Opinion
E-00384/21
07-27-2021
In the MATTER OF ISAIAH D., a Person Alleged to be a Juvenile Delinquent.
James E. Johnson, Esq., Corporation Counsel of the City of New York, 60 Lafayette Street, 7th Floor, New York, NY 10013, Nicole Atlak, Of Counsel, for petitioner. Dawne A. Mitchell, Esq., The Legal Aid Society, Juvenile Rights Practice, Attorney for the Child, 60 Lafayette Street, Room 9A, New York, NY 10013, Israel T. Appel, Of Counsel, for respondent.
James E. Johnson, Esq., Corporation Counsel of the City of New York, 60 Lafayette Street, 7th Floor, New York, NY 10013, Nicole Atlak, Of Counsel, for petitioner.
Dawne A. Mitchell, Esq., The Legal Aid Society, Juvenile Rights Practice, Attorney for the Child, 60 Lafayette Street, Room 9A, New York, NY 10013, Israel T. Appel, Of Counsel, for respondent.
Carol Goldstein, J. In this delinquency matter, which had been removed from the youth part, a five-count designated felony petition was filed in family court against then 17-year-old respondent Isaiah D. Respondent moved for dismissal, making various arguments regarding the legal sufficiency of the factual allegations in the petition. The court denies the motion. The factual allegations in the petition provide reasonable cause to believe that respondent committed each crime charged (see FCA § 311.2[2] ) and each element of the crimes charged and respondent's commission of those crimes were established by non-hearsay allegations (see FCA § 311.2[3] ).
Additionally, respondent claimed that that counts 1 and 2, which require proof of serious physical injury, should be dismissed based upon collateral estoppel because at the retention hearing held in the youth part, the prosecution failed to prove that respondent caused "significant physical injury" to the victim (see CPL § 722.23[2] ). The court finds the doctrine of collateral estoppel to be inapplicable. Two of the prerequisites for the application of the doctrine—a final and valid prior judgment and a full and fair opportunity to litigate the issue—were not established. Moreover, policy considerations strongly militate against the application of collateral estoppel giving preclusive effect to a determination made at a retention hearing.
Initial Proceedings
On or about July 29, 2020, respondent was arrested and charged as an adolescent offender in the youth part of New York County Supreme Court. The felony complaint filed against respondent alleged that he committed assault in the first degree (PL § 120.10[1]) and related offenses. On August 7, 2020, following a retention hearing held in the youth part pursuant to CPL § 722.23(2), the youth part judge found that the prosecution did not establish that the victim suffered "significant physical injury" and the matter was not retained in the youth part on this basis. On November 17, 2020, the youth part judge denied the prosecution's subsequent motion to prevent the removal of respondent's case to family court based upon extraordinary circumstances (see CPL §§ 722.23[1] & [2][c] ) and issued an order of removal to the family court.
On January 13, 2021, the New York City Corporation Counsel, the presentment agency, filed the instant designated felony petition in New York County Family Court. The five count petition charged that on July 19, 2020, respondent committed acts constituting: assault in the first degree (PL § 120.10[1]) (count 1); assault in the second degree (PL § 120.05[1]) (count 2); assault in the second degree (PL § 120.05[2]) (count 3); assault in the third degree (PL § 120.00[1]) (count 4) and criminal possession of a weapon in the fourth degree (PL § 265.01[2]) (count 5).
Annexed to the petition are two supporting depositions. A deposition signed by Police Officer Justin Ortiz, shield No. 7862, of the 25th Precinct Detective Squad signed on January 20, 2021, states that on July 19, 2020:
* * * Pursuant to an investigation of an assault in front of 2258 Third Avenue, New York, I interviewed complainant Rodney White inside of Harlem Hospital Emergency Room. While interviewing Rodney White inside of Harlem Hospital, I observed that his head was bandaged with blood on the right side of his face. Pursuant to my investigation, on July 19, 2020, I went to retrieve video surveillance from the buildings located at 2258 Third Avenue and 2256 Third Avenue, New York, NY I, subsequently, viewed the video surveillance from 2258 Third Avenue and observed that the camera captured east side of Third Avenue. On or about July 19, 2020, I made a copy of the video surveillance depicting the above-mentioned date, time, and location. When I made the copy, said surveillance cameras and related computer equipment were in proper working condition. The date and time stamp reflected in the video surveillance from that date and time is accurate. I then downloaded the footage which depicted the events as they occurred on July 19, 2020 at 5:00 PM in front of 2258 Third Avenue, New York, NY onto my USB.
On the above described video surveillance, I observed complainant Rodney White wearing a red shirt and black shorts approach the entrance door of the store located at 2258 Third Avenue, New York, NY I observed that Rodney White did not enter the store and walked towards the curb. I then observed Respondent Isaiah D. who was wearing a white tank top, red shorts and had a small afro hairstyle approach complainant Rodney White from the complainant's right side with a raised arm. Respondent Isaiah D. made a slashing motion from the top of Rodney White's head to about his eyebrow on the right side of Rodney White's face. I then observed Respondent Isaiah D. walk across the street towards the Taino Towers.
A second supporting deposition by Police Officer Amanda Proietto, shield #24791, signed on January 6, 2021, states that on July 19, 2020:
I was working in my capacity as a Police Officer with the New York City Police Department. Pursuant to an investigation of an assault which occurred at the above date, time, and place [in front of 2258
Third Avenue, New York, NY at approximately 5:00 p.m.], I responded to the vicinity of 121st Street and 3rd Avenue at 5:16 PM. At that location I observed an individual whom I know to be Rodney White. I observed Mr. White was wearing a red T-shirt, grey shorts and white sneakers. When I approached Rodney White, I observed a steady stream of blood gushing out of the right side of Rodney White's forehead. The blood covered his entire face. As a result, Rodney White's T-shirt was also drenched with blood. The bleeding would not stop as I and other officers placed gauze on the wound until EMS arrived.
On or about December 15, 2020, I visited Rodney White. On December 15, 2020, immediately noticed a large visible scar where I had previously observed Rodney White bleeding from on July 19, 2020. I observed a visibly large scar that was dark in color, raised and puffy, approximately 3 inches in length, which extended vertically on the right side of Rodney White's face from the top of his forehead to his eyebrow.
On April 16, 2021, respondent filed the instant motion seeking dismissal of the delinquency petition, claiming that the petition did not establish reasonable cause to believe respondent committed each crime charged and that each element of the crimes charged and respondent's commission thereof was not established by non-hearsay allegations. Respondent also sought dismissal of counts 1 and 2 of the petition on the grounds that the determination at the retention hearing that the prosecutor did not prove that respondent caused "significant physical injury" to the victim collaterally estopped the presentment agency from proving at trial that the victim suffered "serious physical injury." For the reasons explained below, respondent's motion is denied in all respects.
The presentment agency filed response papers in opposition on May 6, 2021. Respondent filed a reply on May 11, 2021 and a supplemental affirmation on May 28, 2021.
Legal Sufficiency of the Petition
The delinquency petition is "the sole instrument for the commencement, prosecution and adjudication of the juvenile delinquency proceeding" ( Matter of Jahron S., 79 N.Y.2d 632, 636, 584 N.Y.S.2d 748, 595 N.E.2d 823 [1992] citing Matter of Detrece H. , 78 N.Y.2d 107, 110, 571 N.Y.S.2d 899, 575 N.E.2d 385 [1991] ). A petition is legally sufficient on its face when the factual allegations "provide reasonable cause to believe the respondent committed the crime or crimes charged" ( FCA § 311.2[2] ) and the "non-hearsay allegations of the factual part of the petition or of any supporting deposition establish, if true, every element of each crime charged and the respondent's commission thereof" FCA § 311.2[3] ). A petition that is legally insufficient is defective and subject to dismissal under FCA § 315.1[1][a] ).
In his motion for dismissal, respondent makes several arguments regarding the legal sufficiency of the instant petition. First, respondent argues that the identity of respondent as the perpetrator was not established by legally sufficient factual allegations. The deposition of Officer Ortiz states that he viewed the surveillance video of the incident and observed "Respondent Isaiah D." approach the victim and make a "slashing motion" from the top of the victim's head to his eyebrow. Respondent claims that this identification of the respondent by Officer Ortiz is merely conclusory because there is no indication in his deposition as to how he knew that Isaiah D. was the person he observed in the video and furthermore that there were no non-hearsay allegations establishing respondent's identity as the perpetrator.
Pursuant to Court of Appeals precedent, this court must look exclusively at the four corners of a petition to determine its legal sufficiency. If there is merely a latent defect in the petition, i.e. , one that is not apparent on its face, the petition is not subject to dismissal under FCA § 315.1(1) ( Matter of Edward B. , 80 N.Y.2d 458, 462, 591 N.Y.S.2d 962, 606 N.E.2d 1353 [1992] ; see also People v. Slade , 37 N.Y.3d 127, 148 N.Y.S.3d 413, 170 N.E.3d 1189 [2021] ).
Here, Officer Ortiz's statement that the person he observed in the video slashing the victim's face was Isaiah D. is legally sufficient to establish respondent's identity. While it would have been useful, and even preferable, for the officer to state exactly how he knows respondent's name, a plain reading of the supporting deposition of Officer Ortiz leads to the conclusion that the identification was based upon the officer's personal knowledge of respondent and thus establishes by non-hearsay allegations that respondent is the perpetrator
The court is aware that according to the felony complaint filed in the youth part on July 29, 2020, Officer Ortiz initially learned respondent's identity from an unnamed individual who identified respondent from a still photo obtained from the surveillance video. However, assuming, arguendo , that Officer Ortiz based his identification of respondent upon hearsay, which was not laid out in the petition, this would be the type of latent defect which would not render the petition subject to dismissal for legally insufficiency.
Respondent also argues that the identification of respondent as the perpetrator is legally insufficient because the surveillance video from which the identification was made was not authenticated. The court disagrees. Authentication of a video surveillance camera does not require any special expertise. Officer Ortiz alleges that the surveillance camera and related computer equipment were in proper working order based upon his personal observations: 1) that the camera focused on the East Side of Third Avenue, where the incident occurred, and 2) that the time and date stamp on the video were accurate. These two statements are sufficient to demonstrate by non-hearsay allegations that the video surveillance camera was in proper working order.
Officer Ortiz was aware of the date and time of the incident and could readily see if the date and time stamp on the video surveillance matched that date and time of the incident.
With respect to the element of serious physical injury, which is an essential element of counts 1 and 2 of the petition, respondent contends that the court cannot consider the delegated and certified hospital records because, while they constitute admissible hearsay, they are unsworn. The court agrees with respondent on this point and is not considering the hospital records in evaluating whether the delinquency petition is legally sufficient as to the element of serious physical injury.
People v. Casey, 95 N.Y.2d 354, 361, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2007) holds that the non-hearsay requirement is met so long as the hearsay statements contained in the accusatory instrument would be admissible under some hearsay rule exception ( id., at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 ; see also Matter of Rodney J. , 108 A.D.2d 307, 311, 489 N.Y.S.2d 160 [1st Dept. 1985] [the term nonhearsay in FCA § 311.2 refers only to hearsay that is not admissible at trial]). Here, the hospital records fit squarely into the business records exception to the hearsay rule as they were properly certified and delegated and would be admissible at trial (see CPLR §§ 4518[c] & 2306 ). However, the fact that the records were not sworn runs afoul of the requirement that the non-hearsay allegations in the petition must be sworn (see Matter of Neftali D. , 85 N.Y.2d 631, 636, 628 N.Y.S.2d 1, 651 N.E.2d 869 [1995] ; Matter of Nelson R. , 90 N.Y.2d 359, 362, 660 N.Y.S.2d 707, 683 N.E.2d 329 [1997] ). The Court of Appeals has not addressed what is required for admissible hearsay contained in a petition to be treated as sworn non-hearsay allegations, which may establish an element of the crime charged. In Rodney J. (311), the First Department held that an unsworn signed written confession made by a respondent (which is admissible hearsay) annexed to an officer's deposition that respondent made statements should be treated as sworn allegations. Extrapolating from Rodney J. , this court concludes that for an unsworn admissible hearsay statement to be treated as a sworn allegation, it must be annexed to a supporting deposition which attests to the foundational basis of its admissibility. For example, in the instant case, the hospital records could be annexed to supporting depositions provided by appropriate representatives of the hospital swearing to the delegation of authority and the certification of the records.
Contrary to respondent's argument, the hospital records were not redacted in any way which would render them inadmissible.
In Matter of Markim Q., 7 N.Y.3d 405, 822 N.Y.S.2d 746, 855 N.E.2d 1160 (2006), the Court of Appeals had the opportunity to rule on the issue of whether business records that are certified, and delegated, but unsworn, may support a delinquency petition, but declined to reach this issue. In Markim Q. , for the first time on appeal, the juvenile respondent challenged the sufficiency of a violation of probation petition—which is required by FCA § 360.2(2) to be supported by non-hearsay allegations, but was supported by certified and delegated, but unsworn, school records. The Court of Appeals found that, unlike defects in the delinquency petitions, defects in violation of probation petitions could not be raised for the first time on appeal and thus did not rule on this issue.
Respondent argues that with or without the hospital records, the petition does not establish by legally sufficient non-hearsay evidence that the victim suffered serious physical injury. The court disagrees, finding that based upon the non-hearsay supporting deposition of Officer Proietto, without consideration of the hospital records, serious physical injury is established.
"Serious physical injury" is defined in PL § 10:00 (10) as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." Pursuant to People v. McKinnon, 15 N.Y.3d 311, 315, 910 N.Y.S.2d 767, 937 N.E.2d 524 (2010), a person is seriously disfigured "when a reasonable observer would find her [or his] altered appearance distressing or objectionable." The Court of Appeals added that "the injury must be viewed in context, considering its location on the body and any relevant aspects of the victim's overall physical appearance" ( id. ).
Officer Proietto swore that on July 19, 2020, the night of the incident, he observed a steady stream of blood "gushing out" of the right side of the victim's forehead. He further swore that on or about December 15, 2020, almost five months later, when he visited the victim, he "immediately noticed a large visible scar" where he had previously observed the victim bleeding on July 19, 2020. Officer Proietto stated that he "observed a visibly large scar that was dark in color, raised and puffy, approximately 3 inches in length, which extended vertically on the right side of [the victim's] face from the top of his forehead to his eyebrow."
The court finds that a large, prominent, puffy, dark, three-inch scar visible on the victim's face almost five months after an assault constitutes "serious and protracted disfigurement." In making this determination, the court is considering the location of the scar, on the victim's face; the length of the scar, three inches; and its appearance, "dark in color, raised and puffy." A reasonable observer would find such a scar "distressing and objectionable." Further, this court is considering that the observation of Officer Proietto was made almost five months after the injury, and thus the disfigurement was protracted.
Respondent also argues that the factual allegations in the petition do not establish respondent's intent to cause serious physical injury to the victim. The court disagrees. The intent of the accused may be established by the "natural, necessary and probable consequences of his conduct" ( People v. Getch , 50 N.Y.2d 456, 465, 429 N.Y.S.2d 579, 407 N.E.2d 425 [1980] ). Here, protracted disfigurement in the form of a long unsightly scar is the natural and probable consequence of slashing the victim across his upper face with a sharp object. Thus, respondent's intent to cause the victim serious physical injury was established by the allegations in the petition.
Finally, respondent is incorrect in his contention that counts 1 and 3 (which require the use of a deadly weapon or a dangerous instrument) and count 5 (which requires the possession of a dangerous or deadly instrument or weapon with intent to use unlawfully) are legally insufficient because there is no allegation either that respondent was observed with a weapon or that a weapon was recovered after the incident. Possession of a deadly weapon or dangerous instrument may be inferred circumstantially by the respondent's slashing motion on the victim's upper face, which was observed in the video, coupled with the resulting profuse bleeding and three-inch scar on the location on the victim's face where he was slashed (see Matter of Mariela V. , 23 A.D.3d 569, 806 N.Y.S.2d 641 [2nd Dept. 2005] [possession of dangerous instrument legally established in petition by non-hearsay allegations that victim sustained "long, thin, curving scar" on forehead and "shorter straight line scars on each temple"]).
Collateral Estoppel
Respondent also argues that the presentment agency is collaterally estopped from charging him with causing serious physical injury, a necessary element of count 1, assault in the first degree (PL § 120.10[1]), and count 2, assault in the second degree (PL § 120.05[1]). Respondent's argument is based upon the fact that at the retention hearing held in the youth part, the district attorney failed to establish by a preponderance of evidence that respondent caused the victim "significant physical injury" which, according to respondent, is less than serious physical injury. For the reasons discussed below, the court finds that collateral estoppel is inapplicable to the facts and circumstances of this case.
Collateral estoppel, also known as "issue preclusion," is a "common-law doctrine rooted in civil litigation that, when applied, prevents a party from relitigating an issue decided against it in a prior proceeding" ( People v. Aguilera , 82 N.Y.2d 23, 29, 603 N.Y.S.2d 392, 623 N.E.2d 519 [1993] ) (internal citations omitted). In a criminal context, it is not applied in the same manner as in a civil action ( id. , at 29, 603 N.Y.S.2d 392, 623 N.E.2d 519 ). The formal prerequisites in the criminal context are "identity of the parties; identity of issues; a final and valid prior judgment; and a full and fair opportunity to litigate the issues" ( id. , at 29-30, 603 N.Y.S.2d 392, 623 N.E.2d 519 ).
Additionally, the Court of Appeals emphasized that in the criminal context there may be countervailing policies that may at times outweigh the doctrine ( Aguilera , at 30, 603 N.Y.S.2d 392, 623 N.E.2d 519 ). As the Court of Appeals stated in People v. Fagan, 66 N.Y.2d 815, 816, 498 N.Y.S.2d 335, 489 N.E.2d 222 (1985), because the correct determination of guilt or innocence is paramount in criminal cases, "strong policy considerations militate against giving issues determined in prior litigation preclusive effect in a criminal proceeding, and indeed we have never done so." These same policy considerations apply to the fact-finding stage of a delinquency matter, where it is likewise critical for guilt or innocence to be correctly decided.
Looking at the prerequisites for the application of collateral estoppel as well as policy considerations leads this court conclude that the doctrine is inapplicable here.
In considering the issue of collateral estoppel in the instant case, it is useful to review the relevant procedure for the removal of a matter from the youth part in the supreme court to the family court. Where a young person aged 16 or 17 is charged with a felony, he or she is charged as an adolescent offender and the matter is initially heard in the youth part. Where the charge is a nonviolent felony, the matter is removed to the family court unless the district attorney files a motion to prevent removal based upon extraordinary circumstances (see CPL § 722.23[1][a] ). Where the charge is a violent felony, as was respondent's charge in the instant case, the matter is calendared in the youth part within six days of arraignment for a determination as to whether the defendant caused significant physical injury to a person other than a participant; displayed a firearm or other deadly weapon; or engaged in certain unlawful sexual conduct (see CPL § 722.23[2] ). This calendar appearance is called a retention hearing. The statute provides that at a retention hearing, the court reviews the accusatory instrument and any other relevant facts and that both the prosecution and the defense have the opportunity to submit relevant information ( CPL § 722.23[2][b] ). The statute does not preclude hearsay or require witnesses to testify. At the conclusion of the retention hearing, if the court determines that the district attorney has proven one of the above three factors by a preponderance of the evidence, the matter is retained in the youth part ( CPL § 722.23[2][c] ). If not, the matter will be removed to family court, unless the district attorney thereafter files a motion to prevent removal based on extraordinary circumstances and the court makes such a finding ( CPL §§ 722.23 [1] & [2][c].).
In the instant case, respondent was charged with a violent felony and the matter was initially heard in the youth part. The prosecution contended that respondent caused "significant physical injury" to the victim and the matter was adjourned for six days for a retention hearing. At the retention hearing, held on August 6, 2020, the presiding judge in the youth part reviewed the accusatory instrument and the documents submitted by the prosecution, including the victim's hospital records, and heard arguments of counsel. No testimony was taken. The court reserved decision and the next day, on August 7, 2020, determined that the prosecution had not established that respondent caused significant physical injury to the victim because the victim refused medical attention, had not received stitches, and there was no current photograph of the victim's injuries. On November 17, 2020, the youth part judge denied the prosecution's subsequent motion to prevent removal based upon extraordinary circumstances and issued an order removing the case to family court.
While arguably, the first two prerequisites for the application collateral estoppel--identity of parties and Identity of issues—were met, the second two prerequisites--a final and valid prior judgment and a full and fair opportunity to litigate the issue--were not established.
With respect to the identity of the parties, while acting as the presentment agency in a delinquency matter, the Corporation Counsel of the City of New York might be deemed to be in a sufficient relationship with the district attorney to meet the requirement of identity of parties (cf. People ex rel. Dowdy v. Smith , 48 N.Y.2d 477, 423 N.Y.S.2d 862, 399 N.E.2d 894 [1979] [for purposes of collateral estoppel, prosecutors found to be in sufficient relationship with the State Division of Parole]).
It also could be argued that there is identity of issues. Although the term "significant physical injury" as used in CPL § 722.23(2)(c)(i), is left undefined, the legislators, who could not agree on a definition, "expected [that] the courts would define it as more than ‘physical injury’ but less than ‘serious physical injury’ " (Donnino, W., Practice Commentaries to CPL § 722.10 "Removal of Adolescent Offender. " Therefore, it is arguable that a failure to establish significant physical injury would amount to a failure to establish serious physical injury.
First, the court finds that there was not a final and valid prior judgement in the youth part. The matter concluded in the youth part, not with a dismissal, but rather with an order removing the case to family court.
Moreover, the prosecution did not have a full and fair opportunity to litigate the issue of serious physical injury. The retention hearing in the youth part which determined whether respondent caused significant injury to the victim was an abbreviated proceeding and was held just six days after arraignment. At the hearing, the accusatory instrument was reviewed, and the prosecution presented documentary evidence. No witnesses were called. Significantly, the issue of "serious and protracted disfigurement," which is a critical issue in this case, could not be fully litigated at a proceeding that took place just six days after respondent's arrest. At that date, it could not yet be determined if the victim suffered permanent scarring or protracted disfigurement from being slashed on his forehead. This determination could only be made by observing the victim a number of months after the incident.
Additionally, policy considerations strongly militate against the application of collateral estoppel giving preclusive effect to a determination made at a retention hearing. The determination to be made at that hearing was whether respondent's case should be transferred to family court, not the paramount determination of respondent's guilt or innocence as to any of the counts charged. The circumstances in the instant case are analogous to those in People v. Fagan, 66 N.Y.2d 815, 498 N.Y.S.2d 335, 489 N.E.2d 222 (1985) where the Court of Appeals found that the dismissal of charges at a final parole revocation hearing did not bar a subsequent criminal prosecution for the same acts. In so ruling, the Fagan court noted that "the People's incentive to litigate in a felony prosecution would presumably be stronger than in a parole revocation proceeding" ( id. ; see also People v. Hilton , 95 N.Y.2d 950, 722 N.Y.S.2d 461, 745 N.E.2d 381 (2000) [collateral estoppel does not bar criminal prosecution after termination of probation violation hearing in favor of the accused]). The same could be said in the instant matter, that the prosecutor's incentive to litigate the issue of serious physical injury is stronger at a fact-finding hearing than at a retention hearing. Thus, even if all prerequisites for invoking the doctrine of collateral estoppel were met, the court would not apply the doctrine in the instant case.
For the reasons stated above, the court denies respondent's motion to dismiss the delinquency petition or any counts therein.
The above constitutes the decision and order of this court.