People v Elliassen

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[*1] People v Elliassen 2008 NY Slip Op 51841(U) [20 Misc 3d 1143(A)] Decided on September 5, 2008 Supreme Court, Richmond County Rienzi, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 5, 2008
Supreme Court, Richmond County

The People of the State of New York,


Thomas Elliassen and Richard Danese, Defendant(s)


Attorneys: For the People: Daniel M. Donovan

District Attorney of Richmond County

by Mark Palladino, A.D.A.

For Defendant Thomas Elliason: John Patten, Esq.

30 Vesey Street

P.H. Suite

New York, NY 10007

For the Defendant Richard Danese: John Tynan, Esq.

Worth, Longworth & London

111 John Street

New York, NY 10038

Leonard P. Rienzi, J.

The pretrial motions of defendants Thomas Elliassen and Richard Danese are decided as follows:

I have inspected the grand jury minutes. Defendants move to dismiss, or in the alternative reduce, multiple counts of the indictment. With respect to Count One, Unlawful Imprisonment in the First Degree, defendants argue that in order to support that charge, the victim must be exposed to the risk of serious physical injury, and that proof of that element is lacking in the instant case. Defendants state that the risk here is speculative and remote since the railroad tracks did not have an electrified third rail, there was little train activity, and the high voltage electrical wires were 25 to 30 feet above ground.

The two elements of the first count are (1) the restraint of another person thereby exposing such person to a (2) risk of serious physical injury. Penal Law §135.00 defines "restrain" as restricting a person's movements intentionally and unlawfully in a manner as to [*2]interfere substantially with such person's liberty by moving him from one place to another, without consent and with the knowledge that the restriction is unlawful. "Without consent" can be accomplished by physical force or by any means whatever, including acquiescence of the victim, if he is a child less than 16 years old. Defendants are charged under the theory that they used physical force by handcuffing Rayshawn Moreno, taking him into the police car, and driving him to the secluded area.

Legally sufficient evidence for the first count of the indictment requires proof that the defendants exposed the victim to the risk of serious physical injury. Defendants argue that the high voltage electric wires were strung up too high for the complainant to be injured by them. While this argument may have merit, defendants' contention that the circumstances surrounding the victim's restraint and abandonment in an isolated and desolate location did not entail risk of serious physical injury, fails. The evidence presented to the grand jury demonstrated that defendants drove the handcuffed victim to an isolated wooded area devoid of homes and street lights, and took him out of the car near a Con Ed electrical station in close proximity to railroad tracks, a bridge, a body of water and a swamp. The defendants' aggressive nature, in allegedly physically beating the complainant and removing some of his clothes, placed him in a subservient and frightened position and rendered it foreseeable that the fourteen year old youngster would seek an alternate escape path other than the road upon which the police car had driven. The young teen chose to walk down the only path he could identify in the dead of night, the railroad tracks. These tracks were not abandoned, but were used for train traffic on a daily basis. There clearly was a "risk"that a train could have approached the victim, placing him in a position of being hit or jumping to the side, where a body of water and a swamp abutted the tracks. Absent an oncoming train, the location of water and a swamp in close proximity of the train tracks presented a clear danger of injury or drowning to any person who might have fallen into the water in the darkness. Based on the totality of circumstances surrounding the abduction and abandonment of the fourteen year old victim, the People have met their burden of proof in the grand jury to establish that based on the conduct of defendants, the victim was exposed to the risk of serious physical injury, and, therefore, the evidence presented to support Count One is found to be legally sufficient.

Defendants contend that they cannot be charged with Falsifying Business Records because superiors prevented them from performing any police duties when they returned to the police precinct after their patrol shift. However, the testimony adduced before the grand jury indicates that although both defendants were instructed to remain at the precinct beyond the end of their shift, they were neither ordered nor encouraged to refrain from completing any paperwork or official duties in connection with their assignment. Therefore, defendants can be charged with any acts that constitute failing to perform those duties.

Counts Two through Thirteen, Falsifying Business Records in the First and Second Degrees, charge the defendants with not preparing and filing the juvenile log report or the UF 250 stop and frisk report relating to their interaction with Rayshawn Moreno. These statutes require defendants to have an "intent to defraud". It is not necessary to show a property or pecuniary loss from the fraud, and, in this case, it is sufficient to show that the NYPD's legitimate official actions and purposes were impeded. See, People v Schrag, 147 Misc 2d 517 (County Court, Rockland County, 1990); People v Coe, 131 Misc 2d 807, 812 (Supreme Court, New [*3]York County, 1986) [".... the target of the intent to defraud could have been defendant's supervisors, defendant's employer or the victim ...."].

With respect to the crimes of Falsifying Business Records in the First and Second Degrees, Counts Two through Thirteen, the court finds that legally sufficient evidence was presented as to each count.

Defendants contend that Counts Fourteen through Twenty-Five, Falsifying Business Records in the First and Second Degrees (involving defendants' failure to properly follow NYPD Communications Division radio procedures), likewise are legally insufficient because there is no evidence of defendants' "intent to defraud". Defendants also argue that those counts refer to administrative regulations any violation of which does not rise to a category of criminal activity. Defendants assert that the failure of the defendants to communicate on the police radio that they were transporting a juvenile and leaving the precinct's boundaries does not show a criminal intent to deceive the NYPD. Defendants allege that had they provided false information, it may have met a minimum threshold, but that silence cannot lead to the conclusion of an intent to defraud.

The failure to follow NYPD Communications Division directives, charged in Counts Fourteen through Twenty-Five clearly inhibit the Police Department's ability to perform its duties. The NYPD has a vital interest in knowing exactly where police officers on patrol are located and whether their ability to respond promptly to emergencies or to assist fellow officers is impaired by the presence of a handcuffed suspect in a police car. This knowledge is indispensable to police supervisors who are responsible to allocate manpower in a prudent and safe manner. The inaccuracy of the records has ramifications beyond general business practices. Likewise, the failure of police personnel to promptly notify the Communications Division dispatcher of their whereabouts and current status vis a vis handcuffed prisoners, adversely affects the agency's ability to carry out its mission. It meets the standard of "intent to defraud", since defendants' actions "intentionally defrauded" or deprived the Police Department of valuable information and knowledge that were critical to its public safety mission. Accordingly, defendants' motion to dismiss Counts Fourteen through Twenty-Five, Falsifying Business Records in the First and Second Degrees, is denied.

The court has inspected the remaining counts of the indictment, finds them to be legally sufficient, and defendants' motion to dismiss these charges is denied. No error in the manner in which the grand jury proceeding was conducted impaired the integrity of the grand jury or provides the legal basis for dismissal of any count of the indictment.

Defendants' motion for discovery and bill of particulars is granted to the extent the information sought is provided in the voluntary disclosure form, People's answer and police reports already served. In addition, the People are directed to provide search warrant affidavits within one week if search warrants were executed.

Defendant Danese's motion for a Huntley hearing is granted.

Defendant Danese's motion for a Mapp hearing is denied. Defendant provides an insufficient factual basis for the relief sought. People v Mendoza, 82 NY2d 415, 422 (1993). Defendant is granted leave to renew arguments for suppression pending receipt of any search warrant affidavits from the People.

Defendants' motion to reserve their right to make further motions is granted to the extent permitted by C.P.L. 255.20(3), if such motions are based upon new and formerly unavailable [*4]information.

The court reserves its decision on the People's motion to preclude defendants from introducing alibi testimony based on defendant's failure to comply with C.P.L. 250.20. Defendants may avoid preclusion by immediate compliance with the statute.The court reserves its decision on the People's motion to preclude defendants from introducing psychiatric testimony based on defendants' failure to comply with C.P.L.§ 250.10. Defendants may avoid preclusion by immediate compliance with the statute.

The People are to make any Molineux or Ventimiglia motions within 10 days of this order.

This constitutes the decision, opinion and order of the court.

Dated:September 5, 2008

Staten Island, New York


Leonard P. Rienzi

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