People v Fraser

[*1] People v Fraser 2008 NY Slip Op 52263(U) [21 Misc 3d 1128(A)] Decided on October 31, 2008 Criminal Court Of The City Of New York, Kings County Gerstein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 31, 2008
Criminal Court of the City of New York, Kings County

The People of the State of New York, Plaintiff,

against

Jenelle Fraser, Defendant.



2008KN035859



Charles J. Hynes, District Attorney (Kathleen Collins, Esq., of counsel), for the People.

Jonathan Strauss, Esq., for the Defendant.

Michael Gerstein, J.

The issue here is whether the People effectively corroborated the age of the child complainant in a criminal complaint alleging Endangering the Welfare of a Child by filing the supporting deposition of a security officer who stated that he "observed an infant child, who he later learned to be B.F.,[FN1] alone in a stroller."

The Defendant is charged with Endangering the Welfare of a Child (PL § 260.10(1)), a class A misdemeanor, and Attempted Endangering the Welfare of a Child (PL § 110/260.10(1), a class B misdemeanor. Defendant moves for dismissal of the accusatory instrument on Speedy Trial grounds pursuant to CPL § 30.30(1)(b) and CPL § 170.30, arguing that since the case was not converted until the People served and filed the child's birth certificate, 94 days after arraignment, the People are in excess of their Speedy Trial time. (Defendant's Aff. 2). The People contend that while they referenced B.F.'s birth certificate in the Superseding Information, the birth certificate was not necessary to corroborate the age of the child through non-hearsay evidence. (People's Aff. 5). Citing People v. Mercado, 184 Misc 2d 40, 705 NYS2d 889 (Crim. Ct., Bronx County 2000), the People argue that the sworn allegations of Kevin Bastien, who stated that he observed "an infant child, who he later learned to be B.F., alone in a stroller," properly corroborate the age of the child complainant. Thus, the People argue, only 66 days are properly chargeable, and the People have not exceeded the 90 day statutory period. For the following reasons, we agree.

Factual and Legal Background

The Superseding Complaint, dated July 17, 2008, and signed by Kings County Assistant District Attorney Kathleen Collins, states, in relevant part: Deponent is informed by Kevin Bastien, a security officer at [1325 Pennsylvania Avenue] that [on April 27, 2008, at 6:20 AM at 1325 Pennsylvania Avenue], an [*2]apartment building, Informant responded to a call from Apartment 20A, and that when Informant got off of the elevator to go to said apartment that Informant observed an infant child, [B.F.], alone in a stroller in the hallway...and that said infant child was without adult supervision, and that Informant checked the hallway and the stairwell and that no adults were present.Deponent is informed by Detective Gary Denezzo...that Defendant stated to Informant in sum and substance, that Defendant was down the hall watching.Deponent is informed by the official birth records of the City of New York, Office of Vital Records, Department of Health and Mental Hygiene...that Jenelle Fraser is the mother of B.F. and that B.F.'s date of birth is April 10, 2007.

The Complaint is Facially Sufficient

In order to be sufficient on its face, an accusatory instrument must allege facts sufficient to provide reasonable cause to believe that the Defendant committed the offenses charged. CPL § 100.40(4)(b); People v. Dumas, 68 NY2d 729, 497 NE2d 686, 506 NYS2d 319 (1986). The allegations must be non-hearsay. People v. Alejandro, 70 NY2d 133, 511 NE2d 71, 517 NYS2d 927 (1987); CPL § 100.40(1)(c). Furthermore, the Court of Appeals in People v. Allen, 92 NY2d 378, 681 NYS2d 216, 703 NE2d 1229 (1998), held that at the pleading stage, all that is needed is that the factual allegations are sufficiently evidentiary in character and tend to support the charges.

PL § 260.10(1), Endangering the Welfare of a Child, requires allegations that the Defendant "knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old..."

People v. Mercado, holding that "the mere assertion" of a child's date of birth is unacceptable without any corroboration, lists some acceptable methods of converting a complaint alleging child endangering, including the suggestion that the People file the supporting deposition of "someone who observed the child complainant and could describe in detail the height, size, wearing apparel or other pertinent descriptive commentary that would clearly peg the subject child as a person under 17 years of age." Supra at 43-44. The People argue that Mr. Bastien's employment as a security guard depends on his ability to be alert and to be able to describe those around him, and that his observations of an infant in a stroller constitute "other pertinent descriptive commentary that allows a reader to understand he is describing someone under seventeen." (People's Aff. 5). Thus, the People contend, the Superseding Information with the corroborating affidavit of Mr. Bastien attached is sufficient to convert the Complaint to an Information. While conceding that it would be better practice to file the birth certificate as part of the Superseding Information, the People argue that here, where the complaint is substantiated by other non-hearsay allegations, the filing of the birth certificate was not required for conversion. (Id.)

Although Defendant in People v. Cenat, 176 Misc 2d 39, 671 NYS2d 578 (Crim. Ct., Kings County 1997), did not dispute the sufficiency of allegations that the children in that case "appeared to be" ten and three years old, respectively, the decision includes the following [*3]footnote: While the age of the child is something that must be sworn to by someone with knowledge, the approximate age of the child is something that a lay person can estimate with a reasonable degree of accuracy. Clearly if the precise age mattered, then the "appeared to be" language would be insufficient.

Id. at 42 fn 3.

Cenat and Mercado are both instructive here. The Superseding Complaint alleges that Kevin Bastien observed an infant child, B.F., alone in a stroller in the hallway. The fact that a security guard, whom we deem a lay person [FN2] for purposes of this opinion, describes the child as an infant and notes that the infant is in a stroller convinces us that the child in question is less than 17 years old. "Infant" is defined as "a child during the earliest period of its life, esp. before he or she can walk; baby." Dictionary.com Unabridged (v 1.1). Random House, Inc. 17 Oct. 2008. As in Cenat, "even if the estimate were off by a year or two, it would not affect the result here." Supra.

While it would have been preferable for the People to have filed the birth certificate with the Superseding Information, we find that the Superseding Information along with the corroborating affidavits does allege a prima facie case of Endangering the Welfare of a Child. See Cenat, supra . Because the purpose of requiring corroborating facts as to all elements of a crime alleged for a validly facially sufficient information is to ensure that "the factual allegations of an information 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 or technical reading." People v Casey, 95 NY2d 354, 360, 740 NE2d 233, 236, 717 NYS2d 88, 91 (2002). Here, where Defendant is the child's mother, it cannot be claimed that the People's failure to timely file the child's birth certificate deprived the Defendant of "notice sufficient to prepare a defense." See Id. (Cf. People v. Doolittle, NYLJ, Nov. 14, 2006, at 24, col.1 (Watertown City Ct.), citing Casey in holding Endangering complaint valid where Complaint sworn to by investigating officer referred to officer's investigation but failed to provide a source for the children's ages). Here, whether or not the allegations as to the child's age were properly corroborated, which is of course necessary, there can be little doubt that the mother knew the age of her child.

The People Have Not Exceeded the Time Allotted to them Under CPL § 30.30

A. The Applicable Time Period is 90 Days From the Filing of the Accusatory Instrument

CPL § 30.30(1)(b) provides that the People must be ready for trial within 90 days from the commencement of the action where a defendant is charged with one or more offenses at least one of which is a class A misdemeanor, and none of which are felonies. This is the case here.

B. The People Are Chargeable with at most 65 Days

The Defendant was arraigned on May 13, 2008, and the case was adjourned to July 15, 2008 for conversion. The People concede that they are charged for this adjournment. (People's [*4]Aff. 9). The People are charged with 63 days. (May 14 - July 15, 2008).

On July 15, 2008, the People were not ready and the case was adjourned to September 4, 2008 for conversion. Readiness under CPL § 30.30 requires both a statement of readiness and actual readiness to proceed to trial. People v. Kendzia, 64 NY2d 331, 337, 476 NE2d 287, 289, 486 NYS2d 888, 890 (1985). A complaint must be converted to an information by non-hearsay corroboration in order for the People to proclaim readiness. Id. On July 17, 2008, the People served and filed a Superseding Information and two corroborating affidavits off calendar, along with a Statement of Readiness. As discussed fully infra, we find that the Superseding Information is properly corroborated by the supporting deposition of Kevin Bastien. Although the relevant date for determining when the People have declared readiness is the date on which the Statement of Readiness was filed with the Court, the People are also obligated to promptly serve the Statement of Readiness on defense counsel in order to be deemed ready for trial. People v. Kendzia, supra ; People v. Strafer, 10 Misc 3d 1072(A), 814 NYS2d 564 (Crim. Ct., Kings County 2006); People v. Todd, 184 Misc 2d 381, 708 NYS2d 574 (Crim. Ct., Kings County 2000). The People are charged 2 days for this adjournment. (July 15- July 17, 2008).

On September 4, 2008, Defendant announced her intention to file a motion to dismiss on speedy trial grounds. The court ordered that Defendant's motion be filed off calendar by September 25, 2008, and the matter was adjourned for the People's response. On September 10, 2008, Defendant served and filed the instant motion to dismiss off calendar on speedy trial grounds. Defendant's motion time is excluded. People v. Lacey, 260 AD2d 309, 690 NYS2d 182 (1st Dept.), lv. to app. denied, 93 NY2d 1003, 717 NE2d 1086, 695 NYS2d 749 (1999).

On October 31, 2008, the Court issued its decision. The time elapsed between the date when defense counsel filed and served the instant motion and the date the motion was decided is excluded. People v. Worley, 66 NY2d 523, 488 NE2d 1228, 498 NYS2d 116 (1985) (adjournment caused by pending motion is excludable).

Conclusion

The People are therefore chargeable with 65 days (63 + 2), and are within their Speedy Trial time. Defendant's motion to dismiss the Complaint pursuant to CPL § 30.30 is therefore denied.

This constitutes the decision and order of the Court.

Dated:October 31, 2008

Brooklyn, New York

_________________________

MICHAEL GERSTEIN, J.C.C. Footnotes

Footnote 1:The full name of the child complainant has been redacted throughout this opinion to protect the child's privacy.

Footnote 2:While the People argue that Mr. Bastien's employment as a security guard makes him more able than a layperson to provide an accurate description of an infant, that argument lacks any evidentiary support, and the Court does not accept it.