Opinion
No. 2015 SU 052548.
07-05-2016
PEOPLE of the State of New York, v. Hayden McQUILKIN, Defendant.
Catherine Lovly, Legal Aid Society of Suffolk County, for the Defendant. Elizabeth Moran, for the People. District Attorney of Suffolk County, for Thomas J. Spota.
Catherine Lovly, Legal Aid Society of Suffolk County, for the Defendant.
Elizabeth Moran, for the People.
District Attorney of Suffolk County, for Thomas J. Spota.
KAREN M. WILUTIS, J.
Defendant is charged in count 4 of the prosecutor's information in docket number 2015 SU 052548 with criminal contempt in the second degree (PL § 215.50(3)), with the same offense in counts 1 and 2 of the information in docket number 2015 SU 052549, and with endangering the welfare of a child in count 3 of the latter accusatory instrument (PL § 260.10(1)). He demands dismissal of all these charges on the ground the accusatory instruments are insufficient (see CPL §§ 170.30(1)(a), 170.35(1)(a), 100.40(1)(c), 100.40(3) ). He also seeks disclosure and a hearing on the Sandoval and Molineux/Ventimiglia issues with respect to the remaining counts of docket number 2015 SU 052548, and as relief in the alternative with respect to the other counts in both dockets if the dismissal portions of his motions are denied. The People have filed a motion to consolidate these dockets.
The motions to dismiss are denied.
As a preliminary matter, the court observes the prosecutor's information in docket number 2015 SU 052548 was filed pursuant to an Order of Reduction dismissing the original accusatory instrument filed in this action, a felony complaint (see CPL § 180.50 ). In its order of reduction, which issued ex parte, the court found the supporting depositions were legally sufficient to support the charges in the prosecutor's information, including count 4. Defendant actually is challenging this finding. As a preliminary matter, the court observes that even if it were to determine that the original ex parte determination of sufficiency was erroneous with respect to count 4, that count could not be dismissed. If it is not legally sufficient, then the reduction of the original charge in the felony complaint was not in conformity with the procedures set out in CPL § 180.50. The prosecutor's information would be a ity, the dismissal of the felony complaint would be vacated and the felony complaint would be reinstated (see People v. Spooner, 22 Misc.3d 136(A), 2008 N.Y. Slip Op 52664(U) ; People v. Stinson, 22 Misc.3d 136(A), 2008 SU 52662(U); People v. Grune, 175 Misc.2d 281 ; People v. Grune, 164 Misc.2d 1047 ; People v. Jones, 151 Misc.2d 582, lv to appeal denied sub nom People v. Mayfield, 79 N.Y.2d 921 ; People v. Minor, 144 Misc.2d 846 ; People v. Cruz–Otero, NYLJ, July 12, 2000, p 29, col 2; People v. Webb, NYLJ, July 31, 1987, p 7, cols 1, 2; People v. Stack, NYLJ, February 13, 1987, p 14, col 5; People v. Thomas, 107 Misc.2d 947 ). Consequently, the court treats this portion of the motion, to dismiss count 4, as one to vacate the order of reduction and reinstate the felony complaint.
As noted earlier, in its order of reduction, the court found the factual allegations in the felony complaint and supporting depositions were legally sufficient to support the present charges, count 4 included. Since that determination was an ex parte one, the court reevaluates it now upon defendant's motion. However, upon reevaluation, and having considered the position advanced by defendant, the court remains of the view that count 4 is legally sufficient, which is the standard it must meet (see CPL § 180.50(3)(a) ).
Defendant is charged in count 4 with intentionally disobeying a provision in a Nassau County Family Court order of protection directing that he stay away from named individuals, including the deponent of the deposition supporting the prosecutor's information, if he is consuming alcohol or is under its influence. In the supporting deposition, deponent observes that pursuant to the order of protection defendant “could see the kids but he has to refrain from drinking.” She reports that “he has a drinking problem and becomes very violent,” that he came to see their children (who also are named as protected parties in the order of protection), that he was “drinking heavily,” that he grabbed an envelope containing her rent when she refused his request for money, and that he stabbed her with a scissor when she attempted to stop him from leaving with it. Defendant's challenge to the prosecutor's information is that because deponent did not aver that pursuant to the order of protection he has to refrain from drinking alcohol, only that he has to refrain from drinking, and did not specify that the beverage he was drinking heavily was alcohol, reporting only that he was drinking heavily, the deposition does not establish he was consuming alcohol in her presence. Defendant also takes the position that, assuming deponent adequately has stated he was drinking alcohol, her failure to identify specifically the alcoholic beverage renders her allegation impermissibly conclusory. Finally, he posits that the prosecutor's information is devoid of any explanation supporting her assertion defendant was under the influence of alcohol. The court finds his positions to be unpersuasive.
Deponent's description of the “stay away” provision in the order of protection—that defendant “has to refrain from drinking”—confirms that her use of the word “drinking” and the phrase “was drinking heavily” should be given their commonly understood meaning, as references to defendant's consumption of alcohol. The assertion that defendant was drinking alcohol is a statement of fact and not, as defendant maintains, a conclusion. Deponent's representations that defendant was drinking, that he has a drinking problem, and that he becomes violent, coupled with the allegations that he stabbed deponent, support his violation of the “stay away” provision of the order of protection.
The supporting deposition, then, is legally sufficient to support the present charge in count 4 (see CPL § 180.50(3)(a) ). Consequently, the CPL § 180.50 reduction was proper, and so vacatur of the order of reduction and reinstatement of the felony complaint are denied. The court next evaluates defendant's motion to dismiss all three counts of the information in docket number 2015 SU 052549.
The charges in docket number 2015 SU 052549 arise from the same criminal transaction as that giving rise to the charges in docket number 2015 SU 052548. As noted earlier, in count 4 of docket number 2015 SU 052548 defendant is charged with violating the “stay away if consuming or under the influence of alcohol” provision because he was drinking in the presence of deponent. In counts 1 and 2 of docket number 2015 SU 054549, he is charged with simultaneously violating the same provision with respect to their children. The deposition described is used to support these counts. Defendant advances the same argument for dismissal here that he did with respect to count 4 of docket number 2015 SU 052548.
“The law does not require that the most precise words or phrases which most clearly express the thought be provided in an information, but only that the crime be alleged and the specifics set forth so that a defendant can prepare himself for trial, and so that he will not be tried again for the same offense” (People v. Kwas, ––– Misc.3d ––––, 2016 N.Y. Slip Op 26186 [Appellate Term, Ninth and Tenth Judicial Districts 2016] ). The information sub judice satisfies this criterion. The nonhearsay facts presented are specific enough to apprise defendant of the conduct in which he is accused of engaging and avoid retrial for the same offense, and they enable him to prepare for trial Consequently, these counts are sufficient (see CPL § 100.40(1)(c) ). Their dismissal is inappropriate.
That portion of defendant's application which is to dismiss the endangering charge in count 3 of docket number 2015 SU 052549 has become moot. This charge arises from the same criminal transaction as the counts which already have been evaluated. In response to the instant motion, the People have filed two counts to supersede count 3. Upon defendant's arraignment on these counts, the present count 3 will be dismissed (see CPL § 100.50(1) ).
The court turns to defendant's demand for omnibus relief. He seeks a response to his discovery demand, Brady/Rosario material, and a hearing on the Sandoval and Molineux/Ventimiglia issues. This portion of his motion is resolved in the following manner.
The People furnished a supplement to their initial response to defendant's discovery demand following the service on them of the instant motion. The supplement provides defendant with the material he seeks, and so this portion of defendant's motion is denied as moot.
The People are to furnish defendant with any Brady material which they have or which hereafter comes into their possession, and they are to furnish defendant with Rosario material to the extent authorized in CPL §§ 240.44, 240.45, as well as with the other disclosures mandated under those statutes. They are to do so no later than at the times specified in those statutes. The court declines to direct the People to satisfy their obligation to furnish defendant with the record of their witnesses' convictions and the existence of pending criminal actions against their witnesses by furnishing defendant with NYSIIS reports, as defendant demands (see CPL §§ 240.44(2),(3), 240.45(1)(b), (1)(c) ). NYSIIS reports may contain information which is not discoverable. In addition, CPL § 240.45 contains a prohibition covering the issuance of records such as the NYSIIS reports of witnesses. It reads in pertinent part “[t]he provisions of paragraphs (b) and (c) ... shall not be construed to ... cause thedivision of criminal justice services or other law enforcement agency or court to issue a report concerning a witness” (CPL § 240.45 ; see People v. Graham, 289 A.D.2d 417 [2d Dept 2001] ).
A hearing on the Sandoval and Molineux/Ventimiglia issues is to be held immediately prior to trial. The People are to make the disclosures required in CPL § 240.43.
The motion of the People to consolidate docket numbers 2015 SU 052548 and 2015 SU 052549 is granted, for all the offenses in these dockets arise out of the same criminal transaction (see CPL §§ 40.10(2), 100.45(1), 200.20(2)(a) ). However, to the extent the People seek to consolidate a third docket with these two, the motion is denied as moot, the third docket having been dismissed by separate court order. Docket numbers 2015 SU 052548 and 2015 SU 052549 are consolidated and are to be treated as a single accusatory instrument for trial purposes (see CPL §§ 100.45(1), 200.20(4) ).