Opinion
No. 15–029397.
02-22-2016
The PEOPLE of the State of New York, Plaintiff, v. Michael D. MALEY, Defendant.
Megan L. Hausner, Esq. Assistant District Attorney. Barbara E. Farrell, Esq., Attorney for the Defendant.
Megan L. Hausner, Esq. Assistant District Attorney.
Barbara E. Farrell, Esq., Attorney for the Defendant.
THOMAS J. DiSALVO, J.
Facts of the Case.
The defendant was charged with assault in the third degree, P.L. § 120.00(1), and harassment in the second degree, P.L. § 240.26(1) relative to an incident outside Hooligans Bar & Grill on October 31, 2015 at approximately 10:22 P.M. It was alleged in the complaint by Officer Guercio that the defendant “Did intentionally and knowingly strike Shawn P. Ross in the face with a closed fist several times causing physical injury. Shawn P. Ross did sustain a broken nose, multiple contusions, as well as a concussion.” The said alleged victim executed a supporting deposition verified on November 2, 2015. That deposition stated in pertinent part that “While I was walking toward my car, out of nowhere, Michael tackled me from behind and knocked me to the ground. Michael then continued to repeatedly punch me in the face.” He went on to say in the deposition that “Today on November 2nd at approximately 9:00 A.M. I went to Rochester General Hospital where I was checked out by Doctor Brian Greenberg. While at the hospital, they conducted a facial and head CT scan to find that I had a broken nose, multiple contusions, and a concussion.” In addition, the accusatory instruments included a supporting deposition from a Dan Swartwout, an employee at Hooligans. That supporting deposition states in pertinent part that “... I saw Maley begin to punch Shawn multiple times causing him to bleed and fall to the ground.”
Defense counsel filed Omnibus Motions, wherein she moved for an order dismissing the accusatory instruments as being defective pursuant to C.P.L. §§ 170.30(1)(a), 170.35(1), 100.15 and 100.40. Defense counsel argues that the accusatory instruments are insufficient on their face because they do not include non-hearsay allegations establishing, if true, every element of the offenses charged.
Issues Presented.
Is the misdemeanor information filed in this matter insufficient on its face?
Legal Analysis.
Penal Law Section 120.00(1) states that “A person is guilty of 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.” C.P.L § 100.40(1)(c) states that an information, or count thereof, is sufficient on its face when: Non hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof.” That section must be read in conjunction with C.P.L. § 100.15(3), which in reference to an information or misdemeanor complaint states in relevant part that “The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges .... the factual allegations may be based either upon personal knowledge of the complainant or upon information and belief.” The complaint signed by the police officer in and of itself does not meet either standard. The officer did not personally observe any of the events in question. Nor does the fact that the allegations were said to be made upon information and belief insure the sufficiency of the information, because the officer does not state the source of said information and belief. (See People v. Singh, 18 N.Y.S.3d 319, [Webster Just. Ct.2015) ] ; People v. Colburn, 48 Misc.3d 917, 8 N.Y.S.3d 898 [Webster Just. Ct.2015] ; People v. Malta, 19 Misc.3d 1142(A), 2008 N.Y. Slip Op 51144[U] [Webster Justice Ct.] ; People v. Birch, 4 Misc.3d 1017(A), 2004 N.Y. Slip Op 50927[U] [Webster Just. Ct.] ).
In addition, the supporting deposition of the victim herein and the complaint do not automatically result in a sufficient information. As previously alleged the victim stated that the defendant “tackled me from behind and knocked me to the ground. Michael then continued to repeatedly punch me in the face.” Those allegations do not precisely allege the required element that he was injured as result of the actions of the defendant. Nevertheless, it would seem to be a reasonable presumption that one who is repeatedly punched in the face has suffered a physical injury. A court is required to determine “... whether the nonhearsay allegations of fact, if proven, and the inferences that flow from them supply proof of all the elements of intentional assault in the third degree, and whether an inference of defendant's guilt rationally may be drawn from those allegations.” (People v. Oree, 33 Misc.3d 1235(A) *2, 2011 N.Y. Slip Op 52251[U] ) The only allegations that assert that he was injured were that he went to the hospital, was “checked out” by a doctor and underwent a CT Scan that indicated he had a broken nose, multiple contusions and a concussion. However, those allegations of specific injuries are arguably based on hearsay. Even if the defendant alleged these injuries on information and belief, there was no statement as to the source of that information. Presumably the victim did not personally interpret the results of the CT scan. Nor does he say that the aforementioned Dr. Greenberg advised him of his injuries. One is left to wonder as to the source of that information, including how he knew he had contusions. However, to discount the allegation of being punched repeatedly in the face as being insufficient in terms of asserting the existence of a physical injury is to ignore the well established precept that “So long as the factual allegations of an 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, they should be given a fair and not overly restrictive or technical reading' (People v. Kalin, 12 NY3d 225,230[2009] [internal quotation marks, brackets and citations omitted] ).” (People v. Williams, 26 Misc.3d 144(A) *1, 2010 N.Y. Slip Op [U] ). Certainly, alleging that one was repeatedly punched in the face alleges “... facts of an evidentiary character supporting or tending to support the charges.”
C.P.L. § 100.15[3].
Finally there was the supporting deposition of Dan Swartwout, the Hooligans employee. That individual attested to seeing the defendant punch Shawn P. Ross “multiple times causing him to bleed and fall to the ground.” Thus the element of injury, i.e. “causing him to bleed”, was finally specifically alleged in a non-hearsay manner.
C.P.L. § 100.40[1][c].
The question then becomes whether the alleged actions of the defendant would establish intent to cause injury to another person. In addition it must be determined as whether the alleged physical injury was sufficient in nature to establish, if true, that element of the charge herein. Penal Law section 10.00(9) states that “Physical injury' means impairment of physical condition or substantial pain.” The Court of Appeals has held that
“In defining physical injury ‘as consisting of substantial pain’ the Legislature intended toset a threshold of something more than a mere technical battery (see, People v. Rojas, 61 NY3d 726, 727, 472 N.Y.S.3d 615, 460 N.E.2d 1100 ). Thus the Temporary Commission on Revision of the Penal law and Criminal Code in drafting the statute noted that petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives, are not within the definition of the statute (Matter of Phillip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358, quoting Temporary Commission on Revision of the Penal Law and Criminal Code Proposed Penal Law, at 330).” (People v. Henderson, 92 N.Y.2d 677,680, 685 N.Y.S.2d 409 [1999] [internal quotation marks omitted] ).
The complaint and two supporting depositions herein constitute an “information” as defined by C.P.L. § 100.10(1). The first standard that must be applied to the facts alleged in an information is the reasonable cause standard as defined by C.P.L. § 70.10(2) and set out in C.P.L. § 100.40(1)(b). The Court of Appeals has referred to the standard set out in C.P.L. § 100.40[1][c] as the “prime facie case requirement”. Both of these standards, in addition to those of form required by C.P.L. § 100.15, must be applied in evaluating an information.
Henderson at 681, 410.
C.P.L. 100.40[1][a].
The Court in People v. Russo, 24 Misc.3d 655,659, 877 N.Y.S.2d 676,679 [2009] denied the defendant's motion to dismiss the accusatory instrument wherein the complainant alleged that
“... he sustained two deep lacerations' inside is lip, bleeding and swelling to his gums and that he had substantial pain. The court [found] that the accusatory instrument along with the complainant's sworn statement, are sufficient to support a prima facie charge of Assault in the Third Degree. The question of the sufficiency of these injuries and whether the defendant suffered substantial pain is an issue for the jury, (People v. Singleton, 121 A.D.2d 752, 504 N.Y.S.2d 167 [2nd Dept.1986] ).”
In reviewing the current motion to dismiss the information for insufficiency, the decision in of People v. Oree, 33 Misc.3d 1335(A), 2011 N.Y. Slip Op 52251[U], is most instructive. In that case the court stated “... the supporting deposition was obtained within four hours of the alleged incident. The allegation of a split lip, bleeding, and deponent's desire to go to the hospital, made within hours of the incident, lift defendant's alleged conduct above the level of those petty slaps delivered out of hostility or meanness which do not constitute physical injury.... They are a prima facie showing of physical injury by impairment of physical condition.” The court thus denied the motion to dismiss the information on the ground of insufficiency. In the instant case there is the allegation by the alleged victim, Shawn P. Ross, in his supporting deposition of the defendant “repeatedly” punching him in the face. He further attests to going to the hospital approximately two days later to be “checked out” where he underwent a CT scan. The fact that the defendant waited a couple of days before he sought medical treatment does not negate the element of physical injury. “A victim would not necessarily know with any certainty, shortly after an attack, what its lasting effects will be.” Finally, there is the supporting deposition of the independent witness, who was employed at Hooligans, and who attested to seeing the alleged victim being punched multiple times causing him to bleed and fall to the ground.
Id. at *3 [internal citation omitted].
Id. at *4.
Henderson at 681, 411.
Conclusion.
As previously stated the accusatory instruments consisting of the complaint and two supporting depositions constitute an information as defined by C.P.L. § 100.10[1]. When read together the accusatory instruments herein provide reasonable cause to believe the defendant committed the offense charged and they set out non-hearsay allegations that, if true, support defendant's commission of every element of intentional assault in the third degree. Thus defense counsel's motion to dismiss the information charging the defendant with intentional assault in the third degree for insufficiency is hereby denied. Defense counsel's motion to dismiss the charge of harassment in the second degree for insufficiency is summarily denied. This constitutes the decision and order of this court.