People v Singleton

[*1] People v Singleton 2009 NY Slip Op 52393(U) [25 Misc 3d 1232(A)] Decided on November 25, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 25, 2009
District Court of Nassau County, First District

The People of the State of New York, Plaintiff,

against

Richard Singleton, Defendant.



2007NA017976



Hon. Kathleen Rice, Nassau County District Attorney

Attorney for Defendant: Kathleen Hill, Esq.

Andrew M. Engel, J.

The Defendant is charged with assault in the third degree, in violation of Penal Law § 120.00(1). The information alleges that on June 19, 2009, at 7:30 p.m., the Defendant head butted the complaining witness causing a large contusion to the complaining witness' left eye, resulting in substantial pain and moderate swelling. In his supporting deposition, which is annexed to the information, the complaining witness, Maurice Crosby, alleges, inter alia, that the Defendant "CAME UP TO ME SWINGING A WRENCH TELLING ME HE WAS GOING TO HIT ME WITH IT. HE HEAD BUTTED IT CAUSING A LARGE CONTUSION TO MY LEFT EYE. I AM IN A LOT OF PAIN. MY EYE IS VERY SWOLLEN." The Defendant now moves for an order dismissing the charges against him, alleging that the information is facially insufficient. Alternatively, the Defendant seeks an order suppressing the use at trial of any statements allegedly made by the Defendant or directing that a hearing be held regarding the voluntariness of any such statements, and directing the People to provide him with a copy of his past criminal history and any prior bad or immoral acts which the People intend to use at trial and directing a hearing in relation thereto. The People oppose dismissal and consent to a hearing limited to the issues of "Miranda/classic coercion"(Montgomery Affirmation 10/22/09, ¶ 23) as well as a hearing pursuant to People v. Sandoval, 34 NY2d 371, 357 NYS2d 849 (1974), immediately prior to trial.

FACIAL SUFFICIENCY

The information will be found facially sufficient if, 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 [*2]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

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, the information herein must establish that the Defendant intended to cause physical injury and caused such injury.

The Defendant alleges that the information "is jurisdictionally defective because it does not allege sufficient facts to support the physical injury element of the crime of assault in the third degree. (Hill Affirmation 9/9/09, ¶ 9) Citing People v. Rodriguez, 158 AD2d 376, 551 NYS2d 501 (1st Dept. 1990) lv. den. 75 NY2d 969, 556 NYS2d 254 (1990) and People v. Melcherts, 147 AD2d 594, 537 NYS2d 889 (2nd Dept. 1989) lv. den. 74 N.Y. 2.d 743, 545 NYS2d 118 (1989) the Defendant avers, "The information must allege elaborating details of the duration of the pain and the aftereffects of the injury. (Hill Affirmation 9/9/09, ¶ 12) The Defendant similarly, cites People v. Jimenez, 55 NY2d 895, 449 NYS2d 22 (1982), People v. Marrero, 88 AD2d 998, 451 NYS2d 836 (2nd Dept. 1982), People v. Reed, 83 AD2d 566, 441 NYS2d 10 (1980), People v. Jackson, 163 AD2d 489, 558 NYS2d 590 (2nd Dept. 1990) and Application of Derrick M., 63 AD2d 932, 406 NYS2d 88 (1st Dept. 1978) for the proposition that "New York case law requires a more thorough description of an injury [than the allegations herein] in order to make a complaint sufficient." (Hill Affirmation 9/9/09, ¶ 17)

The problem with the Defendant's reliance on these cases is that not one of them stands for the proposition asserted by the Defendant. Contrary to the Defendant's representation, none of these cases address the sufficiency of an accusatory instrument; rather, they each address the sufficiency of proof adduced at trial. It is well recognized, however, that pleading sufficiency 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) Additionally, many of the cased cited by the Defendant are otherwise factually distinguishable. In People v. Jimenez, supra ., Application of Derrick M., supra . and People v. Jackson, supra ., there was no evidence that the complaining witness suffered any pain. In People v. Marrero, supra ., the complaining witness only testified to suffering discomfort, not pain. In People v. Reed, supra ., there was only evidence of "minor pain." Likewise, in Matter of Philip A., 49 NY2d 198, 424 NYS2d 418 (1980) the testimony addressed, "pain, the degree of which was not spelled out[;]" and in People v. Holden, 148 AD2d 635, 539 NYS2d 95 (2nd Dept. 1989) the court addressed "[g]eneral undeveloped assertions that a victim felt pain ...."

Completely overlooked by the Defendant is the Court of Appeals' decision in People v. Henderson, 92 NY2d 677, 685 NYS2d 409 (1999), wherein the court was "called upon to assess the facial sufficiency of an accusatory instrument, here an information-a misdemeanor complaint supplemented by a supporting deposition-filed in a local criminal court." The information in Henderson, id. alleged, inter alia, " the defendant and the other individual did then kick the [*3]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, alarm and annoyance.'" (emphasis in original) In sustaining the facial sufficiency of this accusatory instrument the court specifically noted, contrary to the Defendant's argument herein, that "[a] victim would not necessarily know with any certainty, shortly after an attack, what its lasting effects will be. Under these circumstances, allegations of substantial pain, swelling and contusions, ..., must be deemed sufficient to constitute "physical injury" to support a facially valid local criminal court information."

Viewing the allegations contained in Mr. Crosby's supporting depositions 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 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 the allegations concerning the Defendant head butting the complainant, causing him to suffer a contused and very swollen left eye, resulting in "A LOT OF PAIN[,]" may ultimately sustain a conviction of the Defendant for assault in the third degree. See: People v. Chiddick, 8 NY3d 445, 834 NYS2d 710 (2007) [a broken fingernail and pain described as "between [a] little' and a lot[]'" sufficient to sustain conviction]; People v. Williams, 23 AD3d 589, 806 NYS2d 610 (2nd Dept. 2005) [scraped and cut legs resulting in " a lot' of pain" sufficient to sustain conviction]; People v. Tomczak, 189 AD2d 926, 592 NYS2d 486 (3rd Dept.1993) [testimony by complainant that he suffered "a lot of pain ... is legally sufficient to establish substantial pain]; People v. Greene, 70 NY2d 860, 523 NYS2d 458 (1987) [complainant's testimony "that he was in terrible pains' and had a lot' of pain from his injuries" was sufficient to establish a physical injury]; People v. Winchell, 46 AD3d 1096, 847 NYS2d 732 (3rd Dept. 2007) [even in the absence of medical treatment a head-butt causing nasal swelling a two black eyes could sustain a conviction for assault in the third degree]

In light of the foregoing, while questions concerning the duration of the complainant's pain, whether or not he sought medical attention, used pain killers or had any physical limitations are issues which may be explored at trial, to be considered by the trier of fact, the allegations contained in the supporting deposition properly establish, if true, every element of the crime charged and 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)

Accordingly, this branch of the Defendant's motion is denied.

SUPPRESSION

The Defendant moves, pursuant to CPL § 710.60(2), to suppress any statements involuntarily made or obtained within the meaning of CPL § 60.45. In the alternative, the Defendant seeks a hearing "to determine the viability of his illegal seizure theory as well as any and all other theories that are implicated by the definition of involuntariness contained in CPL 60.45." (Hill Affirmation 9/9/09, ¶ 30)

In so moving, the Defendant alleges that his alleged statements "were the result of a seizure, taken during custodial interrogation, obtained through coercion, without administration of Miranda warnings, and without a knowing, voluntary and intelligent of [his] Miranda rights." (Hill [*4]Affirmation 9/9/09, ¶ 25) The Defendant further alleges that he was illegally arrested rendering "his alleged statements suppressible fruits of such constitutional violation." (Hill Affirmation 9/9/09, ¶ 25)

In opposition, the People do not concede the truth of any of the Defendant's allegations, but "consent to a voluntariness hearing only as to the Miranda/classic coercion issues." (Montgomery Affirmation 10/22/09, ¶ 23)

CPL § 710.60(2) provides that a suppression motion must be summarily granted if the defendant has set forth the grounds for the motion, containing sworn allegations of fact, [See: CPL § 710.60(1)], which are conceded by the People, [See: CPL § 710.60(2)(a)] or if the People stipulate that the evidence sought to be suppressed will not be offered in any criminal action or proceeding against the defendant. [See: CPL § 710.60(2)(b)] Neither of these circumstances is present in the matter before this court.

CPL § 710.60(3) provides that the court may summarily deny a suppression motion if the motion papers do not alleged a ground constituting a legal basis therefor, [See: CPL § 710.60(3)(a)] or the sworn allegations of fact do not legally support the ground alleged. [See: CPL § 710.60(3)(b)] This latter subparagraph does not apply, inter alia, where a motion is based upon the ground specified in CPL § 710.20(3), to wit: "potential testimony reciting or describing a statement of such defendant involuntarily made, within the meaning of section 60.45[,]" which provides, in pertinent part:

2. A confession, admission or other statement is involuntarily made' by a defendant when it is obtained from him:

(a) By any person by the use or threatened use of physical force upon the defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant's physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement; or

(b) By a public servant engaged in law enforcement activity or by a person then acting under his direction or in cooperation with him: (i) by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself; or (ii) in violation of such rights as the defendant may derive from the constitution of this state or of the United States.

The court finds that the Defendant's allegations claiming that his statements were involuntarily made during the course of police interrogation, in the absence of the administration of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), neither require the summary granting of the Defendant's motion, nor allow for its summary denial, mandating that the [*5]

court "conduct a hearing and make findings of fact essential to the determination thereof." CPL § 710.60(4) The question remains, what should be the scope of that hearing?

The Defendant argues, in the first instance, that CPL §§ 710.60(3)(b) and 710.20(3), when read in conjunction with CPL § 60.45, do not require him to set forth sworn allegations of fact before he will be entitled to a hearing concerning the issue probable cause for his arrest. Certainly, a reading of these sections which, as indicated, include an exception to the otherwise necessary factual predicate, for statements alleged to have been involuntarily made, and include in the definition of "involuntarily made" statements made "in violation of such rights as the defendant may derive from the constitution of this state or of the United States[,]" CPL § 60.45(2)(b)(ii), might lead one to such a conclusion. A reading of the case law interpreting this section, however, reveals that such a conclusion is erroneous.

In People v. Toxey, 220 AD2d 204, 631 NYS2d 846 (1st Dept.1995) lv. den. 88 NY2d 855, 644 NYS2d 701 (1996), the court held that the "statutory prohibition against summary denial of a motion to suppress a statement as involuntarily given does not extend to motions to suppress a statement as the fruit of an unlawful arrest (People v. Mendoza, 82 NY2d 415, 422, 604 NYS2d 922, 624 N.E. 2nd 1017)." In denying a Dunaway [FN1] hearing with respect to the defendant's application to suppress statements, the court in People v. Walker, 15 AD3d 902, 789 NYS2d 780 (4th Dept. 2005) noted that the "brief in which defendant requests a Dunaway hearing does not contain the sworn allegations of fact required for a motion to suppress evidence pursuant to CPL 710.60(1) (citations omitted)." Similarly, in People v. Huntley, 259 AD2d 843, 687 NYS2d 747 (3rd Dept.1999) lv. den. 93 NY2d 972, 695 NYS2d 58 (1999), in affirming the summary denial of the defendant's motion to suppress his statements, the court reasoned, "a motion to suppress evidence such as defendant's statements obtained as the alleged fruit of an unlawful arrest without probable cause (see, Dunaway v. New York, supra .) -like a motion to suppress tangible evidence (see, Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L.Ed. 1081) -may be summarily denied without a hearing if not supported by sufficient factual allegations (citations omitted)."

The Defendant's reliance on People v. Weaver, 49 NY2d 1012, 429 NYS2d 399 (1980), for the contrary proposition, is misplaced. As noted in the well researched and cogently reasoned decision of the Hon. Susan T. Kluewer, of this court, in People v. Ryan, 8 Misc 3d 1017, 803 NYS2d 20 (Dist. Ct. Nassau Co. 2005):

It is true that, in Weaver, a case decided after the enactment [of] CPL 60.45 and CPL Article 710 ( see L.1970, c. 996, § 1), after the issuance of Wong Sun v. United States, after the issuance of Dunaway v. New York, and thus against the backdrop of each, the Court of Appeals did state that there must be a [suppression] hearing whenever defendant claims his statement was involuntarily made no matter what facts he puts forth in support of that claim [emphasis in original]' (49 NY2d at 1013, 429 NYS2d at 399). But while the Weaver Court did not define the term involuntarily made,' it is otherwise clear that the Weaver defendant did not challenge the statements at issue as products of an unlawful search or seizure, and instead attacked them as products of unlawful conditions arising after the seizure was effectuated (citation omitted). More importantly, the Weaver [*6]Court noted that to rule that sworn allegations of fact are required to avoid summary denial of a claim that a statement is involuntary would be to shift the burden of proof of voluntariness from the People to the defendant (49 NY2d at 1013, 429 NYS2d at 399).

It is well-settled that, where a defendant challenges the use of a statement as the product of classic coercion, as the product of custodial interrogation without the procedural safeguards necessary to secure the jealously guarded privilege against self incrimination, or without a knowing and intelligent waiver of that privilege, the People must prove beyond a reasonable doubt that the statement is voluntary' (citations omitted). In contrast, where a statement is challenged on unlawful seizure grounds, it is the defendant who bears the ultimate burden of proof (citations omitted). It is thus obvious that a statement can be voluntary for Fifth Amendment purposes but nonetheless remain inadmissible involuntary for Fourth Amendment purposes (citations omitted). Given this recognized distinction, and given the announced rationale for its decision, it is clear that the Weaver Court was concerned with statements taken in violation of the Fifth Amendment to the United States Constitution (see also NY const Art. I § 6) and not those obtained in violation of the Fourth Amendment ( see also NY const Art. I § 12). I thus cannot agree that Weaver works to relieve a defendant from the obligation of coming forward with sufficient sworn factual allegations where suppression is sought on search and seizure grounds simply because the evidence at issue is a statement rather than an item of property (citations omitted).

See also: People v. Sanchez, 16 Misc 3d 1110, 847 NYS2d 898 (Crim.Ct, NY Co. 2007) This court concurs.

Alternatively, the Defendant attempts to establish a factual predicate for a hearing including the issue of probable cause by alleging that "on June 19, 2009, at approximately 7:50 p.m., [he] was at home in Elmont, NY ... , was abruptly approached by law enforcement officers at his home and placed into custody. Upon information and belief, [he] was not engaged in any unlawful activity and the law enforcement officers did not have probable cause to believe that [he] committed a crime to justify the stop and seizure." (Hill Affirmation 9/9/09, ¶¶ 31 and 32)

Defendant's claim that he was doing nothing unlawful the time of his arrest, at 7:50 p.m., is irrelevant; the Defendant is accused of having committed an assault at 7:30 p.m. See: People v. Lamont, 59 AD3d 203, 873 NYS2d 38 (1st Dept. 2009) lv. den. 12 NY3d 818, 881 NYS2d 26 (2009); People v. Arokium, 33 AD3d 458, 822 NYS2d 442 (1st Dept. 2006) lv. den. 8 NY3d 878, 832 NYS2d 490 (2007) The Defendant's claim that at the time of his arrest the police lacked probable cause is a legal conclusion, not a factual allegation. See: People v. Hightower, 85 NY2d 988, 629 NYS2d 164 (1995); People v. Jones, 95 NY2d 721, 723 NYS2d 761 (2001) The Defendant simply does not make any factual representations regarding his conduct at 7:30 p.m. when the assault in question is alleged to have occurred, as detailed in the supporting depositions, which would require a hearing on the issue of probable cause. See: People v. Loving, 245 AD2d 307, 670 NYS2d 121 (2nd Dept. 1997) lv. den. 91 NY2d 927, 670 NYS2d 409 (1998); People v. Nazario, 220 AD2d 695, 632 NYS2d 651 (2nd Dept.1995) lv. den. 87 NY2d 905, 641 NYS2d 235 (1995); Compare: People v. Hightower, supra .; People v. Muhammed, 290 AD2d 248, 736 NYS2d 19 (1st Dept. 2002); People v. Marquez, 246 AD2d 330, 667 NYS2d 359 (1st Dept. 1998)

Accordingly, that branch of the Defendant's motion which seeks suppression of his alleged [*7]statements, or a hearing regarding the issues relating thereto, is granted to the extent of directing that a hearing be held limited to the issues of "classic coercion" and the alleged violation of his rights pursuant to Miranda v. Arizona, supra .; and, it is hereby

ORDERED, that the hearing shall be held on January 15, 2010, the next date this matter will appear on the court's calendar.

SANDOVAL

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 hearing is granted to the extent of ordering that such hearing shall be held immediately before the commencement of trial.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

November 25, 2009

___________________________

Andrew M. Engel

J.D.C. Footnotes

Footnote 1: Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979)