Opinion
No. 2015BX006834.
07-22-2015
The PEOPLE of the State of New York, Plaintiff, v. Greg FRANKILING, Defendant.
Robert T. Johnson, District Attorney, Bronx County by Elaine M. Driscoll, Assistant District Attorney, for the People. Abdula R. Greene, for Defendant.
Robert T. Johnson, District Attorney, Bronx County by Elaine M. Driscoll, Assistant District Attorney, for the People.
Abdula R. Greene, for Defendant.
MARY V. ROSADO, J.
Defendant is charged with Assault in the Third Degree (Penal Law § 120.00[1] ) and Harassment in the Second Degree (Penal Law § 240.26[1] ). By Affirmation dated April 9, 2015, Defendant moves for the dismissal of all charges on the ground that the accusatory instrument is facially insufficient, and for other relief. By Affirmation in Opposition dated May 4, 2015, the People oppose Defendant's motion to suppress physical evidence and statements. In rendering a decision, this court reviewed Defendant's Affirmation dated April 9, 2015, People's Affirmation in Opposition dated May 4, 2015, the court file, and relevant statutes and case law.
The People do not argue in opposition to Defendant's motion to dismiss the accusatory instrument for facial insufficiency. However, pursuant to People v. Gruden (42 N.Y.2d 214 [1977] ), the People deny all of Defendant's allegations unless specifically admitted (People's Affirmation in Opposition at p. 2).
Defendant's motion to dismiss for facial insufficiency is granted.
Factual Allegations
The information alleges, in pertinent part, that on or about February 12, 2015, at approximately 9:30 PM, at 584 East 137th Street, the following occurred:
Deponent responded within several minutes to a 911 call at the above location. Upon arriving at the above location, deponent observed Nakeisha Greathouse to be visibly upset and shaking and yelling in sum and substance, WE HAD AN ARGUMENT. HE HIT ME IN THE FACE AND BIT MY FINGER.
Deponent further states that she observed Nakeisha Greathouse to have a bleeding laceration to her check, bruising and swelling to to [sic] her face and finger.
While Defendant moves for dismissal of the charge of Harassment in the Second Degree (Defendant's Affirmation at p. 1), he offers no arguments in support.
Facial Sufficiency
To be facially sufficient, an accusatory instrument "must designate the offense or offenses charged" (CPL § 100.15[2] ) and "must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges" (CPL § 100.15[3] ). More specifically, an information must provide "reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information" and must contain "non-hearsay allegations ... [that] establish, if true, every element of the offense charged and the defendant's commission thereof" (People v. Henderson, 92 N.Y.2d 677, 679 [1999] ); See CPL § 100.40[1] ).
The Court of Appeals has stated that CPL § 100.40(1) places "the burden on the People to make out their prima facie case for the offense charged in the text of the information" (People v. Jones, 9 NY3d 259, 261 [2007] ). It should be noted that the prima facie case requirement is not the same as the burden required at trial of proof beyond a reasonable doubt, "nor does it give rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at the trial" (People v. Kalin, 12 NY3d 225, 230 [2009] ). Rather, what is required is that the factual allegations in the information "give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense" (Id. at 230 [internal citations and quotations omitted] ). Ultimately, the information "should be given a fair and not overly restrictive or technical reading" (People v.. Casey, 95 N.Y.2d 354, 360 [2000] ).
Assault in the Third Degree
A person commits Assault in the Third Degree when "with intent to cause physical injury to another person, he causes such injury to such person or to a third person" (Penal Law § 120.00[1] ). Therefore, the elements of Assault in the Third Degree are (1) the intent to physically injure another person and (2) causing physical injury to another person (CJI2d [NY] Penal Law § 120.00 [1 ] ).
The accusatory instrument does not establish that Defendant caused physical injury to another person. Physical injury is defined as the "impairment of physical condition or substantial pain" (Penal Law § 10.00[9] ). While the information sufficiently alleges someone caused physical injury to Nakeisha Greathouse (hereinafter "complainant"), there are no factual allegations that Defendant caused the physical injury. In fact, there are no allegations that Defendant committed any act, either criminal or benign.
It is alleged that the complainant stated "we had an argument ... he hit me in the face and bit my finger" (Complaint at p. 1). This statement is an excited utterance, an exception to hearsay, and does not violate the non-hearsay requirement of facially sufficient informations. Excited utterances are "made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication" (People v. Johnson, 1 NY3d 302, 306 [2003] ; See also People v. Vasquez, 88 N.Y.2d 561, 574 [1996] ). In evaluating whether a statement constitutes an excited utterance, a court should consider (1) the nature of the startling event, (2) the duration of time between the startling event and statement, (3) declarant's actions between the startling event and his statement, (4) the opportunity for the declarant to deliberate so as to deviate from the truth, (5) and whether there are surrounding circumstances that indicate the statement was not made with reflection and deliberation (People v. Diaz, 21 AD3d 58, 65–66 [1st Dept 2005] ). Complainant made the statement after getting into a heated argument with someone that culminated in a physical attack. In the course of the argument, the assailant hit the complainant in the face and bit her finger. It is unclear exactly how much time elapsed between her attack and her statement. It is alleged that deponent responded to the scene within "several minutes." Deponent described the complainant as upset, shaking, and yelling. It is reasonable to infer that deponent arrived soon after the alleged assault because deponent observed a still-bleeding laceration on the complainant's check, and the complainant exhibited a visible reaction from the shock of the attack. Statements made by a declarant soon after a physical attack and while suffering from injuries is a quintessential example of an excited utterance (See People v. Torres, 46 Misc.3d 1205[A], *6 [Crim Ct, Bronx County 2014], citing People v. Lopez, 285 A.D.2d 356, 357 [1st Dept 2001] ). This statement qualifies as "excited utterance."
Defendant argues that the accusatory instrument fails to allege that the complainant suffered a physical injury. "While the most direct and strongest allegation about any physical injury suffered by a victim would typically come from the victim herself, there is an objective line above which one can reasonably infer the requisite level of physical injury based upon the specific allegations regarding the nature of the assault itself" (People v. Calixto, 29 Misc.3d 798, 802 [Crim Ct, New York County 2010] ). It is alleged that the complainant was struck in the head and bitten on the finger. She was attacked with such severity that deponent observed a bleeding laceration, bruising and swelling to the face and finger. The accusatory instrument alleges acts of violence "sufficiently extreme to permit a reasonable inference that the act was an experience that would normally be expected to bring with it more than a little pain" ‘ (People v. Morris, 44 Misc.3d 810, 819 [Crim Ct, New York County 2014] [internal citations omitted] ). From the nature of the complainant's assault and the severity of her injuries, it is a reasonable inference that she experienced substantial pain.
A person acts intentionally "with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct" (Penal Law § 15.05[1] ). Intent may be inferred from "the act itself, or by defendant's conduct and the surrounding circumstances" (People v. Bracey, 41 N.Y.2d 296, 301 [1977] ). Hitting another person on the face and biting their finger evinces a conscious desire to cause them physical injury.
However, as stated earlier, the accusatory instrument fails to allege that Defendant caused the physical injuries to the complainant. Keeping in mind that an accusatory instrument must show reasonable cause that Defendant committed the offense, the factual allegations, in the instant matter, never mention Defendant, nor identify Defendant. Even when read in the light most favorable to the People, there is no reasonable cause to believe that Defendant committed the prohibited acts. The only reasonable inference to be drawn, regarding the perpetrator's identity, is that it was a male.
The accusatory instrument is facially insufficient as to the charge of Assault in the Third Degree. The factual allegations fail to establish reasonable cause that Defendant committed the offense charged.
Harassment in the Second Degree
Penal Law § 240.26(1) provides that "a person is guilty of harassment in the second degree when with intent to harass, annoy, or alarm another person [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same."
The accusatory instrument sufficiently alleges that the complainant was struck, shoved, kicked, or otherwise subjected to physical contact. Prohibited conduct includes striking, shoving or kicking (People v. Bartkow, 96 N.Y.2d 770, 772 [2001] ). The factual allegations state that someone made physical contact with the complainant by hitting her in the face and biting her finger. That contact is clearly within the scope of Penal Law § 240.26(1).
The accusatory instrument further establishes that whoever hit and bit the complainant acted with the intent to harass, annoy or alarm. Hitting and biting another, by themselves, (Bracey, supra ), at a minimum, provide a reasonable inference that the actor's conscious desire was to annoy or alarm the complainant.
However, the factual allegations do not provide reasonable cause to believe that Defendant is the individual who hit and bit the complainant. There is no indication that Defendant made physical contact with the complainant.
The accusatory instrument is facially insufficient as to the charge of Harassment in the Second Degree. The factual allegations fail to establish reasonable cause that Defendant committed the offense charged.
Defendant's motion to dismiss for facial insufficiency is granted. The People have thirty (30) days leave to file a superseding information.
The remainder of Defendant's motion is rendered moot.
This constitutes the Decision and Order of the court.