Opinion
2009NY005871.
Decided July 21, 2009.
New York County District Attorney's Office, ADA Erin Choi, Esq., for the People.
The Legal Aid Society, Nicole V. Bromberg, Esq., for the Defense.
The defendant, Sean Everson, is charged with violating Penal Law § 120.00, assault in the third degree. The defendant has filed an omnibus motion seeking the dismissal of the information as facially insufficient pursuant to CPL §§ 170.30 and 170.35, as well as for various other reliefs.
Defendant's facial insufficiency argument is without merit. An information is facially sufficient if it meets three requirements. First, it must substantially conform to the formal requirements of CPL § 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL §§ 100.15 and 100.40; see People v Dumas, 68 NY2d 729; see also People v Alejandro, 70 NY2d 133). "The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged" ( People v Sylla, 7 Misc 3d 8, 10 [App Term, 2d Dept 2005]). Furthermore, where the factual allegations contained in an information "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, they should be given a fair and not overly restrictive or technical reading." ( People v Casey, 95 NY2d 354, 390).
The court finds the factual allegations sufficient to establish the elements of the charge. The information alleges that at 16:42 hours on January 21, 2009 at 2175 2nd Avenue in the County and State of New York the informant "observed defendant and three other individuals approach and surround informant," thereby preventing him from leaving the location. The information further alleges that "an unapprehended individual then approached the informant and did strike informant about the abdominal area with a closed fist, causing redness and swelling to the informant's abdominal area and causing substantial pain."
Penal Law § 120.00 provides that: "[a] person is guilty of assault in the third degree when: [w]ith the intent to cause physical injury to another person, he causes such injury to such person or a third person." Thus, the facts alleged in the information must satisfy two elements: 1) the intent to cause "physical injury" and 2) that such "physical injury" resulted. Physical injury is defined as "impairment of physical condition or substantial pain." (Penal Law § 10.00)
Defendant contends the accusatory instrument is facially insufficient because it fails to identify the defendant as the individual who intentionally caused physical injury to the informant. Defendant's argument is two fold. First, the defendant argues that there is "no causal connection between the alleged assault and the defendant's conduct of surrounding" the informant. In addition, the defendant argues that the complaint fails to allege that "the defendant surrounded the informant with the intent of causing physical injury, or that the defendant's actions enabled or encouraged the unapprehended individual to assault" the informant. This court finds the defendant's arguments are misguided.
Penal Law § 20.00 provides that, "[w]hen one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, [he or she]. . .intentionally aids such person to engage such conduct." Accordingly, a defendant may be found criminally liable as the actual perpetrator or as an accomplice who aids, enables, or shares a "community of purpose". (PL § 20.00 at 54; see also, People v. Mateo, 2 NY3d 383 (finding criminal liability attaches to "a person concerned in the commission of a crime whether he directly commits the act constituting the offense or aids and abets in its commission . . .").
Moreover, in People v. Allah, the Court of Appeals found that accomplice culpability may be found even when the assistance is unplanned, if the totality of the evidence establishes the defendant "knowingly participated and continued to participate even after his companion's intentions became clear . . . [and the] defendant shared a community of purpose with his companion." ( People v Allah, 71 NY2d 830, 831, 832). Similarly, in Matter of Kadeem W., the court found the evidence supported that a 13 year old was an accessory to and shared the intent of his companion's conduct of firing several air gun shots at a security guard, even though defendant never fired the gun but merely taunted and threatened the guard. ( Matter of Kadeem W., 2005 NY Slip Op 8848, 5 NY3d 864, 865 (2005); see People v Staples , 19 AD3d 1096 [4d 2005](where the court held evidence sufficient that "while only one person used the knife that inflicted the stab wounds, defendant was part of a group of at least four people who acted with a community of purpose); see also, People v. Rivera, 84 NY2d 766, 770 ("There is no distinction between liability as a principal and criminal culpability as an accessory").).
In the present matter, the information alleges that the defendant surrounded the informant and prevented his escape. Although this court acknowledges that the defendant did not punch the informant with his closed fist, the defendant was one of three men that approached and surrounded the complaining witness and prevented him from leaving. ( See, People v. Staples, supra). Such action clearly aided and enabled the principal's conduct of striking the informant. ( See, People v. Rivera, supra). Given the totality of circumstances, this court can reasonably infer that the defendant shared a "community of purpose" with his companion to assault the informant. (See, PL § 20.00 at 54; see also, People v. Mateo, supra; People v. Rivera; supra.).
Steven Buchholz and Thomas Roth, authors of "Creating the High — Performance Team" (1987) defined "Synergism" as "the simultaneous actions of separate entities which together have greater total effect than the sum of their effects." If the allegations in the complaint are proven, the exhibited synergism of the actors in the instant matter is undeniable. Therefore, the factual allegations viewed in a light most favorable to the People, ( People v Cabey, 85 NY2d 417, 420), and "given a fair and not overly restrictive or technical reading," People v. Casey, 95 NY2d 354, 360, are sufficient for pleading purposes to establish the causal connection between the alleged assault and defendant's conduct to support a prima facie case of assault in the third degree.
Defendant's second argument contends the information fails to state that the informant suffered a physical injury. Specifically, defendant argues that the allegations of "swelling" and "redness" to the abdominal area and "substantial pain" fail to meet the standard of "physical injury" pursuant to Penal Law § 10.00, which defines "physical injury" as the "impairment of physical condition or substantial pain." Moreover, defendant argues that the alleged injuries to the informant "are neither specific nor severe enough to reach the threshold objective level of physical impairment or substantial pain required by the statute" and that the court cannot "reasonably infer any likelihood of worsening injuries as a result of the [informant's] having been punched in the abdomen, especially in the absence of any allegation that medical treatment or a hospital visit was required."
In his argument defendant relies on Matter of Philip A. and its progeny, as well as the decision of a sister court, People v. DiPoumbi, 2008 NY 068631 [NY Crim. Ct. NY Co. 2009]. However, this court finds the defendant's reliance and argument unpersuasive. In Matter of Philip A., supra, the Court of Appeals addressed the issue of what constitutes sufficient "substantial pain" to support a conviction beyond a reasonable doubt. ( Matter of Philip A. at 200). The Court held that "petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives are not within the definition" of physical injury. ( Matter of Philip A. at 200, citing Temp Commn on Rev of Pen Law and Crim Code, Proposed Pen Law, at 330). Nonetheless, the present case is distinguishable from Matter of Philip A., inasmuch as that decision involved a conviction after trial, "where the people were required to prove physical injury beyond a reasonable doubt, whereas [the present case] involves a motion to dismiss the accusatory instrument in which . . . [t]he People are only required to prove a prima facie case. ( People v Williams, 5/4/90 N.Y.L.J. 25, (col. 2), aff 180 Misc 2d 313).
In People v. Henderson, 92 NY2d 677, 680, the Court of Appeals addressed the facial sufficiency challenge of a misdemeanor accusatory instrument charging assault in the 3rd degree, whereby the information alleged the defendant and another pulled and kicked the complaining witness from a scooter resulting in contusions and swelling, as well as substantial pain. ( People v. Henderson, supra, at 680). In finding the accusatory instrument sufficient, the Henderson court held that " under the prima facie case requirement. . .the information must set forth sufficient factual allegations to warrant the conclusion that the victim suffered an impairment of physical condition or substantial pain." (Id at 680 internal citations omitted). Moreover, the Henderson court emphasized "that the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial" (People v. Henderson at 680 citations omitted) and "that [u]nder these circumstances, allegations of substantial pain, swelling and contusions, following kicks, must be deemed sufficient to constitute physical injury' to support a facially valid local criminal court information." ( People v. Henderson at 681.).
Accordingly, in a recent decision, this court denied a defendant's pre-trial motion to dismiss finding the allegations that the defendant's punching of a corrections officer and the officer's subsequent loss of breath as a result of that punch were sufficient to support impairment of physical condition or substantial pain under Penal Law § 10.00. ( People v Garcia, 2009 NY Slip Op 5116U). Similar to People v Henderson and People v. Garcia, in the present matter, the informant describes and details the location and nature of his injury, inasmuch as the information states that the informant was punched in the abdominal area and suffered redness, swelling, and substantial pain. Moreover, as it is well settled that pain is subjective ( see, Matter of Philip A, at 200, supra, see also People v. Henderson at 681) and that an accusatory instrument is jurisdictionally sufficient if the allegations set forth a prima facie case supporting a reasonable cause to believe the defendant committed the offense charged so as to protect the defendant from being tried twice for the same offense. ( See, People v. Casey, supra, see also, People v. Henderson, supra; People v. Rivera, supra). This court finds the alleged physical injury resulting in redness and swelling to the abdominal area and substantial pain, as well as the manner in which those injuries were inflicted, viewed in the light most favorable to the People, if true, is sufficient for pleading purposes to establish "physical injury" supporting the charge of assault in the third degree. Finally, the court finds that the issue regarding the quality of the injury and whether or not the People have proven "impairment of physical condition or substantial pain" is a matter for the trier of fact to determine. ( See, Matter of Philip A, at 200; see also People v. Henderson, supra).
Therefore, for the reasons set forth, defendant's motion to dismiss the accusatory instrument as facially insufficient is DENIED.
REMAINING MOTIONS
Defendant's motion to suppress statements is GRANTED to the extent of ordering a Huntley/Dunaway hearing. Defendant's motion to suppress identification evidence is GRANTED to the extent of ordering a Wade/Dunaway hearing. Defendant's motion to preclude statements for which the People, pursuant to CPL § 710.30, have not given proper notice is GRANTED. The Sandoval application is deferred to the trial court.
This constitutes the decision and order of the Court.