Opinion
CR-010876-19NY
01-15-2020
The PEOPLE of the State of New York, v. Robert WILSON, Defendant.
Janet E. Sabel, Esq., The Legal Aid Society, New York City (Nora Gay of counsel), for defendant. Cyrus R. Vance, Jr., District Attorney, New York City (Elizabeth Murphy of counsel), for plaintiff.
Janet E. Sabel, Esq., The Legal Aid Society, New York City (Nora Gay of counsel), for defendant.
Cyrus R. Vance, Jr., District Attorney, New York City (Elizabeth Murphy of counsel), for plaintiff.
Richard Tsai, J.
Defendant is charged with one count of menacing in the second degree ( Penal Law § 120.14 [1] ), and one count of criminal possession of a weapon in the fourth degree ( Penal Law § 265.01 [2] ). He now moves for an order dismissing the count of menacing in the second degree as facially insufficient. The People oppose the motion.
For the reasons below, defendant's motion to dismiss is DENIED.
BACKGROUND
The controlling accusatory instrument, a superseding information filed with the court on May 2, 2019, alleges, in relevant part, that on or about January 25, 2019, at about 4:45 p.m., in front of 244 West 64 Street, in the County and State of New York, Detective Ronald Bronaugh, observed defendant via video surveillance, "on a sidewalk with multiple people around, swing what appeared to be a metal knife over eight inches in length [and] point the knife in the direction of an individual while walking towards that individual." Detective Bronaugh further states that upon showing the relevant video surveillance to defendant, "he stated in substance that he was the person in the video and that he did possess a knife and brass knuckles."
On April 1, 2019, defendant was arrested in connection with this alleged incident, and arraigned on the original accusatory instrument. The original accusatory instrument contained hearsay information from a witness who informed Detective Bronaugh that defendant had advanced toward him holding a metal knife with a long blade and swinging it around, causing him to fear for his physical safety. Accordingly, the arraignment court adjourned to Part C on April 29, 2019, for the People to file a supporting deposition.
On April 29, 2019, the People failed to file a supporting deposition. The court adjourned the case to July 3, 2019, for the People to file a supporting deposition. Meanwhile, on May 2, 2019, the People filed a superseding information and certificate of readiness off-calendar.
On July 3, 2019, according to the minutes of the proceedings, the People stated to the court that they had "filed a supporting deposition as well as Certificate of Readiness on May 2nd." The court stamped the action sheet that a supporting deposition and certificate of readiness had been filed on May 2, instead of acknowledging receipt of the superseding information. The court set a motion schedule, and adjourned the case to July 31, 2019, for response and decision. Defendant was not arraigned on the superseding information.
Eight additional court appearances followed on July 31, August 28, September 18, October 10, October 25, and October 29, 2019. During this time, defendant brought an omnibus motion, the court had ordered suppression hearings, and the case had been adjourned multiple times for hearings and trial.
On November 15, 2019, defendant made the instant motion to dismiss the superseding instrument based on facial insufficiency grounds. This court directed the People to serve and file their response off-calendar and adjourned the case to December 19, 2019 for decision. Meanwhile, this court requested the transcript of the proceedings on May 2, 2019, to determine whether defendant had ever been arraigned on the superseding information, which delayed a decision on the instant motion to dismiss.
On December 19, 2019, defendant was arraigned on the superseding information. The case was adjourned again to January 16, 2020 for decision.
DISCUSSION
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 NY3d 160, 168 [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 NY3d 738, 747 [2012] ).
The requirement that a misdemeanor information set forth nonhearsay allegations is known as "the prima facie case requirement" ( People v. Kalin , 12 NY3d 225, 228—29 [2009] [citing People v. Henderson , 92 NY2d 677, 679 (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 NY3d at 228—229 ). However, "the prima facie requirement is not the same as the burden of proof beyond a reasonable doubt required at trial" ( Henderson , 92 NY2d at 680 ).
The factual part of the accusatory instrument must allege "facts of an evidentiary character supporting or tending to support the charges" ( CPL 100.15 [3] ; People v. Dumas , 68 NY2d 729, 731 [1986] ). "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 NY2d 354, 360 [2000] ).
As relevant here, Penal Law § 120.14 (1) states,
"A person is guilty of menacing in the second degree when:
1. He or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm."
Defendant argues that accusatory instrument failed to set forth the elements that: (1) defendant intended to place another person in reasonable fear of physical injury and (2) defendant displayed a deadly weapon (affirmation of defendant's counsel ¶¶ 8-10).
The accusatory instrument adequately alleges non-hearsay allegations providing reasonable cause to believe that the object that defendant was holding in the video was a dangerous instrument
Although defendant stated that "he was the person in the video," he points out that the accusatory instrument does not allege which person he acknowledged to be in the video (affirmation of counsel ¶ 10). Neither does the accusatory instrument state that defendant acknowledged swinging or pointing any knife (id. ).
Defendant's arguments are unavailing. A knife qualifies as a "dangerous instrument" within the meaning of the Penal Law ( People v. Reckovic , 100 AD3d 427, 427 [1st Dept 2012] ; see Penal Law § 10.00 [13] [defining "dangerous instrument"). Based on a fair reading of the allegations that defendant identified himself as "the person in the video" and that he admitted that he possessed a knife, defendant therefore identified himself as the individual swinging a metal knife, and that he was the individual who was pointing the knife in the direction of an individual and walking towards that individual. As mentioned above, the allegations of the complaint should be given a fair and not overly restrictive or technical reading" ( Casey , 95 NY2d at 360 ).
The accusatory instrument adequately sets forth allegations providing reasonable cause that defendant intentionally attempted to place another person in reasonable fear of physical injury, by displaying a deadly weapon
Defendant points out that the accusatory instrument did not allege that did not set forth any information about the identity of the persons around defendant in the video footage, that any individuals had seen or reacted to defendant's alleged actions, and that it did not set forth information about the distance between defendant and other people (affirmation of defendant's counsel ¶ 9). Nor were any supporting depositions corroborating these allegations served and filed (id. ). Defendant therefore argues that it cannot be reasonably inferred from the allegations that any person reasonably perceived the alleged knife, citing People v. Lopez (73 NY2d 214, 222 [1989] ).
In response, the People argued that the allegations are facially sufficient under People v. Bruno (Akmel) (61 Misc 3d 127[A] [App Term, 1st Dept 2018], lv appeal denied , 32 NY3d 1109 [2018] ). In Bruno , the Appellate Term, First Department affirmed a judgment convicting the defendant, upon his guilty plea of menacing in the second degree. The Appellate Term ruled that the accusatory instrument was not jurisdictionally defective, rejecting the argument that the knife should have been described with particularity (Bruno , 61 Misc 127[A] ). The Appellate Term also ruled that "[t]he factual allegations also supported an inference that defendant intended to place complainant in reasonable fear of physical injury" (id. ).
Here, as discussed above, it could be reasonably inferred that defendant identified himself in the video footage as the individual swinging a metal knife, and that he was pointing the knife in the direction of an individual. The allegations that defendant was on a sidewalk swinging a metal knife and also pointing the knife in the direction of an individual provide reasonable cause to believe that defendant intended to attempt to place another person in reasonable fear of physical injury. "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] [App Term, 1st Dept 2017], lv denied , 30 NY3d 1106 [2018], quoting People v. Deegan , 69 NY2d 976, 979 [1987] ).
Contrary to defendant's argument, the accusatory instrument need not allege physical proximity of defendant to others, because "menacing does not require any form of ‘physical contact,’ actual, attempted or threatened" ( People v. Bartkow , 96 NY2d 770, 772 [2001] ). Rather, menacing, as defined in Penal Law § 120.14(1), requires that the defendant either "intentionally places" or "intentionally attempts to place" another in reasonable fear of injury. Thus, the People are not required to show that the defendant "actually instilled a reasonable fear of physical injury in [another person]; rather, an intentional attempt to do so would suffice" ( People v. Stroud , 91 AD3d 1026, 1027 [3d Dept 2012] ).
It therefore follows that the accusatory instrument need not allege that any individuals had reacted in fear to defendant's display of the knife. Defendant's alleged approached toward an individual with a knife pointed in that person's direction can be reasonably inferred as a hostile or threatening gesture that could put an individual "in reasonable fear of physical injury" (cf. People v. Corichi, 195 Misc 2d 518, 519 [App Term, 1st Dept 2003] ).
Defendant's reliance upon People v. Lopez (73 NY2d 214 ) is misplaced. The issue presented in Lopez was whether the evidence was legally sufficient to meet the "display requirement" of robbery in the first degree, i.e., that the defendant "[d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm" ( Penal Law § 160.15 [4] ).
"Although the display element focuses on the fearful impression made on the victim, it is not primarily subjective. The People must show that the defendant consciously displayed something that could reasonably be perceived as a firearm, with the intent of forcibly taking property, and that the victim actually perceived the display"
( Lopez , 73 NY2d at 220 ).
Like Penal Law § 160.15 (4), menacing in the second degree also contains similar language of the display requirement, i.e., "displaying ... what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm." However, this display requirement does not apply here, because it applies only to firearms (see CJI2d[NY] Penal Law § 120.14 [1] ),
CONCLUSION
Accordingly, it is hereby
ORDERED that defendant's motion to dismiss based on facial insufficiency is denied.