N.E.2d 71, 74 (1987). Accordingly, a misdemeanor Information must set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof.” People v. Kalin, 12 NY3d 225, 228–29, 906 N.E.2d 381, 383, 878 N.Y.S.2d 653, 655 (2009) (citing People v. Henderson, 92 N.Y.2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40(1)(c) ). This is known as “the prima facie case requirement.” Kalin, 12N.Y.3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.
The prima facie case requirement 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, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (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 N.Y.2d 354, 360, 717 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (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, 944 N.Y.S2d 715, 721–22, 967 N.E.2d 1160, 1166–67 (2012). See also Casey, 95 N.Y.2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236.
B. The Sufficiency of Circumstantial Pleadings
1. Indictments
The legal standard for trial sufficiency in any circumstantial case is well known: “A jury, faced with a case in which the proof of a particular charge, or element thereof, consists entirely of circumstantial evidence, must exclude to a moral certainty every other reasonable hypothesis.” People v. Reed, 22 NY3d 530, 534, 6 N.E.3d 1108, 1111, 983 N.Y.S.2d 752, 755 (2014) (citations and internal quotation marks omitted). But the “moral certainty” standard does not apply to a pleading. Where a defendant is charged by indictment, even in a wholly circumstantial case, the indictment is sufficient “as long as the Grand Jury could rationally have drawn the guilty inference; the standard that every hypothesis but guilt be excluded to a moral certainty' is to be applied only by the trier of fact.” People v. Burrell, 236 A.D.2d 240, 653 N.Y.S.2d 565 (1st Dept.1997) (quoting People v. Jennings, 69 N.Y.2d 103, 504 N.E.2d 1079, 512 N.Y.S.2d 652 (1986).
2. Misdemeanor Informations
What is true for an indictment is also true for a misdemeanor information: A circumstantial misdemeanor accusatory instrument does not need to exclude all innocent inferences to a moral certainty. Rather, as with any misdemeanor information, one that pleads a circumstantial case is facially sufficient where the court reviewing it finds that there is reasonable cause to believe that the offense or offenses charged occurred and that the defendant committed them. E.g., People v. Hightower, 18 NY3d 249, 254, 961 N.E.2d 1111, 1113, 938 N.Y.S.2d 500, 502 (2011).
This case accordingly turns on an examination of reasonable cause. 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). The terms “reasonable cause” and “probable cause” are generally considered synonymous. People v. Omowale, 83 AD3d 614, 618 (1st Dept 2011) ; People v. Lloyd, 31 Misc.3d 1223(A) at *2 (Just. Ct Town of Webster (2011)). For either to exist, the evidence must be strong enough to support a finding that it was more likely than not that the defendant committed an offense. People v. Mercado, 68 N.Y.2d 874, 877 (1986) (probable cause existed where it was “more probable than not” that criminal activity was taking place); People v. Carrasquillo, 54 N.Y.2d 248, 254 (1981) (probable cause for an arrest requires facts establishing that it is “at least more probable than not that a crime has taken place and that the one arrested is its perpetrator”); People v. Carpenter, 213 A.D.2d 747 (3d Dept 1995) (reversing denial of suppression motion where search warrant affidavit did not establish that it was “more probable than not” that defendant was selling drugs out of the target location); People v. Skrine, 125 A.D.2d 507 (2d Dept 1986) (where defendant was one of several people matching description in radio run, evidence failed to establish that it was “more likely than not” he was the person who committed the crime); People v. Miranda, 106 A.D.2d 407, 409 (2d Dept 1984).
Carrasquillo instructs that “conduct equally compatible with guilt or innocence will not suffice” to establish probable cause. 54 N.Y.2d at 254. Accordingly, when the facts are in equipoise-that is, so evenly balanced such that there can be no finding that the necessary inference of criminality is more likely true than not-there can be no finding of reasonable cause or probable cause. See, e.g., United States v. Martinez, 643 F3d 1292, 1299 (10th Cir.2011) (affirming lower court's conclusion that, where evidence was in equipoise as to whether exigent circumstances existed, warrantless search was unlawful).
Accordingly, if the allegations in a misdemeanor information create a complete equipoise between the inference of guilt and any innocent inferences, there can be no basis for a finding of reasonable cause. This Court examined such an equipoise situation in People v. David, 44 Misc.3d 1212(A), 2014 WL 3583535 (Crim. Ct. New York County 2014). There, a police officer placed two individuals in an otherwise empty holding cell in a station house then noticed a bag of drugs on the floor of the cell. The Court dismissed an Information that charged one of those individuals with possessing the drugs:
The only reasonable inference that can be drawn from the facts in the Information is that either defendant or the ... individual with whom he shared a holding cell dropped a bag of cocaine to the floor. However, absent any fact that would tend to show that it was the defendant, and not the other person, who did so ... the Information is facially insufficient.
This “perfectly balanced” evidence reflected an “an exact fifty percent chance that either defendant or the other person did it, and the Information contain[ed] no fact that might tip the scale, even slightly, in favor of the conclusion that it was more likely than not the defendant.” Id. at *3.
C. The Information Here is Facially Insufficient
Here, as in David, for the Information to be facially insufficient it must allege some fact that renders an inference of guilt more likely, even if only slightly, than the other inferences. The Court concludes that such no additional fact is present and the Information is facially insufficient.
The entirety of the allegations in the Information is that the officer observed the complainant upset and bleeding in an apartment, and that the defendant was also present. But there is simply nothing to make the inference that defendant himself both caused the complainant's injury and that he did so either intentionally or recklessly, and not accidentally, any more likely than the other available inferences. The inferences that the complainant injured herself, perhaps by tripping or running into something, or that a third person injured her are equally likely on these facts. In particular, the Court notes that, while no one else was present when the officer arrived, the four minutes between the time she received the radio run and the time she arrived at the apartment were more than sufficient for a third person to leave the scene.
Accordingly, the Court finds that these facts are on all fours with People v. W.J., 27 Misc.3d 1212(A), 910 N.Y.S.2d 407 (Crim Ct New York County 2010). There, a police officer outside an apartment heard yelling and screaming, which grew louder as he approached. When he entered, only the defendant and the complainant were present. There was blood on the complainant's shirt and bleeding lacerations on the complainant's face. Never-theless, the court there found that there were no facts that would establish “any actus reus committed by the defendant that would have caused the injuries of the complainant” and dismissed the information as facially insufficient. “While it is interesting to circumstantially analyze the allegations of blood on the complainant's shirt and face, the allegations of blood alone cannot compensate for the complete lack of allegations to establish” a criminal assault. For the reasons discussed above, the same is clearly true here.
Finally, the Court notes that it recently reached a different result on a somewhat similar set of facts in People v. Heatley, 44 Misc.3d 1221(A), 2014 WL 3953941 (Crim. Ct. N.Y. County 2014). There, as here, a police officer responding to a radio run entered an apartment containing only the defendant and an injured complainant. Nevertheless, there, the Court concluded that the Information was facially sufficient. Additional facts persuaded the Court that it was more likely than not that the defendant was the cause of the complainant's injuries, and that he did not injure her accidentally:
The officer heard the defendant and the complainant shouting, heard items breaking and, when he entered the apartment saw indentations in the wall that could reasonably be attributed to the items the officer heard being broken. In addition, the complainant was in the same room where the officer saw the indentations, and there was blood on the floor of that room. Only the complainant was injured, the officer had heard her screaming before he entered, and she was in an extremely agitated emotional state. These facts together reasonably overcome the possibility that the complainant injured herself. Finally, the defendant admitted that he and the complainant had had a “disagreement.” This, when added to the other available facts, reasonably overcomes the possibility that the defendant injured the complainant accidentally.
Id. But the facts that tipped the balance in Heatley simply are not present here. The officer here did not see or hear anything at the scene that would compare to the officer's observations in Heatley, and there was no inculpatory statement by the defendant. The only point is common is that, in each case, the injured complainant appeared upset and agitated. But that simply does not lead to any inference as to the cause of those injuries. The same would have been true whether the defendant injured her, she injured herself in an accident, or a third person injured her and left before the officer arrived. Accordingly, for the above reasons, unlike in Heatley, the Information here is facially insufficient.
D. Conclusion
The Information is facially insufficient as to all counts. The motion to dismiss is accordingly granted, with a 30–day stay of sealing.
III. Conclusion
For the foregoing reasons, defendant's motion to dismiss is granted. Sealing is stayed for 30.days.