People v Torres

[*1] People v Torres 2014 NY Slip Op 51897(U) Decided on December 22, 2014 Criminal Court Of The City Of New York, Bronx County Rodriguez-Morick, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2014
Criminal Court of the City of New York, Bronx County

The People of the State of New York,

against

Christopher Torres, Defendant.



2014BX050621



Defense CounselPorsha Shaf'on Venable, Esq.The Bronx Defenders360 East 161st StreetBronx, New York 10451The PeopleDyana J. Boxley, Esq.Assistant District AttorneyDomestic Violence BureauBronx County District Attorney Office198 East 161st StreetBronx, New York 10451
Jeanette Rodriguez-Morick, J.

In this domestic violence case, defendant Christopher Torres ("Defendant") stands charged [*2]with third-degree assault, Penal Law § 120.00(1), endangering the welfare of a child, id. § 260.10(1), fourth-degree criminal mischief, id. § 145.00(1), and second-degree harassment, id. § 240.26(1). He moves to dismiss the accusatory instrument for facial insufficiency, pursuant to C.P.L. §§ 170.30, 170.35, and 100.40, and seeks to suppress statements he allegedly made to police, pursuant to C.P.L. § 710.30, or for an order granting a hearing to determine the admissibility of such statements.

For the reasons that follow, Defendant's motion is GRANTED to the extent that the criminal mischief charge is dismissed but DENIED as to the remaining charges; and his motion to suppress is granted to the extent that a Huntley hearing is ORDERED.[FN1]

Background

Footnote fnref="2">

For purposes of this motion, the court is required to presume the factual allegations to be true, People v. Jackson, 18 NY3d 738, 741 (2012); C.P.L. § 100.40(1)(c), and must "draw reasonable inferences from all the facts set forth in the accusatory instrument," see Jackson, 18 NY3d at 747.

At 8:24 a.m. on September 20, 2014, police officers received a radio run of an assault in progress at a Bronx apartment. Responding to that apartment, the officers arrived at 8:28 a.m. and observed the complainant, Lailoni Narvaez ("Complainant"), crying hysterically, her lip cut and mouth swollen and red. Defendant, present in the apartment, appeared to be agitated, and Complainant's two children were both crying. An airbed and a wall unit were broken into pieces, and several items were scattered about the apartment. At the scene, Complainant made several statements to the officers:

WE WERE ARGUING AND I WAS ON THE COUCH AND HE GOT ON TOP OF ME AND STARTED PULLING MY HAIR, I CAN'T REMEMBER IF HE SLAPPED ME OR PUNCHED ME, I HAVE A CUT TO MY LIP AND IT HURTS. I'M SEVEN MONTHS PREGNANT AND I HAVE PAIN IN MY STOMACH. HE STARTED BREAKING THINGS AROUND THE HOUSE AND THROWING THINGS. HE BROKE THE AIRBED, THE WALL UNIT, AND OTHER THINGS. MY BREAKING POINT WAS WHEN MY SON SAW ME LIKE THIS AND HE HAD TO HELP.

Analysis

Motion to Dismiss for Facial Insufficiency

To be facially sufficient, the factual allegations of an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes asserted therein. C.P.L. § 100.40(1)(b). The accusatory instrument must include non-hearsay allegations of fact that, if true, establish "every element of the offense charged and the defendant's commission thereof." Id. § 100.40(1)(c). Generally, a deficiency as to the factual allegations supporting the elements of the crime entitles a defendant to dismissal on the ground that the information is defective. Id. §§ 170.30(1)(a); 170.35(1)(a).

Hearsay

Defendant's attack on the sufficiency of the instant accusatory instrument turns on the issue of whether statements contained therein are admissible hearsay and, if they are, whether they can serve to convert the accusatory instrument to an information.

Defendant's contentions boil down to the following:

(1) the "non-hearsay allegations," required by C.P.L. § 100.40(1)(c), cannot be satisfied by allegations admissible under hearsay exceptions;

(2) to the extent that hearsay exceptions can be used to satisfy the C.P.L. § 100.40(1)(c) non-hearsay requirement, such exceptions should be limited to the hearsay exceptions litigated in People v. Casey, 95 NY2d 354 (2000), i.e., the public document and admissions exceptions;

(3) Casey, which held that hearsay exceptions can be used to satisfy C.P.L. § 100.40(1)(c)'s non-hearsay requirement, has been abrogated by Crawford v. Washington, 541 U.S. 36 (2004); and

(4) the declarations at issue here are not excited utterances and accordingly cannot serve to convert the complaint to an information.

(See Mem. of Law.)

Hearsay Exceptions Satisfy the Non-Hearsay Requirement of C.P.L. § 100.40(1)(c)

Acknowledging that Casey expressly states that "a non-hearsay requirement is met so long as the allegation would be admissible under some hearsay exception," 95 NY2d at 361, Defendant nevertheless urges this court to ignore that holding because it is dictum, it contravenes the express language of C.P.L. § 100.40(1)(c), and is weakly premised on an old case, People v. Belcher, 302 NY 529 (1951), that, according to Defendant, left precisely the same issue open. (Mem. of Law 12-14.)

[*3]Casey's holding, that hearsay exceptions may satisfy C.P.L. § 100.40(1)(c)'s non-hearsay requirement (the "Casey Rule"), is not dictum. Among the central issues raised by the defendant in that case and resolved by the Casey Court, is the issue of whether the information in that case could be found sufficient when, according to that defendant, the "information did not contain non-hearsay allegations of defendant's knowledge of the order," 95 NY2d at 359; Brief for Defendant-Appellant at 25-26, but relied, in part, on hearsay. In ruling against the defendant, the Court of Appeals held, in relevant part, that the hearsay evidence at issue there, specifically, defendant's admission and the protective order, would have served to convert the complaint to an information because the evidence satisfied the requirements of the implicated hearsay exceptions and such exceptions satisfy the C.P.L.'s non-hearsay requirement. Id. at 361-62. Since Casey's ruling is related directly to the question presented to the Court of Appeals for decision, its holding is not gratuitous, and therefore not dictum. Cf. People v. Palumbo, 79 AD2d 518, 518 (1st Dep't 1980) (viewing, as dictum, a court's holding that was neither essential to, nor supportive of, a determination and, accordingly, deeming the holding "gratuitous").

Pursuant to the doctrine of stare decisis, which promotes predictability in the law and reliance on court decisions, People v. Taylor, 9 NY3d 129, 148 (2007), the Casey Rule should "be followed in subsequent cases presenting the same legal problem," People v. Peque, 22 NY3d 168, 194 (2013) (citing People v. Damiano, 87 NY2d 477, 488 (1996)), cert. denied sub nom. Thomas v. New York, 135 S. Ct. 90 (2014). And, indeed, it has been followed. See, e.g., People v. Valentine, 40 Misc 3d 28, 30-31 (App. Term, 2d Dep't 2013) (relying on Casey in holding a superseding information as facially sufficient based on the complainant's excited utterances); People v. Anderson, 40 Misc 3d 1201(A) (Kings Co. Crim. Ct. 2013) (denying motion to dismiss for facial insufficiency where factual allegations qualified as excited utterances that satisfied C.P.L. § 100.40's non-hearsay requirement under Casey); People v. Foster, 190 Misc 2d 625, 631 (Kings Co. Crim. Ct. 2002) (holding complainant's statement an excited utterance that converted the accusatory instrument into a valid information).

Defendant nonetheless argues that Casey's holding should be ignored because it "undermines" the plain text of C.P.L. § 100.40's non-hearsay requirement. (Mem. of Law 13.) But, had the Casey Court misinterpreted this statute, the Legislature could have corrected any perceived error; yet to this day it has not. See People v. Hobson, 39 NY2d 479, 489 (1976) ("[I]f the precedent or precedents have misinterpreted' the legislative intention, the Legislature's competency to correct the misinterpretation' is readily at hand."); see also People v. Concepcion, 17 NY3d 192, 201 (2011) ("Legislative inaction (which just may, after all, signal satisfaction with [an existing [*4]interpretation of a statute]) is not a license for us . . . [to] refashion [a] statute's settled meaning with the freedom we enjoy in matters of common law.").

Furthermore, taking Defendant's argument to its logical conclusion would require pre-trial dismissals of cases that would otherwise survive motions to dismiss during or after trial. To avoid this "absurd result," i.e., "that the rules of evidence as applied to an information are more stringent than those applicable to trials and hearings," courts have long considered "[h]earsay, as that term is used in the C.P.L., . . . to mean only hearsay which is not admissible at trial." See Matter of Rodney J., 108 AD2d 307, 311 (1st Dep't 1985) (internal quotations omitted) (quoting People v. Fields, 74 Misc 2d 109, 111 (Nassau Co. Dist. Ct. 1973)).

Finally, Defendant's argument that the Casey Rule rests upon feeble underpinnings—specifically, its reliance on People v. Belcher, 302 NY 529 (1951)—is simply incorrect. Far from deciding "whether . . . under [pre-CPL law], a misdemeanor information could be based on hearsay" (Mem. of Law 14), the Belcher Court had no reason to even reach the issue. This is not to say, however, that the Belcher case was analytically unsound or doctrinally unimportant, as Defendant apparently would have it. Quite the contrary, as Judge Levine noted in Casey, the opinion in Belcher "made an important contribution to our pre-CPL jurisprudence." 95 NY2d at 364. In Belcher, the Court held the information sufficient because it was based on the deponent-officer's personal observations and the defendant's admissions and therefore was "not [] based upon inadmissible hearsay or otherwise incompetent evidence." Belcher, 302 NY at 534. In other words, Belcher is more important for what it decided—that accusatory instruments permissibly may contain admissible hearsay—than for the question that it left open: whether there is a policy or common-law reason to reject a criminal court information based on inadmissible hearsay.

Casey is Not Limited to the Public Document and Admissions Exceptions

Defendant next contends that the Casey Rule should be limited to the public document and admissions exceptions to the hearsay rule, the two exceptions litigated in Casey, because these exceptions do not implicate Defendant's right to confront witnesses against him. Other hearsay exceptions, such as the excited utterance exception, were not considered by the Casey court, and so, Defendant argues, do implicate the Confrontation Clause under both the federal and state constitutions. Ergo, he asserts, they should not be considered in determining the sufficiency of an information.

The Casey Court expressed no such limitation on the use of admissible hearsay in support of criminal charges. Instead, the Casey Court broadly stated that "a non-hearsay requirement is met so long as the allegation would be admissible under some [*5]hearsay rule exception." Casey, 95 NY2d at 361 (citations omitted) (emphasis added). Presumably, had the Casey Court meant to so limit this holding's application, the opinion would have said so.

Crawford did not Abrogate Casey

Defendant argues that Crawford, a Confrontation Clause decision, essentially abrogated Casey, a decision on the sufficiency of misdemeanor pleadings. In other words, Defendant believes that Crawford prohibits the use of hearsay exceptions at the pleading stage of criminal proceedings. Because Crawford has nothing to do with misdemeanor pleadings, it had no such effect on Casey.

The Confrontation Clause "attaches when witnesses or evidence against [a defendant] are being presented to the trier of fact." People v. Frost, 100 NY2d 129, 135 (2003) (citing People v. Sprowal, 84 NY2d 113, 117 (1994)); People v. Mayes, 19 Misc 3d 48, 51 (App. Term, 9th & 10th Jud. Dists. 2008) ("[C]onsideration of hearsay allegations for the purpose of ascertaining the sufficiency of a pleading would in no event constitute a violation of the Confrontation Clause, since the right to confrontation is a trial right available against witnesses at trial.'" (quoting People v. Hameed, 88 NY2d 232, 239 (1996), cert. denied, 519 U.S. 1065 (1997))). Accordingly, the Confrontation Clause has no application at the pleading stage and is therefore irrelevant to assessing the facial sufficiency of an accusatory instrument containing admissible hearsay.

Were this court to engage in a gedankenexperiment and accept the erroneous contention that Crawford somehow applies at the pleading stage, as it does at trial, and further accepting the conclusion that the complainant would be unavailable to testify at this stage (when no testimony is required to be taken), the hearsay statements at issue would be admissible under Crawford.

"Crawford explicitly limited the admissibility of certain types of hearsay that had previously been routinely admitted," Defendant correctly asserts. (Mem. of Law 16.) But the specific type of hearsay sought to be limited by the Supreme Court was testimonial hearsay, based on the Confrontation Clause's historical raison d'être. See Crawford, 541 U.S. at 51 ("[T]he constitutional text, like the history underlying the common-law right of confrontation, [] reflects an especially acute concern with a specific type of out-of-court statement."); id. at 68 ("Where testimonial evidence is at issue[,] [] the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.").

Nontestimonial statements, however, are not subject to the same constraints because these types of declarations have other indicia of reliability. See id. at 68 ("Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' [*6]design to afford the States flexibility in their development of hearsay law—as does [Ohio v. Roberts, 448 U.S. 56 (1980)], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether."); Davis v. Washington, 547 U.S. 813, 821 (2006) ("It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.").

In determining the admissibility of a hearsay declaration, the threshold issue, then, is its classification as either a testimonial or a nontestimonial statement. See, e.g., Davis v. Washington, 547 U.S. 813, 821-822 (2006) (determining first whether the hearsay declarations are testimonial or non-testimonial before deciding admissibility); see also People v. Smith, 37 AD3d 333 (1st Dep't 2007), lv. denied, 8 NY3d 950 (Apr. 20, 2007) (ruling on the classification of a hearsay declaration before affirming the trial court's decision to admit the declaration as an excited utterance).

A declaration's classification will depend on its primary purpose. Davis, 547 U.S. at 822; Michigan v. Bryant, 131 S. Ct. 1143, 1154 (2011). That is, those declarations made "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," Crawford, 541 U.S. at 52, are testimonial.[FN3] Id. On the other hand, statements made "under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency [are nontestimonial]." Id.

The factual circumstances precipitating the hearsay declarations suggest the "primary purpose" of those declarations. Id.; Davis, 547 U.S. at 822; Michigan v. Bryant, 131 S. Ct. at 1154. In Michigan v. Bryant, the Supreme Court likened the primary purpose analysis to the analysis employed by courts in assessing whether hearsay is admissible pursuant to classic hearsay exceptions. 131 S. Ct. at 1155 ("In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant."). The Court reasoned that "because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination." Id. at 1157. After noting that such an analysis differs little from normal hearsay exception analysis, the Court held that the declarations there should have been admitted as excited utterances because they met the requirements of such an exception under both the Michigan and federal rules of evidence. Id.

Consonant with the foregoing analysis, the Court of Appeals restricts its analytic terms to testimonial versus nontestimonial, even when an appellate claim is based on the New York State Constitution.[FN4] Yet it has repeatedly affirmed lower court decisions admitting nontestimonial declarations as "excited utterances," see, e.g., People v. Nieves-Andino, 9 NY3d 12 (2007); People v. Bradley, 8 NY3d 124, 126 (2006), thus establishing that, notwithstanding the nomenclature imposed by Crawford, standard hearsay exception analysis still holds.

Consequently, where hearsay exceptions are concerned, far from abrogating Casey, Crawford left it untouched.

D.The Declarations Here Are Excited Utterances

Defendant contends that Complainant's declarations cannot serve to convert the accusatory instrument because they constitute inadmissible hearsay.

Out-of-court declarations are considered excited utterances—and thus excluded from the rule against hearsay—when made "under the stress of excitement caused by an external [startling or traumatic] event, and not the product of studied reflection and possible fabrication." People v. Johnson, 1 NY3d 302, 306 (2003). Whether a declaration falls within this category of admissible hearsay hinges on various factors: (1) the nature of the event; (2) the amount of elapsed time between the event and the declaration; (3) the declarant's activities between the event and the declaration; (4) the declarant's opportunity to deliberate, if any, such that he or she could deviate from the truth; and (5) whether the circumstances indicate that the declarant made the statements under the impetus of studied reflection. People v. Diaz, 21 AD3d 58, 65-66 (1st Dep't 2005) (citing People v. Vasquez, 88 NY2d 561, 579 (1996); People v. Edwards, 47 NY2d 493, 497 (1979)).

Here, the officers arrived at the apartment indicated in the radio run within four minutes and discovered Complainant crying hysterically with a cut, swollen, and red lip, an agitated Defendant, two crying children, and destroyed furniture and items strewn about the house.

Because the "statements in the apartment were made [by the complainant] shortly after a physical attack and while . . . still suffering from injuries," see People v. Lopez, 285 AD2d 356, 357 (1st Dep't 2001), they fit comfortably within the category of hearsay statements that are admissible as excited utterances, see id. (affirming admission of statements made after defendant bit and punched complainant where complainant bore injuries indicative of recent assault and defendant appeared irrational and unstable). Although "the time for reflection is not measured in minutes or seconds, but rather by the facts," People v. Gantt, 48 AD3d 59, 64 (1st Dep't 2007), the simple fact is that four minutes leaves little time for the level of "studied reflection" that would render Complainant's statements inadmissible. Further, since Complainant and her children were crying and Defendant appeared agitated, it is far more likely that Complainant spent those four minutes absorbed in the aftermath of the assault—not, as Defendant argues, reflecting upon ways to distort the truth.

Complainant's statements to the officers in the instant matter were made within four minutes of a radio run of an assault in progress. That the officers heard Complainant's statements at a time when they were primarily seeking to discover what had happened, diffuse the altercation, and ensure the safety of all involved are not unreasonable inferences. Accordingly, this court finds that Complainant's declarations, as pled in the accusatory instrument, are excited utterances, and therefore are "non-hearsay" declarations as pled in an information.

II.Reasonable Cause

Hearsay objections aside, Defendant also argues that the allegations in the Complaint, even when presumed true, fail to establish reasonable cause to believe Defendant committed the offenses charged.

A.Assault in the Third Degree

Penal Law § 120.00(1) provides that a person is guilty of assault in the third degree "when[,] . . . [w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person[.]" Physical injury means impairment of physical condition or substantial pain. Id. § 10.10(9). While "substantial pain cannot be defined precisely, . . . it can be said that it is more than slight or trivial pain. Pain need not, however, be severe or intense to be substantial." People v. Chiddick, 8 NY3d 445, 446-47 (2007).

The Complaint here sufficiently pleads the requisite physical injury—i.e., that Complainant suffered "substantial pain"—to support the assault charge. See, e.g., People v. Allen, 36 Misc 3d 137(A) (App. Term, 2d, 11th & 13th Jud. Dists. 2012) (citing Chiddick, 8 NY3d at 446) (holding allegations that defendant pulled victim's hair and punched victim in the head and neck, causing "pain to the neck and head areas, to suffer substantial pain, to fear further physical injury and to become alarmed and annoyed, sufficed, at the very least, to allege the offense'" (brackets omitted)), lv. denied, 20 NY3d 930 (2012).

While Defendant contends that Complainant's cut, swollen, and red lips do not suggest a physical injury for the purposes of the assault charge, at this stage of the proceedings, before testimony is adduced, Complainant's allegations suffice to bring the injuries within the ambit of "substantial pain" and thus "physical injury." See People v. Henderson, 92 NY2d 677, 680-81 (1999).

Defendant's motion to dismiss the assault count is therefore denied.

B.Endangering the Welfare of a Child

Penal Law § 260.10(1) provides that a person is guilty of endangering the welfare of a child "when . . . [h]e or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old . . . ." For purposes of this charge, "[a] person acts knowingly . . . when he [or she] is aware that his conduct is of such nature or that such circumstance exists." Id. § 15.05(2). A defendant may be guilty under this subdivision even when the conduct is not directed at a child. People v. Johnson, 95 NY2d 368, 373 (2000) (holding "evidence of a child witnessing a severe act of violence" sufficient to establish prima facie elements of C.P.L. § 260.10). Because "the crime is solely defined by the risk of injury produced by [a] defendant's conduct," id., "actual harm to the child need not result for liability under the statute to attach . . . ," People v. Simmons, 92 NY2d 829, 830 (1998).

Here, a reasonable fact-finder could find that by pulling Complainant's hair, slapping or punching the pregnant Complainant, and breaking things in the apartment, Defendant acted in a manner that was "likely to be injurious to the mental or moral welfare" of Complainant's children, whom the officers observed to be crying. See Johnson, 95 NY2d at 373; see also, e.g., People v. Louis, 15 Misc 3d 128(A) (App. Term, 2nd & 11th Jud. Dists. 2007) ("[T]he fair implication of the allegation in the [*7]factual part of the information, that . . . defendant hit the child's mother in the mouth with his hand in the presence' of their two-and-one-half-year-old child, was legally sufficient to establish, if true, that defendant, knowing the child was present, engaged in conduct [prohibited by the endangering statute].").

With respect to whether Defendant was aware that the children were present when he assaulted Complainant, Defendant relies on a pre-Johnson case, People v. Pelt, 157 Misc 2d 90, 91 (Kings Co. Crim. Ct. 1993). But Pelt involved an entirely distinct set of facts. There, the accusatory instrument alleged that the defendant had fired a revolver in the direction of the complainant's moving vehicle, and further alleged that complainant's three-year-old child was in the vehicle at the time. Id. Thus, the court held that there "[we]re no facts which demonstrate[d] that the defendant knew the child was in the car, e.g., that the child was visible." Id. at 93.

The circumstances in the instant case stand in sharp contrast to Pelt, as Defendant and Complainant here were in a relationship from which Defendant's knowledge of Complainant's children's presence at the apartment could be inferred. Moreover, Complainant explicitly stated that her "breaking point was when [her] son saw [her] like this and he had to help," further supporting the reasonable inference that Defendant was aware of the children at the time of his conduct. (Information 2.)

The motion to dismiss this charge is denied.

C.Criminal Mischief in the Fourth Degree

The People concede the insufficiency of this charge and consent to its dismissal.

Accordingly, the Penal Law § 145.00 charge is dismissed.

D.Harassment in the Second Degree

Penal Law § 240.26(1) provides that "[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person . . . [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same[.]"

In this case, the allegation that Defendant slapped or punched Complainant establishes all of the elements of second-degree harassment. See People v. Bartkow, 96 NY2d 770, 772 (2001) ("[P]etty forms of offensive touching, such as striking, shoving and kicking, are prohibited when committed with the intent to annoy, harass [*8]or alarm the victim."); People v. Correa, 75 AD3d 478, 479 (1st Dep't 2010) ("The evidence supports the inference . . . that at the time defendant struggled with his wife, grabbed her by her hair and slammed her into a wall, he did so with the intent to harass, annoy or alarm her." (internal citation omitted)).

Dismissal of this charge is denied as well.

Motion to Suppress Statements

Defendant moves pursuant to C.P.L. § 710.20 to suppress all properly-noticed statements made to the police on the grounds that such statements were made involuntarily and/or in violation of Defendant's rights under Miranda v. Arizona, 384 U.S. 436 (1966). Alternatively, Defendant moves for a hearing to determine the admissibility of the same.

In order to show that the court is obligated to grant a suppression motion, C.P.L. § 710.60(2) requires either that the People concede all allegations in Defendant's suppression motion or stipulate not to use the evidence at issue in any action or proceeding against Defendant. Since the People have done neither (see Aff. in Opp'n), Defendant's motion to suppress is denied.

Nevertheless, with respect to Defendant's request for a hearing concerning the involuntariness of his alleged statements to police, C.P.L. § 710.60 "mandates that a Huntley hearing be held whenever defendant claims that his statement was involuntary." People v. Clemons, 166 AD2d 363, 365 (1st Dep't 1990).

Accordingly, Defendant's request for a hearing pursuant to People v. Huntley, 15 NY2d 72 (1965), is granted.

Defendant also asserts that his alleged statement was obtained as a fruit of an unlawful arrest in violation of his constitutional rights under the Fourth and Fourteenth Amendments of the United States Constitution and under article I, section 12 of the New York State Constitution. Alternatively, Defendant moves for a hearing pursuant to Dunaway v. New York, 442 U.S. 200 (1979), to determine whether her arrest was made pursuant to an unlawful search and seizure.

While a Dunaway hearing "to suppress evidence is not automatic under CPL 710.60(1), it is warranted if the motion papers contain sufficient factual allegations." See People v. Mabeus, 47 AD3d 1073, 1074 (3d Dep't 2008) (citing People v. Bryant, 8 NY3d 530, 533 (2007)). In determining whether a defendant has alleged sufficient facts warranting either a hearing or suppression, the court is required to assess three factors: (1) the face of the pleadings; (2) the context of the motion; and (3) the defendant's access to information. People v. Mendoza, 82 NY2d 415 (1993); see also Bryant, 8 NY3d at 533 (ordering Dunaway hearing where defendant could not allege [*9]facts exclusively within knowledge of the People).

Here, Defendant has failed to controvert the Complaint's allegations. Defendant merely states that his statement should be suppressed as a "tainted fruit of an unlawful arrest." (Mem. of Law 23.) These conclusory assertions are insufficient to warrant the granting of a Dunaway hearing.

Accordingly, Defendant's motion for a Dunaway hearing is denied.

This constitutes the Decision and Order of the Court.

Dated: December 22, 2014

Bronx County, New York

SO ORDERED:

____________________________

Jeanette Rodriguez

Judge of the Criminal Court Footnotes

Footnote 1: In deciding this motion, the court has considered defense counsel's motion [i.e., Notice of Motion, dated November 21, 2014; the affirmation of Porsha Shaf'on Venable, Esq., dated November 17, 2014 ("Venable Aff."); and a Memorandum of Law, dated November 21, 2014 ("Mem. of Law")]; the People's opposition papers, dated December 5, 2014 ("Aff. in Opp'n"); the information, dated September 20, 2014; and the court action sheets.

Footnote 3: Examples of testimonial statements include "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," and "statements taken by police officers in the course of interrogation . . . ." Crawford, 541 U.S. at 52.

Footnote 4: The Confrontation Clauses in the Sixth Amendment of the United States Constitution and article I, section 6 of the New York State Constitution are read coextensively by the Court of Appeals. See People v. Bradley, 8 NY3d 124, 126 (2006) ("Defendant here relies on both the federal and state Confrontation Clauses, but does not suggest that the two be interpreted differently, and we therefore accept the holdings of Crawford and Davis as the basis for our decision under both constitutions."); People v. Clay, 88 AD3d 14, 27 (2d Dep't 2011) ("[W]e follow the example of our Court of Appeals in People v. Bradley, [] and accept the federal jurisprudence as the basis for our decision . . . .").