People v Reyes
Annotate this CaseDecided on December 14, 2015
Criminal Court of the City of New York, Bronx County
The People of the State of New York,
against
Rigoberto Reyes, Defendant.
2015BX031628
The People — Robert T. Johnson, District Attorney, Bronx County by Alina Levi, Assistant District Attorney
Defendant — The Heinrich Law Group, P.C. by Jay Heinrich, Esq.
Armando Montano, J.
Defendant is charged with one count of Patronizing a Prostitute in the Third Degree (PL § 230.04).
Defendant moves for an order 1) dismissing the accusatory instrument as facially insufficient; 2) suppressing any and all statements attributed to defendant which the People intend to introduce at trial on the grounds that said statements were involuntarily made within the meaning of CPL § 60.45; 3) dismissing the accusatory instrument in the interest of justice; 4) dismissing the accusatory instrument for the violation of defendant's due process rights, or in the alternative, granting an Isaacson hearing; 5) precluding the People from reducing the offense charged against defendant to an attempt for the sole purpose of depriving defendant of his right to a jury trial; 6) precluding the People from introducing at trial evidence of defendant's prior convictions or bad acts, or in the alternative, granting a hearing on the issue; and7 ) granting defendant the right to make additional pretrial motions and the right to amend and/or supplement this motion if made necessary or appropriate by the People's future disclosure.
The factual allegations in the accusatory instrument sworn to by the deponent, PO Paul Iazzetti, read as follows:
Deponent states, upon information and belief, the source of which the is the supporting deposition being filed with this instrument by UCO Sh[ie]ldNo. 7951 of the 44 PCT that [on or about May 16, 2015 at approximately 12:42 AM at East 174 Street and Webster Avenue, County of the Bronx, State of New York], informant was approached by the defendant, who asked informant to engage in sexual conduct to wit wanted a blow job in exchange for giving informant $20.00 U.S. currency, in that the defendant stated to informant in substance JUST GIVE ME A [*2]BLOW JOB.
Motion to Dismiss the Accusatory Instrument as Facially Insufficient
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Defendant notes that the supporting deposition filed in this case is a form document that contains boilerplate language. Citing People v. McGinnis, 42 Misc 3d 183 (Crim Ct, NY County 2013), defendant urges this court to closely examine the language contained in the supporting deposition to determine whether it provides the necessary individualized recitation of facts required to satisfy the requirements of CPL §§ 100.15 and 100.40.
In opposition, the People assert that the information is facially sufficient as it substantially conforms to the requirements of CPL §§ 100.15 and 100.40 since it is based upon the personal knowledge and belief of the arresting officer and it sufficiently alleges the elements of the offense charged. The People note that the information and the supporting deposition allege that the undercover officer was approached by defendant and asked by him to engage in oral sex in exchange for the sum of $20.00. The People note that defendant has failed to cite any case law in support of his contention that the utilization of a supporting deposition form is insufficient.
It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15[3]; People v. Dumas, 68 NY2d 729 [1986]) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40[1][c]). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b); Dumas, 68 NY2d 729. Reasonable cause to believe that a defendant committed the crimes charged "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. "In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged." People v. Hightower, 18 NY3d 249, 254 (2011).
In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15; People v. Mellish, 4 Misc 3d 1013(A) (Crim Ct, NY County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103 (1986). "The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefore be sufficiently alleged." People v. Sylla, 7 Misc 3d 8, 10 (App Term, 2d Dept. 2005). As such, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354, 360 (2000).
In McGinnis, supra, the defendant was charged with Loitering for the Purpose of Engaging in Prostitution. The court discussed at length the form and content of the accusatory instrument and a preprinted, check-off type supporting deposition. The facts alleged in the complaint mirrored those supplied in the supporting deposition. In granting the defendant's motion to [*3]dismiss, the court held that a complaint which only alleged that the defendant, who was previously arrested for prostitution, was observed talking to three individuals late at night in an area frequented by prostitutes was facially insufficient. Most critically, the court did not hold that the use of a preprinted form was prohibited. Rather, the court explained that its lengthy discussion of the preprinted form was done only to stress "the need for an individualized recitation of facts which set forth the elements of an offense based upon the actual observations of the deponent in a given case." Id. at 192-193.
"The usual supporting deposition is merely a statement that the complaining witness has read the accusatory instrument and the facts stated therein are true." People v. Modica, 187 Misc 2d 635, 638 (Crim Ct, Richmond County 2001). The definition of a supporting deposition is expansive and only requires that it be a "written instrument" that is "subscribed and verified" and "contain[s] factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein." CPL § 100.20. Therefore, "any document offered as a supporting deposition must either refer to the facts in the accusatory instrument or must recite factual allegations which substantially mirror those set forth in the accusatory instrument." People v. Stridiron, 175 Misc 2d 16, 18 (Crim Ct, Queens County 1997).
The supporting deposition of Undercover Officer #7951 is duly subscribed and verified pursuant to CPL § 100.30 and mirrors the allegations set forth in the accusatory instrument. Even though the supporting deposition is a form document, it satisfies all the requirements of CPL § 100.20. While the pre-printed section of the supporting deposition recites the elements of the charged offense, there are also fill-in-the-blank spaces where the undercover officer wrote in additional facts based upon her personal observations.
"A person is guilty of patronizing a prostitute in the third degree when he or she patronizes a prostitute." PL § 230.04. "A person patronizes a prostitute when: (b) he pays or agrees to pay a fee to another person pursuant to an understanding that in return therefor such person or third person will engage in sexual conduct with him; (c) or he solicits or requests another person to engage in sexual conduct with him in return for a fee." PL §§ 230.02(b), (c).
When read in conjunction, the accusatory instrument and the supporting deposition of Undercover Officer #7951 sufficiently allege that the officer was approached by defendant and then offered to engage in sexual conduct with her in exchange for the sum of $20.00. For purposes of pleading, no additional factual allegations are required for the charge of PL § 230.04.
Based on the foregoing, this court finds that the accusatory instrument and the supporting deposition of the undercover officer 1) sets forth sufficient non-hearsay allegations of an evidentiary nature which support each and every element of the offense charged and 2) provides reasonable cause to believe that defendant requested another person to engage in sexual conduct with him in return for a fee. Therefore, defendant's motion to dismiss on the grounds of facial insufficiency is denied.
Motion to Dismiss in the Interest of Justice
Defendant, through his attorney, describes himself as a "hardworking shy family man with no criminal record who speaks and understands limited English." Affirmation of defendant's counsel at 2. On or about May 16, 2015 at approximately 12:40 a.m., defendant maintains that he was stopped at a red light in the center lane of traffic on his way home from [*4]work when he was "accosted, badgered and entrapped by an undercover officer posing as a prostitute." Id. Defendant claims that the undercover officer crossed four lanes of traffic all the while grabbing her breasts and blowing kisses. Defendant denies ever asking the undercover officer to engage in any sexual activity in exchange for a fee. In fact, defendant contends that the undercover officer did all of the talking. Despite repeatedly rebuffing the undercover officer's advances, defendant argues that the undercover officer, in violation of his due process rights, continued to ask him to engage in illicit conduct.
Defendant argues that the two most compelling factors militating in favor of dismissal in the interest of justice are the history, character and condition of defendant and any exceptionally serious misconduct of law enforcement personnel. Defendant asserts that the serious misconduct on the part of law enforcement compels dismissal for a wholly manufactured crime that would not have occurred but for the "flagrant and grotesque" actions of the undercover officer. Affirmation of defendant's counsel at 6.
The People note that a dismissal in the interest of justice is to be granted sparingly and only where a defendant satisfies his or her burden of establishing some compelling factor clearly demonstrating that continued prosecution or conviction would result in injustice. The People aver that defendant has failed to meet his burden. The People argue that defendant's contention that he is a shy hardworking family man with no prior contacts with the criminal justice system is not a sufficient ground for dismissal. As to defendant's allegations of serious misconduct on the part of law enforcement, the People point out that defendant lacks definitive proof thereof to justify such claims. Therefore, defendant's version of events as to what transpired just prior to his arrest remains issues of fact to be determined at trial.
Criminal Procedure Law § 170.40 lists 10 factors which the court must consider when determining whether to grant dismissal in the interest of justice [FN1] . "The power to dismiss on such ground is, as provided in the statutory text, committed to the trial court's discretion; it should be exercised sparingly and only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations." People v. Harmon, 181 AD2d 34, 36 (1st Dept. 1992) (internal quotation marks omitted).
The court need not "engage in a point-by-point catechistic discussion of all ten statutory factors; instead, the court is required to consider the factors individually and collectively in making a value judgment that is based upon striking a sensitive balance between the interests of the individual and those of the state." People v. Gragert, 1 Misc 3d 646, 648 (Crim Ct, NY County 2003); see also, People v. Rickert, 58 NY.2d 122 (1988). Where the defendant fails to meet his burden of demonstrating by the preponderance of the evidence that a compelling factor exists to [*5]warrant dismissal in the interest of justice, the court may summarily deny the motion. People v. Schlessel, 104 AD2d 501 (2d Dept. 1984).
"Defendant is reminded that "[i]t is the District Attorney's prerogative to prosecute those who commit crimes, to bring charges or discontinue criminal proceedings" (People v. Keith R., 95 AD3d 65, 67 [1st Dept. 2012]) and absent a showing by defendant that a compelling factor exists to warrant dismissal in the interest of justice, this court will not exercise its discretion under CPL § 170.40(1).
This court finds that none of the enumerated factors provides a basis for dismissal pursuant to CPL § 170.40. Defendant's self-serving assertions of being a shy, hardworking family man are insufficient to justify a dismissal in furtherance of justice as his good character and lack of a criminal record "does not immunize him from the normal processes of the criminal law." People v. Varela, 106 AD2d 339, 340 (1st Dept. 1984); see also, People v. Kelley, 141 AD2d 764 (2d Dept. 1988); People v. Andrew, 78 AD2d 683 (2d Dept. 1980).
With respect to defendant's claims of serious misconduct on the part of the undercover officer, said claims are wholly unsubstantiated. While defendant attempts to lay the foundation for an entrapment defense pursuant to PL § 40.05 [FN2] , such arguments are premature at this juncture and should instead be raised at trial. Similarly, defendant's allegations of malfeasance on the part of the prosecution and/or law enforcement are issues to raised and explored at trial.
Accordingly, defendant's motion to dismiss the action in the interest of justice is denied.
Motion to Dismiss for the Violation of Defendant's Due Process Rights
Defendant reiterates that his due process rights were violated "in that [he] was approached by the undercover officer in an obscene manner, [he] did not initiate any conversation with the undercover officer, did not describe any sexual conduct or suggest a fee, yet the People attribute all of these actions and statements to [him]." Affirmation of defendant's counsel at 7. In the alternative, defendant requests a hearing pursuant to People v. Isaacson, 44 NY2d 511 (1978), so that the court can determine whether his due process rights were violated. Defendant maintains that a review of the facts in this case and the factors set forth in Isaacson, will unequivocally demonstrate that the People have violated his due process rights.
Citing People v. Bah, 180 Misc 2d 39 (Crim Ct, NY County 1999), the People argue that this branch of defendant's motion should be denied in its entirety. The People note that the cases are factually similar and defendant has made almost identical arguments. Under the reasoning in Bah, the People aver that defendant's allegations do not rise to level of due process violations to warrant an Isaacson hearing.
In Isaacson, 44 NY2d at 518-519, the Court of Appeals held that "even though defendant did not sustain his burden as to [the] affirmative defense [of entrapment , the police conduct, when tested by due process standards, was so egregious and deprivative as to impose upon [the court] an obligation to dismiss. The court further held that when determining whether due process principles had been violated the following factors should be considered:
(1) whether the police manufactured a crime which otherwise would not likely have occurred, or merely involved themselves in an ongoing criminal activity; (2) whether the police themselves engaged in criminal or improper conduct repugnant to a sense of justice; (3) whether the defendant's reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation of exorbitant gain, or by persistent solicitation in the face of unwillingness; and (4) whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace. Id. at 521. (internal citations omitted).
Here, defendant has made almost the same arguments and as the defendant in Bah, 180 Misc 2d 39. In denying the defendant's request for a hearing, the Bah court noted that "[p]retrial Isaccson hearings have been granted only in the limited circumstances where defendants have made specific, detailed allegations of egregious or reprehensible prosecutorial or police misconduct." Id. at 41. As in Bah, defendant has failed to allege anything more than the defense of entrapment. Thus, defendant's motion to dismiss for the violation of his due process rights or, in the alternative, granting an Isaacson hearing is denied in its entirety.
Motion to Preclude the People from reducing the charge of Patronizing a
Prostitute in the Third Degree (PL § 230.04) to Attempted Patronizing a
Prostitute in the Third Degree (PL § 110.00/230.04)
Defendant's motion for an order precluding the People from reducing the offense charged to an attempt under PL § 110.00 is hereby granted as the People agree not to reduce the offense charged to the non-existent offense of Attempted Patronizing a Prostitute in the Third Degree.
Motion to Suppress Statements
Defendant argues that his statements for which notice was properly given should be suppressed on the grounds that such statements were made involuntarily pursuant to CPL § 60.45. Defendant further denies making the statements attributed to him. In fact, defendant claims that it was the undercover officer who offered him sex in exchange for money. Where, as here, he "at most gave a guttural acquiescence to the detailed solicitations of an undercover officer" (Affirmation of defendant's counsel at 4), defendant maintains that the People should not be able to use such statements against him.
The People oppose defendant's request as his statement was made to an undercover officer and thereby constitutes res gestae. The People further argue that res gestae should not be the subject of a Huntley hearing and therefore suppression should be denied.
"When there is no question as to the voluntariness of a defendant's statements as in the case of res gestae statements, notice to the defendant of the intention to offer such statements into evidence is not required." People v. Wells, 133 AD2d 385, 386 (2d Dept. 1987); People v. Early, 85 AD2d 752 (3d Dept. 1981); People v. Abedi, 156 Misc 2d 904 (Sup Ct, NY County 1993). Moreover, when a statement is made in the course of the commission of a crime and there is no question of voluntariness, a suppression hearing is not required. People v. Garcia-Lopez, 308 AD2d 366 (1st Dept. 2003).
This court finds that defendant's statement to the undercover officer constitutes res gestae since the statement was made during the commission of the offense charged. As such, defendant "is not even arguably entitled to a pretrial hearing." People v. Brown, 140 AD2d 266, 270 (1st Dept. 1988); see also, People v. Clark, 198 AD2d 46 (1st Dept. 1993).
Prior Convictions and/or Bad Acts
Defendant's motion for an order precluding the People from introducing evidence of his prior convictions and/or bad acts is respectfully referred to the trial judge.
Future Motions
Defendant's reservation of right to file further motions is unauthorized pursuant to CPL § 255.20(3). Any future motions shall be summarily denied absent a showing of good cause.
Accordingly, defendant's motion to dismiss the accusatory instrument as facially insufficient is denied. Defendant's motion to dismiss the instant action in the interest of justice is denied. Defendant's motion to dismiss the instant action for the violation of his due process rights is denied. Defendant's motion to suppress any and all statements attributed to him is denied. Defendant's motion for an order precluding the People from reducing the offense charged to an attempt under PL § 110.00 is hereby granted without opposition. Defendant's motion for an order precluding the People from introducing evidence of his prior convictions and/or bad acts is respectfully referred to the trial judge. Defendant's request to file additional motions is denied subject to rights under CPL § 255.20(3) to move for further leave upon good cause shown.
This constitutes the decision and order of this court.
Dated:December 14, 2015
Bronx, New York
_______________________________
Hon. Armando Montano Footnotes
Footnote 1:These factors are: (a) the seriousness and circumstances of the offense; (b) the extent of harm caused by the offense; (c) the evidence of guilt, whether admissible or inadmissible at trial; (d) the history, character and condition of the defendant; (e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant; (f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense; (g) the impact of a dismissal on the safety and welfare of the community; (h) the impact of a dismissal upon the confidence of the public in the criminal justice system; (i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; and (j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.
Footnote 2:Penal Law § 40.05 provides that "it is an affirmative defense that the defendant engaged in the proscribed conduct because he was induced or encouraged to do so by a public servant seeking to obtain evidence for the purpose of criminal prosecution, and when the methods used to obtain such evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it."
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