Opinion
No. 2015KN019308.
11-06-2015
The PEOPLE of the State of New York v. Jose PARIS, Defendant.
Terrence Bogans, Brooklyn Defender Services, Brooklyn, NY, attorney for defendant. Kenneth Thompson, District Attorney, Kings County, by William Igbokwe Esq., Assistant District Attorney, Brooklyn, of Counsel for the People.
Terrence Bogans, Brooklyn Defender Services, Brooklyn, NY, attorney for defendant.
Kenneth Thompson, District Attorney, Kings County, by William Igbokwe Esq., Assistant District Attorney, Brooklyn, of Counsel for the People.
ANDREW BORROK, J.
This matter is before the court because the defendant has moved to dismiss the pending charges arguing that he has been denied his right to a speedy trial pursuant to Criminal Procedure Law (CPL) §§ 30.30(1)(b) and 170.30(1)(e). For the reasons set forth below, the charge of Assault in the Third Degree (PL § 120.00[1] ) is dismissed and the defendant's motion is otherwise denied with respect to all of the remaining pending charges.
THE RELEVANT FACTS AND CIRCUMSTANCES
The defendant was arraigned on March 31, 2015 and charged with Assault in the Third Degree (PL § 120.00[1] ), Attempted Assault in the Third Degree (PL § 110/120.00[1] ), Endangering the Welfare of a Child (PL § 260.10[1] ), Menacing in the Third Degree (PL § 120.15) and Harassment in the Second Degree (PL § 240.26). The factual portion of the instant accusatory instrument alleges that:
On March 30, 2015 at about 9:00 p.m. at 1529 Dahill Road County, in the County of Kings, State of New York:
Deponent [Police Officer Danielle Valentine] states that on the above mentioned time, date, and place of occurrence, deponent is informed by Joseph Paris that the defendant did punch informant twice about the face.
Deponent is further informed by Joseph Paris that the above described actions caused informant to suffer bruising, redness, and swelling about the eye, broken capillaries about the eyeball, to suffer substantial pain, to fear further physical injury and to become alarmed and annoyed.
The People were not then ready for trial and the matter was therefore adjourned to All Purpose Part 2(AP2) until May 6, 2015 for conversion. However, off-calendar on April 20, 2015, the People served on defense counsel and filed with the court, a statement of readiness (SOR) and a document entitled "Page 2 of the NYS Domestic Incident Report: Statement of Allegations / Supporting Deposition" (the DIR). The DIR provides in relevant part:
I was just sitting watching TV and then I decided to go to the other room for my charger and then my dad wanted to horse around but I did not and I told him to stop more than 3 times. He was horsing around with me then I told him to stop then I pushed him back because things started to escalate then he hit me twice in the face then after about several minutes I went in the other room in the house and fell asleep then when I woke up I called 911.
On the ensuing return date, May 6, 2015, the People indicated that they were ready for trial on all of the pending charges except for Assault in the Third Degree (PL § 120.00[1] ). Tr at 3, line 17, All Purpose Part 2 (May 6, 2015). At that time, nevertheless, the court ruled that although the DIR which was written and signed in Joseph Paris' (the CW) own handwriting was properly executed, it converted only certain, but not all, of the charges in the accusatory instrument and consequently further adjourned the matter until July 7, 2015 for full conversion and discovery by stipulation (DBS).
On July 7, 2015, the defendant argued to a different judge then presiding in AP2 that the initial court had ruled that the DIR had not converted the pending charges and requested a motion schedule in order for the defendant to file a motion to dismiss indicating that continued prosecution of the pending charges would violate his speedy trial rights pursuant to CPL § 30.30. The court noted that there appeared to be some confusion as to whether the DIR was in fact properly executed because the 16 year old complaining witness affixed his name in block letters as opposed to cursive and that it seemed to the court that the People were not, therefore, ready on any of the charges. Premised upon that view, the court allowed the defendant the opportunity to file a motion to dismiss by August 5, 2015. The People were allowed to file any opposition papers by August 19, 2015. Having done so, that court adjourned the case until September 17, 2015 to await a decision on the anticipated motion.
The defendant did in fact serve and file his Notice of Motion on August 5, 2015 and on September 17, 2015, the People served and filed their Opposition whereupon the court adjourned the case until November 19, 2015 pending court's decision.
The controlling issue in the case is whether the DIR that was signed in block letter as opposed to cursive by the CW and served on defense counsel and filed with the court on April 20, 2015 converts the pending charges.
DISMISSAL PURSUANT TO CPL § 30.30(1)(b)
A speedy trial motion must be granted where a defendant is charged with a misdemeanor punishable by a sentence of imprisonment of more than three months where the People are not ready for trial within 90 days of commencement of the criminal action. CPL § 30.30(1)(b) ; People v. Walton, 165 Misc.2d 672, 674 (Crim Ct, Richmond County 1995). The defendant is charged with Assault in the Third Degree (PL § 120.00[1] ) and Endangering the Welfare of a Child (PL § 260.10[1] ), both class A misdemeanors punishable by a sentence of imprisonment not to exceed one year. PL § 70.15(1). Therefore, the court must dismiss a pending charge if the People were not ready for trial with respect to that charge within 90 days of the defendant's arraignment.
For the avoidance of doubt, it is beyond cavil that an adjournment for motion practice and the period during which the motion is "under consideration by the court" is excludable time. CPL § 30.30(4)(a) ; People v. Stewart, 57 AD3d 1312, 1314 (3rd Dept 2008). Inasmuch as on July 7, 2015, the court permitted the defendant to serve and file this motion to dismiss by August 5, 2015 (and the defendant did in fact file this motion to dismiss by August 5, 2015), the period from July 7, 2015 until November 9, 2015, the date scheduled for this court's decision is thus excludable time under CPL § 30.30. See Stewart, 57 AD3d.
The defendant has the initial burden of showing, through sworn allegations of fact, that there has been an inexcusable delay beyond the time allotted by the statute. People v. Santos, 68 N.Y.2d 859, 861 (1986). Once the defendant has made that showing, the People bear the burden of demonstrating sufficient excludable time in order to withstand the motion to dismiss. Id.
Ready for trial for CPL § 30.30(1) purposes necessarily has two requirements. First, the People must communicate their readiness on the trial court's record either by stating that they are ready for trial in open court on the record transcribed by a stenographer or by a SOR sent by the People on defense counsel and the appropriate court clerk to be placed in the original record. See People v. Kendzia, 64 N.Y.2d 331, 337 (1985). Second, the People must in fact be ready to proceed. "The statute contemplates an indication of present readiness, not a prediction or expectation of future readiness." Id. at 337. Additionally, the People cannot be ready for trial until they have converted a misdemeanor complaint to an information. People v. Caussade, 162 A.D.2d 4, 8 (2d Dept 1990).
In short, the defendant argues that the DIR does not corroborate the allegations contained in the factual portion of the accusatory instrument because (i) the DIR was never properly executed because the DIR which was entirely written in the CW's own handwriting was signed in block letters and not cursive and/or (ii) the court is bound by the court's comments on July 7, 2015 which comments contradict the court's prior ruling (i.e., on May 6, 2015) that the DIR was in fact properly executed and that certain of the charges were in fact converted. Furthermore, the defendant contends that inasmuch as 99 days have elapsed between the defendant's arraignment and July 7, 2015, the court should dismiss all of the pending charges. The court does not agree.
I. Execution of the DIR
It is well settled that the court (i.e., the judge) that ultimately determines a motion to dismiss is not bound by the calendar markings and speedy trial calculations of other judges of coordinate jurisdiction. People v. Berkowitz, 50 N.Y.2d 333, 349 (1980). An information ... must be subscribed and verified by a person ... having knowledge, whether personal or upon information and belief, of the commission of the offense or offenses charged. CPL § 100.15(1). "Subscribed" has been defined as a signature at the end of a particular document. James v. Patton, 7 N.Y. 9 (1851). "The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing." General Construction Law § 46. Therefore, whether it is cursive, block letters or even a simple "x" marks the spot, any marking intended as a signature is a signature. Therefore, the court reaffirms its May 6th ruling that the DIR was properly executed.
II. Conversion
Assault in the Third Degree (PL § 120.00[1] )
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." PL § 120.00(1). The required element of "physical injury" is defined as "impairment of physical condition or substantial pain." PL § 10.00(9); see also People v. Henderson, 92 N.Y.2d at 680. In this case, although the complaint indicates that the CW suffered "substantial pain", the narrative portion of the DIR signed under the penalties of perjury by the complainant does not corroborate the injury. Therefore, the DIR does not convert the charge of Assault in the Third Degree and the entire 97 day period between March 31, 2015 and July 7, 2015 is chargeable as non-excludable time pursuant to CPL § 30.30(1)(b). Accordingly, the charge of Assault in the Third Degree is dismissed.
Attempted Assault in the Third Degree (PL § 110/120.00[1] )
A person is guilty of Attempted Assault in the Third Degree when one engages in conduct which tends to effect the commission of assault with the intent to cause physical injury to another. PL §§ 110.00, 120.00[1]. "The rationale of treating an attempt as criminal conduct is that although the defendant may have failed in his purpose, his conduct is nevertheless culpable and if carried far enough causes a sufficient risk of harm to be treated as a crime in itself.' " People v. Campbell, 72 N.Y.2d 602, 604 (1988) citing People v. Bracey, 41 N.Y.2d 296. 299 (1977). In the case before the court, the complaint indicates that the defendant punched the CW in the face twice and the DIR corroborates the same. As discussed above, the DIR does not corroborate the CW's injuries set forth in the complaint. However, it is well settled that intent can be inferred from the defendant's actions. People v. Makwana, 17 Misc.3d 296 (Crim Ct, Queens County 2007). Therefore, the charge of Attempted Assault in the Third Degree (PL § 110/120.00[1] ) was converted as of April 20, 2015 when the People indicated they were ready for trial. Inasmuch as the People have indicated that they have maintained their readiness for trial at every calendar appearance since that date, only the 20 day period between March 31, 2015 and April 20, 2015 is chargeable as non-excludable time pursuant to CPL § 30.30(1)(b). Accordingly, the charge of Attempted Assault in the Third Degree is not dismissed.
Endangering the Welfare of a Child (PL § 260.10[1] )
A person is guilty of Endangering the Welfare of a Child "when he knowingly acts in a manner likely to be injurious to the physical, mental, or moral welfare of a child less than seventeen years old ..." PL § 260.10(1). The purpose of this statute is "to protect the physical health, morals and well-being of children...." People v. Bergerson, 17 N.Y.2d 398, 401 (1966). The complaint provides that the CW alleges that the defendant punched the CW about the face and the DIR corroborates the same. Therefore, the charge of Endangering the Welfare of a Child (PL § 260.10[1] ) was converted as of April 20, 2015 when the People indicated they were ready for trial and only the 20 day period between March 31, 2015 and April 20, 2015 is chargeable as non-excludable time pursuant to CPL § 30.30(1)(b). Accordingly, the charge of Endangering the Welfare of a Child (PL § 260.10[1] ) is not dismissed.
Menacing in the Third Degree (PL § 120.15)
A person is guilty of Menacing in the Third Degree when "by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury, or physical injury. PL § 120.15. The defendant argued that because the CW went to sleep after the alleged incident the CW was not in fact fearful and that therefore the charge is not converted. This however misses the point and conflates conversion with issues of fact for trial. The fact that the CW went to sleep after the incident is wholly irrelevant to the menacing charged by the complaint and whether the menacing charge was in fact converted. The complaint provides that the CW alleges that on March 30, 2015, the defendant punched the CW about the face and caused the CW to become alarmed and annoyed and the DIR corroborates the same. That is, the People allege that the defendant menaced the CW prior to the defendant hitting the CW in the face. Therefore, the charge of Menacing in the Third Degree (PL § 120.15) was converted as of April 20, 2015 when the People indicated they were ready for trial and only the 20 day period between March 31, 2015 and April 20, 2015 is chargeable as non-excludable time pursuant to CPL § 30.30(1)(b). Accordingly, the charge of Menacing in the Third Degree is not dismissed.
It might however be relevant if the People were charging the defendant for menacing the CW after the alleged physical altercation as an issue of fact for trial.
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Harassment in the Second Degree (240.26[1] )
A person is guilty of Harassment in the Second Degree "when with intent to harass, annoy or alarm another person, he strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same." PL § 240.26(1). Many different levels of even minor physical contact can support a harassment charge. See People v. Simmons, 42 Misc.3d 462 (Crim Ct, Bronx County 2013). The complaint alleges that the defendant hit the complainant in the face and the DIR confirms the same. Therefore, the charge of Harassment in the Second Degree is converted and only the 20 day period between March 31, 2015 and April 20, 2015 is chargeable as non-excludable time pursuant to CPL § 30.30(1)(b). Therefore, the charge of Harassment in the Second Degree (240.26[1] ) is not dismissed.
CONCLUSION
For the reasons set forth above, the defendant's motion to dismiss is granted with respect to Assault in the Third Degree (PL § 120.00[1] ) but denied with respect to all of the remaining pending charges.
The foregoing constitutes the decision and order of the court.