Opinion
18030140
09-04-2018
PEOPLE of the State of New York, Plaintiff, v. Carl M. WELTE, Defendant.
Sandra J. Doorley, District Attorney (Timothy Boucher, Assistant District Attorney), for the People. Timothy P. Donaher, Public Defender (Victoria Bahl, Assistant Public Defender), for Defendant.
Sandra J. Doorley, District Attorney (Timothy Boucher, Assistant District Attorney), for the People.
Timothy P. Donaher, Public Defender (Victoria Bahl, Assistant Public Defender), for Defendant.
History of the Case .
Thomas J. DiSalvo, J.
The defendant was charged with criminal obstruction of breathing or blood circulation, in violation of Penal Law § 121.11 (a) by a misdemeanor information, which consisted of a complaint verified by Webster Police Officer D. Pietrantoni and a supporting deposition affirmed by the minor son of the defendant. He was subsequently charged by a prosecutor's information with endangering the welfare of a child in violation of Penal Law § 260.10, based on the allegation that the defendant's minor daughter was present during the incident involving the son. An "off hours" arraignment on the former charge was conducted on March 9, 2018, wherein the defendant was represented by the Monroe County Public Defender's Office, whereupon he was released on his own recognizance. A "no-contact" order of protection was issued at that arraignment in favor of the defendant's son. The defendant was arraigned on the prosecutor's information at a regular disposition calender of the court on May 2, 2018. Again the defendant was released on his own recognizance relative to the new charge. A second "no-contact" order of protection was issued by the court in favor of the defendant's daughter. Defense counsel filed separate omnibus motions relative to the respective charges. Both omnibus motions allege that the respective accusatory instruments are defective on their face.
This charge was under CR #: 18-005268.
This charge was under CR #: 18-005835.
Criminal Obstruction of Breathing or Blood Circulation. The complaint states "That during a verbal dispute, the defendant, Carl M. Welte, placed his hand around [his son's] neck and applied pressure over [his] trachea." The son's supporting deposition stated in pertinent part as follows:
"On 03/01/18 just after 6:00 P.M. I was in the kitchen, near my sister ..., visiting my dad .... While there, my dad started telling my sister and I that he was going to win custody of us and take us to Florida during spring break. My sister and I became upset because we don't want to go. My dad then put his hand on top of my head, applied some pressure, then rubbed and shook my head. I told my dad to‘fuck off’. My dad then took one hand and wrapped it around the front portion of my neck, applying pressure to my trachea. I was able to continuously breath and was not injured but was very afraid. [My sister] tried to help me by pulling my dad's hand off my neck. He then grabbed at my shoulder and pulled at my shirt. My sister and grandma separated my dad and I until my other grandma arrived a few minutes later."
Legal Analysis.
Penal Law Section 121.11 (a) states "A person is guilty of criminal obstruction of breathing or blood circulation when, with intent to impede the normal breathing or circulation of the blood of another person, he or she applies pressure on the throat or neck of such person." Defense counsel in her motion argues that the information herein is insufficient because it fails to allege every element of the offense charged as required by CPL § 100.40 ( c), namely that it failed to set out that it was the intent of the defendant to obstruct his son's breathing. Penal Law § 15.05 states "A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct." Under the circumstances described in the supporting deposition, it would be difficult to assign to the actions of the defendant any other purpose than that of the intent to impede the normal breathing or circulation or the blood of the complainant. In a bench trial in the City Court of Rye, New York, wherein the defendant was charged with criminal obstruction of breathing or blood, the court held that
Even assuming for the sake of argument that intimidation was the primary purpose, that would not be a defense or justification relative to the defendant applying pressure to his son's trachea.
"Intent means conscious objective or purpose. See Penal Law § 15.05(1). A person acts with the intent to impede the normal breathing or circulation of the blood of another person when his or her conscious objective or purpose is to do so. The trial testimony was that the defendant placed his hands around the victim's neck and applied pressure. There was no countervailing testimony nor explanation that the placing of the hands around the victim's neck was for any purpose other than to restrict breathing or circulation. The element of intent may be inferred from all the circumstances. People v. Coluccio , 170 AD2d 523, 566 N.Y.S.2d 87 [2nd Dept. 1991]." ( People v. Figueroa , 40 Misc 3d 1010,1019, 968 N.Y.S.2d 866,873 [2013] ).
As intent may be inferred from all the circumstances at trial, it may also be reasonably inferred from the allegations set forth in an accusatory instrument, when assessing the sufficiency of said accusatory instrument. In addition, it has long been the law that
"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 (see, People v. Jacoby , 304 NY 33, 38—40, 105 N.E.2d 613 ; People v. Knapp ,152 Misc. 368, 370, 274 N.Y.S. 85, affd. 242 A.D. 811, 275 N.Y.S. 637 ; People v. Shea , 68 Misc 2d 271, 272, 326 N.Y.S.2d 70 ; see also, People v. Allen , 92 NY2d 378, 385, 681 N.Y.S.2d 216, 703 N.E.2d 1229 ; People v. Miles , 64 NY2d 731, 732—733, 485 N.Y.S.2d 747, 475 N.E.2d 118 )." ( People v. Casey , 95 NY2d 354, 360, 717 N.Y.S.2d 88,91 [2000] ).
Defense counsel also alleges that the actions of the defendant did not in fact demonstrate intent, because she argues that "... in the supporting deposition the complainant even concedes that the pressure was NOT enough to stop the complainant from breathing. " However, the actual cession of breathing need not be alleged for an information alleging the criminal obstruction of breathing or blood circulation to be sufficient.
"The language of Penal Law § 121.11 is clear. The only action required is ‘applying pressure on the throat or neck of another.’ It does not require that the breathing be completely blocked. It completely fails to mention any requirement of physical injury or impairment. It is clear from the legislative history set forth above and People v. White , ..., that no physical injury or impairment is required to sustain a Penal Law § 121.11 charge."
People v. White , 100 AD3d 1397, 953 N.Y.S.2d 423 [4th Dept. 2012]
Thus, based on the allegations set out in the supporting deposition, the information herein charging the defendant with criminal obstruction of breathing or blood circulation, pursuant to P.L. § 121.11 (a) is sufficient on its face in accordance with CPL § 100.40 (1).
Endangering the Welfare of a Child. The prosecutor's information alleges "That on or about March 1, 2018 at approximately 6:10 in the evening thereof, the defendant did choke his son, ..., in the presence of his daughter,..., The defendant did then proceed to threaten his daughter with bodily harm after she tried to intercede on behalf of her brother." The supporting deposition of the daughter reiterated the allegations of the confrontation between the defendant and his son as set out in the son's supporting deposition. In particular, the defendant's daughter stated in pertinent part as follows: "My dad then placed his hand around [my brother's] throat appeared to apply pressure. Both myself an my grandmother who was present, screamed/yelled for my dad to stop but he didn't until [my brother] was finally able to pry my dad's hand off."
Legal Analysis.
Penal Law § 260.10 (1) states as follows:
"A person is guilty of endangering the welfare of a child when: He 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 or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his or her life or health."
In reviewing a prosecutor's information for sufficiency that was filed ab initio by an assistant district attorney, which is the case herein, one must consider, in pertinent part, the following four provisions of the Criminal Procedure Law:
In reference to prosecutor's informations in general, See also "CPL § 100.35. Prosecutor's Information; Form and Content."
First, CPL § 100.50 (2) which states:
"At any time before entry of a plea of guilty to or commencement of a trial of an information, the district attorney may file with the local criminal court a prosecutor's information charging any offenses supported, pursuant to the standards prescribed in subdivision one of section 100.40 [emphasis added], by the allegations of the factual part of the original information and/or any supporting depositions which may accompany it."
Second, CPL § 170.35 (1) (a) which states:
"An information, a simplified information, a prosecutor's information or a misdemeanor complaint, or a count thereof, is defective within the meaning of paragraph (a) of subdivision one of section 170.30 when:
(a) It is not sufficient on its face pursuant to the requirements of section 100.40 [emphasis added]; provided that such an instrument or count may not be dismissed as defective, but must instead be amended, where the defect or irregularity is of a kind that may be cured by amendment and where the people move to so amend;"
Third, CPL § 170.30 (1) (a) which states:
"After arraignment upon an information, a simplified information, a prosecutor's information or a misdemeanor complaint, the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that:
(a) It is defective, within the meaning of section 170.35 ;"
Fourth, CPL § 170.35 (3) (b) which states:
"A prosecutor's information is also defective when:
(b) It is filed by the district attorney at his own instance , [emphasis added] pursuant to subdivision two of section 100.50, and the factual allegations of the original information underlying it and any supporting depositions are not legally sufficient to support the charge in the prosecutor's information."
Thus a prosecutor's information filed by a district attorney "at his own instance" is subject to the sufficiency requirements of an information set out in CPL § 100.40 (1).
This is in contrast to a prosecutor's information filed at the direction of a grand jury, pursuant to CPL § 190.70.
The Prosecutor's Information charged the defendant with " Endangering the Welfare of a Child , in violation of § 260.10 of the Penal Law...." Notably the prosecutor's information does not set out a subsection to which the defendant is charged. There being three subsections of said statute and subsection one being the only one relevant to the circumstances alleged, it would appear that the said "defect or irregularity is of a kind that may be cured by amendment and where the people move to amend." It is also noted that the defense motion as to sufficiency is directed to a charge under subsection one. The court will entertain such an application to amend the prosecutor's information if one is made by the people. However, because the prosecutor's information alleges facts consistent with the proscribed behavior of subdivision one of PL § 260.10, the failure to set out the relevant subsection is immaterial as to the sufficiency of the accusatory.
See People v. Chianese , 41 AD3d 1168,1169, 837N.Y.S.2d 820, 821 [4th Dept. 2007] which dealt with the sufficiency of a felony complaint that alleged the violation of arson in the third degree P.L. § 150.05 (1), but then set out the elements of the crime of arson in the fourth degree. However, the facts alleged to have been committed by the defendant in the complaint were consistent with the charge arson in the third degree. Thus the court held the felony complaint to be sufficient to charge the defendant with arson in the third degree.
On a more substantive level the defense argues that the prosecutor's information charging the defendant with endangering the welfare of a child is facially insufficient on four separate grounds. First, that the charge is duplicitous. Second, that the prosecutor's information fails to allege that the physical, mental and moral welfare of the child was injured. Third, that the prosecutor's information fails to allege that the defendant acted in a knowing manner. Fourth, that the allegations in the accusatory instrument were conclusory.
Duplicity of the Charge. The court finds that the charge is not duplicitous because it involves two separate victims, who would have suffered two separate and different kinds of damages. The former charge involved physical actions allegedly taken by the defendant against his son. The instant charge involves how the defendant's actions involving the son, would have adversely affected the defendant's minor daughter. In the case of People v. Van Guilder , 29 AD3d 1226, 815 N.Y.S.2d 337 [3rd Dept. 2006] the court affirmed the defendant's conviction after a bench trial for assault in the third degree as to his young son as well as a conviction for endangering the welfare of a child as that pertained to his young daughter. The court stated
"Defendant's testimony that he simply picked up his son and set him on the couch could properly be rejected by the trier of fact in favor of the prosecution's evidence on this issue. We likewise conclude that the evidence regarding defendant's convictions for endangering the welfare of a child is legally sufficient since the undisputed evidence is that one of defendant's daughters, Tessa, was in the room and observed defendant's actions, which evidence supports the conclusion that his actions were injurious to her physical, mental and moral welfare."
Id. at 1228, 339
Knowingly Injuring the Physical Mental and Moral Welfare of a Child. The defense argues that the information charging the defendant with endangering the welfare of a child pursuant to P.L. § 260.10 (1) fails to set out all the elements of said charge. As stated above, the defense argues that the accusatory instrument herein fails to allege that the defendant knowingly acted in a manner that injured his daughter's physical, mental and moral welfare.
Criminal Procedure Law Section 100.40 (1) states as follows:
"An information, or a count thereof, is sufficient on its face when:
(a) It substantially conforms to the requirements prescribed in section 100.15; and
(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and
(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof."
The supporting deposition of the defendant's daughter certainly establishes reasonable cause, as that term is defined in CPL § 70.10 (2), to believe that the defendant committed the offense of endangering the welfare of a child in violation of P.L. § 260.10 (1). The element of knowingly acting in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old is established for purposes of sufficiency by the description of the defendant's actions. As stated in People v. Figueroa , "There was no countervailing testimony nor explanation that the placing of the hands around the victim's neck was for any purpose other than to restrict breathing or circulation." To allege that said actions of the defendant taken against his thirteen year old son in the presence of his fifteen year old daughter could be anything but injurious to his daughter's physical, mental and moral welfare or that the defendant did not know that to be the case is to stretch credulity. "Thus, ‘[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 therefor be sufficiently alleged’ ( People v. Sylla , 7 Misc 3d 8, 10, 792 N.Y.S.2d 764 [2d Dept. 2005] )." People v. Santos , 17 Misc 3d 520,521, 841 N.Y.S.2d 852,854 [2007].
Id at 1019, 873
For reasons stated previously, this standard would apply to a prosecutor's information filed by the district attorney at his own instance.
Conclusory Allegations. Just as the element of intent may be inferred from all the circumstances, so can one's actions infer knowledge that such actions would per se be injurious to a minor. The fact that a conclusion is drawn from the language of a misdemeanor information or the appropriate prosecutor's information does not make said accusatory insufficient, if it otherwise complies with the provisions of CPL § 100.40 (1). Certainly the evidentiary facts alleged in the accusatory instrument herein establish the required basis for the conclusion that the said statute was violated by the defendant. The deposition provided by the defendant's daughter, in addition to establishing reasonable cause, set out the requisite non-hearsay allegations as to what she personally witnessed. Such a finding is in accordance with the principal that a misdemeanor information or prosecutor's information filed by the district attorney at his own instance, should "... give an accused notice sufficient to prepare a defense and [is] adequately detailed to prevent a defendant from being tried twice for the same offense, [and that it] should be given a fair and not overly restrictive or technical reading."
See People v. Dumas , 68 NY2d 729, 506 N.Y.S.2d 319 [1986].
People v. Casey , 95 NY2d 354,360, 717 N.Y.S.2d 88,91 [2000], supra.
--------
Conclusion.
The defendant's motion to dismiss the information charging the defendant with criminal obstruction of breath or blood for being insufficient on its face is hereby denied. Likewise the motion to dismiss the prosecutor's information charging the defendant with endangering the welfare of a child for being insufficient on it face is denied. This constitutes the decision and order of the court.