Opinion
17–1733
04-16-2018
The PEOPLE of the State of New York, Plaintiff, v. Khalil WILLIAMS, Defendant.
Westchester County District Attorney, Mount Vernon Branch, David Hawkins, Esq., 116 Haven Avenue, Mount Vernon, New York 10553, Attorney for Defendant
Westchester County District Attorney, Mount Vernon Branch, David Hawkins, Esq., 116 Haven Avenue, Mount Vernon, New York 10553, Attorney for Defendant
Defendant is charged by superceding misdemeanor information with one count of Assault in the Third Degree in violation of Penal Law § 120.00(01) ; one count of Criminal Trespass in the Second Degree in violation of Penal Law § 140.15 ; one count of Endangering the Welfare of a Child in violation of Penal Law § 260.10(01) ; and one count of Harassment in the Second degree in violation of Penal Law § 240.26(01).
Defendant moves for an order 1) dismissing the charges on the ground that the accusatory instrument is facially insufficient; and 2) dismissing the charges on the ground that he has been denied his statutory right to a speedy trial pursuant to Criminal Procedure Law (CPL) §§ 170.30 (1) (e), and 30.30 (1) (b).
It is alleged that on June 28, 2017 at approximately 10:30 p.m., at 126 South 7th Avenue, Apartment 80, in the City of Mount Vernon, County of Westchester and State of New York, the defendant entered into the residence of the victim, Nicole Duncan. Once inside the residence the defendant got into a verbal altercation with the victim. The defendant allegedly struck the victim in the face multiple times with his fists, causing the victim to fall to the ground. As a result of the defendant's action the victim called the police and was transported and treated at Montefiore Hospital for her injuries. The victim provided the Mount Vernon Police with both an oral and written statement regarding the incident.
This accusatory instrument, like any other, will be found facially sufficient where, in conformity with CPL §§ 100.15 and 100.40, it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereof, People v. Hall , 48 NY2d 927, 425 NYS2d 56 (1979), and a factual part containing "a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]" CPL § 100.15(3) based upon either the complainant's personal knowledge or upon information and belief. The factual part, taken together with any supporting depositions, must contain non-hearsay allegations which, if true, establish every element of the offense charged, People v. Moore , 5 NY3d 725, 800 NYS2d 49 (2005) ; People v. Thomas , 4 NY3d 143, 791 NYS2d 68 (2005) "provid[ing] reasonable cause to believe that the defendant committed the offense[.]" People v. Alejandro , 70 NY2d 133, 517 NYS2d 927 (1987) ; CPL § 100.40(4)(b). "Reasonable cause to believe that a person has committed an offense 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 § 70.20 The factual allegations in the accusatory instrument and supporting depositions should be viewed in a light most favorable to the People (see, People v. Martinez , 16 Misc 3d 1111(A), (Dist. Ct. Nassau Co. 2007) ; People v. Delmonaco , 16 Misc 3d 526, 837 NYS2d 869 (Dist. Ct. Nassau Co. 2007) ; People v. Mendelson , 15 Misc 3d 925, 834 NYS2d 445 (Dist. Ct. Nassau Co. 2007) and should not be given an overly restrictive or technical reading ( People v. Casey , 95 NY2d 354, 717 NYS2d 88 [2000] ; People v. Baumann & Sons Buses, Inc. , 6 NY3d 404, 813 NYS2d 27 [2006] ). They must be sufficient to serve the purpose of providing the defendant with notice enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from again being tried for the same offense. People v. McDermott , 69 NY2d 889, 515 NYS2d 225 (1987) ; People v. McGuire , 5 NY2d 523, 186 NYS2d 250 (1959). Such a showing is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Swamp , 84 NY2d 725, 622 NYS2d 472 (1995) ; People v. Porter , 75 AD2d 901, 428 NYS2d 63 (2nd Dept. 1980).
In this action, the superceding misdemeanor information as well as the two supporting depositions that were signed by the victim, alleges that on June 28, 2017 at approximately 10:30 p.m., at 126 South 7th Avenue, Apartment 80, in the City of Mount Vernon, County of Westchester and State of New York, the defendant entered into the residence of the victim, Nicole Duncan, without her permission. Once inside the residence the defendant got into a verbal altercation with the victim and with intent to annoy, alarm or harass her, the defendant allegedly struck the victim in the face multiple times with his fists, causing her bruising, swelling and soreness to her head, elbow and forearm, resulting in substantial pain. Furthermore, it is alleged that the aforementioned actions took place in front of three children all under the age of 17.
Penal Law § 120.00(1) provides: "A person is guilty of Assault in the Third Degree when: 1. With intent to cause physical injury to another person, he causes such injury to such person or a third person." "Physical injury" is defined in Penal Law § 10.00(9) as "impairment of physical condition or substantial pain." To survive this challenge to its facial sufficiency, this accusatory instrument must establish that the defendant intended to cause physical injury and caused such injury. This Court finds that the factual allegations contained in the instant information suffice to establish a prima facie case of assault in the third degree and in particular satisfy the "physical injury" element of that offense. The information recites that defendant punched and kicked the victim in the face multiple times, causing substantial pain, swelling, and bleeding, all of which required medical attention. Accepting these allegations as true, a jury could certainly infer that the victim felt substantial pain (see People v. Rojas , 61 NY2d 726, 727 [1984] ).
A person is guilty of Criminal Trespass in the Second Degree when "he or she knowingly enters or remains unlawfully in a dwelling." PL § 140.15(1). The victim stated in her supporting depositions that the defendant entered her apartment without her consent, and when she told him to leave he proceeded to assault her. As such, the facts alleged in support of the charge of Criminal Trespass in the Second Degree provide reasonable cause to believe that defendant "knowingly enter[ed] or remain[ed] unlawfully in a dwelling.
A person is guilty of Endangering the Welfare of a Child when "he 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 § 260.10 [1 ] ). "[A] defendant must simply be aware that the conduct may likely result in harm to a child" ( People v. Johnson , 95 NY2d 368, 372 [2000] ). The factual portion of the accusatory instrument involved herein allege that all of defendant's actions in striking the victim took place in front of the three children who are less than 17 years old. The Court finds that these facts tend to show that defendant's conduct was likely to have an injurious effect on the children's mental or moral welfare.
A person is guilty of Harassment in the Second Degree when, with intent to harass, annoy or alarm another person, he or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same. The court notes, that, in light of the above conclusion that the information sufficiently alleges the "physical injury" element of Assault in the Third Degree, this count is facially sufficient as to the element, as well.
This Court finds that the factual allegations in the accusatory instrument and supporting depositions, viewed in a light most favorable to the People ( People v. Martinez , 16 Misc 3d 1111(A), (Dist. Ct. Nassau Co. 2007) ; People v. Delmonaco , 16 Misc 3d 526, 837 NYS2d 869 (Dist. Ct. Nassau Co. 2007) ; People v. Mendelson , 15 Misc 3d 925, 834 NYS2d 445 (Dist. Ct. Nassau Co. 2007), sets forth every element of the charges brought against him, and is sufficient to serve the purpose of providing the defendant with notice enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from again being tried for the same offense. People v. McDermott , 69 NY2d 889, 515 NYS2d 225 (1987) ; People v. McGuire , 5 NY2d 523, 186 NYS2d 250 (1959).
In general, the People must be ready for trial within six months for felony cases, 90 days for cases in which the most serious charge is a class A misdemeanor, 60 days for cases in which the most serious charge is a class B misdemeanor, and 30 days for cases in which only a violation is charged. CPL § 30.30(1). Where a felony complaint is replaced with or converted to an information or a misdemeanor complaint, CPL § 30.30(5)(c) provides that:
the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed.
In other words, the People must be ready for trial within 90 days from the filing of the new accusatory instrument or six months from the filing of the felony complaint, whichever is earlier. People v. Cooper , 98 NY2d 541 (2002) ; People v. Guirola , 51 Misc 3d 13 (App Term, 2d Dept., 2d, 11th & 13th Jud Dists 2016). Simply stated, if the aggregate amount of time charged to the People with regards to the felony complaint plus the Criminal Procedure Law § 30.30 (1) readiness period associated with the most serious charge in the new accusatory instrument is greater than, in this case, six months (184 days), then the applicable Criminal Procedure Law § 30.30 (1) period remains six months measured from when the defendant was arraigned ( People v. Cooper , 98 NY2d 541, n1 [2002] ).
The point of commencement of an action for speedy trial purposes is the filing of the first accusatory instrument. People v. Lomax, 50 NY2d 351(1980) ; see also People v. Stirrup , 91 NY2d 434 (1998). The actual date of filing is not includable in the calculation People v. Stiles , 70 NY2d 765 (1987). The People filed the felony complaint on June 29, 2017. The People then filed a superceding misdemeanor information with the Court on December 19, 2017, and as such, that is the date of the commencement of the action. See People v. Smietana , 98 NY2d 336 (2002) ; People v. Hauben , 12 Misc 3d 1172A (Dist. Ct. Nassau 2006); People v. Griffen , 141 Misc 2d 627 (Crim. Ct. Queens Cty. 1988). The defendant was arraigned on the accusatory instrument on January 9, 2018.
The defendant has the initial burden of showing, through sworn allegations of fact, that there has been an inexcusable delay beyond the time allotted by the statute. People v. Santos , 68 NY2d 859, 861 (1986). Once the defendant has made that showing, the People bear the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss. (Id. ) "Whether the People have satisfied [their 30.30] obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion." People v. Cortes , 80 NY2d 201, 208 (1992).
Defendant acknowledges that the applicable time for the People to be ready for trial is ninety days from the date the superceding misdemeanor information was filed. The superceding misdemeanor information was filed off-calendar on December 19, 2017. The defendant was arraigned on the new accusatory instrument on January 9, 2018. The twenty one days between the filing of the superceding misdemeanor information until defendant's arraignment will be charged to the People.
On subsequent trial dates, the People have stated ready, or the defendant has requested adjournments for motion practice, thus no other time will be charged to the People.
In total, the People are charged with 21 days, which does not exceed the 90 days afforded by CPL § 30.30(1)(b). Accordingly, the defendant's motion to dismiss the accusatory instrument on facial sufficiency and speedy trial grounds is denied.
This constitutes the Decision and Order of this Court.