Opinion
10-14-2015
The PEOPLE of the State of New York, v. M.J., Defendant.
Robert T. Johnson, District Attorney, Bronx County by Peter Naber, Assistant District Attorney, for the People. The Legal Aid Society by Anton Pribysh, for Defendant.
Robert T. Johnson, District Attorney, Bronx County by Peter Naber, Assistant District Attorney, for the People.
The Legal Aid Society by Anton Pribysh, for Defendant.
ARMANDO MONTANO, J.
Defendant is charged with one count of Harassment in the Second Degree (PL § 240.26[1] ).
Defendant moves for an order 1) dismissing the accusatory instrument as facially insufficient; 2) suppressing any and all testimony regarding any identifications of defendant, or in the alternative, directing the holding of a Wade hearing; 3) precluding the People from introducing statement or identification evidence for which proper notice was not given pursuant to CPL § 710.30(3) ; 4) precluding the People from introducing at trial evidence of defendant's prior convictions or bad acts, or in the alternative, granting a hearing on the issue; 5) precluding the People from introducing at trial evidence not supplied in response to defendant's Request for a Bill of Particulars and Demand to Produce; and 6) granting defendant the right to make additional pretrial motions and the right to amend and/or supplement this motion if made necessary or appropriate by the People's future disclosure.
The factual allegations in the accusatory instrument sworn to by the deponent, Ingrid Pierre Pierre, read as follows:
Deponent states that [on or about May 5, 2015 at approximately 2:53 PM at inside of 1 Halleck Street, County of Bronx, State of New York], defendant stated to deponent in sum and substance WHAT DO YOUR FEET LOOK LIKE. [YOUR] FEET ARE PRETTY. CAN I SEE YOUR FEET. I WOULD FUCK YOU.
Deponent further states that defendant then grabbed her by her clothing, and stated in sum and substance I WOULD EAT YOUR ASS AND YOUR PUSSY. I WOULD BEND YOU OVER AND FUCK YOU IN YOUR ASS. YOU LOOK SEXY.
Deponent further states that as a result of defendant's aforementioned conduct, deponent experienced annoyance, alarm, and fear for her physical safety.
Motion to Dismiss
Defendant argues that the information must be dismissed because it fails to 1) establish that he acted with the intent to harass, annoy or alarm the complainant and 2) allege the element of physical contact as contemplated by the legislature. Although his comments to the deponent that her feet were pretty and that she looked sexy were crude and obnoxious, defendant asserts that those allegations do not establish an intent to annoy or alarm. Rather, defendant maintains that he was merely attempting to compliment the complainant as a way of showing his interest. With respect to the element of physical contact, defendant cites to People v. Bartkow, 96 N.Y.2d 770, 725 N.Y.S.2d 589, 749 N.E.2d 158 (2001) and argues that the momentary act of grabbing the complainant's clothing as opposed to her person, falls short of the acts of striking, shoving, or kicking as contemplated in the statute.
At the outset, the People argue that the instant motion should be denied as untimely pursuant to CPL § 255.20(1) since it was filed approximately 80 days after his arraignment. Since defendant has failed to request for an extension of time or made a showing of good cause as to why the instant motion could not have been filed sooner, the People argue that the instant motion should be denied.
Should this court permit the untimely filing of the instant motion and choose to consider the merits thereof, the People argue that the information is facially sufficient as it provides adequately details facts to the support the harassment charge. The People assert that the failure to detail a defendant's intent is not a jurisdictional defect. Instead, the People contend that a defendant's intent can and should be inferred from the factual allegations contained within the information. As to the element of physical contact, the People note that a plain reading of PL § 240.26(1) requires only that a defendant "subject [another] person to physical contact or attempts or threatens to do the same." The People argue that defendant's physical act of grabbing the complainant's clothing coupled with his statements establishes not only the requisite physical contact, but also demonstrates that he attempted and intended to subject the complainant to physical contact.
CPL § 255.20(1) provides that "all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment." (Emphasis added). Although untimely, the court provided defendant with additional time to file the instant motion. The court also gave the People additional time to submit responsive papers. In light of the foregoing, this court shall decide the instant motion on its merits.
It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15[3] ; People v. Dumas, 68 N.Y.2d 729 [1986] ) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40[1][c] ). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b) ; Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686. Reasonable cause to believe that a defendant committed the crimes charged "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70 .10. "In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged." People v. Hightower, 18 N.Y.3d 249, 254, 938 N.Y.S.2d 500, 961 N.E.2d 1111 (2011).
In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15 ; People v. Mellish, 4 Misc.3d 1013(A) (Crim Ct, N.Y. County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 512 N.Y.S.2d 652, 504 N.E.2d 1079 (1986). "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 therefore be sufficiently alleged." People v. Sylla, 7 Misc.3d 8, 10, 792 N.Y.S.2d 764 (App Term, 2d Dept.2005). As such, "[s]o 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. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000).
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. " (Emphasis added). A person acts intentionally with respect to a result or conduct "when his conscious objective is to cause such result or to engage in such conduct." PL § 15.05. The required intent to establish a violation of PL § 240.26(1), can be inferred from the defendant's conduct and/or the surrounding circumstances. See, People v. Bracey, 41 N.Y.2d 296, 392 N.Y.S.2d 412, 360 N.E.2d 1094 (1977) ; People v. Collins, 178 A.D.2d 789, 578 N.Y.S.2d 273 (3d Dept.1991) ; People v. Strong, 179 Misc.2d 809, 689 N.Y.S.2d 341 (App Term, 2d Dept.1999) ; People v. Hawkins, 1 Misc.3d 905(A) (Crim Ct, N.Y. County 2003).
This court finds defendant's reliance on Bartkow, 96 N.Y.2d 770, 725 N.Y.S.2d 589, 749 N.E.2d 158 to be misplaced. The Court of Appeals explained that:
The crux of section 240.26(1) is the element of physical contact: actual, attempted or threatened. Although not rising to the level of an assault causing physical injury, petty forms of offensive touching such as striking, shoving and kicking are prohibited when committed with the intent to annoy, harass or alarm the victim. Under the rule of construction requiring courts to "limit general language of a statute by specific phrases which have preceded it, the general language "physical contact" is properly confined to the preceding "strikes, shoves, kicks" and the like contemplated by the statute. Id. at 772, 725 N.Y.S.2d 589, 749 N.E.2d 158. (Internal citations omitted).
However, "[i]t is apparent that the legislature intended the language otherwise subjects another person to physical contact' to be a catchall provision." People v. Carlson, 183 Misc.2d 630, 635, 705 N.Y.S.2d 830 (Crim Ct, N.Y. County 1999) ; see also, People v. Simmons, 42 Misc.3d 432 (Crim Ct, Bronx County 2013). As such, contrary to defendant's assertions, a plain reading of PL § 240.26(1) clearly demonstrates that the conduct proscribed by the statute is not limited only to strikes, shoves, and kicks.
Despite defendant's efforts to characterize his actions as a misguided attempt to compliment the complainant, he went beyond simply lodging crude remarks. Here, defendant is accused of grabbing the complainant by her clothing after asking her if he could see her feet because they looked pretty. He then continued to detail various sexually explicit acts that he wished to do to her.
It bears emphasizing that PL § 240.26(1) does not require actual physical contact, the attempt to do so suffices. This court can readily infer from the fact that although defendant only grabbed the complainant's clothing as opposed to her arm or any other part of her body that the complainant tried to move away from defendant as he came towards her and as such defendant was unable to make physical contact with the complainant's body. Had the complainant been stationary, it is highly probable that defendant would have made actual physical contact. Thereafter, defendant threatened the complainant with physical contact by stating that he wanted to commit acts of sexual intercourse, anal and oral sodomy. In effect, by grabbing the complainant's clothing, this court deems such conduct by defendant as his first attempt to subject the complainant to the sexually explicit acts he desired to carry out. Finally, this court agrees with the People that defendant's intent to harass, annoy, or alarm the complainant can be inferred from both his statements and his act of grabbing the complainant by her clothing.
Based on the foregoing, this court finds that the accusatory instrument 1) sets forth sufficient non-hearsay allegations of an evidentiary nature which support each and every element of the harassment charge and 2) provides reasonable cause to believe that defendant intended to harass, annoy, or alarm the complainant by attempting to subject the complainant to physical contact. Therefore, defendant's motion to dismiss on the grounds of facial insufficiency is denied.
Motion to Suppress Identification Evidence
Defendant moves to suppress any and all testimony regarding any prior noticed identifications of him, in-court identification testimony, and any other tangible or testimonial fruits of his unlawful seizure. Defendant argues that the prior identification procedure used violated his due process rights and was unnecessarily suggestive. In the alternative, defendant requests a Wade/Dunaway hearing.
In opposition, the People assert that if they can establish that the parties are well-known to each other, then any police-arranged identification procedure is deemed confirmatory. The People aver that defendant is an inmate at Riker's Island and the complainant is a teacher at Riker's Island. Over the course of three to four months leading up the incident at issue herein, the People contend that defendant and the complainant interacted with each other on a regular basis. Therefore, the People argue that the photo array identification conducted was merely confirmatory in nature. Notwithstanding the fact that CPL § 710.30(1)(b) notice is not required for confirmatory identifications, the People maintain that it is their policy to provide such notice.If the court concludes that the identification procedure used was unnecessarily suggestive, then the People request a bifurcated hearing in order to determine an independent source for the identification. Moreover, should a hearing be ordered to resolve any issues related to the suggestiveness of the identification procedure, the People request that the scope of the hearing be so limited as there is no issues related to probable cause. The People note that defendant has failed to set forth any sworn allegations of fact that would give rise to a Dunaway hearing.
In a motion to suppress identification testimony resulting from improper procedures, sworn allegations of fact are not required. CPL §§ 710.60(3)(b), 710.20(3) ; People v. Jones, 95 N.Y.2d 721, 723 N.Y.S.2d 761, 746 N.E.2d 1053 (2001) ; People v. Weaver, 49 N.Y.2d 1012, 429 N.Y.S.2d 399, 406 N.E.2d 1335 (1980). "[T]he purpose of the Wade hearing is to test identification testimony for taint arising from official suggestion during police-arranged confrontations between a defendant and an eyewitness.' " People v. Dixon, 85 N.Y.2d 218, 222, 623 N.Y.S.2d 813, 647 N.E.2d 1321 (1995)quoting People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924 (1979). There are two narrowly construed exceptions to the general requirement of a Wade hearing, where either the prior identification was merely confirmatory or where the individuals are known to each other. See, People v. Dixon, 85 N.Y.2d 216 (1996); People v. Wharton, 74 N.Y.2d 921, 550 N.Y.S.2d 260, 549 N.E.2d 462 (1989) ; People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924 (1979).
"A court's invocation of the confirmatory identification' exception is thus tantamount to a conclusion that, as a matter of law, the witness is so familiar with the defendant that there is little or no risk' that police suggestion could lead to a misidentification." People v. Rodriguez, 79 N.Y.2d 445, 450, 583 N.Y.S.2d 814, 593 N.E.2d 268 (1992). In other words, prior to summarily denying a Wade hearing, the court must conclude as a matter of law that there was "no degree of police suggestiveness that could possibly have tainted the identification." People v. Lawhorn, 192 A.D.2d 359, 360, 595 N.Y.S.2d 777 (1st Dept .1993). In addition, the People bear the burden of demonstrating that the identification procedure used was in fact confirmatory. Rodriguez, 79 N.Y.2d at 452, 583 N.Y.S.2d 814, 593 N.E.2d 268.
Defendant's motion to suppress identification testimony is hereby denied. Defendant's failure to challenge the People's assertion that he and the complainant were known to each other so as to render the identification merely confirmatory obviates the need for a hearing. See, People v. Marte, 103 A.D.3d 470, 960 N.Y.S.2d 13 (1st Dept.2013) ; People v. Murray, 247 A.D.2d 292, 668 N.Y.S.2d 457 (1st Dept.1998) ; People v. DeJesus, 244 A.D.2d 244, 664 N.Y.S.2d 293 (1st Dept.1997).
As to the Dunaway portion of defendant's motion, this court finds that defendant has failed to allege sufficient facts to controvert the specific allegations as to the circumstances surrounding his arrest so as to raise an issue of fact related to probable cause that must be determined at a hearing. Although summary denial of a motion to suppress is disfavored, "[h]earings are not automatic or generally available for the asking by boilerplate allegations." Mendoza, 82 N.Y.2d at 422, 604 N.Y.S.2d 922, 624 N.E.2d 1017. "It is fundamental that a motion may be decided without a hearing unless the papers submitted raised a factual dispute on a material point which must be resolved before the court can decide the legal issue." People v. Gruden, 42 N.Y.2d 214, 215, 397 N.Y.S.2d 704, 366 N.E.2d 794 (1977). In requesting a hearing, a defendant must "controvert the specific factual averments as to the circumstances of the crime and his arrest." People v. Doyle, 273 A.D.2d 69, 69, 709 N.Y.S.2d 57 (1st Dept.2000)quoting People v. Suggs, 268 A.D.2d 305, 305, 700 N.Y.S.2d 713 (1st Dept.2000).
"Unlike a paid or anonymous informant, an eyewitness victim of a crime can provide probable cause for the arrest of [the perpetrator] despite the fact that his reliability has not been previously established or his information corroborated." People v. Crespo, 70 A.D.2d 661, 661, 417 N.Y.S.2d 19 (2d Dept.1979) ; see also, People v. Ross, 244 A.D.2d 513, 664 N.Y.S.2d 334 (2d Dept.1997) ; People v. Pascual, 173 A.D.2d 746, 570 N.Y.S.2d 623 (2d Dept.1991). Absent materially impeaching circumstances, probable cause is established when a victim of a crime provides information to the police "affording a credible ground for believing the offense was committed and identifies the accused as the perpetrator." People v. Gonzalez, 138 A.D.2d 622, 623, 526 N.Y.S.2d 208 (2d Dept.1988).
Motion for a Voluntariness Hearing Regarding
Unnoticed Statements to Law Enforcement
Defendant moves for a hearing to determine the voluntariness of any unnoticed statements that the People intend to use solely on cross-examination or on rebuttal, or of any noticed statement that the People subsequently withdraw their intent to use on its direct case.
The People have not served statement notice pursuant to CPL § 710 .30(1)(a); however, they reserve the right to use any unnoticed statements during cross-examination of defendant or a witness. The People further note that certain types of statements such as pedigree information given by defendant to law enforcement, statements that constitute res gestae, and statements made during the criminal transaction do not require CPL § 710.30(1)(a) notice. Based upon the utter lack of specificity in defendant's request, the People aver that the scope of a voluntariness hearing would be limitless. Therefore, the People request that this branch of defendant's motion be denied without prejudice with leave to renew at a later date.
There is no indication that the People intend to use any such unnoticed statements at trial. Therefore, defendant's motion for a voluntariness hearing as to any unnoticed statements to law enforcement which the People intend to use at trial is denied, with leave granted for defendant to renew this branch of the motion upon learning that the People intend to introduce any such evidence at trial.
Motion to Preclude Statement and Identification Evidence
Defendant's motion to preclude the introduction of statements and identification evidence for which proper notice was not given is denied, with leave granted for defendant to renew this branch of the motion upon learning that the People intend to introduce any such evidence at trial.
Discovery
The People have already responded to defendant's request for a bill of particulars and demand to produce. Therefore, defendant's motion for an order precluding the People from introducing certain evidence for failure to comply with the request for a bill of particulars and demand to produce is hereby deemed moot. The People are also reminded of their continuing obligation to supply all Brady material and Rosario material.
Sandoval/Molineaux/Ventimiglia
Defendant moves for an order compelling the People to provide a list of his past criminal history and/or prior bad or immoral acts which the People intend to use at trial. Defendant also moves for an order precluding the People from cross-examining him as to his prior convictions, criminal and immoral acts.
Defendant's motion for an order precluding the People from introducing evidence of his prior convictions and/or bad acts is respectfully referred to the trial judge without opposition. The People are directed to provide defendant with a list of his prior charged and uncharged criminal, vicious, or immoral conduct which they will seek to offer on their direct case within fifteen (15) days of receipt of this decision and order.
Future Motions
Defendant's reservation of right to file further motions is unauthorized pursuant to CPL § 255.20(3). Any future motions shall be summarily denied absent a showing of good cause.
Accordingly, defendant's motion to dismiss the accusatory instrument as facially insufficient is denied. Defendant's motion to suppress identification testimony is denied. Defendant's motion for a voluntariness hearing as to any unnoticed statements to law enforcement which the People intend to use at trial is denied, with leave granted for defendant to renew this branch of the motion upon learning that the People intend to introduce any such evidence at trial. Defendant's motion to preclude the introduction of statements and identification evidence for which proper notice was not given is denied, with leave granted for defendant to renew this branch of the motion upon learning that the People intend to introduce any such evidence at trial. Defendant's motion for an order precluding the People from introducing evidence of his prior convictions and/or bad acts is respectfully referred to the trial judge without opposition. The People are directed to provide defendant with a list of his prior charged and uncharged criminal, vicious, or immoral conduct which they will seek to offer on their direct case within fifteen (15) days of receipt of this decision and order. Defendant's request to file additional motions is denied subject to rights under CPL § 255.20(3) to move for further leave upon good cause shown. This court sua sponte transfers the instant case to Part AP–10 as defendant is 17 years of age.
This constitutes the decision and order of this court.