People v Each

[*1] People v Each 2009 NY Slip Op 52158(U) [25 Misc 3d 1217(A)] Decided on October 23, 2009 District Court Of Nassau County, First District Engel, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 10, 2014; it will not be published in the printed Official Reports.

Decided on October 23, 2009
District Court of Nassau County, First District

The People of the State of New York,

against

Orlando Each, Defendant.



2009NA013341



Hon. Kathleen Rice, Nassau County District Attorney

Attorney for Defendant: Keith A. Lavallee, Esq

Andrew M. Engel, J.

The Defendant is charged under Docket Number 2009NA013341 with Stalking in the Fourth Degree, in violation of Penal Law § 120.45(1), and under Docket Number 2009NA013342 with Criminal Mischief in the Fourth Degree, in violation of Penal Law § 145.00(1). The Defendant now moves for an order dismissing the charges against him, alleging that the accusatory instruments are facially insufficient. The People oppose the motion.

An information 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

CRIMINAL MISCHIEF IN THE FOURTH DEGREE

"A person is guilty of criminal mischief in the fourth degree when, having no right to do so nor any reasonable ground to believe that he has such right, he: 1. Intentionally damages property of another person[.]" Penal Law §145.00(1) "In general, criminal mischief requires a culpable mental state ( intentionally' or recklessly'), damage to the property of another, and no right to do so nor any [*2]reasonable ground to believe that one has such right." Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 145.00, at 102

The information charging the Defendant with Criminal Mischief in the Fourth Degree alleges that on May 14, 2009, at about 12:45 p.m., at 3807 Voorhis Lane, Seaford, New York, "the defendant Each, Orlando did drive his 93 Ford Explorer NY reg EJV2699 on to the front lawn of the victims (sic) Joanne Molnar (sic) home, located at 3807 Voorhis La Seaford and did cause damage to the lawn." The supporting deposition of the complainant, Joanne Molnar, alleges that she was advised by her neighbor, Robert Mulcahy, that a white male, wearing a white baseball cap drove a blue Ford Explorer over her front lawn and then sped away. Ms. Molnar further avers that he lawn sustained damage in the approximate amount of $200.00. The supporting depositions of Mr. Mulcahyassert that he observed a young white male, wearing a white baseball cap, who he identified as the Defendant, come from the dead end of Voorhis Lane, drive onto his neighbor's lawn at 3807 Voorhis Lane at a high rate of speed, causing "a good amount of damage," and then proceed east on Voorhis Lane.

The Defendant does not claim that the information fails to properly allege the necessary elements of damage to the property of another and the absence of any right to cause such damage. The Defendant does allege that the information is facially insufficient in that it fails to contain "a sufficient allegation that the defendant's alleged conduct was intentional' [and that] the identity of defendant is not properly alleged." As to the former claim, the Defendant suggests that the alleged act of driving on the complainant's lawn may have been the result of negligence, and not an intentional act. As to the latter claim, the Defendant argues that the complainant's supporting deposition contains nothing but hearsay statements, reciting what she was told by her neighbor; and, the supporting deposition of the neighbor does not identify the individual he saw drive across the complainant's lawn.

In opposition, the People do not contest that the complainant's supporting deposition contains almost exclusively hearsay statements. They do, however, point to the two (2) supporting depositions of Mr. Mulcahy as supporting every element of the crime charged. The People argue that Mr. Mulcahy's supporting deposition of May 14, 2009 provides a first hand account of the Defendant's conduct, from which his intent can reasonably be inferred; and, that Mr. Mulcahy's supporting deposition of May 16, 2009 establishes the Defendant's identification as the individual who drove across the complainant's lawn.

Mr. Mulcahy's supporting deposition of May 16, 2009 clearly identifies the Defendant as the individual who drove a vehicle onto the complainant's law.

" [A] defendant's intent is the product of the invisible operation of his mind,' to be determined, inevitably, on the basis of defendant's statements and conduct (282 AD2d 102, 726 NYS2d 71)." People v. Samuels, 99 NY2d 20, 750 NYS2d 828 (2002) "Often there is no direct evidence of a defendant's mental state and [one] must infer the mens rea circumstantially from the surrounding facts (People v. Bracey, 41 NY2d 296, 301, 392 NYS2d 412, 360 NE2d 1094)." People v. Smith, 79 NY2d 309, 582 NYS2d 946 (1992); See also: People v. Persaud, 25 AD3d 626, 808 NYS2d 723 (2nd Dept. 2006) lv. den. 6 NY3d 837, 814 NYS2d 85 (2006); People v. Britton, 49 AD3d 893, 853 NYS2d 898 (2nd Dept. 2008)

Viewing the allegations contained in Mr. Mulcahy's supporting depositions in a light most [*3]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 them 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), the court finds that they are 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) Moreover, it may be inferred from the facts alleged therein, particularly that the Defendant began the operation of his motor vehicle in a dead end and accelerated to a high rate of speed as he drove onto the complainant's lawn, then speeding away, that he intended to cause damage to the complainant's property. See: People v. Douglas, 291 AD2d 455, 737 NYS2d 545 (2nd Dept. 2002), [defendant's intent to damage property may be inferred from the fact that he drove his sport utility vehicle in the glass entryway of a movie theater]; In re Kayla C., 35 AD3d 1187, 826 NYS2d 549 (4th Dept. 2006), [respondent's intent to cause property damage may be inferred from evidence that she drove her vehicle into the vehicle in front of her]; People v. Haynes, 39 AD3d 562, 833 NYS2d 193 (2nd Dept. 2007) lv. den. 9 NY3d 845, 840 NYS2d 771 (2007), [defendant's intent to cause serious physical injury could reasonably be inferred from testimony that he drove his car across a parking lot straight into the victim]; People v. Gianni, 303 AD2d 1012, 756 NYS2d 688 (4th Dept. 2003) lv. den. 100 NY2d 581, 764 NYS2d 391 (2003), [defendant's intent to cause damage during a police pursuit my properly be inferred from evidence that the defendant struck one vehicle three times and another vehicle two times]; People v. Ollman, 309 AD2d 1241, 765 NYS2d 541 (4th Dept. 2003) lv. den. 1 NY3d 541, 775 NYS2d 245 (2003), [defendant's intent to cause serious physical injury could be inferred from evidence that he hit two people with his car].

The court's finding notwithstanding, the ultimate question of whether the damage caused to the complainant's property was the result of the driver's intentional conduct or negligence is to be determined by the trier of facts. While the allegations set forth are sufficient for pleading purposes, 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)"Of course, the People retain[] their burden to prove those elements at trial beyond a reasonable doubt." People v. Inserra, 4 NY3d 30, 790 NYS2d 71 (2004)

Accordingly, that branch of the Defendant's motion which seeks to dismiss the charge of Criminal Mischief in the Fourth Degree is denied.

STALKING IN THE FOURTH DEGREE

"A person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person and knows or reasonably should know that such conduct: 1. is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person's immediate family or a third party with whom such person is acquainted." Penal Law §120.45(1)

The information under which the Defendant is charged alleges two incidents which form the basis of the stalking charge. The first is alleged to have occurred on May 22, 2009 at 12:45 p.m. when the complainant is alleged to have observed the Defendant drive past her home, slow to a stop, [*4]stay there for about five seconds, drive away, return about twenty seconds later and stop for about five to ten seconds before driving away. The second is alleged to have occurred on May 26, 2009 when the complainant is alleged to have observed the Defendant follow her vehicle "through the back streets of Seaford," as she headed from Seaford High School towards her home, and continue to follow her until she drove into the Seventh Precinct parking lot. These allegations are supported by the deposition of the complainant's son, Stephen J. Molnar, who provides a first hand account of the alleged incident of May 26, 2009 and alleges that he was afraid for his safety and the safety of his family. They are also supported by two depositions of the complainant, dated May 26, 2009, which set forth her first hand observations of the alleged incidents of May 22, 2009 and May 26, 2009 and further identify the vehicle involved as fitting the description of the vehicle which was reported as having driven across her lawn on May 14, 2009. The complainant further alleges that these alleged incidents have caused her to become concerned for the safety of herself, her family and her property.

In moving for dismissal of this charge, while acknowledging the intentional nature of his alleged conduct, the Defendant argues that "it cannot be assumed that [his] intentions were to cause fear of harm to anyone[, as] [i]t is never alleged that defendant did anything to endanger the complainant." (Brownyard Affirmation 8/12/09, ¶ 12) The Defendant also argues that the accusatory instrument fails to allege that the Defendant's alleged conduct served no legitimate purpose, that such behavior constituted a "course of conduct," or that such conduct was likely to cause fear. The Defendant further alleges that he is not in possession of the complainant's supporting deposition of May 26, 2009, setting forth the incident of May 22, 2009.[FN1]

In opposing the motion, the People argue that "the failure to expressly recite that defendant acted with [the intent to cause fear of harm] is inconsequential[;]" (Contreras Affirmation 8/26/09, ¶ 40) and, that the facts presented reasonably support the inference of such intent. The People further argue that the supporting depositions demonstrate a course of conduct and that the Defendant was "hounding" the complainant.

The crime of Stalking in the Fourth Degree consists of five essential elements: (1) an intentional, (2) course of conduct, (3) aimed at a specific person, (4) which serves no legitimate purpose, (3) which an individual knows or has reason to know will or will likely instill reasonable fear of material harm. See: People v. Stuart, 100 NY2d 412, 765 NYS2d 1 (2003)

As previously indicated, the Defendant acknowledges that the acts alleged were intentional. Contrary to the Defendant's argument, however, the intent element of the charge does not require that he intended to cause harm to anyone. "The mens rea requirement of intent in Penal Law § 120.45(1) is defined as intent to engage in a specific course of conduct, not intent to cause a specific result (citation omitted)." People v. Bamba, 15 Misc 3d 1122(A), 841 NYS2d 220 (Crim.Ct. NYC 2007) "The statute thus focuses on what the offenders do, not what they mean by it or what they intend as their ultimate goal." People v. Stuart, supra . at 427, 765 NYS2d 1, 13 (2003); See also: People v. Watson, 32 AD3d 1199, 821 NYS2d 328 (4th Dept. 2006) lv. den. 7 NY3d 929, 827 NYS2d 698 (2006) Similarly, "Stalking in the fourth degree does not require an allegation of a threat of immediate and real danger." People v. Paes, 17 Misc 3d 1120(A), 851 NYS2d 65 (Crim.Ct. NY Co. 2007) See also: People v. Wong, 3 Misc 3d 274, 776 NYS2d 194 (Crim.Ct. NY Co. 2004) [*5]

"While the statute is silent as to what precisely constitutes a course of conduct," People v. E.P., 20 Misc 3d 1119(A), 867 NYS2d 19 (Crim.Ct. NY Co. 2008), it is clear that the Defendant's conduct must be viewed in light of the "circumstances taken as a whole[.]" People v. Graziano, 11 Misc 3d 137(A), 816 NYS2d 699 (App.Term 9th & 10 Jud. Dists. 2006) "There is no statutory requirement that a course of conduct' be of any particular type or duration[;]" People v. Perez, 189 Misc 2d 516, 734 NYS2d 398 (Co.Ct. Nassau Co. 2001), and, "the term course of conduct' may reasonably be interpreted to mean a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." People v. Payton, 161 Misc 2d 170, 612 NYS2d 815 (Crim.Ct. Kings Co.1994); See also: People v. Tralli, 88 Misc 2d 117, 387 NYS2d 37 (App. Term 9th & 10th Jud. Dists. 1976), ["course of conduct" found in single act of defendant engaging complainant in conversation and positioning himself so that she could see that he had exposed himself]; People v. Murray, 167 Misc 2d 857, 635 NYS2d 928 (Crim.Ct. NY Co.1995), ["course of conduct found in a single episode of alleged stalking lasting five to eight minutes] In the matter sub judice, the court finds that the Defendant's alleged conduct, of driving past the complainant's home and sitting in front of the house two times and then following her vehicle on another day, through Seaford, past her house, until she arrived at the police station may constitute the requisite "course of conduct" sufficient to support the charge of Stalking in the Fourth Degree.

The "no legitimate purpose" element of the statute relates to "the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten." People v. Stuart, supra . at 428, 765 NYS2d 1, 14 (2003) The court finds that, if true, the factual allegations made in the complainant's supporting depositions may reasonably be found to establish that the Defendant entered into this course of conduct to hound, frighten, intimidate or threaten the complainant, who had recently filed a complaint against him regarding an incident where someone drove across the complainant's lawn.[FN2] Similarly, these allegations, if true, establish that the Defendant's course of conduct was directed at the complainant, and that the Defendant knew, or reasonably should have known, that such conduct was likely to cause reasonable fear of material harm to the physical health of the complainant or a member of her immediate family. While "[a]ctual fear, whether reasonable or not, is not a required element of the offense; the facts need[ing] only [to] show that a defendant knows or should reasonably know that his actions are likely to cause reasonable fear (PL § 120.45[1]) (emphasis added)[,]" People v. E.P., supra, the complainant in fact alleges that the Defendant's course of conduct caused he such concern.

Based upon all of the foregoing, the court finds that the factual allegations made in support of this charge are sufficient to meet the reasonable cause and prima facie pleading requirements of CPL §§ 100.15 and 100.40. Accordingly, that branch of the Defendant's motion which seeks to dismiss the charge of Stalking in the Fourth Degree is denied.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

October 23, 2009

___________________________

ANDREW M. ENGEL

J.D.C. Footnotes

Footnote 1: The court's file does contain such a supporting deposition.

Footnote 2: Contrary to the Defendant's argument, those portions of the complainant's supporting depositions in which she relates that she filed a complaint against the Defendant on May 14, 2009 are not hearsay. Whether or not the complainant witnessed the May 14, 2009 incident, she had first hand knowledge of the fact that she filed a complaint against the Defendant on that date.