People v Carter

[*1] People v Carter 2015 NY Slip Op 51738(U) Decided on December 2, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 2, 2015
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Bernard Carter, Defendant.



2015NY038507



For the People: Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Daria Andryushchenko For the Defendant: The Legal Aid Society, by Jamie Niskanen-Singer, Esq.
Steven M. Statsinger, J.

Does a Domestic Incident Report ("D.I.R.") proffered as a supporting deposition that refers to the suspect only as "the Brother" convert a misdemeanor complaint into an information? People v. DeFreitas, 48 Misc 3d 569, 579-80, 9 N.Y.S.3d 822, 828-29 (Crim Ct NY County 2015), held that a D.I.R. that referred to the suspect only by the bare pronoun "he" did not convert, and defendant asks the Court to apply that same reasoning to the D.I.R. here.

For the reasons that follow, the Court agrees that, in this particular case, the D.I.R. does not convert the misdemeanor complaint. The Court therefore GRANTS the motion to deem the accusatory instrument unconverted. The case will be adjourned for conversion.

I. FACTUAL BACKGROUND

A. The Misdemeanor Complaint

According to the misdemeanor complaint, on the afternoon of June 18, 2015, defendant choked the complainant with his arm while saying, "I am going to kill you."

2. Legal Proceedings

Defendant was arraigned on June 19, 2015, and released pending conversion. On July 27, in court, the People filed the complainant's D.I.R. The Court orally deemed the misdemeanor complaint converted, and adjourned the case for motion practice.

Defendant filed the instant motion - styled in the alternative as a motion to dismiss or a motion to deem the misdemeanor complaint unconverted - on August 28, 2015. The People, given until September 30 to respond, elected not to. The matter has been sub judice since September 30.

[*2]3. The Misdemeanor Complaint and D.I.R.

The caption of the misdemeanor complaint names the defendant, Bernard Carter, and asserts that this matter is a "FAMILY OFFENSE." It continues with 'DEFENDANT/VICTIM RELATIONSHIP: BROTHER IN LAW."

The accusatory portion of the misdemeanor complaint charges the defendant with criminal obstruction of breathing or blood circulation, Penal Law § 121.11(a), menacing in the third degree, Penal Law § 120.15, and harassment in the second degree, Penal Law § 240.26(a).

Its factual portion, sworn out by a detective on June 18, 2015, provides:

I am informed by [the complainant] that [at or about 12:30 p.m. on June 18, 2015, in New York County] he observed the defendant use his arm to apply pressure to his neck by forcefully squeezing it. I am also informed by [the complainant] that, as the defendant was forcefully squeezing his neck, the defendant stated to him in substance: "I am going to kill you."

The Statement of Allegation / Supporting Deposition page of the D.I.R. does not name a suspect. The prominent box at the top of that form, which is intended to include the suspect's name, is blank. The handwritten narrative on that page provides:

I came to the Apartment [address omitted] and knock on the Door the Brother push me as I came to the door and he push me then he came back and put me in a cho[ke] Hol[d] and try to Slam me as well I was short [of] Breath cause he had cho[ked] me so I called 911 again. It was pain on my neck it Hurt as well shortness of Breath And He Also grab my phone my note B and throw it across the other side of the Hallway He crack the side of the phone and chip the top part of the phone.

The D.I.R. asserts that this incident occurred on June 18, 2015 at 12:30 p.m. It was subscribed to and verified by the complainant on that same day.

II. DISCUSSION

Defendant is correct that, under this Court's decision in People v. DeFreitas, 48 Misc 3d 569, 579-80, 9 N.Y.S.3d 822, 828-29 (Crim Ct NY County 2015), the D.I.R. here, which identifies the suspect only as "the Brother" does not convert the misdemeanor complaint.[FN1] The hearsay in the misdemeanor complaint identifying this defendant, Bernard Carter, as the person who attacked the complainant remains unconverted. See CPL § 100.40 (1)(c) (an information must contain nonhearsay allegations that establish each element of the offenses charged and defendant's commission thereof).

DeFreitas found deficient a D.I.R. the supporting deposition portion of which did not name the suspect, and the sworn allegations of which referred only to the suspect as "he." 48 Misc 3d at 581. The Court concluded that there was no reasonable way to connect the word "he" to the defendant: the place on the supporting deposition where the suspect's name was supposed to be was blank, and there was no natural or obvious way of connecting the "he" referred to there to the named suspect on the police report that comprised the first page of the D.I.R., which was hearsay. Id. at 572, 580. In addition, the D.I.R. had been completed several months before the defendant was arrested and a misdemeanor complaint was filed, thus there was no clear connection between the "he" mentioned in the earlier document and the defendant named in the later. Id. at 579.

This case is materially indistinguishable. The phrase "the Brother" in the D.I.R. is as generic as the bare pronoun "he." First, the term "Brother" itself does not necessarily describe a sibling. That term is also used both as a generic signal of male affinity, as in the phrase "Brother, can you spare a dime?" and, with perhaps a bit more specificity, as a generic signal for racial or ethnic affinity, as in the title to the classic 1984 John Sayles film, "The Brother From Another Planet." Additionally, the article "the" fails to pin the term "Brother" to its arguably more typical usage as a word describing a male sibling in the way that a pronoun such as "my" or "his" would have done.

Nor, as in DeFreitas, is there any other way to connect "the Brother" described in the D.I.R. to the defendant before the Court. As there, the D.I.R. does not, and could not, make specific reference to the misdemeanor complaint, or the defendant named in the complaint, as a traditional supporting deposition would, since the D.I.R. was completed before the complaint was filed.

To be sure, this case does differ from DeFreitas in terms of the timing of the pertinent events. There, the D.I.R. was completed several months before the defendant was arrested and the misdemeanor complaint was filed. Here, everything happened on the same day: on June 18, 2015, the complainant completed the D.I.R., the defendant was arrested, and the misdemeanor complaint was filed. However, even though the timing of the events in DeFreitas was clearly material to its holding, the Court does not view the compressed time period here as requiring a different outcome. Even assuming, arguendo, that the defendant was present and under arrest - although these facts are far from certain - when the complainant completed his portion of the D.I.R., that still would not obviously establish that this defendant was "the Brother."

Finally, the Court notes that a different outcome is also not required by virtue of the fact that this defendant is named on the first page of the D.I.R. - the police report portion - which is hearsay. While the Court continues to expect that a case will someday arise in which language in the complainant's portion of the D.I.R. can reasonably connect an otherwise unnamed individual to the person named in the police report, id. at 579-80, this is not such a case. There is simply nothing about the phrase "the Brother" that can be seen as reasonably creating a connection either to the police report portion of the D.I.R. or to this defendant.

Accordingly, the Court agrees with the defendant that the D.I.R. does not convert the misdemeanor complaint. While this should not result in a dismissal of the instrument, see, e.g., People v. Walcott, 47 Misc 3d 1217(A), 16 N.Y.S.3d 794 (Crim Ct NY County 2015) (where instrument is found to be unconverted, dismissal is not the appropriate remedy), it should result [*3]in an adjournment for conversion. Id.

IV. CONCLUSION

The Court agrees that the D.I.R. in this case does not convert the misdemeanor complaint. The motion to deem the misdemeanor complaint unconverted is granted, and the case is adjourned for conversion.

This constitutes the Decision and Order of the Court.

Dated: December 2, 2015_______________________

New York County, New YorkSteven M. Statsinger

Judge of the Criminal Court

Footnotes

Footnote 1:Although the Court orally deemed the misdemeanor complaint converted at the July 27, 2015, calendar call, this is a case where leave to reargue should be, and is, granted. DeFreitas, 48 Misc 3d at 577, 9 N.Y.S.3d at 827. As there, the ruling challenged was oral, made by the same judge, and defense counsel challenged it promptly, having filed the motion three days before the due date fixed by the Court.