Opinion
No. 2015NY032444.
12-01-2015
The PEOPLE of the State of New York, Plaintiff, v. Beethoven PEGUERO, Defendant.
This case presents a vexing question that frequently arises in domestic violence cases: Does an accusatory instrument that refers to the suspect only by a generic familial description—in this case “my mother's boyfriend”—sufficiently plead the defendant's identity? People v. DeFreitas, 48 Misc.3d 569, 579–80, 9 N.Y.S.3d 822, 828–29 (Crim Ct N.Y. County 2015), although not a facial sufficiency case, held that a domestic incident report (“D.I.R.') that referred to the suspect only by the bare pronoun “he” did not convert a misdemeanor complaint. Defendant, charged with two counts of assault in the third degree, and various related offenses, asks the Court to apply the same type of reasoning here.
For the reasons that follow, however, the Court finds that, in this case, where the People filed a traditional supporting deposition, and not a D.I.R., the accusatory instrument sufficiently pleads defendant's identity. The motion is accordingly DENIED.
I. FACTUAL BACKGROUND
A. The Allegations
According to the accusatory instrument, just after midnight on May 24, 2015, defendant punched the complainant in the face. The instrument describes the defendant as the complainant's “mother's boyfriend.”
2. Legal Proceedings
Defendant was arraigned on May 24, 2015, on a misdemeanor complaint charging him with two counts of assault in the third degree, Penal Law §§ 120.00(1) and (2), and one count each of attempted assault in the third degree, Penal Law §§ 110/120.0(1), and harassment in the second degree, Penal Law § 240.26(1). The Court released the defendant pending conversion.
On June 1, 2015, the People filed, off-calendar, a certificate of readiness and the complainant's supporting deposition. The Court deemed the misdemeanor complaint converted and set a motion schedule. Defendant filed the instant motion to dismiss on August 11, 2015, the People responded on October 2, and the matter has been sub judice since then.
3. The Misdemeanor Complaint and Supporting Deposition
The caption of the misdemeanor complaint, which was filed on May 24, 2015, names Beethoven Peguero as the defendant, and asserts that this matter is a “FAMILY OFFENSE.” It also specifies: ‘DEFENDANT/VICTIM RELATIONSHIP: MOTHER'S BOYFRIEND.”
The accusatory portion of the misdemeanor complaint charges the defendant with the offenses noted above. Its factual portion, sworn out by Police Officer Kevin Balsam on May 24, 2015, provides:
I received a radio run to respond to [101 Sherman Avenue, 4H, in New York County] at approximately 00:13. I responded to the above-stated location at approximately 00:20 and when I responded, I observed [the complainant] breathing rapidly, speaking quickly and visibly upset, and that while [she] was in the above described emotional state, she stated in substance to me: I WAS PUNCHED IN THE FACE TWO TIMES BY MY MOTHER'S BOYFRIEND. THIS ISN'T THE FIRST TIME. IT HURTS A LOT, BUT I DON'T NEED AN AMBULANCE.
I observed that [the complainant's] right cheek and under-eye area were red and swollen.
The supporting deposition was sworn to and signed by the complainant on May 29, 2015, some five days after the misdemeanor complaint was filed. It bears a caption naming Beethoven Peguero as the defendant and contains the same docket number, 2015NY 032444, as that assigned to the misdemeanor complaint. In the supporting deposition, the complainant avers that she has read the criminal complaint and that the facts attributed to her in that document “are true except” that, in a hand-written emendation, the complainant wrote:
My mother[ s] boyfriend started arguing about sleeping arrangements of my 8 yr old sibling. After that he got close[ ] to me and push[sic] me with his hand on my chest to the wall. But then he gave me the first punch and when he tried to hit me gain my mother get on the away [sic] to protect me for he can't hit me again. But he punch me again. After that, I call the police.
II. DISCUSSION
Here, both the misdemeanor complainant and the supporting deposition identify the defendant, by name, in the caption. In addition, the caption of the misdemeanor complaint describes the defendant as the victim's “mother's boyfriend.” Thus, even though the portions of those documents that specify the factual allegations refer to the defendant only as the complainant's “mother's boyfriend,” and not by name, the information sufficiently alleges that this defendant, Beethoven Peguero, is the “mother's boyfriend” who is alleged to have assaulted the complainant.
A. Facial Sufficiency as to Identification
An 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, an information must set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof. ” Kalin, 12 NY3d at 228–29, 906 N.E.2d at 383, 878 N.Y.S.2d at 655 (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) ), emphasis added. 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 a defendant's identity 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). But, nevertheless, there must be a reasonable basis for concluding that the defendant before the court is the person who committed the charged offense or offenses. “It is perfectly reasonable, and neither unfair nor hypertechnical, to demand that-somewhere in one of documents set out in the CPL for this precise purpose-someone with actual knowledge swear that the defendant before the court is the person who committed the offense or offenses charged.” People v. DeFreitas, 48 Misc.3d 569, 581 (Crim Ct N.Y. County 2015).
Here, the misdemeanor complaint and the supporting deposition, when read together, plead a prima facie case as to the defendant's identity.
B. The Information is Facially Sufficient as to Identity
Defendant argues because the factual allegations in both the misdemeanor complaint and the supporting deposition “describe the crime as being committed by an un-named person[,] only naming that person as the complainant's mother's boyfriend,' “ the information must be dismissed. Baker Aff. at ¶ 9. The People, for their part, counter that both the misdemeanor complainant and the supporting deposition name “Beethoven Peguero” as the defendant and that, in the supporting deposition, the complainant swore that she read the misdemeanor complainant and that its allegations are true. D'Antonio Aff. at ¶ 6. The Court agrees with the People.
The Court notes initially that it has consistently rejected arguments for dismissal predicated on strained or hypertechnical readings of an accusatory instrument. People v. Abney, 49 Misc.3d 1212(A) (Crim Ct N.Y. County 2015), refused to accept the argument that an information did not sufficiently allege the age element of endangering the welfare of a child, Penal Law § 260.10(1), where a D .I.R. that was proffered as a supporting deposition described “my baby laying on me.” The Court would not “stretch [its] imagination to infer that the D.I.R. [was] actually referring to a very tiny adult who [was] both small enough to rest comfortably on top of her mother, and [was] endearingly referred to as a baby.' “ Similarly, in People v. Johnson, 49 Misc.3d 1210(A) (Crim Ct N.Y. County 2015), the Court rejected the “strained” argument that an information describing possession of marijuana “in front of” a particular address might “refer to the lobby of an apartment building or to [an] enclosed parking garage,” and hence did not sufficiently plead the “public place” element.
More pertinently, this Court has frequently relied on a common-sense reading to conclude that an information sufficiently alleged the defendant's identity. In People v. Burke, 48 Misc.3d 1208(A) (Crim Ct N.Y. County 2015), a handwritten emendation to the supporting deposition alleged that the defendant chased the complaint down an otherwise unoccupied stairway and that the complainant felt a push to her back, which caused her to fall. The Court concluded that these facts led to a reasonable inference that the defendant was the person who pushed the complainant.
Likewise, People v. Selinger, 48 Misc.3d 1218(A) (Crim Ct N.Y. County 2015), found an information sufficient as to identity, in a case involving harassing Internet activity, where some of the activity took place under the defendant's own name, and some of it involved an email address that the complainant recognized as one used by the defendant. The Court concluded that, “[e]ven if these facts d[id] not entirely eliminate the possibility that the conduct was undertaken by someone posing as the defendant, they d[id] so sufficiently for the purposes of a pleading.”
By contrast, in two cases where the Court found an insufficiency as to identity it was because there was a complete absence of factual support for the allegation that the particular defendant was the person who committed the charged crimes. People v. Garcia, 48 Misc.3d 1204(A) (Crim Ct N.Y. County 2015), found that an information insufficiently pled identity when, in a case where the complainant and the defendant were unknown to each other, the information ascribed to the defendant a threatening telephone call without alleging any factual basis to support the conclusion that defendant was the caller.
Most relevant here, however, is DeFreitas. There, the Court found deficient a D.I.R. the sworn allegations of which referred only to the suspect as “he.” 48 Misc.3d at 581. The Court concluded that there was no reasonable way to connect the word “he” to the defendant: the place on the supporting deposition where the suspect's name should have been written was blank, and there was no natural or obvious way of connecting the “he” referred to there to the named suspect on the other page of the D.I.R., which was filled out by a police officer, and hence hearsay. Id. at 572, 580. In addition, the D.I.R. had been completed several months before the defendant was arrested, thus there was no clear connection between the “he” mentioned in the D.I.R. and the defendant named in the misdemeanor complaint. Id. at 579.
But, for several reasons, this case is unlike DeFreitas. First, and most obviously, the defendant is not only identified as “my mother's boyfriend” here: he is identified by name in the caption of both the misdemeanor complaint and the supporting deposition, both of which bear the same docket number. And, the phrase “mother's boyfriend” does not only appear in the factual portion of the misdemeanor complaint. Just beside the caption, right next to the defendant's name, is the allegation that the defendant's relationship to the victim is “mother's boyfriend.” Thus, unlike in DeFreitas, where there was no connection between the supporting deposition and the misdemeanor complaint, here that connection could not be clearer. Both the documents obviously refer to this defendant, Beethoven Peguero, who is the complainant's mother's boyfriend.
Furthermore, in her supporting deposition, the complainant averred that she had read the misdemeanor complaint and that, with some minor corrections, its allegations were true. Thus, to accept defendant's argument, the Court would have to conclude that the complainant's supporting deposition stands for the proposition that she read only the factual allegations in the misdemeanor complaint, and not its caption. This is just another example of the type of a strained or hypertechical construction of a pleading that this Court is not willing to accept.
Finally, and relatedly, this Court also examined the relationship between the supporting deposition and the misdemeanor complaint in People v. Pachesa, ––– Misc.3d ––––, 2015 N.Y. Slip Op 25325, 17 N .Y.S.3d 624 (Crim Ct N.Y. County 2015), a case that also supports the outcome here. There, the issue was not the identity of the defendant, but the identity of the informant who had served as the basis for the deponent's source of knowledge. The Court concluded that although the misdemeanor complaint did not name the informant, the complainant's supporting deposition converted it to an information, since in it the complainant swore that she had read the misdemeanor complaint and that the facts in that complaint that were attributed to her were true. There was accordingly an “obvious and reasonable,” 17 N.Y.S.3d at 629, inference that the complainant was the informant referred to in the misdemeanor complaint.
Similarly, here, there is an “obvious and reasonable” inference that this defendant, Beethoven Peguero, is the complainant's mother's boyfriend, and that he is the person who is alleged to have assaulted the complainant.
C. Conclusion
Accordingly, since the information is facially sufficient as to the defendant's identity as the perpetrator, his motion to dismiss is denied.
IV. CONCLUSION
Defendant's motion to dismiss is denied.
This constitutes the Decision and Order of the Court.