People v Shawn L.
Annotate this CaseDecided on September 4, 2013
Just Ct of the Town of Hyde Park, Dutchess County
The People of the State of New York
against
Shawn L., Defendant.
XX-XX-XXXX
Klein Varble & Associates, P.C.
Dayna M. Adamek, Esq., Of Counsel
Attorneys for Defendant
235 Main Street, Suite 300
Poughkeepsie, New York 12601
William V. Grady, Esq.
Robert J. Knapp, Esq. Of Counsel
Dutchess County District Attorney
236 Main Street
Poughkeepsie, New York 12601
David L. Steinberg, J.
By Notice of Motion and Affirmation, dated April 22, 2013, the defendant Shawn L. (hereinafter "defendant") moves, inter alia, for an order dismissing the charge of Endangering the Welfare of a Child (Penal Law 260.10) on the grounds that the accusatory instrument is facially insufficient pursuant to CPL 100.15, 100.40 and 170.30. The People oppose the motion.
For the reasons set forth, below, the motion to dismiss is granted and the accusatory instrument is dismissed,
On January 3, 2013, the New York State Police filed with the court a charge against defendant of Endangering the Welfare of a Child (PL 260.10) based upon the complaint of Inv. Mary Cheslo, dated October 22, 2012. On January 8, 2013, defendant was arraigned and entered [*2]a plea of not guilty. The case remains pending before the court.
The accusatory instrument alleged that on June 11, 2012, "defendant did introduce bondage gear' including handcuffs, leather restraints, a collar and mouth gag to his eleven-year-old stepson, (name) (D.O.B. *****), as well as demonstrate how each is used. Said incident did occur in their home located at (street address), Town of Hyde Park, County of Dutchess, State of New York. The accusatory instrument was not accompanied by a supporting deposition or Huntley Notice [CPL 710.30(1)(a)].
MOTION TO DISMISS
The gravamen of defendant's motion is that the factual portion of the accusatory instrument, as sworn to by Inv. Cheslo, consists of hearsay in its entirety. Inv. Cheslo does not claim to have witnessed defendant's conduct, notwithstanding she states in her complaint that the allegations are based on "Direct Knowledge". Additionally, defendant contends there is no proof of age of the child either by a birth certificate or affidavit of a person with personal knowledge, or how Inv. Cheslo knew the child was 11 years old.
In opposition to the motion to dismiss, the People argue: 1) defendant made admissions directly to the officer who swore to the facts contained in the information on direct knowledge, thus constituting facial sufficiency; 2) defendant's confession is sufficient to render facially sufficient an accusatory instrument based upon hearsay; and 3) defendant's confession requires no corroboration under CPL, section 60.50 which pertains to the sufficiency of a trial conviction. Thus, they state, the complaint provides sufficient notice of the factual allegations that form the basis of the charge, so as to enable him to prepare a defense and prevent the risk of double jeopardy.
ANALYSIS
Endangering the Welfare of a Child
Under Penal Law 260.10(1), "a person is guilty of endangering the welfare of a child when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health." In reviewing a charge of Endangering the Welfare of a Child for legal sufficiency, "each case is fact specific" [People v. Johnson, 95 NY2d 368, 371-372 (2000)] and the allegations must be analyzed in the context of the whole incident [People v. Tichenor, 89 NY2d 769, 776 (1997)]. The statute prescribes conduct "which a defendant knows will present a likelihood of harm to a child, i.e. with an awareness of the potential for harm. People v. Johnson, supra at 372.
Facial Insufficiency
The facial sufficiency of the accusatory instrument is the basis for the court's authority to proceed with the criminal action, if the instrument is facially insufficient, the criminal action must be dismissed. CPL 170.30(1)(a); Preiser, Practice Commentary, McKinney's Cons. Laws of New York (2004), Book 11A, CPL 100.40, p. 387. Facial sufficiency is a non-waiverable, jurisdictional prerequisite to a prosecution. People v. Alejandro, 70 NY2d 133 (1987); People v. Hall, 48 NY2d 927 (1979); People v. Case, 42 NY2d 98 (1977).
The Court of Appeals has repeatedly held with respect to facial insufficiency, "so long as the factual allegations of an information give an accused notice sufficient to prepare a defense [*3]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. Konienczny, 2 NY3d 569 (2004); People v. Casey, 95 NY2d 354 (2000). The standard for pleading a prima-facie case is lesser than the heavy burden of proof beyond a reasonable doubt required for a trial. People v. Henderson, 92 NY2d 677, 680 (1999).
An information, to be sufficient, must meet three statutory tests. First, it must contain an accusatory section and a factual section setting forth "facts of an evidentiary character supporting or tending to support the charges." CPL 100.15, 100.40(1)(a).
Second, the factual part, together with any supporting depositions, must provide reasonable cause to believe the defendant committed the offense charged. CPL 100.40(1)(b). "Reasonable cause" exists when "evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary and reasonable intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL 70.10(2).
Third, in additional to the reasonable cause requirement, an information must contain non-hearsay allegations in the factual part of the information and in any supporting depositions, which, if true, establish "every element of the offense charged and defendant's commission thereof." CPL 100.40(1); People v. Kalin, 12 NY3d 225,228-229 (2009); People v. Forsberg, 40 Misc 3d 132 (A) (App. Term, 2d Dept 2013); People v. Valentine, 40 Misc 3d 28 (App. Term, 2d Dept 2013).This last requirement is known as the "prima facie case" requirement. People v. Suber, 19 NY3d 247, 251 (2012); People v. Jones, 9 NY3d 259, 262 (2007); People v. Alejandro, supra at 137 (1987), meaning that a facially sufficient information must contain enough factual allegations to establish a prima facie case. This additional showing is required because, unlike a felony complaint, a misdemeanor information "is not followed by a preliminary hearing and a Grand Jury proceeding" and consequently, there is no pretrial proceeding at which the People are required to present actual evidence demonstrating a prima facie case as with an indictment following a felony complaint. People v. Alejandro, supra at 138.
It is also been held that a non-hearsay requirement is met so long as the allegation would be admissible under some hearsay rule exception. People v. Casey, supra at 361; People v. Valentine, supra. So, for example, an out of court statement is properly admissible under the excited utterance exception to the hearsay rule when it is made under the stress of excitement caused by an external event, and it is not the product of studied reflection and possible fabrication. People v. Johnson, 1 NY3d 302, 306 (2003). The admission of a defendant is also admissible as a classic exception to the hearsay rule, and need not be corroborated to pass a facial sufficiency review. This is because the corroboration requirement set forth in CPL 60.50 pertains to the legal sufficiency of a conviction, not an accusatory instrument [People v. Suber, supra].
When assessing the facial sufficiency of an accusatory instrument, a court must view the facts in the light favorable to the People. People v. Vonancken, 27 Misc 3d 132(A) (App. Term, 2d Dept 2010); People v. Gonzalez, 184 Misc 2d 262 (App. Term, 1st Dept), lv. denied, 95 NY2d 835 (2000). However, conclusory allegations are insufficient [see, People v. Dreyden, 15 NY3d 100 (2010)]; People v. Dumas, 68 NY2d 729 (1986); People v. South, 29 Misc 3d 92 (App. Term, 2d Dept 2010)
Applying these legal principles, the accusatory instrument fails as it is based entirely on hearsay, and no admissions by the defendant have been presented to the court in admissible [*4]form. It is well settled that the factual allegations must be considered "within the four corners of the instrument itself [and] in the annexed supporting depositions" People v. Thomas, 4 NY3d 143 (2005). It is well settled that an affirmation of counsel who demonstrates no personal knowledge of the facts asserted "is without evidentiary value and thus unavailing." Zuckerman v. City of New York, 49 NY2d 557, 563 (1980); Huerta v. Longo, 63 AD3d 684 (2d Dept 2009); Jefferson v. Village of Ossining, 18 AD3d 502 (2d Dept 2005). Similarly, proof of the child's age as being less than seventeen years old has not been established by a birth certificate or sworn deposition of a person with personal knowledge of the child's age. Insofar as defendant's admissions, no CPL 710.30 Notice was ever filed. Accordingly, despite the People's reliance on defendant's alleged statement, any such statement is not before the court.
In view of the foregoing, the motion to dismiss on facial insufficiency grounds is granted, the order of protection is vacated, and the accusatory instrument is dismissed.
The foregoing shall constitute the Decision and Order of the court.
Dated: Hyde Park, New York
September 4, 2013
______________________________________
Hon. David L. Steinberg
Hyde Park Town Justice
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