People v Moses
Annotate this CaseDecided on September 3, 2015
Criminal Court of the City of New York, Queens County
The People of the State of New York
against
Melanie Moses, Defendant.
2014QN025517
Attorney for defendant:
Felipe Garcia
Attorney for the People:
ADA Paige Nyer
Althea E. Drysdale, J.
The accusatory instrument alleges that, between March 4, 2014, 7:00 p.m., and March 18, 2014, 7:00 p.m., inside of 214-26 41st Avenue, in Queens County, New York, Detective Vincent Gannon was:
"informed by the complainant, Catherin[e] Kinsley, that on or about March 3, 2014 at the above mentioned time and place of occurrence, the defendant, Melanie Moses, showed up at her place of work uninvited, followed her to her vehicle and banged on the windows after she locked herself in the vehicle.
Deponent further states that he is informed by the complainant that the above mentioned actions of the defendant caused her annoyance and alarm.
Deponent further states that he is informed by the complainant that on March 18, 2014 at the above mentioned time and place of occurrence, the defendant showed up at her place of work uninvited and attempted to follow her into her place of employment, at which point a struggle ensued over the front door between the defendant and complainant.
Deponent further states that he is informed by the complainant that the defendant repeatedly and continuously sends her emails and text messages professing her love for the complainant, and that these messages were sent and received after the complainant broke up with the defendant and indicated that she does not wish to communicate with the defendant.
Deponent further states that he has reviewed eight (8) of the emails sent from the defendant to the complainant, and that he is informed by the complainant that said communication caused her to fear for her safety."
The Court previously dismissed all charges alleged in the complaint except for one count of Stalking in the Fourth Degree under Penal Law § 120.45(1).
On July 20, 2015, the People filed three (3) prosecutor's informations which charge the defendant with three (3) counts of Stalking in the Fourth Degree, under Penal Law §§ 120.45(1), 120.45(2), and 120.45(3), respectively, based on events from an expanded time frame from June 27, 2013 to March 19, 2014. The time period was altered to encompass the dates of the eight (8) emails referred to in the complaint.
The defendant has moved to preclude the People from filing the prosecutor's informations, arguing that, by adding approximately nine (9) months to the time period at issue, they have amended the factual allegations of the original information, substantially altered the theory of the case, and prejudiced the defendant. The People oppose the motion and argue that the defendant is not prejudiced because the prosecutor's informations only expand the time period at issue to include the dates of emails mentioned in the original information, which were previously provided to the defendant.
Generally, the amendment of a complaint must be scrutinized to avoid surprise and prejudice to the defendant (see People v Donadeo, 44 Misc 3d 1202[A], 8 [Crim Ct, Queens County 2014]). Therefore, an amendment which is merely a minor correction or technicality is not improper (id. at 9. [amendment of the name of the informant officer "did not change or effect the factual allegations [*2]necessary to establish a prima facie case"]). An information may only be "amended as to matters of form which do not change the theory of prosecution" (id. at 6). Surely, any change which hinders the defendant from fully examining and scrutinizing all possible defenses prior to trial is defective (see People v Warren, 17 Misc 3d 27, 29 [App Term, 2d, 11th & 13th Jud Dists 2007][where the amendment corrected the alleged time of the offenses, Criminal Contempt in the Second Degree and Aggravated Harassment in the Second Degree, to eleven (11) hours later, it was not a mere technicality; had the defendant known the correct time earlier, he may have been able to pursue an alibi defense]).
Here, the prosecutor's informations have expanded the time frame at issue to include additional dates but have not altered the theory of prosecution. The defendant was on notice of such communications, even though she was not noticed of the additional counts relating thereto until the People filed the prosecutor's informations. Given that the original complaint cites these specific communications, and the prosecutor's informations do not supplement the factual allegations, the defendant's motion to preclude the People from filing the prosecutor's informations is DENIED.
The foregoing constitutes the opinion, decision, and order of the court.Dated: September 3, 2015
Kew Gardens, New York
ENTER
___________________________
ALTHEA E. DRYSDALE, J.C.C.
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