People v Cruz

[*1] People v Cruz 2009 NY Slip Op 50077(U) [22 Misc 3d 1110(A)] Decided on January 20, 2009 District Court Of Nassau County, First District Engel, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 20, 2009
District Court of Nassau County, First District

The People of the State of New York,

against

Mario Cruz, Defendant.



2008NA21551



Hon. Kathleen Rice, Nassau County District Attorney

Attorney for Defendant: Heloisa G. Rapaport

Andrew M. Engel, J.

The Defendant is charged, with Assault in the Third Degree, pursuant to Penal Law § 120.00(1).

The Defendant now moves for an order dismissing the accusatory instrument as facially insufficient, pursuant to CPL §§ 170.30, and 100.40; compelling discovery pursuant to CPL § 240.40; compelling a bill of particulars pursuant to CPL §§ 200.95(5) and 100.45; suppressing any and all evidence of identification testimony of the Defendant, or in the alternative, directing that a Wade/Dunaway [FN1] hearing be held; precluding the use at trial of the Defendant's prior criminal history or prior uncharged criminal, vicious or immoral conduct, pursuant to People v. Ventimiglia, 52 NY2d 350, 438 NYS2d 261 (1980) and People v. Sandoval, 34 NY2d 371, 357 NYS2d 849 (1974); directing the People to furnish the Defendant with all exculpatory evidence, pursuant to Brady v. Maryland, 373 U.S. 82; 83 S. Ct. 1201 (1963); and, reserving the Defendant's right to make further motions.

FACIAL SUFFICIENCY

The accusatory instrument alleges that on August 18, 2008, at about 1:55 a.m., at 74 Main Street, Hempstead, New York, in the County of Nassau, the Defendant "while acting in consort with two other defendants in custody, did punch, kick, and knock the victim to the ground. The actions of the defendants caused the dislocation of the left elbow and shoulder of the victim. The victim required emergency care at Mercy Medical Center for his stated injuries."

This misdemeanor complaint is accompanied, inter alia, by three (3) supporting depositions of Omar Lagos Rivera. The first, dated August 18, 2008 and given at 3:30 a.m., alleges, in pertinent part:

I WAS CONFRONTED BY THREE MALE HISPANICS WHO WERE UNKNOWN TO ME. THESE THREE MALE HISPANICS BEGAN ASSAULTING ME FOR NO APPARENT REASON. AS A RESULT OF THIS ASSAULT, MY LEFT ARM IS BROKEN IN TWO PLACES/ELBOW, SHOULDER, THAT WILL REQUIRE EMERGENCY SURGERY. [*2]

The second, dated August 18, 2008 and given at 4:00 a.m., alleges, in pertinent part:

I THEN OBSERVED FROM INSIDE THE BACK OF THE AMBULANCE WITH THE DOORS OPEN, THREE MALE HISPANICS WHO ARE NOW KNOWN TO ME AS, MARIO CRUZ ..., ANGELO DELCID ...,MINORA CIFUENTES .... THESE ARE THE SAME THREE MALES WHO HAD JUST ASSAULTED ME.

The third, dated November 3, 2008, alleges, in pertinent part:

On August 18, 2008 at about 1:55AM at 74 Main Street, Hempstead New York I was walking on the street and turned around to see three men now know (sic) to me as Mario Cruz, Minor Cifuentes and Angelo Delcid walking behind me. After seeing this, I tried to dial 911. As I tried to call 911, the three men now know (sic) to me as Mario Cruz, Minor Cifuentes and Angelo Delcid were now running after me. One of the men then kicked me in the back, knocking me to ground (sic) causing me substantial pain. I fell to the ground and all three men now know (sic) to me as Mario Cruz, Minor Cifuentes and Angelo Delcid surrounded me in a circle as one punched and kicked me in the face and body causing substantial pain.

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. CPL § 100.15(3) The factual part, taken together with any supporting depositions, must contain non-hearsay allegations which, if true, establish every element of the offence 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, People v. Martinez, 16 Misc 3d 1111(A), 847 NYS2d 898 (Table), (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)

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 [*3]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. The Defendant argues that the accusatory instrument fails to demonstrate either of these elements.

Specifically, the Defendant argues that there are no factual allegations in the accusatory instrument indicating any connection between him and the two (2) other individuals with whom he is accused of acting in concert and that no specific conduct is attributed to him. The Defendant also argues that the accusatory instrument fails to indicate if the complainant experienced substantial pain requiring medical attention or the duration of any pain and the limitations on the complainant's activities resulting therefrom.

In opposing dismissal the People argue that the allegations that the Defendant, along with two (2) others, chased the complainant, knocked him to the ground and surrounded him, while two (2) of them punched and kicked the complainant, are sufficient to properly set forth accessorial conduct establishing the Defendant's intent to cause physical injury. The People further argue that the Defendant's allegation, that he sustained a fractured arm and substantial pain as a result of this attack, establishes the physical injury element of Assault in the Third Degree.

Penal Law § 20.00 provides, "When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct." " [W]hether one is the actual perpetrator of the offense or an accomplice is, with respect to criminal liability for the offense, irrelevant' (Donnino, Practice Commentary, McKinney's Cons.Laws of NY, Book 39, Penal Law § 20.00, at 54)." People v. Rivera, 84 NY2d 766, 622 NYS2d 621 (1995); See also: People v. Mercado, 91 NY2d 960, 672 NY2d 842 (1998); People v. Mateo, 2 NY3d 383, 779 NYS2d 399 (2004)

The Defendant's mere presence at the scene of the alleged crime, standing alone, will not be enough to impose criminal liability upon him. People v. Caby, 85 NY2d 417, 626 NYS2d 20 (1995); People v. Reyes, 82 AD2d 925, 440 NYS2d 674 (2nd Dept. 1981); People v. Strawder, 124 AD2d 758, 508 NYS2d 256 (2nd Dept. 1986) Before such liability will be imposed it must be demonstrated that the Defendant "possessed the mental culpability necessary to commit the crime charged, and that, in furtherance thereof, he solicited, requested, commanded, importuned, or intentionally aided the principle in the commission of the crime (citations omitted) ... shar[ing] a community of purpose with his codefendant[s] ...." People v. Carr-El, 287 AD2d 731, 732 NYS2d 256 (2nd Dept. 2001); See also: People v. Allah, 71 NY2d 830, 527 NYS2d 731 (1988); People v. Ficarrota, 91 NY2d 244, 668 NYS2d 993 (1997)

In the matter sub judice, the court finds that the Defendant's alleged participation as one (1) of a group of three (3) individuals who chased the complainant, knocked him to the ground, surrounded him and punched and kicked him sufficient to set forth a community of purpose and intent to cause physical injury to the complainant. See: People v. Mercado, 262 AD2d 586, 693 NYS2d 61 (2nd Dept. 1999); People v. Perez, 265 AD2d 347, 696 NYS2d 197 (2nd Dept. 1999) Accordingly, the court finds that the accusatory instrument properly sets forth non-hearsay allegations, which if true, establish the first element of the crime charged.

The second element, that of a physical injury, will be established if the accusatory instrument properly alleges that the complainant sustained "impairment of physical condition or substantial pain". Penal Law § 10.00(9) In this regard, the accusatory instrument alleges that, as a [*4]result of the assault, the complainant sustained "the dislocation of the left elbow and shoulder" (Misdemeanor Complaint 8/18/08), a "LEFT ARM ... BROKEN IN TWO PLACES/ELBOW, SHOULDER" (Supporting Deposition of Omar Lagos Rivera, 8/18/08), and "substantial pain" (Supporting Deposition of Omar Rivera, 11/3/08), all requiring medical attention.

While it is readily apparent that a dislocation or fracture of the elbow or shoulder may establish the existence of a physical injury sustained by the complainant, the statements contained in the Misdemeanor Complaint and the complainant's supporting deposition, alleging same are not of an evidentiary character sufficient to support the crime charged. There is nothing in the Misdemeanor Complaint or the supporting depositions to establish that either Police Officer Eugene Este or the complainant have any medical expertise or training sufficient to diagnose a dislocation or fracture. Any knowledge that Officer Este or the complainant may have about the complainant's medical diagnosis would not be within their personal knowledge and clearly would have come from some medical personnel, and is now being offered for the truth of these statements. By definition, such statements are hearsay, Spensieri v. Lasky, 94 NY2d 231, 701 NYS2d 689 (1999); Nucci v. Proper, 95 NY2d 597, 721 NYS2d 593 (2001); Stern v. Waldbaum, Inc., 234 AD2d 534, 651 NYS2d 187 (2nd Dept. 1996); Winant v. Carras, 208 AD2d 618, 617 NYS2d 487 (2nd Dept. 1994) lv. den. 85 NY2d 812, 631 NYS2d 288 (1995) and will be deemed to be of an evidentiary character and considered only if they fall within one of the recognized exceptions to the hearsay rule. People v. Nieves, 67 NY2d 125, 501 NYS2d 1 (1986); Tyrell v. Wal-Mart Stores Inc., 97 NY.2d 650, 737 NYS2d 43 (2001); Alvarez v. First National Supermarkets, Inc., 11 AD3d 572, 783 NYS2d 62 (2nd Dept. 2004) The same is true of the complainant's statement that he will require emergency surgery.

The complainant does, however, further allege that as a result of the attack, he suffered substantial pain and received medical care. Questions concerning whether or not the complainant sustained "substantial pain" are generally questions of fact to be resolved at trial. See: People v. Guidice, 83 NY2d 630, 612 NYS2d 350 (1994); Matter of Philip A., 49 NY2d 198, 424 NYS2d 418 (1980) When it comes to the sufficiency of the accusatory instrument, however, accepting the allegations contained therein as true, the court is "satisfied that the factual allegations contained in the instant [accusatory instrument] suffice to establish a prima facie case of assault in the third degree, and in particular satisfy the physical injury' element of that offense." People v. Henderson, 92 NY2d 677, 685 NYS2d 409 (1999) [Information alleged "defendant and the other individual did then kick the informant about the legs, causing the informant to suffer contusions and swelling about the legs, as well as causing the informant to suffer substantial pain"]; See also: People v. Valencia, 50 AD3d 1163, 856 NYS2d 250 (2nd Dept. 2008)["The evidence of the circumstances of the attack and the victim's injuries was sufficient to establish that she suffered "physical injury" because she suffered substantial pain ...."]

The People having properly stated both elements of the crime charged, that branch of the Defendant's motion which seeks to dismiss the accusatory instrument is denied.

COMPELLING DISCOVERY AND BILL OF PARTICULARSAlthough stated as prayers for relief in the Defendant's Notice of Motion, the Defendant fails to set forth any allegations that he served discovery demands or a demand for a bill of particulars, or that the People have failed to respond to any such demands. Accordingly, these branches of the Defendant's motion are denied.

SUPPRESS IDENTIFICATION TESTIMONY

That branch of the Defendant's motion which seeks to suppress testimony regarding the out of court identification of the Defendant is granted to the extent of setting this matter down [*5]for a Wade hearing, the date of which will be set at the next court appearance in this matter. CPL §§ 710.20(6) and 710.60(4) The Defendant, however, having failed set forth any allegations sufficient to raise factual disputes concerning probable cause for his arrest, that branch of his motion seeking a Dunaway hearing, is denied. See: People v. Mendoza, 82 NY2d 415, 604 NYS2d 922 (1993)

SANDOVAL/VENTIMIGLIA HEARING

That branch of the Defendant's motion which seeks the disclosure of the Defendant's past criminal history and/or prior bad or immoral acts which the People intend to use at trial should the Defendant chose to testify and a pre-trial Sandoval/Ventimiglia hearing is granted to the extent of ordering that such hearing shall be held immediately before the commencement of trial.

EXCULPATORY INFORMATION

Inasmuch as the People's affirmative duty to disclose Brady material within their possession or control exists regardless of any order confirming it, regardless of the People's good or bad faith concerning the disclosure, and inasmuch as the People have acknowledged their continuing duty to turn over that material, Defendant's application for an order directing the People to turn over same is denied as unnecessary. (cf. People v. Morgan, 178 Misc 2d 595, 682 NYS2d 533 (Co. Ct. Fulton Co. 1998); People v. Jackson, 154 Misc 2d 718, 593 NYS2d 410 (S.C. Kings Co. 1992).

FUTURE MOTIONS

That branch of the Defendant's motion which seeks leave to serve and file additional motions, based upon a blanket request, unsupported by the proper papers and grounds, is denied as unauthorized. See: CPL § 255.20(3) Any future motions will be determined on an individual basis, based upon the timeliness and merits thereof.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

January 20, 2009

___________________________

ANDREW M. ENGEL

J.D.C. Footnotes

Footnote 1: U.S. v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967); Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979)