People v Simmons
Annotate this CaseDecided on December 6, 2013
Criminal Court of the City of New York, Bronx County
The People of the State of New York,
against
Davon Simmons, Defendant.
2012BX059103
For the People, Robert T. Johnson, District Attorney, Bronx County, by Suzanne Carmody, Esq., Assistant District Attorney.
For the Defendant, Steven Banks, Esq,, Legal Aid Society, b Alec Pine, Esq.
John H. Wilson, J.
By a superceding information dated February 6, 2013, Defendant is charged with one count of Harassment in the Second Degree (PL Sec. 240.26(1)), a violation.
By motion dated September 24, 2013, Defendant seeks dismissal of the sole charge, asserting that the People's complaint is facially insufficient.
The Court has reviewed the Court file, Defendant's motion, and the People's Response dated October 29, 2013.
For the reasons stated below, the motion to dismiss is denied.
FACTUAL STATEMENT [*2]
Pursuant to the superceding information, on or about October 11, 2012, at approximately 10:22 AM, in front of 2715 Grand Concourse, Bronx, New York, defendant "spat in (Police Officer Paul White's) face, which struck his eyes and mouth." See, superceding information dated February 6, 2013, p 1.
Officer White further states that "as a result of defendant's aforementioned conduct, he experienced annoyance, alarm and fear for his personal safety." See, superceding information dated February 6, 2013, p 2.
LEGAL ANALYSIS
Under CPL Sec. 100.15, every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986).
Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987).
On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court information are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 NY2d 103, 115, 512 NYS2d 652 (1986).
Applying these principles to the instant matter, the factual allegations contained in the misdemeanor complaint before this Court are sufficient.
Under PL Sec. 240.26(1), a person is guilty of Harassment in the Second Degree when, "with intent to harass, annoy or alarm another person...(1) He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact" (emphasis added).
Defendant is alleged to have spit in the face of a police officer, hitting that officer in the eyes and mouth. See, superceding information dated February 6, 2013, p 1. As a result of that action, the officer "experienced annoyance, alarm and fear for his personal safety." See, superceding information dated February 6, 2013, p 2.
Putting aside the complainant's status as a police officer, "since the development of early [*3]common law, spitting has been recognized as an act sufficient to support a battery." See, People v. Carlson, 183 Misc 2d 630, 635, 705 NYS2d 830 (Crim Ct, NY Cty, 1999) (citations omitted).[FN1]
In Carlson, the defendant was accused of spitting in the face of the complainant. The court noted that "(a)lthough minor, (spitting) is an application of force to the body of the victim, a bodily contact highly offensive..." 183 Misc 2d at 834, citing United States v. Frizzi, 491 F2d 1231, 1232 (1st Cir, 1974). Thus, in denying that defendant's motion to dismiss the charge of Harassment in the Second Degree, the Carlson court found that " spitting' on the victim...is offensive physical contact." 183 Misc 2d at 636. See, also, People v. DiBrino, 16 Misc 3d 1106(A), 841 NYS2d2d 827 (Justice Ct, Village of Tuckahoe, 2007).
Defendant's reliance on People v. Bartkow, 96 NY2d 770, 772, 725 NYS2d 589 (2001) is misplaced. Although the Court of Appeals did state that "the general language" of PL Sec. 240.26(1), requiring " physical contact' is properly confined to the preceding strikes, shoves, kicks' and the like contemplated by the statute," it is inconceivable that the Court of Appeals and the legislature meant to exclude the ancient offense of spitting into someone's face from the conduct proscribed by the statute.
Instead, this Court agrees with the holding of Carlson; "It is apparent that the legislature intended the language or otherwise subjects another person to physical contact' to be a catchall phrase," and for that phrase to include the actions of this Defendant, as described in the instant superceding complaint.
"(L)egislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction." Statutes, Sec. 94, McKinney's Book 1, p. 188. Since the act of spitting into another's face is clearly a form of physical contact, the broad language of PL Sec. 240.26(1)"otherwise subjects such other person to physical contact" would naturally and obviously include such offensive conduct.
To hold otherwise would be a denial of common sense and firmly established principles of jurisprudence.
Therefore, Defendant's motion to dismiss for facial insufficiency is denied.
All other arguments and requests for relief that have been advanced by the Defendant has been reviewed and rejected by this Court as being not applicable, or without merit.
This shall constitute the opinion, decision, and order of the Court.
[*4]
Dated: Bronx, New YorkDecember 6, 2013
_______________________________Hon. John H. Wilson, JCC
Footnotes
Footnote 1: Carlson includes a good review of the decisions of other jurisdictions, both state and federal, in regards to this offense.
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