People v Rasoully
Annotate this CaseDecided on September 12, 2016
District Court of Nassau County, First District
The People of the State of New York, Plaintiff(s)
against
Aziz U. Rasoully, Defendant(s)
2016NA006305
Honorable Madeline Singas, District Attorney
240 Old Country Road
Mineola, NY 11501
Legal Aid Society of Nassau County, Criminal Division
40 Main Street
Hempstead, NY 11550
Joy M. Watson, J.
The defendant's omnibus motion is determined as follows.
The defendant was originally charged by way of a misdemeanor complaint with Assault in the Third Degree (Penal Law §120.00[1]) and was arraigned on March 20, 2016. On June 7, 2016, the People filed a superseding information charging Assault in the Third Degree (Penal Law §120.00[1]), the defendant was arraigned thereon and the misdemeanor complaint was [*2]dismissed. Defense counsel now moves to dismiss the information on sufficiency grounds.
An information is sufficient on its face when it (1) substantially conforms to the requirements of CPL 100.15, (2) sets forth allegations which "provide reasonable cause to believe that the defendant committed the offense charged" and (3) contains non-hearsay allegations which "establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40[1]; People v Alejandro, 70 NY2d 133 [1987]).
On a motion to dismiss for facial sufficiency, the court's review is limited to whether or not the People's allegations, as stated in the accusatory instrument and any supporting depositions, establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt (People v Henderson, 92 NY2d 677 [1999]; People v Jennings, 69 NY2d 103 [1986]). The court must view the facts in a light most favorable to the People (People v Vonancken, 27 Misc 3d 132[A] [App Term, 2nd Dept, 9th & 10th Jud Dists 2010]; People v Mellish, 4 Misc 3d 1013[A] [Criminal Court, NY County 2004]), without giving the accusatory instrument and any supporting depositions an overly restrictive or technical reading (People v Casey, 95 NY2d 354 [2000]).
In pertinent part, Penal Law §120.00 provides that:
"A person is guilty of assault in the third degree when:
1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person."
Penal Law §10.00(9) defines "physical injury" as "impairment of physical condition or substantial pain."
The information at bar names an Assistant District Attorney as the "[c]omplainant herein," who is the same person who signed and swore to said accusatory instrument. The allegations contained therein are based upon the annexed supporting depositions of a different Assistant District Attorney, the responding officer, and "the Defendant's admission" to the latter. As defense counsel points out, no depositions from the victim or her daughter are attached.
In the To Wit clause, the "complainant" states:
"At the aforementioned date, time and location, the Defendant, Aziz Rasoully, did punch the victim, Nuria Rasoully, in the lip and head causing [*3]a 1/4" laceration to her right upper lip, swelling, redness, and substantial pain.
The above is based upon: information and belief, the source and basis of which are the supporting depositions of: Lauren Guillem and Officer David Re, as well as the Defendant's statement of admission."
In opposition, the People acknowledge that the supporting deposition from the second ADA is hearsay since it is based upon a narrative of a 911 phone call. Specifically, the deposition is allegedly based upon "a true and accurate copy of the 911 call placed at 00:06 and radio transmission taken from the master recordings of the Nassau County Police Department Communications Bureau for an incident that occurred on March 20, 2016." Again, as defense counsel notes, the People fail to attach a copy of same. Despite the omission of the 911 tape recording and the People's acknowledgment that the ADA's description of the contents of the phone call are hearsay, the People argue that same is an excited utterance and/or a present sense impression, both exceptions to the rule against hearsay and thus, can be considered as to sufficiency of the accusatory instrument. The court disagrees.
The People's reliance upon People v Conyers, 4 Misc 3d 3d (2004) for this proposition is misplaced. In Conyers, the issue before the court was the admissibility of a 911 phone call at trial, and whether same violated the defendant's confrontation rights under Crawford v Washington, 541 US 36 (2004)). The issue herein is distinguishable.
The People's further reliance upon People v Foster, 190 Misc 2d 625 (2002) and People v Solomon, 2002 NY Slip Op 50712(U) is likewise misguided, as the facts therein contain discernable differences from the case at bar. In Foster, the police responded to the scene of a crime after receiving a 911 radio transmission. Upon arrival, the police encountered the victim, who in naming the defendant, stated that he had just been stabbed in the head with a screwdriver. Notably, no supporting deposition of the victim was attached to the accusatory instrument and the only allegations were the deponent officer's account of what had transpired. Under those circumstances, the court held that the victim's statements made directly to the officer and recited in the officer's supporting deposition were excited utterances, which could properly be used as non-hearsay allegations to convert a misdemeanor complaint to an information.
The instant case is entirely distinguishable. Here, as defense counsel points out, a supporting deposition based entirely on a 911 recording, which is summarized by a third party, is insufficient hearsay. Nor can the ADA lay a proper foundation for the voices heard on the tape, which she has, not surprisingly, failed to do. Her description of the [*4]contents of a 911 call allegedly placed by the victim and her daughter absent, inter alia, any authentication thereof, is hearsay and wholly insufficient to support the subject charge (see CPL 100.40[1]; People v Alejandro, 70 NY2d 133 [1987]).
Next, is the supporting deposition of Officer David Re, who states that on March 19, 2016, at approximately 11:30 pm, he received a radio call for a domestic incident. He responded to the scene within 10 minutes. Upon arrival, he observed a woman, "now known to me as Nunia Rasoully" who was upset, crying and had a visible laceration, redness and swelling to her right upper lip. Officer Re further states that the defendant, "now known to me as Aziz Rasoully," stated to him, "in sum and substance, that he and his wife were arguing in the car, that he lashed out at her and struck her in the face." The defendant's attorney argues that Officer Re's allegations alone are insufficient. The court disagrees.
Rather, the court finds that the allegations of Officer Re, which are based upon his first-hand observations and personal knowledge, contain sufficient non-hearsay allegations which "establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40[1]; People v Alejandro, 70 NY2d 133 [1987]). In view of the foregoing, the defendant's motion to dismiss the accusatory instrument as defective is denied.
Although improperly made without notice and only in his reply, the defendant's request for discovery of all 911 recordings and police radio communications, as well as any medical records, is granted, and the People are directed to provide defense counsel with a copy thereof within 14 days of the date of this decision. Preclusion of said materials is denied.
The People are, however, reminded of their continuing obligations under Brady v Maryland, 373 US 83 (1963), its progeny, and CPL 240.20(2).
The defendant's request for suppression of statements, also sought for the first time in reply, is nevertheless granted to the extent that a pre-trial Huntley hearing will be conducted.
Finally, the defendant's attempted reservation of the right to make additional motions is denied (CPL 255.20[2], [3]).
This constitutes the Decision and Order of the court.
So Ordered.
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