People v George

[*1] People v George 2012 NY Slip Op 52250(U) Decided on December 7, 2012 Criminal Court Of The City Of New York, Queens County Koenderman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2012
Criminal Court of the City of New York, Queens County

The People of the State of New York

against

Kenneth George, Defendant



2012QN037589



Attorney for defendant:

Jonathan Strauss

Attorney for the People:

ADA Deanna Paul

Elisa S. Koenderman, J.

The defendant, Kenneth George, is charged with Assault in the Third Degree, Penal Law ["PL"] § 120.00(1), Menacing in the Second Degree, PL § 120.14(1), Criminal Obstruction of Breathing or Blood Circulation, PL § 121.11(a), Attempted Assault in the Third Degree, PL § 110/120.00(1) and Harassment in the Second Degree, PL § 240.26.

The defendant challenges the facial sufficiency of the accusatory instrument, claiming that it is defective because it fails to contain non-hearsay factual allegations establishing every element of the offenses charged. He contends that the complainant's signature on a supporting deposition annexed to the Domestic Incident Report ["DIR"] is forged and proffers a notarized affidavit from the complainant in which she swears that she neither wrote nor signed the document [FN1]. Thus, he asserts that "the People have unwittingly presented a forged signature in order to convert this complaint into a information." He concludes that "since the complainant never swore to any of . . . the factual allegations" the complainant cannot be deemed an information. Accordingly, he asks that "the matter be put down for conversion and/or CPL [§] 30.30 dismissal." Contrary to the defendant's contention, however, since the alleged deficiency is a "latent defect," it does not affect the facial sufficiency of the accusatory instrument. Consequently, because the nonhearsay factual allegations of the information, if true, establish the defendant's commission of every element of the offenses of Attempted Assault in the Third Degree and Harassment in the Second [*2]Degree, the defendant's motion is denied with respect to those charges (see CPL §100.40[1][c]). Conversely, since the same allegations are insufficient to establish the defendant's commission of every element of the offenses of Assault in the Third Degree, Menacing in the Second Degree [FN2] and Criminal Obstruction of Breathing or Blood Circulation, those charges are dismissed as facially insufficient.

The defendant was arraigned on the misdemeanor complaint on July 14, 2012. The complaint alleges that Manoj Mathura informed Police Officer Farah Quisenberry that between 2:00 a.m. and 3:17 a.m. on July 13, 2012, in front of 109-04 214th Street in Queens County, he observed the defendant strike Natasha Sookoo in the head with a glass bottle, causing her to "pass out." Mathura then observed the defendant choke and punch Sookoo while she was on the ground. After Mathura pulled the defendant off Sookoo, the defendant went to his vehicle and returned with a hammer, which he waved at Mathura, threatening to kill him. The complaint further alleges that Natasha Sooko informed Officer Quisenberry that the defendant swung a bottle at her, causing her to fall to the ground, and then began to hit her while she was down. Officer Quisenberry observed Sookoo lose consciousness at the scene. The officer subsequently recovered a hammer from the defendant's vehicle.

On July 19, 2012, the People filed and served a three (3) page DIR to convert the misdemeanor complaint to an information [FN3]. The first page, entitled "Domestic Incident Report," identifies Natasha Sookoo as the victim and Kenneth George as the suspect. It describes the results of the police investigation and the basis of any action taken, and is signed and dated by Officer Quisenberry. There are two "Statement of Allegations/Supporting Deposition" forms annexed to this page.

The first "Statement of Allegations/Supporting Deposition" names "Kenneth George" as the suspect and reads that "I, Natasha Sookoo state that on 7/13/12 . . . in Qns [sic] . . . New York, the following did occur: I was with Kenneth in the back yard drinking when I told him I think we should slow down on the drinking. He get mad [sic] picked up a bottle, swung it at me. Next I remember hitting my head to the floor from the balcony. He went to hit me while I was on the floor and my cousin Mannoh [sic] grabbed him off me." Above the line for "Victim/Deponent Signature" is a partially-legible signature which appears to represent Sookoo's name. The signature is followed by the date "7-13-12" and is below a form notice which states that "False Statements made herein are punishable as a Class A Misdemeanor, pursuant to section 210.45 of the Penal Law." Above the line for "Witness or Officer" is a signature of a police officer, which is also followed by the date "7-13-12."

The second "Statement of Allegations/Supporting Deposition" also names Kenneth George as the suspect. It reads, however, that "I, Natasha Sookoo state that on 7/12/12 . . . in . . . New York, the following did occur: I don't wanna [sic] talk about [*3]anything to anyone." Below this statement, in different script and enclosed by parenthesis is written: "victim was afraid to speak at first." This statement is followed within the parenthesis by a sub-parenthesis containing the initials "FQ." Below the line for "Victim/Deponent Signature" is a partially-legible signature which appears to represent Sookoo's name. The signature is followed by the date "7/13/12" and is below a form notice that false statements made therein are punishable as a misdemeanor. Above the line for "Witness/Officer" is a signature of a police officer, which is followed by the date of "7/13/12."

Based upon the supporting deposition from Sookoo containing the narrative of events, the Court deemed the misdemeanor complaint partially converted to an information (see People v Brooks, 190 Misc 2d 247, 250 [App Term, 1st Dept 2001]). The defendant asserts, however, that Sookoo "neither wrote nor executed" the supporting deposition containing the narrative and that her signature on this instrument is "forged." He contends that Sookoo wrote and signed only the supporting deposition in which she stated that she did not want to discuss what happened. Because this alleged deficiency is not obvious from the face of the information, it is a "latent" defect which does not mandate dismissal (see Matter of Edward B., 80 NY2d 458 [1992]; Matter of Steven C., 93 AD3d 91 [2d Dept 2012]).

The purpose of the CPL § 100.40 provisions regarding facial sufficiency of local criminal court accusatory instruments is to establish the definition of facial sufficiency applicable to certain ensuing statutory procedural actions (see id. at 464). For example, a court may issue an arrest warrant for a defendant not yet arraigned upon an accusatory instrument which is "sufficient on its face" (CPL § 120.20[1][a]). Conversely, where a defendant has been arrested without a warrant, a court "must dismiss [an] accusatory instrument and discharge the defendant" if the accusatory instrument "is not sufficient on its face" and the court is satisfied that based upon the available facts or evidence it would be impossible to file one which is "sufficient on its face" (CPL § 140.45). Additionally, a court is empowered to dismiss "an information, simplified information, prosecutor's information or misdemeanor complaint" as "defective" when "it is not sufficient on its face" (CPL §§ 170.30[1][b] & 170.35[1][a]). Thus, the "facial sufficiency" provisions "are designed to enable the trial court to evaluate the adequacy of the accusation during the preliminary phases of the criminal action so that certain important pretrial decisions about the status of the defendant and the charges can be made"(Matter of Edward B., 80 NY2d at 464).

The prima facie case requirement provides assurance that there is a "valid and documented basis" for prosecution and a "measure of reliability" regarding the contents

of the accusatory instrument (Matter of Jermaine G., 38 AD3d 105, 111 [2d Dept 2007]). Since the ultimate goal of requiring nonhearsay allegations establishing every element of the offenses charged is to ensure that "there exists a sound and supportable basis for subjecting the accused to a trial," the purpose and effect of the facial sufficiency provisions are confined to the pretrial stages of the proceedings (id.). Once an accusatory instrument which satisfies the statutory requirements is filed and "the witnesses are available to describe the case against the accused, in person and under oath," the necessity for and operative effect of the facial sufficiency provisions dissipates (id. at 465). Thus, "the limited, albeit important, purpose of the statute is amply served by facial compliance" (id. [emphasis in original]). [*4]

Accordingly, latent defects in an accusatory instrument do not mandate dismissal for facial insufficiency (see id.; see also Matter of Steven C., 93 AD3d at 95). For example, dismissal of a juvenile delinquency petition for facial insufficiency was not required where the complainant had not read the supporting deposition before signing it since the "hearsay character of the facts alleged in the supporting deposition [was] not facially apparent" but was discovered later during the course of the proceedings (Matter of Edward B., 80 NY3d at 460-461)[FN4]. Likewise, a juvenile delinquency petition was not subject to mandatory dismissal where the officer who attested in a supporting deposition that he had observed the defendant commit the offense charged did not actually witness anything (Matter of Steven C., 93 AD3d at 95) because nothing on the face of the petition revealed this hearsay defect, which only became apparent at the subsequent fact-finding hearing (id.).Similarly, the failure of a family court petition to state affirmatively that a child witness was judicially determined competent to swear to a supporting deposition did not render the petition facially insufficient (Matter of Nelson R., 90 NY2d 359, 362-363 [1997]). Since the petition was facially valid, any defect relating to the capacity of the child witness to swear to the supporting deposition was latent and thus did not mandate dismissal (id.). In contrast, where a ballistics report filed in support of a juvenile delinquency petition failed to indicate that it was signed by the person who tested the gun, the petition was jurisdictionally defective since "the nonhearsay nature" of the report was "not clear on its face" (Matter of Rodney J., 83 NY2d 503, 507 [1994]). Indeed, because the deficiency was "apparent from the face of the document," dismissal of the petition was warranted (id. at 508).

Here, as an initial matter, the fact that the "Victim/Deponent" signature on the supporting depositions is not fully-legible does not create a jurisdictional defect since the instruments clearly identify Natasha Sookoo as the deponent, are subscribed under a form notice acknowledging that false statements made therein are punishable by perjury and are witnessed by a police officer (cf. In re Socrates C., 251 AD2d 117 [1st Dept 1998] [illegibility of undercover officer's signature on supporting deposition did not render juvenile delinquency petition defective where his identity was clearly indicated by his shield number, and because his signature beneath the Penal Law § 210.45 form notice was notarized]). Therefore, the supporting depositions are properly verified (see CPL § 100.30[1][d]) and comport with the statutory requirements regarding form (see CPL § 100.20). Regardless, because the supporting deposition in which Sookoo states that she does not want to talk about anything contains no factual allegations which support the charges in the misdemeanor complaint, it does not comply with the statutory requirements for content (see id.). Accordingly, that supporting deposition is invalid and is superfluous to a determination of facial sufficiency.

On the other hand, the supporting deposition describing the narrative of events does contain factual allegations of an evidentiary character which tend to support the charges in the misdemeanor complaint. Because this supporting deposition satisfies the statutory requirements as to form and content, it is valid (see id.). The information therefore comprises the misdemeanor complaint and this supporting deposition. When [*5]given a "fair and not overly restrictive or technical reading" and accepted as true, the nonhearsay facts of the information establish every element of the offenses of Attempted Assault in the Third Degree [FN5] and Harassment in the Second Degree and are adequately detailed to provide the defendant with sufficient notice to prepare a defense and to prevent him from being tried twice for those crimes (see People v Casey, 95 NY2d 354, 360 [2000]). Thus, the information is facially sufficient as to attempted assault and harassment. In contrast, since the supporting deposition fails to supply first-party evidentiary facts which corroborate the remaining hearsay allegations, the information is facially insufficient as to Assault in the Third Degree, Menacing in the Second Degree and Criminal Obstruction of Breathing or Blood Circulation.

Additionally, while the signature on the supporting deposition containing the narrative of events does not exactly match the signature on the other supporting deposition, that does not mean that one signature is forged while the other is authentic. Common sense and experience confirm that a person's signature may vary naturally from one instance to the next. A determination that Sookoo did not write and sign the supporting deposition therefore cannot be made from the face of the instrument. Indeed, a review of the supporting deposition on its face reveals no deficiency. The purported evidence of Sookoo's "real" signature on her driver's license and her notarized affidavit denying that she wrote and signed the supporting deposition containing the narrative of events demonstrates the latency of the alleged defect in the information. The issue of whether Sookoo wrote and signed the supporting deposition - and ultimately whether the defendant committed the acts alleged therein - can only be resolved at a fact-finding proceeding [FN6]. That proceeding is not a "hearing [FN7]" to determine facial sufficiency but rather a trial of the charges contained in the information. At trial, the defendant is free to attempt to adduce evidence that the charges against him were falsified [FN8] by whatever means. In turn, the People may seek to introduce evidence to rebut this contention [FN9]. In any event, the People ultimately must satisfy their burden of proof beyond a reasonable doubt. They have met, however, their much lesser burden at the pleading stage. [*6]

In conclusion, because the information is facially valid as to Attempted Assault in the Third Degree and Harassment in the Second Degree , the defendant's motion is denied with respect to those charges. To the contrary, since the charges of Assault in the Third Degree, Menacing in the Second Degree and Criminal Obstruction of Breathing or Blood Circulation are facially insufficient, they are dismissed.



This constitutes the decision and order of the Court.

Dated:December 7, 2012

Queens, New York

_________________________

Elisa S. Koenderman, JCC Footnotes

Footnote 1: He also submits a copy of the complainant's signed driver's license for comparison to the signature on the supporting deposition.

Footnote 2: The Court previously deemed the complaint an information as to Menacing in the Second Degree orally on the record when the People filed and served the DIR. Upon further review, this ruling was in error. The complaint charges a single count of menacing based upon the factual allegation that the defendant threatened Mathura with a hammer. The supporting deposition annexed to the DIR, however, does not corroborate this allegation.

Footnote 3: The People have not filed a supporting deposition from Mathura or any additional supporting deposition from Sookhoo.

Footnote 4: The statute governing the facial sufficiency of juvenile delinquency petitions (Family Court Act § 311.2[3]) was based upon its Criminal Procedure Law counterpart (CPL § 100.40) and their provisions are analogous (see Matter of Edward B., 80 NY2d at 464).

Footnote 5: The People moved to add Attempted Assault in the Third Degree to the information when they filed and served the DIR with the annexed supporting depositions.

Footnote 6: If Sookoo were to testify, regardless of who calls her as a witness, the Court would appoint her a lawyer since she faces possible perjury charges if the notarized affidavit is false.

Footnote 7: Although the People vigorously deny the allegations in the defendant's motion and consent to such a "hearing," the Court declines to order it for the reasons stated herein.

Footnote 8: If the defendant were to prove that the supporting deposition is a forgery, that would constitute serious misconduct by law enforcement since the execution of the instrument was witnessed by a police officer. The Court then would be permitted to dismiss the information as a matter of judicial discretion in the interest of justice (see Matter of Steven C., 93 AD3d at 95).

Footnote 9: If an investigation by the People indicates that the defendant wrongfully used his relationship with Sookoo to procure her unavailability as a witness, they may apply for forfeiture of the defendant's right to confrontation and admission of Sookoo's statements against him as direct evidence at trial (see People v Jernigan, 41 AD3d 331, 332 [1st Dept 2007]); People v Byrd, 51 AD3d 267, 269 [1st Dept 2008]).