Opinion
2017NY039236
01-02-2018
The PEOPLE of the State of New York, Plaintiff, v. Rasid MOHAMED, Defendant.
For the Defendant: Jean Pierre Nogues, Esq., The Legal Aid Society, 49 Thomas Street, 2nd Floor, New York, NY 10013 For the People: Cyrus R. Vance, Jr., District Attorney, New York County, One Hogan Place, New York, NY 10013, By: A.D.A. Samantha Oakes
For the Defendant: Jean Pierre Nogues, Esq., The Legal Aid Society, 49 Thomas Street, 2nd Floor, New York, NY 10013
For the People: Cyrus R. Vance, Jr., District Attorney, New York County, One Hogan Place, New York, NY 10013, By: A.D.A. Samantha Oakes
It should be noted that this assigned assistant did not draft the complaint at issue.
David Frey, J.
The defendant is charged with two counts of Assault in the Third Degree (PL 120.00[1] and [2] ), one count of Attempted Assault in the Third Degree (PL 110/120.00[1] ), and one count of Harassment in the Second Degree (PL 240.26[1] ). The defendant, in an omnibus motion dated December 7, 2017, seeks: (1) to dismiss the counts 1, 2, and 3 as facially insufficient pursuant to CPL 100.40 and CPL 170.30, (2) to dismiss the entire case pursuant to CPL 170.30(1)(e) and CPL 30.30, (3) a Mapp hearing, (4) a Huntley/Wade/Dunaway hearing, (5) to preclude statement and identification evidence pursuant to CPL 710.30, (6) an order to compel a Bill of Particulars and discovery, and (7) reservation of rights. The People filed a Voluntary Disclosure Form (VDF) on November 21, 2017.
The defendant's motion to dismiss for facial insufficiency is granted in part and denied in part. The motion to dismiss pursuant to CPL 30.30 is denied. The defendant's motion for a Mapp hearing is denied, and the motions for Huntley/Wade/Dunaway hearings are granted.
FACIAL SUFFICIENCY
CPL 100.40(1) states that an information is sufficient on its face when it substantially conforms with CPL 100.15 ; the allegations provide reasonable cause ( CPL 70.10[2] ) to believe that the defendant committed the offenses charged; and the non-hearsay allegations in conjunction with any supporting deposition establish, if true, that the defendant committed all the charged offenses' elements. "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. Casey , 95 NY2d 354, 360 [2000] ).
The police officer's entire factual allegation in his misdemeanor states:
I am informed by Jeannett Klein, of an address known to the District Attorney's Office, that she observed the defendant place his hands on her shoulder and chest and then push her backwards. I am further informed by Ms. Klein that the defendant's above-described conduct caused redness to Ms. Klein's shoulder and chest, as well as pain.
Ms. Klein confirmed the complaint's accuracy in her supporting deposition, removing all hearsay from the accusatory instrument, but without adding any additional facts.
I. Counts 1 and 2 (Assault in the Third Degree).
A person is guilty of Assault in the Third Degree when, with intent to cause physical injury to another person, he or she causes such injury to that person (PL 120.00[1] ), or when that person recklessly causes physical injury to another person (PL 120.00[2] ). Penal Law 10.00(9) defines physical injury to mean "impairment of physical condition or substantial pain." There are no factual allegations in the complaint that would support "impairment of physical condition." The sole issue before the court is therefore whether the complaint sufficiently alleged "substantial pain." It does not.
The baseline for "substantial pain" is described in Matter of Philip A, 49 NY2d 198 (1980), where the complaining witness was hit twice in the face, causing red marks and pain. The Court of Appeals in dismissing that case, noted:
Here we have nothing more than evidence that complainant was hit, that it caused him pain, the degree of which was not spelled out, caused him to cry and caused a red mark. All of that is consistent with "petty slaps" and, therefore, was insufficient to establish "substantial pain" beyond a reasonable doubt.
The lead case on facial sufficiency for the "physical injury" element is People v. Henderson, 92 NY2d 677 (1999). In that case, the Court noted that the Legislature "intended to set a threshold more than a mere technical battery" and cited to Matter of Philip A for the proposition that a complaint must allege sufficient facts to differentiate between petty slaps and shoves, and substantial pain. Since then, allegations that a defendant kicked a victim in the legs and caused contusions and swelling (Henderson, supra at 680), dragged someone down a hallway leaving abrasions on their forearm ( People v. Monserrate, 90 AD3d 785 [2nd Dep't 2011] ), or merely broke a complainant's fingernail causing bleeding during a dispute ( People v. Chiddick, 8 NY3d 445 [2007] ) were found sufficient allegations to support the "physical injury" element.
In the complaint before this court, the only allegation is that on June 8, 2017, the defendant placed his hands on the complaining witness's shoulder and chest and then pushed her backwards. The only injury alleged in the officer's complaint dated July 25, 2017, is "redness" where the defendant's hands shoved the complaining witness, and that she experienced "pain." The supporting deposition dated September 8, 2017, does not add any facts to the injury sustained or even the amount of pain experienced; in fact, the complaint does not even allege "substantial pain." This complaint does not meet the bare, minimum, necessary pleadings required under Henderson, Chiddick, and Casey . The allegations in this complaint do not even rise to the injuries described in Matter of Philip A, supra , where the victim suffered not just a shove, but was also slapped, resulting in red marks and enough pain to cause the victim to cry, which the Court of Appeals found insufficient to establish the "substantial pain" element. Here, as in Matter of Philip A, the degree of pain suffered was not disclosed in the complaint, nor even in the complaining witness's supporting deposition filed three months later, at a time when the victim would know with some certainty, the injury's or pain's lasting effects (see, Henderson, supra at 681). Counts 1 and 2 are dismissed, with leave granted for the People to refile the charges consistent with CPL 30.30 and 170.30 ( People v Nuccio, 78 NY2d 102, 104–105 [1991] ).
II. Attempted Assault in the Third Degree (PL 110/120.00[1] ).
The defendant in this case is also charged with Attempted Assault in the Third Degree (PL 110/120.00[1] ), which did not require the defendant to complete the assault (PL 110.00). Moreover, Attempted Assault in the Third Degree does not require the People to demonstrate a "physical injury" ( People v. Whatts , 116 AD3d 456, 462 [1st Dep't 2014] ). The complaining witness's allegations, if true, supported every element of Attempted Assault in the Third Degree. All the requirements of CPL 100.40(1) and Casey , supra , are satisfied for Count 3, and the defendant's motion to dismiss this count is denied.
CPL 30.30 MOTION
Assault in the Third Degree (PL 120.00[1] ) is an A misdemeanor punishable by up to one year in prison (PL 230.04 and PL 70.15[1] ). A motion to dismiss must be granted when the People are not ready for trial "within 90 days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony" ( CPL 30.30[1][b] and 170.30[1][d] or [e] ). Although the A misdemeanors in this case were dismissed above, because the top count initially charged was an A misdemeanor the 90–days readiness period still applies ( People v. Cooper , 98 NY2d 541, 546 [2002], citing People v. Andrew Cooper , 90 NY2d 292 [1997] and People v. Tychanski , 78 NY2d 909 [1991] ). See also , People v. Smalls , 36 Misc 3d 1226[A] [Sup Ct, Bronx Co 2012] [because the highest charge in the original complaint was a class A misdemeanor, the People are required to be ready within 90 days, notwithstanding that the only remaining count was a violation] ).
The misdemeanor complaint was filed on August 1, 2017. The complaint was not an information, and the case was adjourned to September 26, 2017, for a supporting deposition. The People are charged for this entire 56–day period.
On September 26, 2017, the People served and filed the supporting deposition necessary to convert the complaint to an information and the defense requested a motion schedule. The case was adjourned to November 21, 2017. The People are not charged for this adjournment ( CPL 30.30[4][a] ).
On November 21, 2017, the defendant had not yet filed the instant motion. The case was once again adjourned for defense motions. The People are not charged for this adjournment ( CPL 30.30[4][a] ).
In sum, the People are charged with the following time:
| Adjournment dates | Days Charged |
|---|---|
| August 1, 2017 to September 26, 2017 | 56 |
| September 26, 2017 to November 21, 201 | 70 |
| November 21, 2017 to January 16, 2018 | 0 |
| Total time charged | 56 |
The defendant's motion to dismiss pursuant to CPL 30.30 is denied.
MAPP HEARING
The People have not given notice that they intend to introduce any evidence seized from the defendant at trial. Moreover, the defense motion does not identify any property seized from the defendant. The defendant's motion for a Mapp hearing is denied.
HUNTLEY/WADE/DUNAWAY MOTIONS
The People gave CPL 710.30(1)(a) notice at arraignment. The Court of Appeals has held that, "there must be a hearing whenever a defendant claims his statement was involuntary, no matter what facts he puts forth in support of such claim" ( People v. Weaver , 49 NY2d 1012 [1980] ). Therefore, the defendant's motion for a Huntley/Dunaway hearing is granted.
The People gave CPL 710.30(1)(b) notice that they intend to introduce identification evidence against the defendant at trial. A court may summarily deny a suppression motion without a hearing only if "[t]he motion papers do not allege a ground constituting [a] legal basis for the motion" ( CPL 710.60[3][a], People v. Boyer , 6 NY3d 427, 431 [2006] ). The defendant's motion alleges the identification procedure used was unreliable and unduly suggestive; consequently, the defendant is entitled to a Wade hearing.
The People are precluded from using any unnoticed statement and identification evidence except for good cause shown ( CPL 710.30[2] ).
BILL OF PARTICULARS
The People provided the defendant a VDF, which fully discloses the charges against the defendant and their factual basis. Everything CPL 200.95(1)(a) requires a Bill of Particulars to include is included in the People's VDF. The defendant's motion for a Bill of Particulars is denied.
DISCOVERY
The People have indicated in their VDF that they will be utilizing tapes or electronic recordings as evidence in this matter. The defense counsel and the People are directed to schedule a date convenient to both parties to listen to or copy the recordings ( CPL 240.20[1][g] ). The defendant's motion for discovery is otherwise denied.
RESERVATION CLAUSE
The defendant's motion to file further pre-trial motions is granted to the extent they are based on new facts or law that the "defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised" within 45 days after the defendant's arraignment and before trial ( CPL 255.20[3] ).
CONTINUING DISCLOSURE DUTY
The People must comply with their continuing duty to disclose, including potentially exculpatory evidence, to the defendant ( CPL 240.20[2] and 240.60 ; Brady v. Maryland , 373 US 83 [1963] ).
RECIPROCAL DISCOVERY
The People's request for reciprocal discovery under CPL 250.20 and CPL 240.30(1) is granted as follows:
(1) Eight days having passed from the People's demand for alibi notice, the defendant is precluded from offering evidence that he was at some place other than in front of 134 West 28th Street in Manhattan at the time of the alleged incident, unless the defendant can show good cause for the delay ( CPL 250.20[1] ).
(2) The defendant shall disclose and make available, subject to constitutional limitation, all CPL 240.30(1) and CPL 240.30(2) discovery materials.
(3) As more than 30 days have passed since the defendant's arraignment, the defendant is precluded from offering psychiatric evidence, unless the defendant can show good cause for the delay ( CPL 250.10[2] ).