Opinion
2008NY082875.
Decided March 11, 2009.
The defendant is charged with one count of Petit Larceny.
Defendant, in an omnibus motion, seeks: (1) an Order to Compel a Bill of Particulars and Discovery, (2) Dismissal of the Information for Facial Insufficiency, (3) an Order Precluding Identification Testimony, (4) a Dunaway/Huntley Hearing, (5) a Sandoval Hearing, and (6) Reservation of Rights.
The defendant's omnibus motion is decided as follows:
MOTION TO COMPEL A BILL OF PARTICULARS AND DISCOVERY
The branch of the defendant's motion seeking a Bill of Particulars and Discovery is to be regarded as a Request for a Bill of Particulars pursuant to CPL 200.95 and a Demand for Discovery pursuant to CPL 240.20. The motion is granted to the extent that the People have provided already in both their response and the Voluntary Disclosure Form that they turned over in this case.
The People are reminded of their continuing obligations under Brady v Maryland, 373 U.S. 83 (1963).
DISMISSAL OF THE INFORMATION FOR FACIAL INSUFFICIENCY
The defendant moves to dismiss the information for facial insufficiency pursuant to Criminal Procedure Law §§ 170.30 (1)(a) and 170 .35. For the reasons stated herein, the defendant's motion is denied.
Section 100.40(1) of the Criminal Procedure Law states that an information is sufficient on its face when it substantially conforms with the requirements of CPL § 100.15, when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof. "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); People v Baumann Sons Buses, Inc. , 6 NY3d 404 , 408 (2006). While this "prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial," see People v Henderson, 92 NY2d 677, 680 (1999), the failure to satisfy the requirements of CPL § 100.40(1)(c) creates a jurisdictional defect to the criminal action. People v Alejandro, 70 NY2d 133, 137 (1987); People v Jones , 9 NY3d 259 , 262 (2007).
The defendant in this matter is charged with one count of violating Penal Law § 155.25, Petit Larceny. A person is guilty of Petit Larceny when "he steals property." PL § 155.25. Additionally (in relevant part), "[a] person steals property . . . when, with intent to deprive another of property or to appropriate the same to himself . . ., he wrongfully takes, obtains or withholds such property from an owner thereof." PL § 155.05(1).
The factual portion of the instant accusatory instrument provides, in relevant part:
Deponent (Detective Kevin Rivera) states that deponent is informed by Daisy Pena, of an address known to the District Attorney's Office, that on the above stated date informant placed two (2) wrist watches inside of informant's closet and that said closet is secured by a lock. Deponent is further informed that said closet is located inside of informant's bedroom and that informant and the defendant share said bedroom. Deponent is further informed that after informant placed said wrist watches inside of the closet informant left informant's apartment.
Deponent is further informed that at the above stated time [6:30 pm], informant returned to informant's apartment and observed that the door to informant's closet was open and that informant's two (2) wrist watches were missing from said closet. Deponent is further informed that when informant confronted the defendant about taking said watches, the defendant nodded defendant's head to informant.
The allegations in this information regarding the larceny itself are circumstantial, but circumstantial facts can be enough to satisfy the prima facie case requirement. In this case, a named complainant left specific property in a locked closet of a bedroom that was used by both the complainant and the defendant. Upon return, the closet door was opened and unlocked, and the watches were missing from where they had been placed. While there is no direct evidence to the actual larceny, there is certainly reasonable cause to believe that a larceny had occurred.
The essential issue of this case is whether or not the defendant's non-verbal admission — his "nod" — when he was confronted by the complainant about taking the watches provides reasonable cause to believe that the defendant was the person who committed the larceny. This court believes that is does. "Of necessity, the law has long recognized the efficacy of non-verbal communications. From the formation of contracts by an offeree's silence, nod, hand signal, "/" or "x" on an order blank to the doctrine of admission by silence, the law has legally realized that to offer guidance and comment meaningfully on the full range of human conduct, cognizance must be taken of communications other than by words. ( Aetna Cas. Sur. Co. V Berry, 5th Cir, 350 F2d 49, 54; see also, Restatement [Second] of Contracts § 19.)" People v Perez, 277 AD2d 1, 3-4 (1st Dept 2000), app den 96 NY2d 737 (2001). Further, courts have held that "an accused person's nonverbal reaction to an accusation of a crime may be admissible under the adoptive admission exception to the hearsay rule (McCormick, Evidence § 270 [3d ed]. . . ." People v Robinson, 140 AD2d 644 (2nd Dept 1988), app den 72 NY2d 913 (1988). See also People v Lanquetot, 104 Misc 2d 179, 181-182 (Sup Ct, New York County)("An act performed solely for the purpose of communicating, such as pointing or nodding is equivalent to a verbal statement.") This court finds that the defendant's "nod" when he was accused by the complainant about the larceny was enough of an admission to establish reasonable cause to believe that the defendant was the person who stole the watches in question, especially when that non-verbal admission is considered in context with the circumstantial facts of the larceny.
Nothing more is required at the pleading stage. The People have alleged sufficient facts upon which the defendant may both prepare a defense and avoid being tried twice for the same offense. The allegations should, therefore, be given a fair and not overly restrictive or technical reading. As such, the facts in this information provide reasonable cause to believe that the defendant committed the offense charged, and they support, if true, each essential element of Petit Larceny. Therefore, the People have satisfied their pleading requirements under CPL § 100.40(1)(c).
Accordingly, the defendant's motion to dismiss for facial insufficiency is denied.
MOTION TO PRECLUDE IDENTIFICATION TESTIMONY
The branch of the defendant's motion seeking preclusion of identification testimony is denied. The court is not aware of any facts indicating that the defendant was ever the subject of a police-arranged identification procedure, nor have the People attempted to file any notice pursuant to CPL 710.30(1)(b) during the pendency of this case.
MOTION FOR A DUNAWAY/HUNTLEY HEARING
The branch of the defendant's motion seeking to suppress statement evidence is granted to the extent that a Dunaway/Huntley hearing is to be held prior to trial.
MOTION FOR A SANDOVAL HEARING
The branch of the defendant's motion seeking a Sandoval hearing and notice from the People of specific instances of prior uncharged criminal, vicious or immoral conduct is granted to the extent that the defendant has leave to re-submit this portion of the motion to the trial judge.
RESERVATION OF RIGHTS
The branch of the defendant's motion seeking the right to make further motions is granted to the extent provided for by CPL 255.20 (3).
This opinion constitutes the decision and order of the Court.