Opinion
No. 2015NY059471.
01-04-2016
The PEOPLE of the State of New York v. Jasmine RUMPH, Defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Tanisha Palvia, for the People. The Legal Aid Society, by Ying–Ying Ma, Esq., for the Defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Tanisha Palvia, for the People.
The Legal Aid Society, by Ying–Ying Ma, Esq., for the Defendant.
STEVEN M. STATSINGER, J.
The information in this case is based on an excited utterance that the complainant made to a police officer. The officer has reported that the complainant said, “in substance,” that “the defendant punched me in the head numerous times.” Defendant argues that this information does not make out a prima facie case as to her identity. Alternatively, she seeks leave to reargue the arraignment court's ruling that the complainant's statements were excited utterances, and argues that the information does not make out a prima facie case of physical injury. The motion is DENIED in its entirety.
Defendant also moves to suppress certain post-arrest statements. As to that, the Court orders a Huntley/Dunaway/Payton hearing.
I. FACTUAL BACKGROUND
A. The Allegations
According to the information, on September 14, 2015, a police officer entered an apartment in upper Manhattan in response to a radio run. Arriving approximately 22 minutes after receiving the call, the officer encountered the complainant, very distraught, who told the officer that the defendant had punched her in the head. The officer observed lacerations and swelling on the complainant's face and head.
2. Legal Proceedings
Defendant was arraigned on September 15, 2015, on an accusatory instrument charging her with two counts of assault in the third second degree, Penal Law §§ 120.00(1) and (2), and one count each of attempted assault in the third degree, Penal law § 110/120.00(1), and harassment in the second degree, Penal Law § 240.26(1). The court found that the instrument was an information, set a motion schedule, and released the defendant.
Defendant filed this motion on October 8, 2015, and the People responded November 4. The matter has been sub judice since then.
II. THE INFORMATION
The information, sworn to by Police Officer Matthew Wolland, provides that:
I received a radio run to respond to [an apartment in upper Manhattan] at approximately 11:53 pm. I responded ... at approximately 12:15 am, and when I responded, I observed [the complainant] breathing rapidly and crying, with tears streaming down her face, her body shaking, and appearing to be very frightened and upset, and that while [she] was in the above described emotional state, she stated in substance to me: “The defendant punched me in the head numerous times.”
I observed lacerations on [the complainant's] face as well as swelling to [her] head.
III. DISCUSSION
A. The Motion for Leave to Reargue Is Denied
At defendant's arraignment, the court found that the statements attributed to the complainant in the accusatory instrument were excited utterances, and deemed the instrument an information. Defendant seeks leave to reargue that ruling. Ma Aff. at ¶¶ 9–18. However, this Court can discern no basis for reexamining the arraignment court's finding on this question. People v. DeFreitas, 48 Misc.3d 569, 9 N.Y.S.3d 822 (Crim Ct N.Y. County 2015). The motion for leave to reargue is accordingly denied.
B. The Information Makes Out a Prima Facie Case of Physical Injury
Defendant also argues that the information does not sufficiently allege the physical injury element of Penal Law § 120.00(1) and (2). The Court disagrees. The information describes an act of violence—being punched in the head numerous times-that is “sufficiently extreme to permit a reasonable inference that [it] was an experience that would normally be expected to bring with it more than a little pain.' “ People v. Morris, 44 Misc.3d 810, 991 N.Y.S.2d 288 (Crim Ct N.Y. Count 2014), citing People v. Chiddick, 8 NY3d 445, 447, 834 N.Y.S.2d 710, 712, 866 N.E.2d 1039, 1040 (2007). That conclusion is confirmed by the injuries that the officer observed-swelling and lacerations. See id. (“sometimes an objective account of the injury, unaccompanied by testimony about the degree of pain the victim experienced, will be enough”).
C. The Information Is Facially Sufficient as to Defendant's Identity
Finally, the Court rejects defendant's argument that the information does not make out a prima facie case as to her identity. Although the information is perhaps artlessly drafted, reading it in its totality in a common-sense and non-hypertechnical way leads to the reasonable and obvious inference that “the defendant” in the statement attributed to the complainant is a reference to Jasmine Rumph, the defendant charged in this information.
This Court has repeatedly rejected arguments for dismissal based on strained or hypertechnical readings of the accusatory instrument. For example, People v. Abney, 49 Misc.3d 1212(A) (Crim Ct N.Y. County 2015), refused to accept the argument that an information did not sufficiently allege the age element of endangering the welfare of a child, Penal Law § 260.10(1), where a D.I.R. that was proffered as a supporting deposition described “my baby laying on me.” The Court would not “stretch [its] imagination to infer that the D.I.R. [was] actually referring to a very tiny adult who [was] both small enough to rest comfortably on top of her mother, and [was] endearingly referred to as a baby.” Similarly, in People v. Johnson, 49 Misc.3d 1210(A) (Crim Ct N.Y. County 2015), the Court rejected the “strained” argument that an information describing possession of marijuana “in front of” a particular address might “refer to the lobby of an apartment building or to [an] enclosed parking garage,” and hence did not sufficiently plead the “public place” element.
In fact, this Court has frequently relied on a common-sense reading of the instrument to conclude that it sufficiently alleged the defendant's identity. In People v. Burke, 48 Misc.3d 1208(A) (Crim Ct N.Y. County 2015), a handwritten emendation to the supporting deposition alleged that the defendant chased the complaint down an otherwise unoccupied stairway and that the complainant felt a push to her back, which caused her to fall. The Court concluded that these facts led to a reasonable inference that the defendant was the person who pushed the complainant.
Likewise, People v. Selinger, 48 Misc.3d 1218(A) (Crim Ct N.Y. County 2015), found an information sufficient as to identity, in a case involving harassing Internet activity, where some of the activity took place under the defendant's own name, and some of it involved an email address that the complainant recognized as one used by the defendant. The Court concluded that, “[e]ven if these facts d[id] not entirely eliminate the possibility that the conduct was undertaken by someone posing as the defendant, they d[id] so sufficiently for the purposes of a pleading.” See also People v. Peguero, 49 Misc.3d 1217(A) (Crim Ct N.Y. County 2015) (“common-sense” reading of accusatory instrument in which the factual portion referred to the assailant as “my mother's boyfriend,” but not by name, led to the conclusion that it sufficiently pled defendant's identity).
A similar common-sense reading of the information here leads to the reasonable and obvious inference that this particular defendant, Jasmine Rumph, is “the defendant” referred to in the deponent police officer's account of what the complainant told him. It is of course true that the complainant did not refer to Ms. Rumph as “the defendant” when she identified the person who attacked her, since Ms. Rumph had not yet been charged and was not yet a defendant. But it is also true that Ms. Rumph was indeed “the defendant” by the time the officer swore out the information. And the information does not allege that the complainant used the exact words “the defendant” when she identified her attacker; the officer makes clear that he was reporting the “substance” of the complainant's words. When the officer responded to the radio run, the complainant told the officer that Ms. Rumph was the attacker; it was then perfectly natural that the officer, when he was swearing out a misdemeanor complaint against this defendant, identified in the caption as “Jasmine Rumph, Defendant,” would have reported that the complainant told him “in substance” that “the defendant” was the attacker. See Peguero, id., (caption of information and the factual portion, together, made out a prima facie case as to identity).
Accordingly, the information make out a prima facie case as to identity.
IV. CONCLUSION
Defendant's motion to dismiss is denied; a Huntley/Dunaway/Payton hearing is ordered.This constitutes the Decision and Order of the Court.