Opinion
2018BX036865
02-04-2019
The PEOPLE of the State of New York, Plaintiff, v. Rashida WALTERS, Defendant.
For the Defendant: Laurence Gurwitch, Esq., Legal Aid Society, 260 East 161st Street, Bronx, New York 10451 For the People: ADA Anthony Kuhn, Bronx District Attorney's Office, 215 East 161st Street, Bronx, New York 10451,
For the Defendant: Laurence Gurwitch, Esq., Legal Aid Society, 260 East 161st Street, Bronx, New York 10451
For the People: ADA Anthony Kuhn, Bronx District Attorney's Office, 215 East 161st Street, Bronx, New York 10451,
Jeffrey Rosenblueth, J.
Defendant is charged in the accusatory instrument with one count of Assault in the Third Degree [PL § 120.00(1) ], one count of Endangering the Welfare of a Child [PL § 260.10(1) ] and one count of Harassment in the Second Degree [PL § 240.26(1) ]. The accusatory information sets forth, in pertinent part, that:
"P.O. Christop Leonard ... states that on or about November 1, 2018 at approximately 2:20 P.M. inside of 357 East 193 Street in the county of the Bronx ... that ... he received a radio run for an assault in progress. [P.O. Leonard] further states that he arrived approximately two (2) minutes later. [P.O. Leonard] further states that he observed Moneesha Ashley Parrilla to be shaking, sobbing and crying with tears coming down her face and that [she] stated to him, in sum and substance, I JUST WANT HER TO LEAVE. SHE PUNCHED ME IN THE FACE. [P.O. Leonard] further states that defendant was the only other female adult in the room with Moneesha Ashley Parrilla. [P.O. Leonard] further states that he observed [a minor with the initials S.P.] to have a lump and swelling to her forehead. [P.O. Leonard] further states that he observed [S.P.] to be shaking, sobbing and crying with tears coming down her face, and that [S.P.] stated to him, in sum and substance, I GOT HIT. SHE HIT ME. [P.O. Leonard] further states that he observed [S.P.] to point at defendant as she made the aforementioned statement. [P.O. Leonard] further states that [S.P.] is under the age of ten years old in that she is approximately three (3) feet tall and has child-like features. [P.O. Leonard] further states that defendant stated to him, in sum and substance, "I DIDN'T HIT THE KID. SHE GOT CAUGHT IN THE MIDDLE OF THE INCIDENT."
Defendant now moves pursuant to CPL § 100.40 to dismiss the accusatory instrument for facial insufficiency. Defendant claims that the accusatory instrument fails to establish the elements of the alleged offenses with non-hearsay allegations. Specifically, with respect to the Assault in the Third Degree charge, defendant contends that the accusatory instrument fails to establish the statutory elements of intent to cause physical injury and physical injury. Additionally, regarding the Endangering the Welfare of a Child and Harassment in the Second Degree charges, defendant argues that the misdemeanor information fails to allege acts or circumstances showing that defendant had the intent or mental state necessary to establish these offenses. Defendant further asserts that the factual portion of the accusatory instrument is based upon hearsay allegations which fail to establish the identity of the complainants and the date and time that the alleged offenses occurred.
The People, in opposition to defendant's motion to dismiss, contend that the allegations made by the complainants contained in the accusatory instrument are "excited utterances" and thus, are not hearsay. With respect to the Assault in the Third Degree charge, the People assert that P.O. Leonard's observation of a lump on complainant S.P.'s head, along with her statement that defendant hit her is sufficient to establish that she suffered physical injury and that defendant intended to cause that injury. With respect to the Endangering the Welfare of a Child count, the People claims that P.O. Leonard's description of S.P. as "under the age of ten (10), approximately three feet and [having] child-like feature" is adequate to demonstrate that she was under the age of seventeen (17) years old. Further, the People contend that the swollen lump on S.P.'s forehead along with the allegation that she pointed at defendant and said "I GOT HIT. SHE HIT ME" are sufficient to establish that defendant knowingly acted in a manner likely to be injurious to a child. Finally, with respect to the Harassment in the Second Degree count the People claim that S.P.'s statement as well as her demeanor demonstrate that defendant had physical contact with her with the intent to harass, annoy or alarm the complainants.
Defendant's motion to dismiss the accusatory instrument for facial insufficiency is decided as follows:
In order for a misdemeanor information to be sufficient on its face it must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe that defendant committed the offenses charged ( CPL § 100.15(3) ; CPL§ 100.40(1)[b] ; CPL § 70.10 ). These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses charged (see CPL § 100.40(1)(c) ; People v. Henderson , 92 NY2d 677 ). Reasonable cause 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 (2) ]. An information which fails to satisfy these requirements is jurisdictionally defective (see CPL § 170.35 ); People v. Alejandro , 70 NY2d 133 ; People v. Dumas , 68 NY2d 729 ).
The People bear the burden of satisfying the facial sufficiency requirements by doing so within the "four corners" of the accusatory instrument [see People v. Jones , 9 NY3d 259 ; People v. Thomas , 4 NY3d 143 ; People v. Liranzo , 46 Misc 3d 140(A) ]. In evaluating whether the pleaded allegations establish reasonable cause to believe that a person has committed an offense, the court must do so in the light most favorable to the People and consider all favorable inferences drawn therein [see People v. Williams , 84 NY2d 925 ; People v. Contes , 60 NY2d 620 ; People v. Barona, 19 Misc 3d 1122[A] ; People v. Mellish , 4 Misc 3d 1013(A) ].
Although, mere conclusory allegations are insufficient (see People v. Dumas , supra) an information sufficient on its face need not articulate every fact necessary to prove the charged allegations (see People v. Mills , 1 NY3d 268; People v. Bello , 92 NY2d 523 ; People v. Mayo , 36 NY2d 1002 ). So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (see People v. Kasse , 22 NY3d 1142 ; People v. Kalin , 12 NY3d 225 ; People v. Casey , 95 NY2d 354 ). Further, the facts alleged need only establish the existence of a prima facie case, even if it those facts would be insufficient to establish guilt beyond a reasonable doubt (see People v. Jennings , 69 NY2d 103 ). Moreover, in assessing the facial sufficiency of an information, the court " ‘is not required to ignore common sense or the significance of the conduct alleged,’ " People v. Gonzalez , 184 Misc 2d 262, 264 quoting People v. Abdul , 157 Misc 2d 511.
Penal Law § 120.00(1), Assault in the Third Degree, provides in pertinent part, that: "A person is guilty of assault in the third degree when ... with intent to cause physical injury to another person, he causes such injury to such person or to a third person ..."
Penal Law § 260.10(1), Endangering the Welfare of a Child, provides in pertinent part, that:
"A person is guilty of Endangering the Welfare of a Child when h[ ]e or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old ..."
Penal Law § 240.26(1) Harassment in the Second Degree, provides in pertinent part, that:
"A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person ... he ... strikes, shoves, kicks or otherwise subjects another person to physical contact or attempts or threatens to do the same ..."
The Statements of Complainant S.P. to P.O. Leonard constitute "Excited Utterances"
Hearsay is defined as "testimony that is given by a witness who relates not what he or she knows personally, but what others have said and that is therefore dependant on the credibility of someone other than the witness," Black's Law Dictionary (10th Ed., 2014). If a statement consists of hearsay it is inadmissible at a trial to prove the truth of the matter asserted inasmuch as an opposing party would be deprived of its right to cross examine the person who made it [see Richardson on Evidence , Article VIII (11th Edition, 1995) ].
There are several recognized exceptions to the rule against hearsay and one of those exceptions is the "excited utterance" exception. "An extrajudicial statement will be admitted under the excited utterance exception to the hearsay rule when it relates to a startling event and is made while the declarant remains under the stress of excitement caused by the startling event. Such statements are considered intrinsically reliable by virtue of the fact that when a declarant speaks under the influence of such stress or excitement, his or her reflective capacity, and thus ability to fabricate is stilled," People v. Gantt , 48 AD3d 59 citing People v. Johnson , 1 NY3d 302 ; People v. Nieves , 67 NY2d 125. "The test for admission of such statement is whether the declarant was ‘so influenced by the excitement and shock of the event that it is probable that he or she spoke impulsively and without reflection,’ " Id. citing People v. Caviness , 38 NY2d 227. To determine whether a statement constitutes an "excited utterance" the court must consider: (1) the nature of the startling or traumatic event; (2) the amount of time between the startling event and the statement; (3) the activities of the declarant in the interim to ascertain whether he or she had the opportunity to deliberate and depart from the truth and (4) whether circumstances indicate that the remarks were not made under the impetus of studied reflection (see People v. Edwards , 47 NY2d 493 ; People v. Gantt , supra; People v. Diaz , 21 AD3d 58 ). "Whether a statement is admissible under [the excited utterance exception] is a determination to be made in the first instance by the trial court after consideration of all the circumstances including the physical, psychological, and emotional condition of the declarant," People v. Brown , 70 NY2d 513.
Here, with respect to the nature of the startling or traumatic event, P.O. Leonard responded to the subject location two (2) minutes after he received a radio run for an assault in progress to find the complainant along with another woman shaking, sobbing and crying with tears running down her face. Further, P.O. Leonard observed the complainant, who he alleged to be under ten (10) years of age, with a lump and swelling to her forehead. As such, in addition to the physical and emotional condition of the complainant, considering the complainant's age, when viewed in the light most favorable to the People, it is reasonable to infer that the complainant's statements to P.O. Leonard were made under the stress of excitement after a traumatic event such that she was not capable of studied reflection and possible fabrication.
Additionally, with respect to the time between the startling event and the complainant's statements "[t]he time for reflection is not measured in minutes or seconds but rather is measured in facts," People v. Johnson , 1 NY3d 302 citing People v. Vasquez , 88 NY2d 561 and "the psychological and emotional effects of the sudden event may continue to operate with undiminished force for a period of time thereafter," People v. Brown , supra; [ see also People v. Brooks , 71 NY2d 877 (statement made 2-2.5 hours after shooting deemed excited utterance based on complainant's extreme pain, physical and emotional trauma); People v. Walker , 238 AD2d 246 (911 call made five (5) minutes after defendant attempted to force his way into complainant's apartment and steal her purse deemed excited utterance); People v. Rasoully, 52 Misc 3d 1225(A) ; (complainant's statement to police officer deemed excited utterance when officer arrived within ten (10) minutes to the scene after a radio call for a domestic incident and observed complainant to be upset and crying with a visible laceration, redness and swelling to her right upper lip); People v. Frankiling , 48 Misc 3d 1213(A) (complainant's statement to police officer deemed excited utterance when police officer arrived "several minutes" after a 911 call and observed the complainant to be visibly upset and shaking after an alleged assault); People v. Torres , 46 Misc 3d 1205(A) (complainant's statement made to police officer deemed excited utterance when officer arrived within four (4) minutes of receiving a radio run for an assault in progress and observed complainant crying hysterically with a cut, swollen and red lip); People v. Valentine , 40 Misc 3d 28 (complainant's statement to police officer deemed excited utterance when officer responded to radio run within a few minutes of receiving it and observed complainant standing outside in the cold crying, upset, afraid and hysterical and alleged that defendant choked her); People v. Harris , 32 Misc 3d 1215(A) (complainant's statement to police officer deemed excited utterance when officer responded to the scene fifteen (15) minutes after receiving a radio run and found complainant yelling, flailing her arms and crying with a scratch under her eye) ].
Based on the foregoing, this Court finds that the facts alleged in the accusatory instrument establish a sufficient foundation for the statements of the complainant, S.P., to be deemed "excited utterances." Thus, inasmuch as they are admissible hearsay, they may be used to convert the criminal court complainant into a misdemeanor information [see People v. Valentine , supra; People v. Romero , 60 Misc 3d 1218(A) ; People v. Torres , supra; People v. Anderson , 40 Misc 3d 1201(A) ].
Assault in the Third Degree
With respect to the charge of Assault in the Third Degree under count one it requires that a person intend to cause physical injury to another. "Intent" to cause physical injury "...may be inferred from an act alone or defendant's conduct and surrounding circumstances," People v. Bracey , 41 NY2d 296. Further, a person intends "that which is the natural and necessary and probable consequences of the act done by him," People v. Getch , 50 NY2d 456.
Here, the Court finds that the allegations in the misdemeanor information establish reasonable cause to believe that defendant's conscious desire was to cause physical injury to S.P. when she allegedly hit the complainant and caused swelling and a lump to form on her forehead (see People v. Woodward , 50 Misc 3d 1212(A) ; People v. Kersh , 41 Misc 3d 1217(A) ; People v. Dreyden , 28 Misc 3d 5 ).
In addition to an intent to cause physical injury, the accusatory instrument must also establish that defendant actually caused physical injury. Physical injury is defined under PL § 10.00(9) as "impairment of physical condition or substantial pain." The Court of Appeals held that "substantial pain" simply means "more than slight or trivial pain," People v. Chiddick , 8 NY3d 445. Here, the allegations that complainant was shaking, sobbing and crying with tears running down her face and the officer's observations of a lump and swelling to her forehead "were sufficient to warrant the conclusion that the [complainant] suffered substantial pain," People v. Mercado , 94 AD3d 502. Further, based on the allegations "a jury could certainly infer that the [complainant] felt substantial pain," People v. Henderson , 92 NY2d 677 ; [see also People v. Chiddick , supra; People v. Wayne B ., 124 AD3d 492 ; People v. Mercado , supra; People v. Lang , 81 AD3d 538 ; People v. Bermudez , 59 Misc 3d 127(A) ; People v. Fernandez , 57 Misc 3d 136(A) ; People v. Perez , 46 Misc 3d 133(A) ; People v. Woodward , supra; People v. Coleman , 36 Misc 3d 1242(A) ].
Based on the foregoing, the allegations contained in the accusatory instrument are sufficient to support the charge of Assault in the Third Degree under count one.
Endangering the Welfare of a Child
As to the charge of Endangering the Welfare of a Child under count two, "it is not necessary for the People to prove that the child's mental or moral welfare actually be impaired no injury or actual harm need result from Defendant's action or inaction," People v. Freeman , 34 Misc 3d 1217(A). "PL § 260.10(1) is ‘broadly written and imposes criminal sanctions for the mere likelihood of harm,’ " People v. Sanderson , 68 AD3d 1716 citing People v. Johnson , 95 NY2d 368.
Here, as an initial matter, P.O. Leonard's observations of the complainant appearing to be "under ten (10) years old ... three feet tall and having child-like features" are sufficient to provide reasonable cause to believe that at the time of defendant's alleged conduct against her, the complainant was a "child of less than seventeen years old" as required by the statute (see PL § 260.10(1); People v. Fibble , 49 Misc 3d 1220(A) ; People v. Gomez , 30 Misc 3d 643 ).
Additionally, inasmuch as it is alleged that defendant hit the minor complainant, S.P. and that as a result of defendant's conduct she suffered an injury to her forehead, the Court reasonably infers when viewing the allegations in the light most favorable to the People (People v. Williams , supra; People v. Contes , supra; People v. Barona, supra; People v. Mellish , supra) that defendant knowingly acted in a manner that was likely to be injurious to the physical welfare of a child. Moreover, the officer's observation of the complainant "shaking, sobbing and crying with tears coming down her face" establish reasonable cause that defendant knowingly acted in a manner that was detrimental to the emotional and mental welfare of a child [see People v. Jane T., 13 Misc 3d 1243(A) ; People v. Nelson , 2 Misc 3d 133(A) ].
Based on the foregoing, the allegations contained in the accusatory instrument are sufficient to support the charge of Endangering the Welfare of a Child under count two.
Harassment in the Second Degree
With respect to the count of Harassment in the Second Degree under count three, the facts contained in the accusatory instrument adequately allege the statutory elements of physical contact and intent to harass, annoy or alarm the complainant. First, it is clear that defendant allegedly subjected S.P. to "physical contact" inasmuch as it is alleged defendant "hit" her [see People v. Pezza , 49 Misc 3d 131(A) ]. Additionally, defendant's alleged conduct, in conjunction with the officer's observation of the complainant's demeanor, when viewed in the light most favorable to the People, is sufficient to reasonably infer defendant's intent to harass, annoy or alarm S.P.[ see People v. Cruz , 53 Misc 3d 95 ; People v. Coleman , 36 Misc 3d 1242(A) ; People v. Khan , 15 Misc 3d 1131(A) ].
Based on the foregoing, the allegations contained in the accusatory instrument are sufficient to support the charge of Harassment in the Second Degree under count three.
Accordingly, defendant's motion to dismiss the accusatory instrument for facial insufficiency pursuant to CPL § 100.40 is denied .
DEFENDANT'S REMAINING MOTIONS
The branch of the motion for suppression of statements or, in the alternative, for a Huntley/Dunaway hearing is granted to the extent that a Huntley/Dunaway hearing is to be held prior to trial.
The branch of defendant's motion for discovery is granted to the extent that the People are to comply with defendant's demand for discovery pursuant to CPL § 240.20.
A Sandoval hearing is to be held immediately prior to trial, if applicable. At or prior to that hearing, the People are to discharge their duty under CPL § 240.43. Additionally, the People are directed to disclose to the defendant the nature of any prior vicious or immoral criminal acts which they intend to introduce against defendant at trial pursuant to CPL § 240.43.
The branch of defendant's motion requesting leave to make further motions, if necessary, after the People provide discovery, is granted. All motions should be made within the time prescribed by the rules of the Court.
Order entered accordingly. This constitutes the decision and order of the Court. The Clerk of the Court is directed to forward a copy of this order and memorandum to the attorney for the defendant and the District Attorney.