People v Carter

[*1] People v Carter 2009 NY Slip Op 52016(U) [25 Misc 3d 1210(A)] Decided on October 6, 2009 Nassau Dist Ct, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 6, 2009
Nassau Dist Ct, First District

The People of the State of New York,

against

Kinjatey Carter, Defendant.



2009NA013320



Hon. Kathleen Rice, Nassau County District Attorney

Attorney for Defendant: Meredith A. Bettenhauser, Esq.

Andrew M. Engel, J.

The Defendant is charged with Obstructing Governmental Administration, Resisting Arrest, Criminal Mischief in the Fourth Degree, Endangering the Welfare of a Child and Disorderly Conduct, in violation of Penal Law §§195.05, 205.30, 145.00(1), 260.20(1) and 240.20(1), respectively. The Defendant now moves for an order dismissing the accusatory instruments charging the her with Endangering the Welfare of a Child and Disorderly Conduct, precluding the use at trial of any statement made by the Defendant; suppressing testimony concerning observations made by police officers at the time of the stop and arrest of the Defendant, or in the alternative seeking a hearing pursuant to Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979) and People v. Dory, 59 NY2d 121, 463 NYS2d 753 (1983), directing the People to provide her with a copy of any prior bad or immoral acts of the Defendant which the People intend to use to impeach the Defendant at trial and directing a hearing thereon, directing the People to deliver to the her all material pursuant to Brady v. Maryland, 373 U.S. 82, 83 S. Ct. 1201 (1963), directing the People to provide her with names, addresses and telephone numbers of all witnesses to the crimes alleged prior to hearing or trial, along with all statements made by such witnesses. The People have not submitted opposition to this motion.

DISORDERLY CONDUCT

Penal Law § 240.20(1) provides, "A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he engages in fighting or in violation, tumultuous or threatening behavior." Clearly, "the statute has two essential elements, conduct and intent." People v. M.R., 12 Misc 3d 671, 814 NYS2d 517 (Crim.Ct. NY Co. 2006) "The proscribed conduct must be accompanied by the stated culpable mental state of intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof' (citations omitted)." People v. Dennis, 13 Misc 3d 41, 823 NYS2d 830 (App.Term 9th & 10th Jud. Dists. 2006) lv. den. 7 NY3d 901, 826 NYS2d 610 (2006) The absence of a factual allegations evidencing such intent will render the accusatory instrument charging Disorderly Conduct facially insufficient. See: People v. Tarka, 75 NY2d 996, 557 N.Y.S2d 266 (1990) [*2]

The factual allegations contained in the information sub judice recite:

your deponent did observe the defendant fighting against the arresting and assisting officer while the arresting of her co defendant was going on. Your deponent did observe the defendant yelling, screaming, and cursing. The defendant physically came between the deponent and her co defendant who was also being arrested. This complaint is based on the personal observations of your deponent.

Whether or not "yelling, screaming and cursing" and "physically [coming] between" a police officer and another being placed under arrest is conduct proscribed by this statute, conspicuously absent from these allegations is any suggestion that the Defendant engaged in such behavior with the intent to cause public inconvenience, annoyance or alarm. Nor is their any hint that she did so recklessly.

The information does not allege that there were any bystanders or spectators in the vicinity at 5:06 a.m. when this incident allegedly occurred, that anyone sought to aid or encourage the Defendant's conduct or that the Defendant attempted to incite or involve anyone who might have been in the area.

The information simply does not describe a "situation[] that carried beyond the concern of individual disputants [here the Defendant and the arresting officers] to a point where they had become a potential or immediate public problem." People v. Munafo, 50 NY2d 326, 428 NYS2d 924 (1980)As presented, viewing the factual allegations contained in this information in 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 without giving it 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), it cannot be said that the information contains non-hearsay allegations which, if true, establish every element of the crime charged, People v. Moore, 5 NY3d 725, 800 NYS2d 49 (2005); People v. Thomas, 4 NY3d 143, 791 NYS2d 68 (2005) See: People v. Badue, 2009 WL 531185 (App.Term 9th & 10th Jud. Dists. 2009); People v. Grullon, 9 Misc 3d 1120(A), 862 NYS2d 810 (Crim.Ct. NY Co. 2005); People v. Square, 20 Misc 3d 1126(A), 872 NYS2d 693 (Crim.Ct. NY Co. 2008)

Accordingly, that branch of the Defendant's motion seeking an order dismissing the charge of Disorderly Conduct is granted; and, it is hereby

ORDERED, that Count 5 is dismissed.

ENDANGERING THE WELFARE OF A CHILD

Penal Law § 260.10(1), under which the Defendant is charged, provides, in pertinent part, "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 ...."

The factual allegations set forth in the information in support of this charge allege:

your deponent did observe the defendant the defendant (sic) seated in a car with her 19 month old child laying across her lap without being restrained in a child seat or having herself restrained with a seat belt. The defendant was in a car with her co defendant who was speeding, passed one red light, and not yielding to police lights. The defendant did state to your deponent that her child is 19 months old with a date of birth 10/05/07. [*3]

In essence, the Defendant is charged with endangering the welfare of her child because she was riding as a passenger in a car with her child and did not place the child in a child restraint. While it is alleged that the vehicle was being operated at an unsafe speed, drove through a red light and did not yield to police lights, it is not alleged that the Defendant was driving the vehicle or had any knowledge that the vehicle would be so operated.

To properly "make out their prima facie case for the offense charged in the text of the information[,]" People v. Jones, 9 NY3d 259, 848 NYS2d 600 (2007); See also: People v. Henderson, 92 NY2d 677, 685 NYS2d 409 (1999); People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987), the People must demonstrate that the Defendant "knowingly" engaged in conduct "likely" to endanger her child. The mere possibility of harm will not result in criminal responsibility; a showing that such harm is likely to occur is necessary. People v. Hitchcock, 98 NY2d 586, 750 NYS2d 580 (2002) Moreover, the People must demonstrate that the Defendant engaged in the charged conduct "knowing of the likelihood of such harm coming to the child (citation omitted)." People v. Simmons, 92 NY2d 829, 677 NYS2d 58 (1998); See also: People v. Johnson, 95 NY2d 368, 718 NYS2d 1 (2000)

As indicated, the Defendant is essentially charged with failing to place her child in an appropriate restraint while riding in the vehicle of another person. While this may have been an incredibly foolish thing for the Defendant to have done, it cannot be said that the mere failing to secure the child in the car was likely to result in injury to the child, leading to criminal responsibility. As recognized in People v. Chase, 186 Misc 2d 487, 720 NYS2d 707 (App. Term 2nd Dept. 2000) app. den. 95 NY2d 962, 722 NYS2d 479 (2000), "with such a construction, many, if not most, motorists would over the course of a lifetime commit misdemeanors thereby meriting a criminal record' ( see Penal Law § 10.00[6])."

The court does not find that the additional allegations, that the driver of the vehicle was speeding, passed a red light and failed to yield to police lights can be imputed to the Defendant, as pled. Certainly, if the Defendant were the driver it may be said that she "acted knowingly so as to cause a true likelihood of injury to the child." People v. Figueroa, 20 Misc 3d 130(A), 867 NYS2d 377 (App.Term 9th & 10th Jud. Dists. 2008) As a passenger in the vehicle, however, it is not alleged that she had anything to do with the operation of the motor vehicle or that she even knew the vehicle would be operated in such a manner when she entered the vehicle and failed to restrain her child. In the absence of such alleged knowledge the information sub judice fails to contain an evidentiary statement supporting every element of the crime charged, "provid[ing] reasonable cause to believe that the defendant committed the offense[.]" People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987)

Accordingly, that branch of the Defendant's motion seeking an order dismissing the charge of Endangering the Welfare of a Child is granted; and, it is hereby

ORDERED, that Count 4 is dismissed.

PRECLUSION OF STATEMENTS

The People having failed to serve any notice pursuant to CPL § 710.30(1), that branch of the Defendant's motion seeking to preclude the use at trial of any statements allegedly made by the Defendant is granted to the extent of precluding the People from introducing at trial any statement made by the Defendant to a public servant, which statement, if involuntarily made, would render the evidence thereof suppressible upon motion. CPL § 710.30(3)

[*4]SUPPRESSION OF POLICE OBSERVATIONS

The Defendant seeks to suppress testimony concerning the observations which may have been made of her by the police, alleging that there was no legal basis for the stop of the vehicle in which she was riding. In support of this branch of her motion the Defendant alleges that she was a back seat passenger in a vehicle being driven by her child's father; that both she and the child were restrained in the vehicle, that the driver of the vehicle was obeying all Vehicle and Traffic rules and regulations; and, that, contrary to the bald allegation contained in the police paperwork, neither she nor the vehicle's driver were involved in any robbery.

The court finds that the Defendant's allegations are sufficient to raise factual disputes to be resolved at a hearing before the court can determine the legal issues raised by the Defendant relative thereto. See: People v. Mendoza, 82 NY2d 415, 604 NYS2d 922 (1993)

Accordingly, that branch of the Defendant's motion which seeks suppression of police observations is granted to the extent of directing that a Dunaway/Dory hearing be held on this issue. This hearing shall be held on the next appearance date, November 16, 2009.

PRIOR BAD OR IMMORAL ACTS

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 choose to testify and a pre-trial hearing pursuant to People v. Sandoval, 34 NY2d 371, 357 NYS2d 849 (1974) is granted to the extent of ordering that such hearing shall be held immediately before the commencement of trial.

BRADY MATERIAL

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, 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).

WITNESS NAMES, ADDRESSES, TELEPHONE NUMBERS AND STATEMENTS

The discovery of the names and addresses of witnesses rests solely in the court's discretion. People v. Lynch, 23 NY2d 262, 296 NYS2d 327 (1968) There being "no statutory basis for such disclosure (CPL 240.20[1] )," People v. Izquierdo, 292 AD2d 247, 739 NYS2d 78 (1st Dept. 2002) lv. den. 98 NY2d 698, 747 NYS2d 416 (2002); See also: People v. Pacheco, 38 AD3d 686, 832 NYS2d 248 (2nd Dept. 2007), same may be directed by the court where the Defendant has "demonstrate[d] a material need for such information and the reasonableness of the request (citations omitted)." People v. Miller, 106 AD2d 787, 484 NYS2d 183 (3rd Dept.1984); See also: People v. Estrada, 1 AD3d 928, 767 NYS2d 552 (4th Dept. 2003) lv. den. 1 NY3d 627, 777 NYS2d 26 (2004) In the matter before this court, the Defendant has done neither. Accordingly, this branch of the Defendant's motion is denied.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

October 6, 2009 [*5]

___________________________

ANDREW M. ENGEL

J.D.C.