Opinion
No. 2015BX026378.
11-30-2015
The PEOPLE of the State of New York, v. Vicente SORIANO, Defendant.
Robert T. Johnson, District Attorney, Bronx County by Matthew C. DeSaro, Assistant District Attorney, for the People of the State of New York. Victor E. Bryant, Esq., for Defendant.
Robert T. Johnson, District Attorney, Bronx County by Matthew C. DeSaro, Assistant District Attorney, for the People of the State of New York.
Victor E. Bryant, Esq., for Defendant.
ARMANDO MONTANO, J.
Defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03) and Disorderly Conduct (PL § 240.20[1] ).
Defendant moves for an order 1) dismissing count two, PL § 240.20(1), as facially insufficient; 2) suppressing physical evidence seized from defendant, or in the alternative, granting a Mapp/Dunaway hearing to determine the admissibility of such evidence; 3) suppressing statements allegedly obtained from defendant, or in the alternative, granting a Huntley/Dunaway hearing to determine the admissibility of such evidence; 4) granting a Sandoval hearing; and 5) granting defendant the right to make additional pretrial motions and the right to amend and/or supplement this motion if made necessary or appropriate by the People's future disclosure.
The factual allegations in the superseding information sworn to by the deponent, PO Rahmaan Wiltshire, read as follows:
Deponent states that [on or about June 6, 2015 at approximately 2:55 AM at front of 97 East 184 Street, County of the Bronx, State of New York], a public street, he observed defendant in a fighting stance swinging his closed fists towards a group of separately apprehended and unapprehended individuals.
Deponent is informed by PO Brendan Murphy of 46 PCT, ShieldNo. 13053, that at the above time and place, he informed defendant to have on his person, in his right sock, one (1) ziplock bag containing a white powdery substance, and in his waistband, four (4) ziplock bags each containing a white powdery substance.
Deponent states, that based upon deponent's training and experience, which includes training in the recognition of controlled substance, and its packaging, the aforementioned substance is alleged and believed to be COCAINE.
Motion to Dismiss
Defendant argues that count two must be dismissed as facially insufficient as the information fails to allege that his acts had a public dimension as required to sustain a charge of PL § 240.20(1). Defendant notes that there are no allegations indicating that any bystanders or passersby were present on the street to observe defendant's actions and as such, his alleged conduct was limited between himself and the separately apprehended and unapprehended individuals. Defendant further avers that the allegation that he was observed in a fighting stance swinging his closed fists towards a group of other individuals fails to make out a prima facie case of violent, tumultuous or threatening behavior. Finally, defendant contends that the information fails to establish that he possessed the requisite mens rea for the offense charged.
In opposition, the People argue that the information is facially sufficient in that it provides 1) adequately detailed facts of an evidentiary nature to support each and every element of the offenses charged and 2) suitable notice to defendant to prepare a defense to the offenses charged. The People point out that the information alleges that defendant was observed on a public street swinging his closed fists at a group of other individuals. Simply stated, the People maintain that defendant was involved in a street brawl where he clearly exhibited violent, tumultuous or threatening behavior. Further, the People assert that the fact that the complaint information fails to specify the number of individuals inconvenienced or annoyed by defendant's conduct does not render the accusatory instrument facially insufficient since the statute requires only that a defendant recklessly create the risk of public harm. The People maintain that the fact that defendant's actions occurred on a public street provides reasonable cause to believe that it was his intent to cause public inconvenience, annoyance or alarm.
It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15[3] ; People v. Dumas, 68 N.Y.2d 729 [1986] ) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40[1][c] ). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b) ; Dumas, 68 N.Y.2d 729. Reasonable cause to believe that a defendant committed the crimes charged "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70 .10. "In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged." People v. Hightower, 18 NY3d 249, 254 (2011).
In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15 ; People v. Mellish, 4 Misc.3d 1013(A) (Crim Ct, N.Y. County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103 (1986). "The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefore be sufficiently alleged." People v. Sylla, 7 Misc.3d 8, 10 (App Term, 2d Dept.2005). As such, "[s]o 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 N.Y.2d 354, 360 (2000).
Penal Law § 240.20(1) provides that "[a] person is guilty of disorderly conduct when, with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he engages in fighting or violent, tumultuous, or threatening behavior." When determining whether an act satisfies the public harm element, the court must consider "the time and place of the episode under scrutiny; the nature and character of the conduct; the number of other people in the vicinity; whether they are drawn to the disturbance, and, if so, the nature and number of those attracted; and any other relevant circumstances." People v. Weaver, 16 NY3d 123, 128 (2011). "[C]ritical to a charge of disorderly conduct is a finding that [a] defendant's disruptive behavior [was] of a public rather than an individual dimension, which requires proof of an intent to threaten public safety, peace or order (or the reckless creation of such a risk)." People v. Baker, 20 NY3d 354, 359 (2013). Therefore, "a person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem." ' Weaver, 16 NY3d at 128 quoting People v. Munafo, 50 N.Y.2d 326, 331 (1980).
Here, the accusatory instrument alleges that defendant was observed to be fighting with a group of individuals on a public street at approximately 2:55 AM. Just because a fight occurs on a public street does not necessarily mean that the public harm element has been satisfied. While it is true that "there is no per se requirement that members of the public must be involved or react to the incident", there must be some allegation contained in the accusatory instrument to support the inference that the defendant's "conduct recklessly create[d] the risk of public disruption." Weaver, 16 NY3d at 128.
This court finds that the accusatory instrument is devoid of any allegations indicating that the fight extended beyond the individual disputants (see, People v. Munafo, 50 N.Y.2d at 331 ) and therefore it fails to sufficiently allege the element of public harm. Moreover, since there is no allegation that this fight occurred in a residential area, where the noise from a fight could rouse individuals from their slumber, it cannot be said that or defendant's actions created a risk of public disruption.
Additionally, this court finds that the element of intent or recklessness on defendant's part has not been sufficiently alleged. "The intent requirement must be met so that no inadvertently disturbing act may be punished.' " People v. M.R., 12 Misc.3d 671, 677 (Crim Ct, N.Y. County 2006)quoting People v. Bakolas, 59 N.Y.2d 51, 54 (1983) ; see also, People v. Tarka, 75 N.Y.2d 266 (1990). Again, the allegation that defendant was fighting on a public street in the early morning hours does not in and of itself evince an intent on defendant's part to disturb the peace or show that he recklessly created the risk thereof. There are simply no facts alleged from which defendant's culpable mental state can be inferred.
For instance, according to the accusatory instrument, the arresting officer arrived at the scene after the combatants were already engaged in a fight. As such, the officer has no knowledge as to who commenced the fight. If defendant was not the initial aggressor, then he would have been justified in defending himself. See, PL §§ 35.10; 35.15(1). Under these set of circumstances, defendant's intent would not be to cause public inconvenience, annoyance or alarm or to recklessly create the risk thereof but rather his intent would merely be to defend himself.
Based on the foregoing, defendant's motion to dismiss count two, PL § 240.20(1), as facially insufficient, is granted. The People are granted leave to move to amend or otherwise cure the defects in the accusatory instrument consistent with CPL §§ 30.30 and 170.30.
Motion to Suppress Physical Evidence
Defendant moves to suppress all physical evidence seized, to wit: five (5) ziplock bags containing cocaine purportedly recovered from inside his socks and waistband. Defendant contends that such evidence was unlawfully obtained in violation of his state and federal constitutional rights.
In support, defendant denies causing any public inconvenience, annoyance or alarm. He further denies engaging in any fighting, violent or threatening behavior. Defendant maintains that he was arrested by the police without probable cause to believe that he had committed the offense of disorderly conduct.
At the outset, the People argue that this branch of defendant's motion should be summarily denied for his failure to make any sworn allegations of fact as required. The People assert that defendant's denial of the allegations set forth in the accusatory instrument is insufficient to raise an issue to be determined at a hearing.
Notwithstanding defendant's deficient showing, the People assert that there is no question that probable cause existed to arrest defendant. The People aver that the arresting officer personally observed defendant taking swings while engaged in a fist fight with numerous individuals on a public street. The People maintain that the foregoing provided ample probable cause for defendant's arrest. As defendant's initial detention, subsequent search, and arrest were lawful, the People argue that defendant's motion to suppress physical evidence seized should be denied in its entirety.
A motion to suppress evidence "must state the ground or grounds of the motion and must contain sworn allegations of fact." CPL § 710.60(1). A motion to suppress must be summarily granted where the defendant alleges a legal ground warranting suppression and the People concede the truth of the factual allegations. CPL § 710.60(2)(a). A court may summarily deny a motion to suppress if the defendant fails to allege a proper legal basis for suppression or if the "sworn allegations of fact do not as a matter of law support the ground alleged." CPL § 710.60(3)(b). "[T]he sufficiency of [the] defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3)[the] defendant's access to information." People v. Mendoza, 82 N.Y.2d 415, 426 (1993).
However, even if the defendant's factual allegations are deficient, summarily denying a motion to suppress is disfavored. In Mendoza, supra, the Court of Appeals explained:
The CPL does not mandate summary denial of defendant's motion even if the factual allegations are deficient. If the Court orders a Huntley or Wade hearing, and defendant's Mapp motion is grounded in the same facts involving the same police witnesses, the court may deem it appropriate in the exercise of discretion to consider the Mapp motion despite a perceived pleading deficiency. Indeed, considerations of judicial economy militate in favor of this procedure; an appellate court might conclude that summary denial of the Mapp motion as improper, requiring the parties and witnesses to reassemble for a new hearing, often months or years later.
This court finds that defendant's moving papers are "minimally sufficient" to warrant a hearing on the issue of suppression. See, People v. Harris, 160 A.D.2d 515, 515 (1st Dept.1990). "When the validity of a warrantless arrest is challenged, the presumption of probable cause disappears and the People bear the burden of coming forward with evidence showing that it was supported by probable cause." People v. Chaney, 253 A.D.2d 562, 564 (3d Dept.1998). Defendant was arrested based upon the purported personal observations of criminality by the arresting officer. Defendant's denial of any wrongdoing challenges the facts relied upon by the arresting officer to establish probable cause. Thus, defendant's motion to suppress physical evidence seized is granted to the extent that a Mapp/Dunaway hearing shall be held to determine the admissibility of such evidence.
Motion to Suppress Statement Evidence
Defendant moves to suppress the statement for which proper notice was given on the grounds that such evidence was illegally obtained. Defendant argues that 1) the statement was made involuntarily within the meaning of CPL § 60.45 ; 2) he was subjected to custodial interrogation prior to being informed of his Miranda rights; and 3) the statement is the product of an unlawful arrest. In the alternative, defendant requests a Huntley/Dunaway hearing in order to determine whether the statement should be suppressed. In opposition, the People ask this court to summarily deny this branch of defendant's motion in its entirety.
In a motion to suppress a statement, all that is required to warrant a Huntley hearing is the mere claim that the defendant's statement was involuntary. People v. Weaver, 49 N.Y.2d 1012 (1980) ; People v. Bingham, 144 A.D.2d 682 (2d Dept.1988) ; Matter of Brian E., 206 A.D.2d 665 (3d Dept.1994). Therefore, defendant's motion for a Huntley hearing is granted.
As stated above, summary denial of suppression motion is disfavored. In the interest of judicial economy and in light of the fact that the branch of defendant's motion seeking a Dunaway hearing "is grounded in the same set of facts and involve[es] the same police witnesses" as the Mapp hearing (Mendoza, 82 NY.2d at 429 ), defendant's motion for a Dunaway hearing to determine whether there was probable cause to effectuate his arrest is granted. Therefore, defendant's motion for a Dunaway hearing is granted.
Sandoval
Defendant's motion for an order precluding the People from introducing evidence of his prior convictions and/or bad acts is respectfully referred to the trial judge.
Future Motions
Defendant's reservation of right to file further motions is unauthorized pursuant to CPL § 255.20(3). Any future motions shall be summarily denied absent a showing of good cause.
Accordingly, defendant's motion to dismiss count two, PL § 240.20(1), as facially insufficient is granted. The People are granted leave to move to amend or otherwise cure the defects in the accusatory instrument consistent with CPL §§ 30.30 and 170.30. Defendant's motion to suppress physical evidence seized is granted to the extent that a Mapp/Dunaway hearing shall be held. Defendant's motion to suppress statement evidence is granted to the extent that a Huntley/Dunaway hearing shall be held. Defendant's motion for a Sandoval hearing is respectfully referred to the trial judge. Defendant's request to file additional motions is denied subject to rights under CPL § 255.20(3) to move for further leave upon good cause shown.
This constitutes the decision and order of this court.