Opinion
No. 2011SU018907.
2012-02-28
PEOPLE of the State of New York v. Thomas W. O'CONNOR, Jr., Defendant.
Thomas J. Spota, District Attorney (Pilar Czarnomski, Assistant District Attorney), for People. Robert C. Mitchell (April J. Winecke, Associate Counsel), for Legal Aid Society of Suffolk County.
Thomas J. Spota, District Attorney (Pilar Czarnomski, Assistant District Attorney), for People. Robert C. Mitchell (April J. Winecke, Associate Counsel), for Legal Aid Society of Suffolk County.
CHRIS ANN KELLEY, J.
Defendant is charged in count 1 of an information with intentional assault in the third degree (PL § 120.00(1)). He seeks dismissal on the ground the information lacks nonhearsay allegations supporting his commission of the physical injury element of this offense, rendering it insufficient ( seeCPL §§ 100.40(1)(c), 170 .30(1)(a), 170.35(1)(a)).
All the nonhearsay factual allegations are contained in the supporting deposition of the victim of defendant's alleged conduct. “Physical injury” is defined in the penal law as “impairment of physical condition or substantial pain” (PL § 10.00(9)). In her deposition, deponent avers that when she told defendant their daughter could not have chocolate, he punched her in her right arm, that this “hurt really bad and [she] started to cry.” She continues that while she was holding their child, defendant also ripped at her clothing, punched her on the left side of her body and slapped her face. Thereafter, and as part of the same occurrence, defendant also pushed deponent against a wall, grabbed her by the throat, causing her to have “a hard time swallowing and breathing,” threw her on the ground, pulled her hair, started kicking and punching her, and “jerked [her] neck around.” Deponent reports being “in extreme pain” and having difficulty moving her right elbow. She avers that “it hurts to turn [her] head,” and that her scalp is sore. She expresses her intent to see a doctor when her son gets home from school.
The sufficiency criteria for informations are found is CPL § 100.40(1). The criterion on which defendant focuses is the prima facie case requirement of CPL § 100.40(1)(c), pursuant to which “[n]on-hearsay allegations of the factual part of the information and/or of any supporting depositions [must] establish, if true, every element of the offense charged and the defendant's commission thereof” ( see People v. Alejandro, 70 N.Y.2d 133,137; see also People v. Henderson, 92 N.Y.2d 677,680). In determining whether the factual allegations satisfy the prima facie case requirement, the inquiry of the court “is limited to whether the [alleged] facts ... and the inferences that logically flow from those facts supply proof of every element of the charged [offense],” and to whether an inference of defendant's guilt rationally may be drawn from those allegations ( see (People v. Dreyden, 28 Misc.3d 5,7–8, 903 N.Y.S.2d 657 [Appellate Term, Second, Eleventh and Thirteenth Judicial Districts] [ quoting People v. Bello, 92 N.Y.2d 523,526] ). Applied to allegations of physical injury, the prima facie case requirement is met when the nonhearsay allegations of fact and the inferences that flow from those allegations supply proof from which may be drawn an inference the victim suffered “physical injury.”
In People v. Henderson (92 N.Y.2d 677, 685 N.Y.S.2d 409, 708 N.E.2d 165,supra ), the Court of Appeals signaled how allegations of physical injury in an information should be evaluated. The allegations under scrutiny were that after trying to pull a motor scooter away from the informant during an attempted theft, the accused and another “did then kick the informant about the legs, causing the informant to suffer contusions and swelling about the legs, as well as causing the informant to suffer substantial pain ...” (People v. Henderson, id. at 679, 685 N.Y.S.2d 409, 708 N.E.2d 165). In ruling that these allegations satisfied the prima facie case requirement, the Court placed the allegations in the context in which informations are prepared. “In the normal course of events,” it said, “the deposition supporting a misdemeanor complaint will be secured within hours or days after the events complained of, thus satisfying the requirements for a valid information ( see,CPL 100.10[1]; 170.65[1] ). A victim would not necessarily know with any certainty, shortly after an attack, what its lasting effects will be. Under these circumstances, allegations of substantial pain, swelling and contusions, following kicks, must be deemed sufficient to constitute physical injury' to support a facially valid local criminal court information” (People v. Henderson, 92 N.Y.2d at 680–681, 685 N.Y.S.2d 409, 708 N.E.2d 165).
Given the emphasis in the Henderson decision on the context in which informations are prepared, the court notes that here the supporting deposition was obtained about three hours after the alleged incident. Deponent's statement details her difficulty in swallowing and breathing and in moving her right elbow. She also reports pain when turning her head. This description by deponent of her physical condition, made within hours of the alleged incident, reflects a far greater violation of her physical integrity than those petty slaps delivered out of hostility or meanness which do not constitute physical injury ( see Matter of Philip A., 49 N.Y.2d 198,200). Instead, they constitute a prima facie showing of physical injury by impairment of physical condition.
The court is of the view the alternate meaning of physical injury, substantial pain, has been shown as well. Substantial pain “need not ... be severe or intense to be substantial” ( People v. Chiddick, 8 NY3d 445,447). Here, in addition to deponent's difficulty in swallowing and breathing when defendant grabbed her by the throat and the other allegations of impairment of her physical condition, deponent reports she was in extreme pain, her scalp was sore, the arm defendant punched hurt, and she was crying. She also expressed an intention to go to the doctor. Juxtaposed with the ferocity of defendant's alleged conduct, a basis for a reasonable inference of substantial pain is demonstrated.
The case law defendant has cited in support of his position that the allegations in the supporting deposition do not establish physical injury for pleading purposes is unpersuasive. Several of those decisions are appeals of either criminal convictions or family court adjudications after fact-finding hearings (Matter of Scott QQ, 187 A.D.2d 867, 589 N.Y.S.2d 712;Matter of Philip A., 49 N.Y.2d 198, 424 N.Y.S.2d 418, 400 N.E.2d 358,supra; Matter of Mary Ellen P., 278 A.D.2d 750, 718 N.Y.S.2d 442;People v. Goins, 129 A.D.2d 733, 514 N.Y.S.2d 494;People v. Franklin, 149 A.D.2d 617, 540 N.Y.S.2d 288;People v. Estes, 131 A.D.2d 872, 517 N.Y.S.2d 230). To rely on such decisions when, as here, the sufficiency of an information is in issue, is to ignore the distinction between the sufficiency of an information and the adequacy of the proof presented at a trial or equivalent fact finding proceeding. “[T]he prima facie case requirement by which the sufficiency of an information is to be measured is not the same as the burden of proof beyond a reasonable doubt required at trial, and it does not rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial either” (People v. Oree, 33 Misc.3d 1235(A), 2011 N.Y. Slip Op 52251(U), at *4 [internal quotations and citations omitted]; see also People v. Wong, 29 Misc.3d 1229(A), 2010 N.Y. Slip Op 52088(U), at *2–3 [District Ct, Nassau County, Engel, J.] ).
Although defendant also cites four decisions in which the allegations of physical injury as pleaded in the informations were found to be insufficient, those opinions also are unpersuasive here. In one of those cases, the nonhearsay allegations were that the accused had started punching the victim, then grabbed him and knocked him to the ground, causing a lot of pain to the victim's back, and also kicked the victim very hard, causing a lot of pain in his ribs, as a result of which the victim was treated at the hospital. (People v. Strong, 179 Misc.2d 809, 689 N.Y.S.2d 341 [Appellate Term, Ninth and Tenth Judicial Districts] ). “Without a proper development of the injuries,” the Appellate Term ruled, “the element of physical injury' is not factually demonstrated, mandating dismissal of the information” (People v. Strong, id. at 811, 689 N.Y.S.2d 341 [citations omitted] ).
Deponent's injuries as alleged in the deposition under review by this court are not significantly more or less developed than those reported by the victim in Strong, but they are not significantly more or less developed than those which were evaluated by the Court of Appeals in its Henderson opinion either, although the latter do include references to contusions and swelling. The Strong court was of the view that such allegations were inadequate to establish a prima facie case, so the information was insufficient, while in Henderson the court ruled substantially similar allegations established a prima facie case, so the information before it was sufficient.
The timing of the two cases explains the discrepancy. The Appellate Term handed down its Strong ruling less than two weeks before the Court of Appeals handed down its ruling in People v. Henderson (92 N.Y.2d 677, 685 N.Y.S.2d 409, 708 N.E.2d 165,supra ). The Henderson ruling emphasized that the showing of a prima facie case is a far lesser showing than the proof beyond a reasonable doubt required at trial, which may not have been clear earlier, when the Strong case was decided.
In addition, although the quantum of proof required at trial to establish physical injury is not the standard to apply when, as here, a pleading is challenged as insufficient, another ruling of the Court of Appeals, which affirmed a conviction after trial and was decided after the Strong ruling, is instructive. In People v. Chiddick, 8 N.Y.3d 445, 834 N.Y.S.2d 710, 866 N.E.2d 1039,supra, the Court found substantial pain had been established by testimony that the defendant bit the victim's fingernail, causing it to crack and the finger to bleed, that the victim felt moderate pain, and that he received a tetanus shot and a bandage at a hospital.
Consequently, whether the Strong holding remains a viable precedent after the Henderson and Chiddick rulings of the Court of Appeals is questionable. Indeed, one element common to both the Strong and Chiddick fact patterns, that the victim received medical treatment, received special comment from the Chiddick court. Although the Appellate Term in its Strong opinion attributed no value to the additional allegation that the victim of the attack sought treatment at a hospital, in its Chiddick ruling the Court of Appeals noted the victim's medical treatment was relevant as an indication that the pain was significant. This court is of the view that given the nature of the allegations in the deposition at issue here concerning the actions of defendant, together with deponent's other allegations of their effect on her, the expression by deponent of her intent to see a doctor is also a basis for inferring deponent experienced substantial pain.
The viability of the Strong decision, to the extent it addressed allegations of physical injury in an information and their sufficiency, at the least may have been limited by the Henderson and Chiddick opinions of the Court of Appeals, and this court does not consider it as controlling the outcome of the motion before it here.
Although the Strong opinion has been cited in later decisions, including those of the Appellate Term itself, it has been cited only once by a New York court on the issue of the sufficiency of physical injury allegations, in an opinion which defendant here also uses to support his position (People v. Ehigie, 6 Misc.3d 1008(A), 2004 N.Y. Slip Op 51754(U), at *7 [Bronx Co. Criminal Court] ). The acts of the accused in the Ehigie case are not described, only the injury. The reported facts are that the actions of the accused, whatever they were, caused the victim to suffer substantial pain, that the victim had swelling on his forehead, and he sought treatment at a hospital.
These sketchy facts are a contrast to the fully developed narrative provided in the deposition here. Given this contrast, the Ehigie opinion does not offer persuasive support to defendant's assertion count 1 of the information sub judice is insufficient. In addition, the Ehigie opinion was decided prior to People v. Chiddick, and the cases on which it relies all were decided prior to People v. Henderson. This court is of the view that any examination of physical injury allegations such as those here must take the Henderson and/or the Chiddick opinion(s) into account. The Ehigie decision does not, and in the case of Chiddick it could not, do so, and so it has limited precedential value here on the issue of the sufficiency of personal injury allegations, as it is from a court of coordinate jurisdiction.
In another ruling cited by defendant, the court held that allegations the accused had grabbed and twisted the victim's wrist, “leaving deep, red finger marks,” did not constitute physical injury ( People v. Druskovic, 139 Misc.2d 318,319–320 [New York City Criminal Court] ). Again, given the contrast between this allegation and the those in the deposition before this court, this case does not support a finding that count 1 of the information under review here is insufficient.
People v. Dipoumbi (23 Misc.3d 1127(A), 2009 N.Y. Slip Op 50974(U) [New York City Criminal Court] ), the remaining case cited by defendant which addressed the physical injury allegations of an information, does not support defendant's position at all, and actually reflects the sufficiency of the physical injury allegations here. The conduct of the accused in the Dipoumbi case consisted of opening a car door, which hit the arm of the victim, and the court there distinguished such conduct from a punch to the face. It found to be unreasonable an inference of substantial pain from opening a car door absent additional facts, but it acknowledged a punch to the face could support a reasonable inference of substantial pain. In the case before this court, although deponent does not allege punches to her face, she does allege a punch to her right arm, a punch to her side, a slap to her face, a grab to her throat, difficulty swallowing and breathing, hair-pulling, kicks and punches after having been thrown by defendant to the ground, being jerked by the neck, crying, extreme pain, a sore scalp, difficulty moving an elbow, and physical hurt in turning her head. The Dipoumbi decision, acknowledging as it does that physical injury may be inferred from a punch in the face, is in harmony with this court's finding here that deponent's allegations support the physical injury element of assault in the third degree.
Count 1 of the information, as supported by the deposition of the victim, satisfies the prima facie case requirement of CPL § 100.40(1)(c), for the deposition contains nonhearsay allegations supporting defendant's commission of every element of intentional assault in the third degree. Consequently, count 1 of the information is sufficient and the motion to dismiss it is denied.
[Portions of order omitted for purposes of publication].