People v Van Boom

[*1] People v Van Boom 2006 NY Slip Op 52395(U) [14 Misc 3d 1203(A)] Decided on December 13, 2006 Nassau Dist Ct St. George, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 15, 2006; it will not be published in the printed Official Reports.

Decided on December 13, 2006
Nassau Dist Ct

The People of the State of New York,

against

Michael Van Boom, Defendant.



3961/06

Norman St. George, J.

The defendant is charged by Prosecutor's Information with five (5) counts:

Count 1: violating Penal Law §120.00(1), Assault in the third degree as a Class A Misdemeanor;

Count 2: violating Penal Law §120.00(2), Assault in the third degree as a Class A Misdemeanor;

Count 3: violating Penal Law §120.00(3), Assault in the third degree as a Class A Misdemeanor;

Count 4: violating Penal Law §240.26(1), Harassment as a Violation; and

Count 5: violating Penal Law §265.01(2), Criminal Possession of a Weapon in the fourth degree as a Class A Misdemeanor.

On December 11, 2006 through December 12, 2006, this Court conducted a Jury Trial regarding this matter. The People called five (5) witnesses at trial: Alicia Anderson, Yannick Anderson, Kevin Nalty, Ebony Terrell, and Detective John Holland. The defendant did not call any witnesses at trial. After the People rested, the defendant made a motion for a Trial Order of Dismissal. The People contested said motion. In sum and substance defendant claims:

(1) that each count alleged in the Prosecutor's Information fails to state the name of any complainant and as such is insufficient;

(2) that the three counts in the Prosecutor's Information charging the defendant with Assault in the third degree each charge inconsistent theories;

(3) that the People have failed to present any evidence of physical injury as to any complainant.

The People after appearing visibly surprised to learn that the Prosecutor's Information does not name a complainant, argued that the complainants regarding each of the counts in the Prosecutor's Information are both Ebony Terrell and Kevin Nalty. The People subsequently argued that the complainant was only Ebony Terrell. The People argued that the Assault counts are not inconsistent and should all be charged to the Jury naming both Ebony Terrell and Kevin Nalty as complainants. The People stated summarily that physical injury was mentioned during the trial.

SUMMARY OF THE TRIAL TESTIMONY

In the early morning hours of February 18, 2006, Alicia Anderson was asleep in her house located at 123 Lincoln Avenue, Roosevelt, Nassau County, New York. She awoke at 4:00 a.m. because her basement tenant, the defendant Michael Van Boom, was talking loudly, cursing, and making noises in the basement apartment. She took no action at that time but awoke a few more times during the night by noises being caused by the defendant.

At approximately 7:00 a.m., upon hearing noise in the basement again, Ms. Anderson went to the basement apartment and confronted the defendant. She informed him that he would have to leave because of the noise all night. An argument ensued. Ms. Anderson returned to her bedroom. The defendant, uninvited, followed Ms. Anderson back into her bedroom, which was located on the first floor of the house. Another argument ensued. The defendant returned to the basement apartment.

Ms. Anderson contacted her daughter, Ebony Terrell, by telephone and informed her of the incident. Shortly thereafter, Ms. Anderson's son, Yannick Anderson, arrived at the house. After speaking with his mother, Yannick Anderson sought out the defendant in the basement apartment and became involved in an argument with him. During a break in their argument, Ms. Anderson's daughter Ebony Terrell and Ms. Terrell's boyfriend Kevin Nalty arrived at the house. Mr. Nalty and the defendant immediately began arguing. Although the testimony from that point on differed substantially among the witnesses, essentially the verbal argument between Mr. Nalty and the defendant escalated to a physical altercation when Mr. Nalty pushed past the defendant. The defendant then shoved Mr. Nalty. Mr. Nalty and Mr. Anderson attempted to physically remove the defendant from the house.

The defendant was thrown out of the back door of the house by both Mr. Nalty and Mr. Anderson. The defendant charged back into the house while Mr. Anderson was reentering the house. The defendant was then observed to have a pocket knife by Ms. Terrell, Mr. Anderson and Mr. Nalty. The three of them attempted to wrestle the knife from the defendant's hand. In the struggle, Ms. Terrell indicated that she received a small cut to her palm while she was grabbing for the knife. She testified that she did not seek or receive any medical attention regarding same. Throughout the struggling the witnesses testified that the defendant was constantly yelling and screaming obscenities.

Mr. Anderson and Mr. Nalty then dragged the defendant through the house to the front door, and another scuffle broke out. During the scuffle, the three fell to the ground. Mr. Anderson and Mr. Nalty punched and kicked the defendant and the defendant punched and kicked them. The defendant was then observed to be holding another knife. The second knife was wrestled away from the defendant by Mr. Nalty. The defendant was next thrown out of the front door of the house by [*2]Mr. Nalty and Mr. Anderson. The defendant charged back into the house after Mr. Anderson and they both fell over a banister in the front of the house. The physical altercation effectively ended at that point. The defendant was left lying on the front porch of the house, injured and in his own pool of blood, with the top of his hands slashed and his eye bleeding profusely. Mr. Anderson and Mr. Nalty fled the scene. Inexplicably, only then did Ms. Anderson call 911. Mr. Anderson and Mr. Nalty returned to the scene much later at the insistence of Ms. Anderson after the Police had already responded and had been at the house for several hours.

Neither Ms. Anderson nor her son Mr. Anderson suffered any injuries. Mr. Nalty testified that he suffered a slight cut to his wrist but could not recall which wrist had been cut. After prompting from the People, Mr. Nalty also remembered that he had a small laceration to his lip. Ms. Terrell testified to a small laceration to her palm which she said hurt a little at the time. The defendant was transported by the Police to the hospital and subsequently charged.

CONCLUSIONS OF LAW

SUFFICIENCY OF THE PROSECUTOR'S INFORMATION:

The Prosecutor's Information charges the defendant with three (3) counts of Assault in the third degree. The first count is under subsection 1 of Penal Law §120.00, namely an intentional assault. The second count is under subsection 2, namely a reckless assault. The third count is under subsection 3, namely a criminally negligent assault. The factual portions of each count are as follows:

"That said defendant, Michael Van Boom, at about 10:00 a.m., at 124 Lincoln Avenue, Roosevelt, in the County of Nassau, State of New York, on or about the 18th day of February, 2006, did, with intent to cause physical injury to another person cause such injury to such person or to a third person, to wit: the defendant, at the place and on the date mentioned above, did intentionally cut the victim's thumbs with a knife, thereby causing physical injury which necessitated medical attention" (emphasis added).

Counts 2 and 3 substitute the words "recklessly" and "with criminal negligence" respectively for the word "intent." The Harassment charge repeats the same "to wit" clause. The Criminal Possession of a Weapon charge adds that the defendant "did exercise dominion and control over a knife and did cut the victim with it, thereby causing physical injury which necessitated medical attention."

It is clear from a plain reading of the Prosecutor's Information that the name of the "victim" or complainant is not identified. Further, there are no supporting depositions attached or annexed to any of the counts in the Prosecutor's Information. The People did not move to amend the Prosecutor's Information at any time before, during, or after resting at trial. Criminal Procedure Law [*3]§200.70, provides that the People could have moved to amend the Prosecutor's Information "with respect to defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like, when such amendment does not change the theory or theories of the prosecution."

As required by the Federal and State Constitutions, the function of an accusatory instrument, such as a Prosecutor's Information, is to give a defendant sufficient information regarding the nature of the charges against him, to set forth an outline of the accusations, and to allow a defendant to prepare a defense to the charges. See: People v. Iannone, 45 NY2d 589, 412 N.Y.S.2d 110 (1978); and People v. Fitzgerald, 45 NY2d 574, 412 N.Y.S.2d 102 (1978).

Furthermore, Criminal Procedure Law §100.35 governs the form and content of Prosecutor's Informations. In relevant part, it states that Prosecutor's Informations must be "in the form prescribed for an indictment pursuant to §200.50, and must, in one or more counts, allege the offense or offenses charged and a plain and concise statement of the conduct constituting each such offense." Criminal Procedure Law §200.50 requires a "separate accusation or count addressed to each offense charged, if there be more than one." Without adherence to these requirements, a Prosecutor's Information is plainly insufficient and it deprives a defendant of his or her Constitutional right to know specifically what he or she is being charged with.

It is problematic in this case that each count of the Prosecutor's Information fails to name a victim or complainant. Each count simply refers vaguely to "the victim." Compounding the problem is the fact that there are no supporting depositions to clarify who the "victim" is as to each count. Notably, the word "victim" in the Prosecutor's information is singular and not plural. The People's argument that there are two "victims" for each Count is contradicted by the wording of their Prosecutor's Information. Consequently, there is no way from a fair reading of any of the counts advanced in the Prosecutor's Information of discerning who the "victim" or complainant is as to each count. Moreover, the facts adduced at trial neither clarify nor amplify the basis or reason for the glaring omission. In fact, the testimony elicited at trial further confuses the quagmire. Each of the Assault charges and the Harassment charge state that the defendant "cut the victim's thumbs." If there was testimony adduced at trial that one of the witnesses suffered cut thumbs then it may be possible to adduce who the "victim" is as to the Assault counts and as to the Harassment count. However, there was no testimony at trial that any of the witnesses suffered cut thumbs.

Finally, in order for the People's argument and for the Prosecutor's Information to be sensible, both Ebony Terrell and Kevin Nalty would have had to suffer cut thumbs. No such testimony exists. The trial testimony was that Ebony Terrell received a small cut on her palm and Kevin Nalty suffered a cut on his wrist. As for the Criminal Possession of a Weapon charge, the Prosecutor's Information alleges that the victim regarding that offense suffered an undefined cut which "necessitated medical attention." There was no testimony that any witness requested, required, or received any medical [*4]attention. Hence, none of the testimony at trial is consistent with or even supports the incomplete allegations in the Prosecutor's Information.

DIFFERENT THEORIES OF ASSAULT:

As indicated above, the Prosecutor's Information charges three (3) theories of Assault; intentional, reckless and negligent . The People contend that there are two (2) victims regarding each theory. When asked by the Court, the People did not offer any explanation as to why they did not charge one (1) count for each victim. This Court will not accept a multiple choice answer from the People as to who the victim is regarding each count. In the factual scenario as set forth at trial, with multiple witnesses having multiple contacts and interactions with the defendant, it is incumbent upon the People to charge one (1) count per victim and per criminal act by the defendant. Without the People specifically identifying in the Prosecutor's Information who the victim is and what specific conduct by the defendant is attributable to each victim, it is impossible for the defendant, this Court, or a Jury to discern what the actual charges are. Accordingly, as a result of the deficiencies in the Prosecutor's Information, this Court is not able to rule on whether the different theories of Assault in this case are inconsistent as claimed by defendant.

ASSAULT LEVEL INJURY:

It is well established that in order for the People to sustain a charge of Assault in the Third Degree, they must prove "physical injury". Physical injury has long been defined as impairment of a physical condition or substantial pain. The Assault counts in the Prosecutor's Information allege neither impairment of physical condition nor substantial pain. Moreover, there was no testimony adduced at trial that anyone other than the defendant sustained impairment of a physical condition or substantial pain. There were no medical records submitted at trial. There was no testimony from any treating physicians. There was no testimony that anyone other than the defendant received medical treatment. Actually, only Ebony Terrell and Kevin Nalty testified to receiving an injury, namely, minor cuts. The People have not established physical injury regarding any witness who testified at the trial.

CONCLUSION:

The People have proceeded to trial on an insufficient Prosecutor's Information, in that they have failed to identify the "victim" as to each of the counts, and failed to specify the conduct of the defendant with respect to each "victim" and with respect to each count. Further, the testimony adduced at trial was wholly inconsistent with the accusatory instrument as to each count. The People have also offered different theories of Assault regarding unspecified complainants making it impossible for the Court to discern whether the different theories are inconsistent with each other or not. Finally, with respect to the Assault counts, the People have failed to sustain their burden of [*5]alleging physical injury with sufficient particularity, and have failed to present any evidence establishing that any of the witnesses at trial sustained physical injury as defined by the statute. Thus, defendant's motion for a Trial Order of Dismissal as to each count is granted.

This constitutes the decision and order of the court.

Dated: December 13, 2006

ENTER:

____________________________________

Norman St. George, District Court Judge

cc: Nassau County District Attorney's Office

Law Offices of Dennis Lemke