People v Serrano

[*1] People v Serrano 2017 NY Slip Op 50518(U) Decided on March 2, 2017 Criminal Court Of The City Of New York, Bronx County Wang, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 2, 2017
Criminal Court of the City of New York, Bronx County

The People of the State of New York,

against

Fred Serrano, Defendant.



2016BX019313



For the defendant: Corey A. Sokoler, Esq.

For the People: Assistant District Attorney Mary Rebecca Clancy
Frances Y. Wang, J.

The defendant is charged with Assault in the Third Degree (P.L. § 120.00[1]) and Harassment in the Second Degree (P.L. § 240.26[1]). By motion, filed January 9, 2017, defendant seeks, amongst other relief, (1) dismissal of the charge of third-degree assault on facial sufficiency grounds; and (2) suppression of statements.

The Court, having reviewed defendant's moving papers, the People's response, and all court documents contained within the court file, concludes as follows:

Relevant Procedural Background

The factual portion of the accusatory instrument states, in pertinent part:

Deponent [PO Mark Rosenberg] is informed by Francis Morales that . . . defendant struck informant with a closed fist on her left eye.Deponent is further informed by informant that defendant's aforementioned conduct caused her to suffer a fracture to her left eye socket, substantial pain, bruising, and swelling to her left eye, and to experience annoyance, alarm and fear for her physical safety.Deponent is further informed by informant that as a result of defendant's aforementioned conduct she was treated at a local Bronx hospital.

On June 30, 2016, the People filed a statement of readiness with a supporting deposition from the informant, Francis Morales. That day, with the filing of the supporting deposition, the People converted the misdemeanor complaint to an information.

Facial Sufficiency Analysis

A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution. People v. Dreyden, 15 NY3d 100, 103 (2010), quoting People v. Case, 42 NY2d 98, 99 (1977). Criminal Procedure Law § 100.40(1) provides that an information is facially sufficient when it (1) adheres to the form and content requirements detailed in C.P.L. § 100.15, (2) contains factual allegations which provide reasonable cause to believe that the defendant committed the offense charged, and (3) contains nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof (see C.P.L.§§ 100.40[1][a]-[c]). People v. Henderson, 92 NY2d 677, 679 (1999). Reasonable cause to believe that a person has committed an offense "exists when evidence or information 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." C.P.L. § 70.10(2). This standard does not require that the instrument allege facts that would prove defendant's guilt beyond a reasonable doubt as required at trial. See Henderson, 92 NY2d at 680.

Rather, the instrument need only contain allegations of fact that "give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive reading[.]" People v. Kalin, 12 NY3d 225, 230 (2009), quoting People v. Casey, 95 NY2d 354, 360 (2000). A court reviewing for facial sufficiency must assume that the factual allegations contained in the accusatory instrument are true, and must consider all reasonable inferences that may be drawn from them. See C.P.L. §§ 100.40, 100.15; People v. Jackson, 18 NY3d 738, 747 (2012).

Defendant argues that the third-degree assault charge should be dismissed as facially insufficient because the accusatory instrument fails to establish each and every element of the assault charge. Specifically, defendant asserts that the allegation that the complaining witness suffered substantial pain to her left eye and experienced annoyance and fear for her physical safety is insufficient to establish the element of "physical injury." Defendant contends that the extent and seriousness of the complaining witness' injuries are not specified. Moreover, defendant claims that there are no allegations of any "continuing complaints or residual effects from the alleged injuries" the complaining witness sustained. See Defendant's motion, p. 5, ¶ 6.

In opposing defendant's motion, the People rely on Henderson, 92 NY2d at 680-81, to support their contention that an allegation of injuries and pain felt at the time of the attack alone is sufficient to establish physical injury because "[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. See People's affirmation in opposition, p. 5.

As relevant here, a person is guilty of third-degree assault when "[w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person . . . ." Penal Law § 120.00(1). "Physical injury," in turn, is defined in the Penal Law as "impairment of physical condition or substantial pain." Penal Law § 10.00(9). Thus, under the prima facie case requirement set forth in C.P.L. § 100.40(1)(c), the information must set forth sufficient factual allegations to warrant the conclusion that the victim suffered an "impairment of physical condition or substantial pain" and otherwise is fatally defective. Henderson, 92 NY2d at 680.

Under the standards set forth above, the information here sufficiently alleges facts to support the "physical injury" element of third-degree assault. The information recites that defendant struck the complaining witness in the left eye with a closed fist thereby causing her to sustain a fracture to the eye socket, substantial pain, bruising, and swelling. While "substantial pain" must be "more than slight or trivial pain," the "pain need not . . . be severe or intense to be substantial." People v. Chiddick, 8 NY3d 445, 447 (2007). Thus, the allegations contained in the information is, at least in the pleading stage, sufficient. The People are not required to specifically plead the exact nature or duration of a complaining witness' injuries as argued by defendant. Indeed, at the pleading stage, that information might not even be known. See Henderson, 92 NY2d at 680-81. Under these circumstances, allegations of substantial pain, bruising, swelling and fracture to the eye socket, following a punch to the eye, must be deemed sufficient to constitute "physical injury" to support a facially valid information. Accordingly, since this Court finds that the factual allegations contained in the accusatory instrument are sufficient to make out a prima facie case of third-degree assault, defendant's motion to dismiss that charge is denied.

Suppression of Statements

Defendant seeks to suppress statements that he allegedly made to law enforcement. The People, however, point out that they are unaware of such statements. As such, defendant's motion to suppress statements is denied as moot.

Disclosure/Preclusion of Defendant's Prior Convictions/Bad Acts

The prosecutor is directed to notify the defendant of all specific instances of the defendant's prior uncharged criminal, vicious or immoral conduct of which the prosecutor has knowledge and which the prosecutor intends to use at trial for purposes of impeaching the credibility of the defendant within a period of three days, or which the People intend to use on their direct case, excluding Saturdays, Sundays and holidays, prior to the commencement of jury selection. C.P.L. § 240.43.

All issues concerning the extent of cross-examination of the defendant regarding his prior criminal convictions or bad acts, if any, should the defendant elect to testify at trial, are referred [*2]to the trial judge for decision. C.P.L. § 240.43, People v. Sandoval, 34 NY2d 371 (1974); People v. Ventimiglia, 52 NY2d 350 (1981). All issues concerning the use of prior criminal convictions or bad acts, if any, which the People wish to use on their direct case, are referred to the trial court. People v. Molineux, 168 N.Y. 264 (1901).

Disclosure of Rosario/Brady Material

The People are reminded of their continuing obligation pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and are directed to disclose such material to the defendant.

The People are also reminded of their affirmative duty to preserve Rosario and discoverable material and to disclose such materials within the time period required by statute and by decisional law. See C.P.L. § 240.44 and C.P.L. § 240.45. See also People v. Handy, 20 NY3d 663 (2013); People v. Rosario, 9 NY2d 286 (1961).

Reservation of Rights

The defendant's application for an extension of time to file additional motions is denied. However, upon a showing of "good cause," defendant may apply for an extension of time to file additional motions pursuant to C.P.L. § 255.20(3).

DATED: March 2, 2017

Bronx, New York

Hon. Frances Y. Wang, J.C.C.