People v Grimaldi
Annotate this CaseDecided on September 28, 2015
Criminal Court of the City of New York, Bronx County
The People of the State of New York,
against
Neil Grimaldi, Defendant.
2015BX022132
For The People:
Robert T. Johnson, District Attorney, Bronx County
by Kathleen A. Kelly, Assistant District Attorney
For Defendant:
The Bronx Defenders
by Scott Levy
Armando Montano, J.
Defendant is charged with Assault in the Third Degree (PL § 120.00[2]), Unlawful Eviction (AC § 26-521[3]), and Harassment in the Second Degree (PL § 240.26[1]).
Defendant moves for an order 1) dismissing the accusatory instrument as facially insufficient; 2) precluding the People from introducing at trial any evidence of defendant's prior convictions or bad acts; and 3) granting defendant the right to make additional pretrial motions and the right to amend and/or supplement this motion if made necessary or appropriate by the People's future disclosure.
The factual allegations in the accusatory instrument sworn to by the deponent, Richmond Brown, read as follows: Deponent states that [on or about April 7, 2015 at approximately 1:00 AM at inside of 1452 Beach Avenue, Apartment 21, County of Bronx, State of New York], he went to his residential door and knocked on said door. Deponent further states that defendant was inside of the apartment and refused to open the door for deponent, at which time deponent opened said door to enter his apartment and defendant pushed the door shut with the use of his body. Deponent further states that his hand was stuck in between the door frame and the door and defendant stated in sum and substance: DON'T OPEN MY FUCKING DOOR.Deponent further states that he had to pull his hand out from in between the door and door frame. Deponent further states that he has occupied said apartment since December 26, 2013, is [the] owner of a lease for said apartment and makes a month to month rent payment. Deponent further states that due to the defendant's aforementioned conduct he suffered swelling and substantial pain to his left hand and felt threatened and experienced annoyance and alarm for his physical safety.
Motion to Dismiss
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Defendant argues that the accusatory instrument must be dismissed as facially insufficient because it fails to allege the element of intent for all three offenses charged. Defendant asserts that the information fails to allege sufficient facts to create an inference that he intentionally caused a physical injury to the complainant or possessed the intent to harass, annoy, or alarm the complainant. At most, the allegations only demonstrate that defendant intended to shut the door to his bedroom so as to prevent the complainant from entering. The complainant's alleged injury was an incidental and unintended consequence of defendant closing his door. Since the information fails to make out the element of intent, the information does not provide reasonable cause to believe that defendant committed the offenses of Harassment in the Second Degree or Assault in the Third Degree.
Defendant also argues that the information fails to allege that defendant had the requisite intent or displayed sufficient conduct to sustain a charge of unlawful eviction. Defendant asserts that the information fails to demonstrate that he had any intention to permanently exclude the complainant from the apartment. In fact, discovery provided by the People indicates that the alleged confrontation occurred at the bedroom door instead of the front door of the apartment. As such, defendant asserts that the information suggests nothing more than a dispute between roommates.
In response to the instant motion, the People submit a copy of a superseding information charging defendant with PL §§ 120.00(2) and 240.26(1). The People concede that they cannot meet their burden of proof for the charge of AC § 26-521(3). The factual allegations of the superseding information read as follows: Deponent states that, [on or about April 7, 2015 at approximately 1:00 AM at inside of 1452 Beach Avenue, Apartment 21, County of Bronx, State of New York], he went to his bedroom door and knocked on said door. Deponent further states that defendant was inside of deponent's bedroom and did not open said door. Deponent further states that he then placed his left hand on the door knob of said door and began to open said door at which time he placed his right hand on the side panel of said door above the locking mechanism. Deponent further states that the defendant then applied force and pushed said door shut causing deponent's right hand to get stuck in between said door and the door frame. Deponent further states that defendant stated in sum and substance: DON'T OPEN MY FUCKING DOOR. Deponent further states that, using his shoulder, he applied force on said door and pulled his right hand out from in between said door and the door frame. Deponent further states that due to the defendant's aforementioned conduct he suffered swelling and substantial pain to his right hand and experienced annoyance, alarm, and fear for his physical safety.
The People assert that the superseding information is facially sufficient in that it provides adequately detailed facts which support the charges and provides suitable notice to defendant to prepare a defense to the offenses charged. The People further note that defendant is charged with PL § 120.00(2), which requires a showing that a defendant recklessly, rather than intentionally, caused a physical injury to another.
Even though it "is proper to file a superseding information in response to a defense motion to dismiss the original instrument for insufficiency" (People v. McDonald, 179 Misc 2d 479, 481 [Crim Ct, NY County 1999] quoting People v. Cibro Oceana Terminal Corp., 148 Misc 2d 149, 151 [Crim Ct, Bronx County 1990]), there is no indication that the superseding information, submitted as an exhibit to the People's responsive papers, has been filed with the court and a copy of same served upon defense counsel. See, People v. Humphrey, 20 Misc 3d 206 (Crim Ct, 2008).
In addition, pursuant to CPL § 170.10, arraignment on a superseding information is mandatory, not discretionary. People v. Goss, 87 NY2d 792 (1996); People v. Ress, 25 Misc 3d 82 (App Term, 9th & 10th Jud. Dists. 2009). "By operation of law, upon defendant's arraignment on the new accusatory instrument, the initially filed document is dismissed and replaced." People v. Scott, 29 Misc 3d 1204(A), at *2 (Crim Ct, Richmond County 2010); CPL § 100.50(1). Since defendant has yet to be arraigned on the superseding information, the original information has not been superseded. At arraignment on a superseding information for charges following a warrantless arrest, the court is authorized by CPL § 140.45 to sua sponte dismiss the accusatory instrument, "after giving the People an opportunity to present additional facts or evidence as might be available to them at arraignment." People v. Machado, 182 Misc 2d 194, 203-204 (Crim Ct, Bronx County 1999). Arraignment on the superseding information would constitute the first opportunity for the court to conduct a facial sufficiency review of the superseding information. People v. Martini, 36 Misc 3d 729 (Crim Ct, Queens County 2012). Notwithstanding the People's arguments in support of the facial sufficiency of the superseding information, this court can only assess the facial sufficiency of the original accusatory instrument.
It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15[3]; People v. Dumas, 68 NY2d 729 [1986]) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40[1][c]). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b); Dumas, 68 NY2d 729. Reasonable cause to believe that a defendant committed the crimes charged "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a [*2]person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70.10. "In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged." People v. Hightower, 18 NY3d 249, 254 (2011).
In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15; People v. Mellish, 4 Misc 3d 1013(A) (Crim Ct, NY County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103 (1986). Moreover, "the Court is not required to ignore common sense or the significance of the conduct alleged." People v. Gonzalez, 184 Misc 2d 262, 264 (App Term, 1st Dept. 2000) quoting People v. Abdul, 157 Misc 2d 511, 514 (Crim Ct, NY County 1993).
Assault in the Third Degree (PL § 120.00[2])
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"A person is guilty of assault in the third degree when he recklessly causes physical injury to another person." PL § 120.00(2). "The term "physical injury" is defined as "impairment of physical condition or substantial pain." PL § 10.00(9). A person acts recklessly with respect to a result when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur .The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." PL § 15.05(3).
In People v. Atkinson, 21 AD3d 145, 148 (2005), the Court of Appeals distinguished intentional criminal acts from reckless criminal acts by focusing upon "the perpetrator's objective in committing the act and the result the act produces." The Court of Appeals explained as follows:
[F]or an intentional crime, the perpetrator must engage in conduct with the conscious objective and purpose of causing a particular unlawful act. For a reckless crime, the perpetrator does not act with the conscious objective of causing the unlawful result, but must engage in conduct that creates a substantial and unjustifiable risk, that the unlawful result will occur. The reckless perpetrator is aware of the risk that but consciously disregards it and engages in the conduct anyhow, thereby deviating grossly from the standard of conduct that a reasonable person would observe in the situation. Id.
First, it is undisputed that the accusatory instrument has set forth adequate non-hearsay allegations that establish the element of a physical injury. Second, when viewed in the light most favorable to the People, this court finds that the factual allegations set forth in the original accusatory instrument sufficiently establishes each and every element of the assault charge. During an argument with the complainant, defendant prevented the complainant from entering his apartment by pushing the front door with the weight of his body as the complainant was attempting to open the door. Due to defendant's actions, the complainant's left hand became stuck between the door jamb and the door. Based upon the location of the complainant's injuries, this court can reasonably infer that at the time defendant pushed the door shut, the complainant was holding the side of the door with his left hand. "Reckless assault does not require proof of a time interval during which a defendant may premeditate or assess an intended action." People v. Saccente, 6 Misc 3d 1022(A), at *4 (Crim Ct, NY County 2005). There is a [*3]great likelihood of causing some sort of injury to someone trying to gain entry into a residence when an individual shuts the door on them. A trier of fact could conclude that defendant was "simultaneously was aware of the risk of injury his action created and chose to disregard it." Id.
Unlawful Eviction (AC § 26-521[3])
Defendant's motion to dismiss count two, AC § 26-521(3), as facially insufficient is granted without opposition.
Harassment in the Second Degree (PL § 240.26[1])
"A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person[,] [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same." A person acts intentionally with respect to a result or conduct "when his conscious objective is to cause such result or to engage in such conduct." PL § 15.05. "Because intent' .cannot be the subject of a nonhearsay evidentiary allegation, it is necessary only that there be alleged evidentiary facts from which intent may be inferred." People v. Spiegel, 181 Misc 2d 48, 52 (Crim Ct, New York County 1999) quoting People v. Leiner, NYLJ, Oct. 15, 1997, at 34, col 5 (App Term, 2d & 11th Jud Dists) lv denied 91 NY2d 894 (1998). Intent can be inferred from the defendant's conduct and/or the surrounding circumstances. See, People v. Bracey, 41 NY2d 296 (1977); People v. Collins, 178 AD2d 789 (3d Dept. 1991); People v. Hawkins, 1 Misc 3d 905(A) (Crim Ct, NY County 2003).
As stated above, the accusatory instrument alleges facts which indicate that defendant shut a door with his body while the complainant's left hand was holding the side of the door causing his left hand to become stuck between the door and the door jamb. The complaint further alleges that such conduct caused the complainant to experience annoyance and alarm. These allegations are sufficient to establish each element of the harassment charge. The question of whether defendant acted with the requisite intent to harass, annoy, or alarm the complainant is an issue to be determined at trial.
Sandoval/Molineaux/Ventimiglia
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Defendant moves for an order precluding the People from introducing at trial evidence of his prior convictions, criminal and immoral acts pursuant to People v. Sandoval, 34 NY2d 371 (1974), People v. Molineaux, 168 NY 265 (1901), and People v. Ventimiglia, 52 NY2d 350 (1981). The People oppose defendant's applications and request that the issue be deferred to the trial judge.
Based on the foregoing, defendant's motion for an order precluding the People from introducing evidence of his prior convictions and/or bad acts is respectfully referred to the trial judge.
Future Motions
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Defendant's reservation of right to file further motions is unauthorized pursuant to CPL § 255.20(3). Any other motions shall be summarily denied absent a showing of good cause.
Accordingly, defendant's motion to dismiss the accusatory instrument as facially insufficient is granted solely to the extent that count two, Unlawful Eviction (AC § 26-521[3]), is hereby dismissed. Defendant's motion for a Sandoval/Molineaux/Ventimiglia hearing is respectfully referred to the trial judge. Defendant's request to file additional motions is denied subject to rights under CPL § 255.20(3) to move for further leave upon good cause shown.
This constitutes the decision and order of this court.
Dated:September 28, 2015
Bronx, New York
_______________________________
Hon. Armando Montano
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