Opinion
No. 1003015.
2010-08-3
PEOPLE of the State of New York v. Barry M. SULLIVAN, Defendant.
Darren Pilato, Esq., Assistant District Attorney. Jeffery D. Gravelle, Esq., Attorney for Defendant.
Darren Pilato, Esq., Assistant District Attorney. Jeffery D. Gravelle, Esq., Attorney for Defendant.
THOMAS J. DISALVO, J.
The defendant is charged with Menacing in the Second Degree, P.L. 120.14(1) and Harassment in the Second Degree, P.L. 240.26(2), a Class A misdemeanor and violation respectively. The charges are not transactional in that they are alleged to have taken place on different dates and times. The menacing charge is alleged to have taken place on March 12, 2010 at 8:24 P.M. It is alleged that the defendant approached a process server and her sister with a long gun in his right hand after having been served with a summons. The harassment charge stems from an incident on March 13, 2010, wherein Sergeant Thomas Emery of the Webster Police Department accused the defendant of following said officer, while in his marked police vehicle, on various roads in the Town of Webster.
The defendant was arrested and brought in for an arraignment in Webster Justice Court on March 13, 2010 at approximately 10:30 A.M. Bail was set in the amount of $2,500 Cash and $7,500 insurance bond. In addition, a mental health evaluation was requested at the time of arraignment. Defense counsel submitted Omnibus Motions arguing, among other things, that the charges herein should be dismissed. The defendant argues that the harassment charge should be dismissed for facial insufficiency pursuant to C.P.L. 100.15(3) and C.P.L. 100 .40(1)(c), because the complaint sets out two dates for the offense, and provides no specific time of the offense. Lastly, the defendant argues that the charge of Menacing in the Second Degree should be dismissed because one of the supporting depositions is not verified.
Facts of the Case.
A. Menacing in the Second Degree, P.L. 120.14(1)
The charge of Menacing in the Second Degree, P.L. 120.14(1) is based on a complaint signed by Officer Charles Korherr and two supporting depositions signed by two other individuals, to wit: Charlene I. Greynolds and Linda M. Rushlow. The officer alleges that “While the victims where sitting in their car that was parked in the defendant's driveway, the defendant did walk toward them with his shotgun placing them in reasonable fear of serious injury.” The supporting deposition of Ms. Rushlow stated in pertinent part that
“As I was backing up I saw the garage door open. I saw Mr. Sullivan standing in the garage with a long gun in his right hand. Mr. Sullivan then began to approach my car with the gun in his hand. He never pointed the gun at me. He didn't say anything to me. I then left his street and called 911 from my car while I was on Five Mile Line Road. I felt threatened for my life by what Mr. Sullivan did.”
The supporting deposition of the Ms. Greynolds stated in pertinent part in reference to the defendant as follows:
“He started walking down the driveway when I realized he was holding a rifle. He never pointed it at us but he was making sure we knew he had it.”
The combination of the complaint and supporting depositions constituted the information [See C.P.L. 100.15(3) and C.P.L. 100.40(1)(b) ] charging the defendant with Menacing in the Second Degree, pursuant to P.L. 120.14(1).
B. Harassment in the Second Degree, Penal Law 240.26(2).
The charge of Harassment in the Second Degree was based on an information filed by Sergeant Thomas Emery of the Webster Police Department. He alleged that on March 13, 2010 he was driving his marked police car and was followed by the defendant, who was driving his vehicle, on Ridge Road, Five Mile Line Road, Klem Road, Van Alstyne Road, Herman Road, Pellet Road, Lake Road and Whiting Road. The officer further alleged that “The defendant by following a marked police car served no purpose and cause alarmed (sic) to your deponent.”
Legal Analysis.
I. Motion to Dismiss Menacing in the Second Degree.
Verification. The defendant demands that the charge of Menacing in the Second Degree, P.L. 120.14(1), be dismissed because the supporting deposition of Linda M. Rushlow was not verified. In particular the line next to the signature line, which is labeled “witness” was unsigned. “A verification is a statement under oath that the pleading is true to the knowledge of the deponent, except as to matters alleged on information and belief, and that as to those matters he believes it to be true.” C.P.L.R. Section 3020. The supporting deposition in question was signed and dated by the said deponent under the words “AFFIRMED UNDER PENALTY OF PERJURY”. “Swear' means to state under oath, and an oath' includes an affirmation and every other mode authorized by law of attesting to the truth of that which is stated.” 35B N.Y. Jur 2d Criminal Law: Substantive Principles and Offenses Section 1473. Criminal Procedure Law Section 100.30(1)(d) indicates in reference to an information, misdemeanor complaint or a supporting deposition that such instruments “... may bear a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law, and such form notice together with the subscription of the deponent constitute a verification of the instrument.” The supporting deposition herein did in fact bear this language above the signature line. There is no requirement by C.P.L. 210.45 that the deponent's signature on said form be witnessed. Thus defendant's motion to dismiss the charge of Menacing in the Second Degree, P.L. 120.14(1) for lack of a proper verification of the supporting deposition in question is hereby denied.
II. Motion to dismiss Harassment in the Second Degree.
Time of Incident. The information herein does not allege the exact time of day of the alleged defense. Defendant argues that the failure to set out the time of day in the complaint renders the information insufficient pursuant to C.P.L. 100.15 and 100.40. Neither of those two sections require the complaint to set out the time of day of the incident in either the accusatory or factual part of an information or misdemeanor complaint. The factual portion of the information herein states that the incidents in question took place on March 13, 2010, but makes no reference to the time of day. In addition, the accusatory portion makes no reference to specific time of day. Even C.P.L. Section 200.50(6) which deals with the form and content of an indictment only requires that each count allege the offense occurred during “a designated date, or during a designated period of time”. The information herein certainly provides the defendant with a specific date of the alleged offense. Thus, the failure to allege a specific time of day in the information does not render that accusatory instrument insufficient on its face in accordance with C.P.L 100.15 and 100.40(1). Nor does this prejudice the defendant since the specific time of day alleged would be available upon a demand for a bill of particulars. C.P.L. 100.45(4).
Date of the Incident. The accusatory portion of the information sets out the date of the offense as follows: “the 13th day of March 6, 2010, 2010”.
The verification section states as follows: “Affirmed under penalty of perjury this 13the(sic) day of March 6, 2010, 2010”. The defense again argues that setting out two separate dates for the same offense renders the information insufficient on its face, pursuant to C.P.L. 100.15(3), 100.40(1)(c). In reference to an information, the law requires that “The accusatory part of each such instrument must designate the offense or offenses charged.” C.P.L. 100.15(2). It further requires that the factual part of the information “... must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support that charge.” C.P.L. 100.15(3). There is no requirement that a date be set out in either the accusatory or factual section of the information. Again, this issue could be resolved by a bill of particulars. C.P.L. 100.45(4). Therefore, the motion to dismiss the charge of Harassment in the Second Degree, P.L. 240.26(2), because two dates were set out in the information, must be denied.
This is an obvious typographical error. It appears from the factual part that the correct date is March 13, 2010.
Sufficiency. The defense moved to dismiss the charge of Harassment in the Second Degree, Penal Law Section 240.26(2), based on the insufficiency of the information herein pursuant to CPL 100.15(3) and 100.40(1)(c). Penal Law 240.26(2) states as follows:
“A person is guilty of harassment in the second degree when, with intent, to harass, annoy or alarm another person: He or she follows a person in or about a public place or places.”
The basis of the motion to dismiss for facial insufficiency is that the factual portion of the information fails to state every element of the offense in question, i.e. that the defendant intended [emphasis added] to harass annoy and alarm the officer by following said officer from street to street. The information does not allege any objective wrongdoing by the defendant in following the officer's vehicle.
“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 N.Y.2d 354, 360 [2000] ). That being so, there can be no requirement that an accusatory instrument recite particular incantatory words of intent in order to sufficiently plead an intentional crime. Rather, an information will be facially sufficient when the facts alleged, if true, provide reasonable cause to believe that the defendant acted with the requisite mens rea ( see People v. Inserra, 4 N.Y.3d 30 [2004] [allegation that defendant's name appeared on signature line of an order of protection held sufficient to allege element—essential to charge of criminal contempt—that defendant had knowledge of the order's contents] ).” People v. Khan, 15 Misc.3d 1131(A), 841 N.Y.S.2d 221 (Table) N.Y.City Crim.Ct., 2007.
In other words there is no requirement that an accusatory instrument mechanically state that the intent element of a charge, as long as the intent can be reasonably inferred from the language set out in the information. However, if the language of said accusatory describes the activity of the defendant in a way that can be interpreted as being either legal or illegal, then the language of such an accusatory instrument would not be sufficient to establish the intent element. In this case the defendant is accused of turning around to follow the complainant's police car over eight separate roads. However, there is no accusation that the defendant was following too close, that he made any obscene gestures toward the officer, that he directed any curse words at the officer, that he made any threats or that the defendant used his vehicle to physically intimidate the officer. Nor did the information set out any circumstances that would suggest the mens rea of the defendant. It was only alleged that “The defendant by following a marked police car served no purpose and cause alarmed (sic) to your deponent.” However there is no objective allegation that the defendant's actions were in any way objectionable. A conclusory allegation that the actions of the defendant served no purpose and caused alarm to the complainant does not meet the reasonable cause standard as set out in C.P.L. 70.10(2). See People v. Dreyden, 15 N.Y.3d 100, 931 N.E.2d 526, 2010 WL 2360610 NY, 2010. Since the intent of the defendant could not reasonably be inferred by actions described in the misdemeanor information, said accusatory is therefore insufficient as required by C.P.L. 100.40(1)(c), in that it does not establish every element of the offense charged, namely the intent of the defendant to annoy harass or alarm the complainant. Accordingly the motion to dismiss the charge of Harassment in the Second Degree, P.L. 240.26(2) is hereby granted.
Conclusion.
The information charging the defendant with the violation of harassment in the second degree, P.L. 240.26(2) is dismissed as being insufficient on its face pursuant to C.P.L. 100.15(3), 100.40(1)(c). The motion to dismiss the information charging the defendant with menacing in the second degree, pursuant to P.L. 120.14(1) is hereby denied. This constitutes the decision and order of this court.