Opinion
No. CR-008477-23BX
11-20-2023
The People of the State of New York, v. Kenneth Floyd, Defendant.
Jordyn Fleisher, Assistant District Attorney, Bronx County, for the People. Caroline Mary Rini, The Legal Aid Society, for Defendant.
Unpublished Opinion
Jordyn Fleisher, Assistant District Attorney, Bronx County, for the People.
Caroline Mary Rini, The Legal Aid Society, for Defendant.
E. Deronn Bowen, J.
Summary
1. Defendant's motion to dismiss the count of menacing in the third degree on facial insufficiency grounds is DENIED.
2. Defendant's motion to dismiss each of three counts of criminal mischief in the third degree on facial insufficiency grounds is DENIED in its entirety.
3. Defendant's severance motion is DENIED.
4. Defendant's motion to suppress the fruits of defendant's statements, observation, seizure and/or arrest is GRANTED TO THE EXTENT OF ordering Dunaway / Huntley / Mapp / Wade hearings.
5. Sandoval and Molineux matters are RESERVED to the trial court for resolution.
6. All other branches of defendant's omnibus motion are DENIED.
I. The Superseding Information
Defendant, Kenneth Floyd, stands charged in a superseding information (SSI) with assault in the third degree (Penal Law § 120.00 [3]), criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]), menacing in the third degree (Penal Law § 120.15) and harassment in the second degree (Penal Law § 240.26 [1]) based upon an incident (Incident 1) allegedly occurring on August 12, 2022. He stands charged also in the same SSI with three counts of criminal mischief in the fourth degree (Penal Law § 145.00 [1]) based upon each of three incidents (Incidents 2 - 4) allegedly occurring on, respectively, March 4, 16 and 17, 2023. All four alleged incidents involve the same named deponent.
Incident 1: It is alleged that "defendant approached deponent as deponent was entering his car and defendant stated in sum and substance, YOU GONNA GET YOURSELF SLAPPED, YOU GONNA GET FUCKED UP AROUND HERE. KNOW THAT. GET THE FUCK OUT OF HERE." Defendant then allegedly "threw one (1) cup containing a hot liquid at deponent," causing the deponent to "suffer[] substantial pain, redness, and burning to his hand."
Incident 2: It is alleged that "defendant use[d] a screwdriver to try [to] remove a door lock from a door" that caused "banging sounds" and "the door [to] jostle." Defendant successfully "removed the knob and lock from the door," of which the deponent was "the lawful custodian." Defendant had no "permission or authority to damage or remove said door knob, lock, hinges, and door," all of which "had to be replaced and the door reinstalled." The "deponent observed" all of this alleged behavior "via video surveillance."
Incident 3: It is alleged that the "deponent observed defendant use a screwdriver to remove a door lock from a door," requiring "the lock [] to be replaced." The deponent re-attests that "he is the lawful custodian of said lock and door and did not give defendant permission or authority to damage or remove said lock."
Incident 4: It is alleged that the "deponent observed defendant use a hammer to strike a door lock, causing the lock to be removed from the door" and resulting in "the lock ha[ving] to be replaced." Again, the deponent attests that "he is the lawful custodian of said lock and door and did not give defendant permission or authority to damage or remove said lock."
II. Facial Sufficiency Point
A. Menacing in the Third Degree
In one branch of an omnibus motion dated September 18, 2023, defendant moves the court to dismiss the count of menacing in the third degree and each count of criminal mischief in the fourth degree as facially insufficient (see CPL 100.40 [1]; 170.30 [1] [a]; 170.35 [1] [a]). Concerning the menacing count, defendant asserts that, as his alleged "verbal threat" in Incident 1 "is not accompanied by any physical action or physical menace to place the deponent in fear of imminent harm", it is not sufficiently pleaded (see Penal Law § 120.15 ["A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury"]). The court disagrees. That defendant allegedly threw a liquid, type unknown to the deponent, at him does reasonably constitute, at the pleading stage, an "attempt[] to place another person in fear of... physical injury" (id.). The allegations of the SSI sufficiently parallel the "classic illustration of menacing in the third degree [] posed by a person who, with intent to frighten another, points a gun at him which is in fact unloaded though not known by the victim to be so" (William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Penal Law § 120.15 [internal quotation marks omitted]).
That defendant allegedly approached the deponent while making threatening, bellicose-appearing statements and threw a burning liquid at him, causing physical injury to the deponent's skin, constitutes reasonable cause to believe that a physical menace took place (see Matter of Ramon M., 109 A.D.2d 882, 883 [1985] ["Although the complainant may not reasonably have feared imminent serious physical injury at the moment when appellant waved his hand in her face and stated 'Don't disrespect me', she had every reason to fear such injury when he subsequently leaped down the stairs with one leg extended toward her in a karate kick position"]; People v Morales, 33 Misc.3d 595, 597 [Crim Ct, Richmond County 2011] [finding the charge of menacing in the third degree to be facially sufficient as "the defendant's use of racial epithets was accompanied by the acts of pushing and throwing ice at the complainant"]). The court finds unavailing defendant's averment that his alleged use of the passive voice to threaten the deponent means "there [was] no fear of imminent harm caused by the statement." Accordingly, the portion of the branch of defendant's omnibus motion seeking dismissal of the count of menacing in the third degree on facial insufficiency grounds is DENIED.
B. Criminal Mischief in the Fourth Degree
Defendant also avers that each of the three counts of criminal mischief in the fourth degree is facially insufficient as the SSI "fails to allege that any damage resulted to the property from the alleged actions" (Incident 2) and "fails to allege that any property was damaged" (Incidents 3 & 4). The court again disagrees. "While no statutory definition of 'damages' is provided, it is commonly recognized that the term contemplates 'injury or harm to property that lowers its value or involves loss of efficiency' and that only 'slight' damage must be proved" (People v Collins, 288 A.D.2d 756, 758 [2001] [quoting William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Penal Law § 145.00]).
A" 'fair and not overly restrictive or technical reading'" (People v Ocasio, 28 N.Y.3d 178, 180 (2016), quoting People v Casey, 95 N.Y.2d 354, 360 [2000]) of the SSI in the instant matter presents reasonable cause to believe that defendant, in each of Incidents 2 - 4, caused damage to, or at least a loss of efficiency of, a door over which he allegedly had no authority or control when he allegedly removed a knob and lock from the door with a screwdriver, requiring the replacement of the knob, lock and hinges, and reinstallation of the door (Incident 2); removed a lock from the door with a screwdriver requiring the installation of a replacement lock (Incident 3); and removed a lock from the door with a hammer requiring the installation of a replacement lock (Incident 3) (see Matter of Tyrin M., 205 A.D.3d 547, 547 [2022] ["appellant is deemed to have damaged the property of another person when he broke a door"]; Romena Q. v Edwin Q., 140 A.D.3d 1232 [2016] ["banging and pounding on the door, ultimately causing damage to the door frame, lock and screen door... was sufficient to establish that respondent committed the family offense of criminal mischief in the fourth degree by intentionally causing damage to the front door"]; People v Borrani, 76 Misc.3d 633, 636 [2022] [it constitutes criminal mischief in the fourth degree to "cause[ ] extensive damage to the door in that the lock hinge was forcefully askew"]; People v Hickey, 60 Misc.3d 137 [A], 2018 NY Slip Op 51110[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018] [causing "damage [to] the lock latch and slats on the gate" constitutes criminal mischief in the fourth degree]; People v Jones, 39 Misc.3d 135[A], 2013 NY Slip Op 50588[U] [App Term, 1st Dept 2013] [tossing another person's food out of a window constitutes "damage [to] the property [the food]" and, thus, criminal mischief in the fourth degree]). Accordingly, the portion of the branch of defendant's omnibus motion seeking dismissal of each of three counts of menacing in the third degree on facial insufficiency grounds is DENIED in its entirety.
The court infers from its reading of the superseding information that Incidents 2 - 4 involve the same door. However, this assumption is made without loss of generality, i.e., if Incidents 2 - 4 in fact concern more than one door, the legal analysis and ultimate conclusion remain the same.
III. Severance Point
In a separate branch of the omnibus motion, defendant moves the court to sever the Incident 1 counts from the criminal mischief counts alleged in Incidents 2 - 4. "To effect a severance the applicant must either demonstrate that the counts were not joinable under the statutory criteria or seek a discretionary severance under CPL 200.20" (People v Lane, 56 N.Y.2d 1, 7 [1982], citing CPL 200.20 [2], [3]; see CPL 100.45 [1] ["the provisions of [CPL] 200.20..., governing severance of counts of an indictment..., apply to informations"]). Defendant avers that the Incident 1 counts are not legally joinable with the criminal mischief counts as Incident 1 is alleged to have occurred 6-to-7 months prior to Incidents 2 - 4 which allegedly occurred within two weeks of each other. "Thus," defendant argues, "[ Incident 1 ] cannot constitute the same act or same criminal transaction" as Incidents 2 - 4 (citing CPL 200.20 [2] [a]).
The People counterargue in their responsive papers dated October 20, 2023, and filed in opposition to defendant's omnibus motion, that joinder is permitted "for... two offenses when they 'are based upon the... same criminal transaction'" (quoting CPL 200.20 [2] [a]). The People submit that the "same criminal transaction" flows through all of Incidents 1 - 4 in that defendant's alleged actions throughout were "so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture" (CPL 40.10 [2] [defining "criminal transaction"]). The People explain that, upon information and belief, defendant has on repeated occasions attempted to forcefully enter and reside as a squatter in the subject apartment located at the singular address listed for each incident alleged in the SSI, without permission from the landlord for whom the deponent is the property manager. The People allege, with documentation showing that defendant and the landlord have been embroiled in Housing Court litigation since 2020, that "defendant's sole criminal purpose is to harass the [deponent] to the point where he leaves or surrenders use of the property.... Whether the defendant assaults the [deponent] or damages the [landlord's] property, the objective was the same, to cause the [deponent] to leave and/or surrender use of the property." The People argue further that the Incident 1 charges are "admissible and material to the charges of criminal mischief" in Incidents 2 - 4 because "[p]roof that the defendant assaulted the [deponent] demonstrates that the defendant knew the [deponent] was the lawful custodian of said property and continued to damage said property in an effort to drive the [deponent] away and/or surrender use of the property."
The People, by their argument and documentary support, have demonstrated that joinder of all the charges in the SSI is permissible as a matter of law (see CPL 200.20 [2] [b]). Multiple trials would require the deponent to give unnecessarily duplicative background testimony regarding his and defendant's alleged relationship despite the fact that "defendant has not demonstrated any risk that the jury would be unable to consider the charges separately" (People v Conyers, 210 A.D.3d 540, 540 [2022]). Further, "the proof of each crime [will be] separately presented, uncomplicated and easily segregable in the jury's mind" (People v Ndeye, 159 A.D.2d 397, 398 [1990] [internal quotation marks omitted]). Accordingly, the branch of defendant's omnibus motion seeking severance of the Incident 1 counts of the information from those of Incidents 2 - 4 is DENIED.
IV. Remaining Defense Points
The branch of defendant's omnibus motion seeking suppression of the fruits of his observation, statements, seizure, and/or arrest is GRANTED TO THE EXTENT of ordering the following hearings: Dunaway / Huntley / Mapp / Wade.
Sandoval and Molineux motions are RESERVED to the trial court for resolution (see People v Sandoval, 34 N.Y.2d 371 [1974]; People v Molineux, 168 NY 264 [1901]), as are all motions and matters potentially necessitating a voluntariness hearing (see CPL 60.45, 710.20 [3]).
All other branches of defendant's omnibus motion have been reviewed and are DENIED as redundant of motions decided herein, duplicative of applicable statutory or constitutional guidelines, or unsupported by defendant's arguments or the record.