People v Swint

[*1] People v Swint 2015 NY Slip Op 51336(U) Decided on September 17, 2015 Criminal Court Of The City Of New York, New York County Cesare, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 17, 2015
Criminal Court of the City of New York, New York County

The People of the State of New York,

against

Michael Swint, Defendant.



2014NY029617



For the defendant, Anton Robinson, Esq., New York County Defender Services For the People, Sarah Walsh, Esq., ADA
Heidi C. Cesare, J.

Defendant, charged with falsely reporting an incident in the third degree, Penal Law § 240.50 (3) (a), moves to dismiss the information as facially insufficient. For the reasons stated below, the motion to dismiss is GRANTED.[FN1] Sealing is stayed for 30 days.

I. THE INFORMATION

The factual allegations in the criminal court complaint, sworn out by Detective Christopher Kolenda, read as follows:

"I spoke to the defendant and completed a complaint report for a robbery after he told me that three perpetrators robbed him at gunpoint of his 2005 Chrysler Pacifica minivan in the vicinity of the northwest corner of Third Avenue and East 37th Street on September 29, 2013 at approximately 4:10 am. The defendant also told me that he was celebrating his birthday with three friends and left "515 Bar" located at 515 Third Avenue near the corner of 35th Street at approximately 4:00 a.m., and drove said minivan northbound on Third Avenue for a couple blocks until the above car jacking took place.

I have spoken with an individual of an address known to the District Attorney's Office, that on September 29, 2013 at approximately 3:40 am, he observed a 2005 Chrysler Pacifica minivan run a red light at a high rate of speed and crash into a taxi cab on the corner of Third Avenue and East 79th Street, destroying both cars and causing the taxi cab driver several lacerations on his face and hands. I have reviewed cell phone records which demonstrate that the defendant's cell phone was pinging off a tower that was one city block north of the crash location [*2]at 3:42 a.m. on the same date. "

II. PROCEDURAL HISTORY

On April 16, 2014, the defendant was arraigned on a criminal complaint charging him with one count of falsely reporting an incident in the third degree, Penal Law § 240.50 [3] [a]. The court adjourned the case to May 27, 2014 for conversion. Off calendar, on April 24, 2014, the People served and filed a supporting deposition and certificate of readiness. On May 27, 2014, the court deemed the complaint an information, set a motion schedule, and adjourned the case to July 14, 2014 for response and decision. On July 14, 2014, the People served and filed a response along with a voluntary disclosure form. The court adjourned the case to October 9, 2014 for hearings and trial. On October 9, 2014, the People announced ready and the defense requested an adjournment. The court granted the adjournment to December 10, 2014 and scheduled the case for a possible disposition. On December 10, 2014, the court granted another adjournment, to February 5, 2015, for possible disposition. On February 5, 2015, absent a disposition, the court adjourned the case to March 26, 2015 for hearings and trial. On March 26, 2015, the People announced not ready and the court adjourned the case to May 13, 2015 for hearings and trial. The People filed a certificate of readiness off calendar on April 7, 2015. On May 13, 2015, the People announced ready for hearings and trial, and the defense served and filed the instant motion to dismiss. The court adjourned to June 24, 2015, for response and decision on the instant motion. On June 24, 2015, the People filed a response and the court adjourned the case to September 22, 2015 for decision on the instant motion.

III. DISCUSSION The defendant is charged with falsely reporting an incident in the third degree, Penal Law § 240.50 (3) (a). He is accused of falsely reporting to the police that his minivan was "car jacked" when, it is asserted, the minivan he was driving was actually destroyed in a car collision one half hour before the falsely reported car theft. The defendant now moves to dismiss the misdemeanor information as facially insufficient on the ground that the information fails to give reasonable cause to believe that he reported an incident which did not in fact occur. The court finds that the only allegations connecting the defendant to the car collision are conclusory and thus fail to give reasonable cause to believe that the defendant reported an incident which did not in fact occur.

A. Facial Sufficiency in General

A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution (People v Jackson, 18 NY3d 738, 741 [2012]). Since this defendant has not waived his right to be prosecuted by information, the court must assess his motion on the standards governing an information (People v Kalin, 12 NY3d 225, 228 [2009]). An information is "sufficient on its face" when three requirements are met (CPL 100.40 [1]). One, the information must be in substantial conformity with CPL 100.15 which prescribes the form and content for informations, misdemeanor complaints and felony complaints (100.40 [1] [a]). Two, the "the reasonable cause" requirement demands that the factual allegations in the information and any supporting depositions "provide reasonable cause to believe that the defendant committed the offense charged" (People v Alejandro, 70 NY2d 133, 137[1987]; CPL 100.40 [1 ] [b]). Three, the "prima facie case" requirement demands that the nonhearsay allegations of the information and supporting depositions "establish, if true, every element of the offense charged [*3]and the defendant's commission thereof" (Alejandro at 137[1987]; CPL 100.40 [1] [c]). A court reviewing for facial insufficiency must subject the allegations in the information to a "fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]). The court must assume that the allegations are true (People v Konieczny, 2 NY3d 569, 575 [2004]; CPL 100.40 [1] [c]), and consider all "reasonable inferences" that may be drawn from them (see Jackson at 747).

After arraignment upon an information or a misdemeanor complaint the court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that the information is not sufficient on its face (CPL 170.30 [1] [a]); 170.35 [1] [a]). The court, however, may not dismiss the accusatory instrument "where the defect or irregularity is of a kind that may be cured by amendment and where the people move to so amend" (CPL 170.35 [1] [a]).

B. Conclusory Allegations

Where a misdemeanor information contains a conclusory statement, that conclusion must be "supported by evidentiary facts showing the basis for the conclusion" (People v Dumas, 68 NY2d 729, 731 [1986)]). A "mere conclusory statement . . . does not meet the reasonable cause requirement'" (People v Dreyden, 15 NY3d 100, 103 [2010], quoting People v. Kalin, 12 NY23d 225, 229 [2009]). Factual allegations of an evidentiary character are "nonconclusory descriptions of what the deponent personally observed, heard or experienced" (People v Phillipe, 142 Misc 2d 574, 578 [Crim Ct, Kings County 1989]). They are the "the written equivalent of competent and relevant testimony which the deponent could give orally if called as a witness" (Id., see also People v Diaz, 48 Misc 3d 1208(A) [Crim Ct, New York County 2015]).

C. The Information is Facially Insufficient.

Under Penal Law § 240.50 (3) (a), a person is guilty of falsely reporting an incident in the third degree when, "knowing the information reported, conveyed or circulated to be false or baseless he [g]ratuitously reports to a law enforcement officer or agency . . . the alleged occurrence of an offense or incident which did not in fact occur. . ." In order to survive a facial sufficiency challenge the misdemeanor information must provide reasonable cause to believe and nonhearsay factual allegations supporting the two elements of the offense: (1) the defendant gratuitously reported to a law enforcement officer or agency the alleged occurrence of an offense or incident which did not in fact occur; and (2) the defendant knew that the information reported was false or baseless. (CPL 100.40 [1] [b], [c]; see People v Torres, 188 Misc 2d 58 [Crim Ct, Bronx County 2001] ).

At issue here is whether the misdemeanor information provides reasonable cause to believe that the defendant reported a "car jacking" which did not in fact occur. The misdemeanor information, however, does not state expressly that the car theft did not in fact occur. Instead, the People urge the court to infer from other circumstantial allegations that the reported car theft did not in fact occur. The People's theory is that on September 29, 2013, the defendant was driving a 2005 Chrysler Pacifica minivan which was destroyed in a car collision at 3:40 a.m. near Third Avenue and 79th Street, and, instead of honestly reporting the collision to the police, the defendant falsely reported that he had been "car jack[ed]" at approximately 4:10 a.m. near Third Avenue and 35th Street. In order to draw the inference that the defendant reported a car theft which did not in fact occur, the court must look to the facts plead and determine whether these facts give reasonable cause to believe that the defendant was driving the minivan destroyed in the [*4]3:40 a.m. car collision.

The People allege that "on September 29, 2013 at approximately 3:40 am . . . a 2005 Chrysler Pacifica minivan . . . [was destroyed in a car collision at] the corner of Third Avenue and East 79th Street. . . [and the deponent] reviewed cell phone records which demonstrate that the defendant's cell phone was pinging off a tower that was one city block north of the crash location at 3:42 a.m." The people argue that these allegations provide reasonable cause to believe that the defendant was driving the minivan that was destroyed in the 3:40 a.m. collision.

Standing alone, the claim that the destroyed minivan was similar by year, make and model to the minivan reported stolen by the defendant is an insufficient factual basis for this court to reasonably conclude that the minivan destroyed in the 3:40 a.m. collision was driven by the defendant. The People have provided no reasonable cause to believe that one and only one 2005 Chrysler Pacifica minivan was traveling the streets of New York County on the night in question, and the court will not so infer.

The further allegation that the deponent "reviewed cell phone records[FN2] which demonstrate that the defendant's cell phone was pinging off a tower that was one city block north of the crash location at 3:42 a.m." will not cure the insufficiency. Focusing first on the alleged ownership of the cell phone, the only allegation relating to ownership is the deponent's bare assertion that the cell phone belonged to the defendant. Absent any facts showing the basis for the deponent's conclusion that the cell phone belonged to or was used by the defendant, the assertion that the cell phone was "defendant's cell phone" is a conclusory statement. (see Dreyden, 15 NY3d 100, 104 [2010]).

The only other allegation connecting the defendant to the destroyed minivan is the deponent's statement that he read and analyzed the cell phone records and determined that the cell phone was "pinging" near the site of the collision. Interpretation of historical cell site data, however, is beyond the ken of an ordinary layperson (see Judge Herbert B. Dixon Jr., Scientific Fact or Junk Science? Tracking a Cell Phone without GPS, The Judge's Journal, Vol. 53 No. 1 [2014], available at http://www.americanbar.org/publications/judges_journal/2014/winter/scientific_fact_or_junk_science_tracking_a_cell_phone_without_gps.html [accessed September 10, 2015]). Absent any allegation that the deponent is trained and knowledgeable in the interpretation of historical cell site data, the assertion that the cell phone was "pinging" at a certain place and time is a mere conclusory statement. As per the Court of Appeals, "[W]hen an allegation involves a conclusion drawn by a police officer that involves the exercise of professional skill or experience, some explanation concerning the basis for that conclusion must be evident from the accusatory instrument. Otherwise, the allegation will be deemed too conclusory to meet the reasonable cause requirement." (People v Jackson, 18 NY3d 738, 746 [2012]).

Thus, the only allegations connecting the defendant to the destroyed minivan are conclusory. Absent factual allegations of an evidentiary nature supporting a connection between the defendant and the destroyed minivan, the court has no basis to reasonably infer that the [*5]defendant reported a "car jacking" which did not in fact occur. Since the court has no basis to reasonably infer that the defendant falsely reported a "car jacking", the court finds that the misdemeanor information fails to meet the reasonable cause requirement. For these reasons, the misdemeanor information is facially insufficient.

D. The Defect Might Be Curable. This is a case where there might be additional facts available to the People that, if properly pled, could cure the insufficiency. Accordingly, while the Court is dismissing the information, it does so with leave to the People to supersede or file additional supporting depositions. Sealing is stayed for 30 days. IV. Conclusion

For the foregoing reasons, defendant's motion to dismiss for facial insufficiency is granted, with leave to the People to supersede or file additional supporting depositions. Sealing is stayed for 30 days.

This constitutes the Decision and Order of the Court.

September 17, 2015

_______________________

Heidi C. Cesare, J.C.C.
New York, New York Footnotes

Footnote 1: In deciding this motion, the court has considered defendant's notice and omnibus motion dated June 27, 2014, the People's affirmation in response and the voluntary disclosure form dated July 11, 2014, defendant's notice and motion to dismiss dated May 13, 2015; People's affirmation in response dated June 23, 2015, the complete court file, relevant statues and case law.

Footnote 2:The People have not provided a description of the referenced cell phone records, nor disclosed them with the voluntary disclosure form, nor laid a foundation to support the claim of admissibility under the business records hearsay exception (see CPLR 4518; CPL 60.10).