People v Kersh

[*1] People v Kersh 2013 NY Slip Op 51720(U) Decided on October 10, 2013 Criminal Court Of The City Of New York, New York County Statsinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2013
Criminal Court of the City of New York, New York County

The People of the State of New York, Plaintiff,

against

Alan Kersh, Defendant.



2013NY028073



Appearances of Counsel:

For the defendant: Brian E. Maas, Frankfurt, Kurnit, Klein & Selz, PC

For People: Timothy Duda, Assistant District Attorney, New York County

Steven M. Statsinger, J.

Defendant, charged with two counts of Assault in the Third Degree (Penal Law §§ 120.00(1) (Count One) and 120.00(2) (Count Two)), Aggravated Harassment in the Second Degree (Penal Law § 240.30(4)) (Count Three), Attempted Assault in the Third Degree (Penal Law §§ 110/120.00(1)) (Count Four) and Harassment in the Second Degree (Penal Law § 240.26) (Count Five), moves to dismiss certain counts of the Information. He alleges that: Counts One and Two fail to sufficiently allege physical injury; Count Three fails to allege a necessary predicate conviction; and Count Four fails to sufficiently allege intent."[FN1] For the reasons set out below, the Court DENIES the motion to dismiss.

A. FACTUAL BACKGROUND

1. The Allegations

According to the Information, on the morning of April 2, 2013, defendant and the complainant, Arturo Constantiner, were in an elevator together. Defendant approached Constantiner in a threatening manner, shouting and pointing his finger in Constantiner's face. He then pushed Constantiner against the wall of the elevator; this caused a glass mirror on the elevator wall to shatter and tear the back of Constantiner's jacket. Constantiner asserts that this caused substantial pain to his back.

2. Legal Proceedings

Constantiner swore to a Misdemeanor Information on April 9, 2013, one week after the incident. On May 15, 2013, defendant was arraigned on that Information. It charged him with two counts of Assault in the Third Degree (Penal Law § 120.00(1) (Count One) and § 120.00(2) (Count Two)), Aggravated Harassment in the Second Degree (Penal Law § 240.30(4)) (Count Three), Attempted Assault in the Third Degree (Penal Law §§ 110/120.00(1)) (Count Four) and Harassment [*2]in the Second Degree (Penal Law § 240.26) (Count Five). Defendant was released on his own recognizance, subject to a temporary order of protection in favor of Constantiner. The order permits incidental contact.

On August 1, 2013, defendant moved to dismiss certain counts of the Information for facial insufficiency. Specifically, defendant argues that: Counts One and Two insufficiently plead the "physical injury" element of Assault in the Third Degree; Count Three is insufficient because it does not plead that defendant has previously been convicted of Harassment in the First Degree which, according to the defendant, is a predicate to a conviction for Aggravated harassment in the Second Degree under Penal Law § 240.30(4); and Count Four is insufficient because it insufficiently pleads facts from which an intent to cause physical injury, a necessary element of Attempted Assault in the Third Degree, can be inferred.

The People filed opposition papers on September 9, 2013.

B. DISCUSSION

The Information alleges that defendant pushed the complainant against the mirrored wall of an elevator with sufficient force to shatter the mirror, causing the complainant substantial pain. Since these are facts from which it can be reasonably inferred that the complainant suffered physical injury and that the defendant intended to injure him, the Information is facially sufficient as to Counts One, Two and Four. Additionally, since Penal Law § 240.30(4) does not require proof of a prior conviction, Count Three is also facially sufficient. The motion to dismiss is denied as to all four counts.

1. Introduction

To be facially sufficient, an accusatory instrument must contain allegations providing reasonable cause to believe that the People can prove every element of the crime charged. CPL § 100.40(1)(a)-(c). See also People v Dumas, 68 NY2d 729 (1986); People v Alejandro, 70 NY2d 133 (1988); People v McDermott, 69 NY2d 889 (1987); People v Case, 42 NY2d 98 (1977). Reasonable cause to believe that a person has committed an offense "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 intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70.10 (2).

This standard does not require that the instrument allege facts that would prove defendant's guilt beyond a reasonable doubt. Rather, the instrument need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v Casey, 95 NY2d 354, 360 (2000). A court reviewing for facial insufficiency must assume that the factual allegations contained in the accusatory instrument are true, and must consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747 (2012). See also Casey, 95 NY2d at 360.

Under these standards, the Information here is facially sufficient as to all four of the counts that the defendant challenges.

2. Counts One and Two and the "Physical Injury" Requirement

The Information sufficiently alleges facts to support the "physical injury" element of Assault in the Third Degree. The factual basis for the charges against the defendant is as follows: [*3] I observed the defendant approach me in a threatening manner. Specifically, I observed the defendant point his finger in my face while shouting at me. I then observed the defendant place both of his hands on me and forcefully push me into the wall of the elevator ... causing substantial pain to my back. I also observed that as a result of the defendant's actions the glass mirror on the wall of the elevator shattered and the glass caused the back of my jacket to tear where it made contact with the mirror.

These facts sufficiently plead Assault in the Third Degree.

Both intentional assault and reckless assault require that the defendant cause "physical injury" to another person. Penal Law § 120.00(1), (2). "Physical injury" is defined as "impairment of physical condition or substantial pain." Penal Law § 10.00(9). While "substantial pain" must be "more than slight or trivial pain," the "pain need not ... be severe or intense to be substantial." People v. Chiddick, 8 NY3d 445, 447, (2007) (broken fingernail where victim bled and sought medical treatment); People v. Biamonte, 19 Misc 3d 139(A) (App. Term 2d Dept. 2008). While the People must establish that the pain exceeded a certain objective level, the issue of whether pain is "substantial" is generally a matter for the trier of fact. People v. Rojas, 61 NY2d 726, 727 (1984); Matter of Philip A, 49 NY2d 198, 200 (1980).

Here, the allegation that defendant shoved the complainant with such force that the complainant hit a mirrored elevator wall and shattered the mirror, coupled with the allegation that this caused "substantial pain" to the complaint's back is, at least at the pleading stage, sufficient. The People are not required to specifically plead the exact nature or duration of a complainant's injuries. People v. Calixto, 29 Misc 3d 798, 802 (Crim. Ct. NY Co. 2010). Indeed, at the pleading stage that information might not even be known. People v. Henderson, 92 NY2d 677, 680-81 (1999). Here, the subjective allegation in the Information that the complaint experienced "substantial pain," coupled with the objective allegation that defendant pushed him "forcefully" - so hard that the mirrored wall he hit shattered - together sufficiently plead physical injury. The complainant surely suffered "an experience that would normally be expected to bring with it more than a little pain," Chiddick, 8 NY3d at 447. Accordingly, the Information is facially sufficient, even without additional detail about the level or duration of the pain.

Defendant argues that, since the complainant swore out the Information one week after the incident, the complainant "would have known" whether the pain endured that long. The Court rejects this as an overly simplistic reading of the record. Given the force of the blow the complainant described, there is a reasonable inference that, when he swore out the Information one week later, he was still in pain. Beyond that, determining whether either the duration or the severity of the pain rose to the necessary level is a matter for the finder of fact at trial. Rojas, 61 NY2d at 727.

Nor is the Court persuaded by the cases cited by the defendant. Defendant relies most heavily on People v. Dipoumbi, 23 Misc 3d 1127(A) (Crim. Ct. NY Co. 2009). There, the accusatory instrument alleged that the defendant "open[ed] the driver side [sic] door [of a taxi] and str[uck] deponent about the arm with the said door of said taxicab causing swelling and substantial pain." Id. at *1. The court found this to be facially insufficient largely because there was "no factual support" for the complainant's allegation that he suffered "substantial pain" in the absence of a "description of the amount of force that the defendant employed to open the door." Id. at *2. Here, however the [*4]Information furnishes that missing link; it alleges the amount of force that the defendant used and, as noted above, that force was great enough that an inference of substantial pain can reasonably be drawn. People v. Strong, 179 Misc 2d 809, 811 (App. Term 2d Dept. 1999), is likewise distinguishable. There, the accusatory instrument did not even allege the statutory standard of "substantial pain"; it alleged only that defendant caused the complainant "a lot of pain." Id. An accusatory instrument need not detail the extent of a complainant's injuries. Henderson, 92 NY2d at 680-81. Thus, while Strong faulted the instrument for not detailing the injuries the complainant suffered, 179 Misc 2d at 811, that case, read in light of Henderson, can stand at most for the proposition that the accusatory instrument must detail extent of the injuries only in cases where it does not otherwise allege that those injuries caused substantial pain.

The other cases defendant relies on address the sufficiency of the trial evidence: People v. Holden, 148 AD2d 635, 635 (2d Dept. 1989); People v. Blacknall, 185 AD2d 108, 109 (1st Dept. 1992); People v. Franklin, 149 AD2d 617, 617 (2d Dept. 1989); People v. Estes, 131 AD2d 872, 872 (2d Dept. 1987); and People v. Goins, 129 AD2d 733, 734 (2d Dept. 1987). Those cases turn on a different legal standard and are inapposite here.

Accordingly, since the Information alleges facts from which there is a reasonable inference that the defendant caused physical injury to the complaint, the motion to dismiss Counts One and Two of the Information is denied.

3. Aggravated Harassment

Defendant, charged with violating Penal Law § 240.30(4), argues in error that the People were required to allege that he had a prior conviction for Harassment in the First Degree. That requirement is contained in § 240.30(5), a section under which defendant is not charged. The motion to dismiss on the ground raised by defendant is accordingly denied.

Rather, the offense made out by § 240.30(4) requires proof that the defendant "[s]trikes, shoves, kicks or otherwise subjects another person to physical contact thereby causing physical injury to such person." The Court notes, sua sponte, that, in light of the above conclusion that the Information sufficiently alleges the "physical injury" element of Assault in the Third Degree, this count is is facially sufficient as to that element, as well.

4. Attempted Assault in the Third Degree

Finally, Count Four, charging the defendant with Attempted Assault in the Third Degree, is also facially sufficient. It sufficiently alleges facts that support a finding of intent to cause physical injury.

In assault cases, the necessary intent is sufficiently pled if an inference of intent to injure can "rationally be drawn" from the acts the defendant is alleged to have committed. People v. Dreyden, 28 Misc 3d 5, 8 (App. Term 2d Dept. 2010) (alteration, internal quotation marks and citation omitted). Nothing more is required; a complainant is "not required to swear to the intent of the defendant." Id. In fact, this case is materially indistinguishable from Dreyden, where the Appellate Term found that an information that alleged merely that defendant pushed the complainant to the ground was sufficient as to intent. Id. at 6, 8. Clearly, under Dreyden, the allegation that defendant pushed the complainant against a wall "forcefully" sufficiently pleads an intent to cause physical injury.

On this issue, as well, the case can be distinguished from Dipoumbi, 23 Misc 3d at 1127(A). There, the court found the instrument, which alleged that the defendant struck the complainant when [*5]the defendant opened the door of a taxi, insufficient as to intent. Id. That instrument did not allege facts from which it could even be inferred that the defendant's actions were deliberate, as opposed to accidental, let alone that the defendant opened the door with sufficient force intentionally to cause injury. Id. Here, by contrast, the instrument alleges facts that clearly show that the defendant clearly acted deliberately. The force with which he is alleged to have pushed the complainant, combined with the allegation that he did so immediately after approaching the complainant in a "threatening manner" and "shouting" at him, are, together, facts from which the intent to injure can reasonably inferred.

Accordingly, the motion to dismiss Count Four is denied.

5. Conclusion

The Information is facially sufficient as to all four of the challenged counts. The motion to dismiss is accordingly denied.

C. CONCLUSION

For the foregoing reasons, the Court denies defendant's motion to dismiss Counts One through Four of the Information.

This Constitutes the Decision and Order of the Court.

Dated: October 10, 2013_________________________

New York County, New YorkSteven M. Statsinger

Judge of the Criminal Court Footnotes

Footnote 1: The Court has considered, in addition to the relevant statutes and case law, defendant's Omnibus Motion and the People's response.