Opinion
CR-034486-19NY
01-13-2020
The PEOPLE of the State of New York, Plaintiff, v. Cynthia WALKER, Defendant.
Donald E. Cameron, New York City, for defendant. Cyrus R. Vance, Jr., District Attorney, New York City (James Zaleta of counsel), for plaintiff.
Donald E. Cameron, New York City, for defendant.
Cyrus R. Vance, Jr., District Attorney, New York City (James Zaleta of counsel), for plaintiff.
Richard Tsai, J. Defendant is charged with one count of falsely reporting an incident in the third degree ( Penal Law § 240.50 [4] ). In this omnibus motion, she moves for an order dismissing the accusatory instrument as facially insufficient, precluding evidence or granting a hearing, and compelling discovery. The People oppose the motion.
For the reasons below, the branch of defendant's motion to dismiss the accusatory instrument as facially insufficient is DENIED. The branch of her motion to preclude evidence and request pretrial hearings is referred to the trial court. The branch of her motion to compel the People to provide a bill of particulars is DENIED as moot, but defendant is granted the right to make further motions.
BACKGROUND
The accusatory instrument alleges in relevant part, that on or about April 5, 2019, at about 6:29 p.m., outside of 656 9th Avenue, in the County and State of New York, defendant anonymously telephoned the Statewide Central Register of Child Abuse and Maltreatment (SCR) to report that C.K. and her husband abused and neglected their children. The recorded call allegedly stated, in sum and substance, that the caller "lives at [street address omitted] in Manhattan and that one of her neighbors, [B.B.], who lives with his wife [C.K.] and their children, might be selling and using marijuana in the apartment and that [B.B.]'s children, M[.]and J[.], ages 9 and 10, are occasionally observed in the hallway unsupervised."
According to the accusatory instrument, C.K. was appointed to represent defendant's minor child in an abuse and neglect proceeding brought against defendant in Family Court, Kings County. C.K. stated that she has two ten-year old twins, M. and J., and claimed that she has never mentioned the names of her own children to defendant, or in front of defendant. However, on one occasion, defendant allegedly approached C.K. and asked her, "How are M[.] and J[.]?"
SCR allegedly sent the report of abuse and neglect of C.K.'s children to the New York City Administration for Children's Services (ACS). Child protective specialists allegedly "visited the subject address on several occasions, interviewed [B.B.] and [C.K.], spoke to M[.] and J[.] on numerous occasions and determined the above allegations to be unfounded."
An investigation of phone records traced the anonymous phone call to SCR to a payphone located at 656 9th Avenue in Manhattan. Defendant allegedly lives five blocks from that payphone.
Defendant's husband allegedly identified defendant's voice on a recording of the call.
The accusatory instrument refers to this person as "the ex-husband of defendant and the father of her child." However, in a supporting deposition, this person stated that they were in the midst of a divorce, so he believes he is still "legally [defendant's] ‘husband.’ "
Defendant was arrested and arraigned on October 29, 2019. No notices were given at her arraignment, and the People filed supporting depositions for all of the informants. Accordingly, the court deemed the accusatory instrument an information, set a motion schedule, and adjourned the case to December 2, 2019, for response and decision.
Defendant filed this omnibus motion on November 19, 2019. On the adjourn date, the People filed their response, a voluntary disclosure form (VDF), and served the same on defendant. The court adjourned the case to January 13, 2020, for decision on defendant's motion. On December 6, 2019, defendant filed his reply.
DISCUSSION
I. Dismissal for Facial Insufficiency
Pursuant to CPL 100.40 (1), an information is sufficient on its face when, among other things: (1) the allegations provide reasonable cause to believe that the defendant committed the offense charged, and (2) the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof.
" ‘Reasonable cause’ exists when ‘evidence or information which appears reliable discloses facts or circumstances’ adequate ‘to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that’ defendant committed the offense" ( People v. Andujar , 30 N.Y.3d 160, 168, 66 N.Y.S.3d 151, 88 N.E.3d 309 [2017], citing CPL 70.10 [2] ). The court must consider all reasonable inferences that may be drawn from the facts set forth in the accusatory instrument (see People v. Jackson , 18 N.Y.3d 738, 747, 944 N.Y.S.2d 715, 967 N.E.2d 1160 [2012] ).
The requirement that a misdemeanor information set forth nonhearsay allegations is known as "the prima facie case requirement" ( People v. Kalin , 12 N.Y.3d 225, 228–29, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009] [citing People v. Henderson , 92 N.Y.2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165 (1999) and CPL 100.40 (1) (c) ] ). An information that fails to allege a complete element of the charged offense is jurisdictionally defective ( Kalin , 12 N.Y.3d at 228–229, 878 N.Y.S.2d 653, 906 N.E.2d 381 ). However, the prima facie requirement "is not the same as the burden of proof beyond a reasonable doubt required at trial" ( People v. Henderson , 92 N.Y.2d at 680, 685 N.Y.S.2d 409, 708 N.E.2d 165 ). "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, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ).
Penal Law § 240.50 (4) (a) states, in relevant part, that:
"[a] person is guilty of falsely reporting an incident in the third degree when, knowing the information reported, conveyed or circulated to be false or baseless, he or she [r]eports, by word or action, an alleged occurrence or condition of child abuse or maltreatment or abuse or neglect of a vulnerable person which did not in fact occur or exist to the statewide central register of child abuse and maltreatment."
The Legislature granted immunity from civil and criminal liability that might result from such reporting to those who are mandated by law to report child abuse and neglect (Social Services Law § 419 ). "Immunity attaches where there is reasonable cause to suspect that the child might have been abused, and where the reporting party has acted in good faith" (Villarin v. Rabbi Haskel Lookstein School , 96 A.D.3d 1, 6, 942 N.Y.S.2d 67 [1st Dept. 2012] ). Defendant does not assert that she was a mandatory reporter.
Accordingly, the statute has the following elements: (1) defendant reported, by word or action, an alleged occurrence or condition of child abuse or maltreatment, which did not in fact occur or exist; (2) defendant made such report to the statewide central register of child abuse and maltreatment; and (3) defendant knew that the information reported, conveyed or circulated was false or baseless (see CJI2d[NY] Penal Law § 240.50 [4] ).
Defendant contends that the accusatory instrument is facially insufficient because it lacks allegations that: (1) the report was untrue; (2) defendant made the report knowing it was false or with reason to know it was false; and (3) the circumstances reported to SCR did not amount to "child abuse, maltreatment, or neglect" (see affirmation of defendant's counsel ¶¶ 6, 8, 10).
The People argue that that accusatory instrument, taken with the accompanying supporting depositions, satisfy the prima facie requirements of facial sufficiency. The People characterize defendant's arguments as going "directly to the weight of the evidence and not whether the People have made out a prima facie case at this point in the proceeding" (see People's Response ¶ 4). The People maintain that the purpose of the accusatory instrument was to put defendant on notice of the crimes, which was done here (id. ). Finally, the People insist that defendant's arguments are best left for summation: "[h]er mens rea in calling in the false report, the requirement that People prove the negative of the allegation she made not actually existing, and if what the defendant called to report is actually abuse or neglect are all great questions for the trier of fact to ponder at trial" (People's Response ¶ 6).
In reply, defendant argues that the People conflate the requirement of notice with the reasonable cause requirement (reply affirmation of defendant's counsel ¶ 4).
The accusatory instrument adequately alleges non-hearsay allegations providing reasonable cause to believe that defendant made a report to SCR knowing the information was "baseless"
As discussed above, the knowledge element in Penal Law § 240.50(4) can be based on knowledge that the report that defendant allegedly made to SCR was either "false" or "baseless." Defendant argues that the accusatory instrument should be dismissed because it lacks allegations that defendant knew or should have known that the report made to SCR was untrue, or that defendant lacked a good-faith belief that the circumstances occurred (Cameron Aff. ¶8). She contends that the accusatory instrument does not sufficiently allege facts that would "mandate any inference that she was not honestly mistaken" (Cameron Aff. ¶ 17).
The court disagrees. That other, potentially innocent inferences could be drawn from defendant's conduct ‘is irrelevant on this pleading stage inquiry’ " ( People v. John-Connor , 57 Misc.3d 142[A], 2017 WL 4798036 [App. Term, 1st Dept. 2017], lv denied , 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018], quoting People v. Deegan , 69 N.Y.2d 976, 979, 516 N.Y.S.2d 651, 509 N.E.2d 345 [1987] ).
Here, defendant allegedly stated that she was a neighbor living in C.K.'s building, whereas defendant allegedly resides at another address that is not, in fact, nowhere near C.K.'s home. Defendant's representation of her alleged status of a neighbor was the allegation from which SCR could infer that the caller had a basis of knowledge for the allegations of the sale and use of marijuana in C.K.'s apartment, and for the allegations that C.K.'s minor children were seen unsupervised. Because defendant does not allegedly live in the building, it can reasonably inferred that defendant had no basis of information for the allegations, and that defendant therefore made a report to SCR knowing that the allegations were baseless.
The accusatory instrument adequately alleges non-hearsay allegations providing reasonable cause to believe that defendant made a report to SCR of circumstances that did not, in fact, occur
Defendant points out that the accusatory instrument did not affirmatively allege that the alleged use and sale of marijuana could not have, in fact, occurred (affirmation of defendant's counsel ¶ 6). Defendant also appears to argue that it cannot be reasonably inferred from the allegations that C.K.'s children were never seen unsupervised in the hallway for any length of time (id. ).
The accusatory instrument adequately sets forth non-hearsay allegations providing reasonable cause to believe that the alleged circumstances of child abuse or maltreatment "did not in fact occur or exist." First, the accusatory instrument states that ACS investigated the allegations made in the April 5th, 2019 phone call "and determined [them] to be unfounded." An "unfounded report" means that an investigation determined that there was no credible evidence that the alleged abuse or mistreatment exists (see 18 NYCRR 432.1 [f]; see also Social Services Law § 412 [6] ). Second, as discussed above, it can be reasonably inferred that defendant allegedly made a report to SCR knowing the information was baseless. Given all the above, the accusatory instrument therefore provided reasonable cause to believe that defendant made a report to SCR of circumstances of abuse and maltreatment that did not, in fact, occur or exist.
Thus, the court rejects defendant's argument that, to be facially sufficient, the accusatory instrument must specifically deny each and every allegation that was reported to SCR.
The court rejects defendant's arguments that, to be facially sufficient, the accusatory instrument must contain allegations that make it factually impossible for the alleged circumstances to have occurred, as allegedly reported to SCR. It bears repeating again "[t]hat other, potentially innocent inferences could be drawn from defendant's conduct ‘is irrelevant on this pleading stage inquiry’ " ( John-Connor , 57 Misc. 3d 142[A], lv denied , 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391, supra ).
The accusatory instrument adequately alleges non-hearsay allegations providing reasonable cause to believe that defendant reported abuse or maltreatment to SCR
Defendant argues that a report that B.B. "might be" using or selling marijuana "is not in and of itself an accusation of child neglect or abuse" (Cameron Aff. ¶ 10). Defendant points out that there was no allegation that he "was smoking or selling marijuana in the presence of his children or was otherwise using marijuana in a manner that would have impaired his ability to supervise his children" (id. ) She insists, " ‘[P]ossible’ marijuana use is not child abuse or neglect as a matter of law" (id. ¶ 18). Defendant also contends that it would be absurd to believe that allegations that 9 and 10-year old children were occasionally observed unsupervised in a hallway could constitute child neglect (id. ¶ 11).
The People point out, "defendant certainly thought it was since she called the [SCR]" (People's Response at 2 n 1). In reply, defendant asserts that the reporter's subjective belief is not relevant (reply affirmation of defendant's counsel ¶ 5).
Defendant's arguments are without merit. State regulations governing child protective services defines a "maltreated child" as "a child, less than 18 years of age:
"(1) whose physical, mental or emotional condition has been impaired or is in imminent danger of
becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care:
* * *
(ii) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment; or by misusing a drug or drugs; ... or by any other acts of a similarly serious nature requiring the aid of the court; provided, however, that where the parent or other person legally responsible is voluntarily and regularly participating in a rehabilitative program, evidence that the parent or other person legally responsible has repeatedly misused a drug or drugs or alcoholic beverages to the extent that he loses self-control of his actions shall not alone establish that the child is a neglected child in the absence of evidence establishing that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as set forth in paragraph (1) of this subdivision;
( 18 NYCRR 432.1 [b] [1] [ii][emphasis supplied]; see also Social Services Law § 412 [incorporating Family Court Act], Family Court Act § 1012 [f] ). Here, the accusatory instrument alleges that C.K.'s husband used and sold marijuana in the apartment where C.K. was residing with her minor children.
To the extent that defendant argues that the report that a parent "might be" using and selling drugs should be regarded differently from a report without such qualifying words, the court finds the distinction unpersuasive. In either scenario, the caller is reporting suspected abuse or maltreatment, and an ACS investigation did, in fact, ensue.
Although the regulations appear to provide that drug use "shall not alone establish that the child is a neglected child," SCR is required to transmit the allegations to a local child protective services agency for investigation when the telephone call "could reasonably constitute a report of child abuse or maltreatment" ( Social Services Law § 422 [2] [a] ). A child protective service "must commence ... within 24 hours after receiving a child abuse and/or maltreatment report, an appropriate investigation or family assessment response for each report of suspected child abuse and/or maltreatment" ( 18 NYCRR 432.2 [b] [3] ). In enacting Penal Law § 240.50 (4), the Legislature explained,
"New York's ‘child abuse hotline has been subject to repeated misuse by those individuals seeking to make child abuse reports for harassment purposes, especially during the course of matrimonial proceedings and child custody disputes. Such misuse severely impairs the ability of the State's child protective services system to receive and investigate child abuse reports"
(William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Penal Law § 240.50 ). Once the investigation is triggered, the harm is already done; the agency has already diverted resources from investigating bona fide allegations of abuse and neglect.
Here, defendant allegedly made a baseless report to SCR against the attorney representing defendant's child in an abuse and neglect proceeding against defendant in Family Court. As the People assert, defendant hoped it would trigger an investigation, and an investigation did, in fact, ensue. This is similar to the harassment which the Legislature anticipated could happen during court disputes involving children when it enacted Penal Law § 240.50 (4).
Although the Legislature may have been concerned with parents harassing each other with false and baseless reports during matrimonial and custody actions when it enacted the Penal Law § 240.50 (4), "so long as [a law] is expressed in general language, the courts cannot, in the absence of express restrictions, limit its application to those cases, but must apply it to all cases that come within its terms and its general purpose and policy" (Matter of Di Brizzi [Proskauer] , 303 N.Y. 206, 214, 101 N.E.2d 464 [1951] ).
Therefore, the branch of defendant's motion to dismiss the accusatory instrument as facially insufficient is denied.
II. Discovery
The branch of defendant's motion to compel the People to provide discovery of defendant's prior charged or uncharged, criminal, vicious or immoral conduct, if any, which the prosecutor intends to use at trial for impeachment purposes is denied as moot. It is unnecessary to move for an order compelling the People to provide this discovery. These items now fall under "supplemental discovery" that the People must provide to defendant (see CPL 245.20 [3] ). Under CPL 245.10 (1) (a), supplemental discovery shall be provided "as soon as practicable, but not later than 15 calendar days prior to the first scheduled trial date." The People are reminded of their obligations under CPL Article 245. The branch of defendant's motion to compel the People to provide a bill of particulars is denied as moot insofar as the People have already filed with the Court and served on defendant a VDF.
Defendant's request for items that were neither enumerated in CPL Article 240 nor constitutionally or specially mandated is denied (see People v. Colavito , 87 N.Y.2d 423, 427, 639 N.Y.S.2d 996, 663 N.E.2d 308 [1996] ). To the extent that defendant demanded discovery of items that defendant is now entitled to receive under CPL Article 245, the court directs the People and counsel "to diligently confer to attempt to reach an accommodation as to any dispute concerning discovery prior to seeking a ruling from the court" ( CPL 245.35 [1] ).
Defendant's request for discovery was made pursuant to CPL 240.20. However, CPL Article 240 was replaced by CPL Article 245, which became effective January 1, 2020. If defendant seeks any discretionary discovery, defendant must make a new motion in accordance with CPL 245.30 (3).
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The People have acknowledged their continuing duty under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963].
The branch of defendant's motion for a Sandoval hearing is referred to the trial court.
The right to make further motions is granted.
CONCLUSION
Accordingly, it is hereby
ORDERED that the branch of defendant's motion to dismiss the complaint as facially insufficient is DENIED; and it is further
ORDERED that, to the extent that defendant demanded discovery of items that defendant is now entitled to receive under CPL Article 245, the court directs the People and counsel to diligently confer to attempt to reach an accommodation as to any dispute concerning discovery prior to seeking a ruling from the court; and it is further
ORDERED that the branch of defendant's motion to compel compliance with a bill of particulars is DENIED as moot, insofar as the People have already served and filed a VDF upon defendant; and it is further
ORDERED that the branch of defendant's motion for a Sandoval hearing is referred to the trial court; and it is further
ORDERED that the right to make further motions is granted; and it is further
ORDERED that the motion is otherwise denied.