People v Johnson-Noble

[*1] People v Johnson-Noble 2008 NY Slip Op 52436(U) [21 Misc 3d 1140(A)] Decided on December 5, 2008 Criminal Court Of The City Of New York, Queens County Lopresto, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 5, 2008
Criminal Court of the City of New York, Queens County

The People of the State of New York

against

Gloria Johnson-Noble, (T.N. Gloria Johnson-Brown), Defendant(s).



2008QN038495



For the People:

Betty Rodriguez, Esq.

Attorney General's Office

Special Assistant Attorney General

120 Broadway, 13th Floor

New York, New York 10271

For the Defense:

Law Offices of Racquel A. Cousins, Esq.

299 Broadway, Suite 1700

New York, New York 10007

Charles S. Lopresto, J.

Defendant moves in an omnibus motion for the following relief: (1) Dismissal for Facial Insufficiency; and (2) Dismissal in the Furtherance of Justice. The People oppose the motion. Defendant's motion is decided as follows:

Defendant Gloria Johnson-Noble is charged with Endangering the Welfare of an Incompetent Person (PL § 260.25); and Wilful Violation of Health Laws (Public Health Law § 12-B[2].) The accusatory instrument charges defendant with the commission of the aforementioned crime and violation on June 3, 2007, at 7:45AM, inside of 3323 Union Street (Union Plaza Care Center), Queens, New York, under the following circumstances:

Deponent [Special Investigator Brian Dunne] is informed by Naomi Young, Licensed Practical Nurse, that she is a charge nurse at Union Plaza Care Center, a residential care facility, and was on duty on June 3, 2007, at 7:45AM.

Deponent is further informed by Mrs. Young that defendant is a Certified Nurse's Aide [*2](CNA) and was also on duty at Union Plaza Care Center on June 3, 2007. Mrs. Young stated that defendant, Gloria Johnson-Noble, was assigned to be the caregiver for Choi Kum Ng, an 86 year old resident of said facility.

Deponent is further informed by Mrs. Young that at approximately 7:45AM on June 3, 2007, she observed defendant assisting Mrs. Ng to a seat in the dining room on the seventh floor of the Union Plaza Care Center. Mrs. Young stated that she observed Mrs. Ng throw a bowl of cereal at defendant and that defendant responded by slapping Mrs. Ng on her face. Mrs. Young intervened and asked the defendant to leave the dining room. Mrs. Young then reported the incident to her supervisors.

Deponent also states that he observed a video tape recording of the incident which showed the defendant striking Mrs. Ng on her arm and slapping her face.

Deponent is also informed by the attending physician at Union Plaza Care Center, Satish Reddy, M.D., whose affidavit is attached hereto and made a part hereof, that on June 3, 2007 Choi Ku Ng is [sic] unable to care for herself due to physical disability, mental disease or defect.

DISMISSAL OF THE ACCUSATORY INSTRUMENTDefendant moves for dismissal of the charges, arguing that the accusatory instrument is facially insufficient as the facts alleged fail to establish that defendant acted with intent. The People oppose the motion on the basis that defendant was aware of the victim's senile dementia and was further aware that striking the victim would be injurious to her physical, mental or moral welfare.

To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged. (CPL §§100.15[3]; 100.40[1][b]; 70.10; People v Jones, 9 NY3d 259 [2007]; People v Casey, 95 NY2d 354 [2000]; People v Dumas, 68 NY2d 729 [1986].) These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses. (CPL § 100.40[1][c].) An information which fails to satisfy these requirements is jurisdictionally defective. (CPL §§ 170.30 and 170.35; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d 729 [1986].)

Penal Law § 260.25 provides that a person is guilty of endangering the welfare of an incompetent or physically disabled person when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself or herself because of physical disability, mental disease or defect. "A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists." (PL § 15.05[2].)

Public Health Law § 12-B(2) provides, in pertinent part:

A person who wilfully violates any provision of this chapter, or any regulation lawfully made [*3]or established by any public officer or board under authority of this chapter, the punishment for violating which is not otherwise prescribed by this chapter or any other law, is punishable by imprisonment not exceeding one year, or by a fine not exceeding ten thousand dollars or by both.

The term "wilfully" found in Public Health Law § 12-B "denotes culpable mental state equivalent to that required by term knowingly'." (People v Coe 71 NY2d 852 [1988].)

Here, the information charging defendant with endangering the welfare of an incompetent person contains non-hearsay allegations to the effect that the victim was an 86 year old woman suffering from senile dementia, that she was incapable of caring for herself and that defendant slapped her on her face. These allegations establish, if true, that defendant knew that her actions were likely to be injurious to the victim who was "unable to care for himself or herself because of physical disability, mental disease, or defect." (PL § 260.25; People v Rolston, 190 AD2d 1000 [4th Dept 1993]; People v Biamonte, 19 Misc 3d 139A [App Term 9th & 10th Jud Dists 2008].)

Based upon the foregoing, this Court finds that the accusatory instrument meets the requirements for facial sufficiency pursuant to CPL §§ 100.15 and 100.40 Accordingly, the motion to dismiss for facial insufficiency is denied.

DISMISSAL IN FURTHERANCE OF JUSTICE

Defendant moves to dismiss the action against defendant in the interests of justice. The People oppose the motion.

A court may dismiss a misdemeanor complaint in furtherance of justice, pursuant to CPL §170.40(1), "when, even though there may be no basis for dismissal as a matter of law . . . such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant . . . would constitute or result in injustice." A dismissal in the interests of justice involves a sensitive balance between the individual and the State. (People v Clayton, 41 AD2d 204 [2d Dept 1973].) The "judicial discretion" to dismiss in furtherance of justice should be "exercised sparingly" and only in the rare case where there is a "compelling factor" which clearly demonstrates that continued prosecution would be an injustice. (People v MR, 43 AD3d 1188 [2d Dept 2007]; People v Sherman, 35 AD3d 568 [2d Dept 2006].)

A motion to dismiss in the interest of justice should not be used as a substitute for a trial or when the motion merely raises a trial defense. (People v Rahmen, 302 AD2d 408 [2d Dept 2003]; People v Lagnese, 236 AD2d 629 [2d Dept 1997]; People v Prunty, 101 Misc 2d 163 [Crim Ct New York County 1979].) Further, a weakness in the People's case is not a sufficient basis to dismiss in the interests of justice. (Id.) Upon the failure of a defendant to make a prima facie showing of a right to dismissal in the interests of justice, the court may summarily deny the motion without a hearing. (CPL §§ 170.45 and 210.45; People v Thomas, 108 AD2d 884 [2d Dept 1985]; People v Schlessel, 104 AD2d 501 [2d Dept 1984].) [*4]

The statute sets forth ten factors to be considered when determining a motion, pursuant to CPL § 170.40(1). The factors are as follows:

(a) the seriousness and circumstances of the offense;

(b) the extent of harm caused by the offense;

( c) the evidence of guilt, whether admissible or inadmissible at trial;

(d) the history, character and condition of the defendant;

(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;

(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

(g) the impact of dismissal upon the safety and welfare of the community;

(h) the impact of dismissal upon the confidence of the public in the criminal justice system;

(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;

(j) any other relevant fact indicating that a judgment of conviction would have no useful purpose.

The court need not recite an analysis of each of the factors in reaching it's determination. (People v Gragert, 1 Misc 3d 646 [Crim Ct New York County 2003]; People v Curtis, 2 Misc 3d. 1003(A) [Crim Ct New York County 2003].) Rather, the court must consider individually and collectively each of the factors listed in CPL §170.40 and must, where dismissal is granted, state the reasons for the record. (People v Berrus, 1 NY3d 535 [2003].)

Defendant avers that several of these factors weigh in her favor. Defendant states that the offense charged against her is the most minor of the charges available under article 260 of the Penal Law. The People contend that the circumstances are serious as defendant was a health care professional who failed to follow her training on how to deal with a senile patient and instead chose to strike her.

Inasmuch as the offense is an "A" misdemeanor, the circumstances surrounding the offense are serious. (CPL § 170.40[1][a].)

Defendant avers that no harm was caused by the offense. The People argue that defendant should not be rewarded merely because the victim did not sustain injuries.

While defendant may not have caused physical injury, that is not to say that no harm was inflicted on the incapacitated patient. (CPL § 170.40 [1][b].) Defendant's argument that lack of intent is tantamount to a lack of evidence of guilt, is likewise rejected. (CPL § 170.40 [1][c]; PL § 260.25.)

Defendant states that she has been a lifelong conscientious caregiver and submits letters of recommendation and work evaluations to support this claim. While this factor weighs in defendant's favor, the fact that a defendant has no prior criminal record or an exemplary background is [*5]insufficient to justify dismissal in the interests of justice. (CPL § 170.40 [1][d]; People v Kelley, 141 AD2d 764 [2d Dept 1988]; People v Varela, 106 AD2d 339 [1st Dept 1984]; People v Andrew, 78 AD2d 683 [2d Dept 1980].)

Defendant argues that there would be no valid purpose in sentencing her, as she has already lost her job and has suffered for her overreaction. Defendant's argument fails to take into account the effect of defendant's actions on the victim. The people aver that any sentence imposed on defendant would act as a deterrent to other health care professionals inclined to engage in abusive behavior.

While the sentence of up to one year in jail may seem harsh compared to defendant's action, the Legislature has established the punishment upon conviction and this court cannot, on this motion, change the policy or law of the State of New York. (CPL § 170.40 [1][f].) Moreover, defendant's claim that the impact of dismissal upon the safety and welfare of the community would be positive, is unavailing. (CPL § 170.40 [1][g].)

Defendant asserts that no harm has been alleged to have occurred to the victim. As the victim is an incompetent person, this Court does not deem "the attitude of the victim with respect to the motion," an appropriate factor to consider. (CPL § 170.40 [1][I].)

After consideration of defendant's arguments and evaluating them against each factor set forth in CPL § 170.40, this court concludes that defendant has failed to meet her burden of making a prima facie showing that dismissal of these charges would serve the interests of justice.

Accordingly, defendant's motion to dismiss the information in the interest of justice, is denied.

This constitutes the decision and order of the court.

Dated:December 5, 2008 Kew Gardens, New York

Charles S. LoprestoJudge of the Criminal Court