People v Munoz

[*1] People v Munoz 2018 NY Slip Op 50125(U) Decided on January 30, 2018 Criminal Court Of The City Of New York, Bronx County Rosenblueth, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 30, 2018
Criminal Court of the City of New York, Bronx County

The People of the State of New York, Plaintiff,

against

Orlando Munoz, Defendant.



2017BX032823



For the Defendant: Jorge Guttlein, Esq.

291 Broadway, #1500

New York, New York 10007

For the People: ADA Ora L. Lupear

Bronx District Attorney's Office

198 East 161st Street, 7th floor

Bronx, New York 10451
Jeffrey Rosenblueth, J.

The defendant's omnibus motion for pre-trial relief is decided as follows:

MOTION TO DISMISS - FACIAL INSUFFICIENCY:

Defendant is charged in the misdemeanor information with Resisting Arrest, [PL § 205.30], under count one, Attempted Assault in the Third Degree, [PL § 110/120.00(1)], under count two, Harassment in the First Degree, [PL § 240.25], under count three, Harassment in the Second Degree, [PL § 240.26(1)], under count four and Harassment in the Second Degree, [PL § 240.26(2)], under count five. The misdemeanor information reads, in pertinent part, that on or about August 17, 2017 between approximately 9:10 A.M. and 10:28 A.M. at the southeast corner of White Plains Road and Vannest Avenue in the county of the Bronx P. O. Eric Ramos is informed by Abigail Corona:

"That at the above time and place, a public place, informant observed defendant follow her while she was at the above location with her three (3) children, — (Date of Birth: &mdash), — (Date of Birth: &mdash), and — (Date of Birth: &mdash). Deponent is further informed by informant that informant told defendant to stop following her around said location, and defendant responded in sum and substance IT'S A PUBLIC PARK. Deponent is further informed by informant that defendant continued to follow her until informant called the police. Deponent is further informed by informant that defendant's aforementioned conduct caused her to experience annoyance, alarm, and fear for her physical safety. [*2]Deponent is informed by PO BUTRINT MUJAJ of 49 PCT, ShieldNo. 6953, that at the above time and place, informant attempted to arrest defendant for the aforementioned conduct. Deponent is further informed by informant that upon attempting to arrest defendant for the aforementioned conduct, defendant swung at deponent with a closed fist, flailed his arms, kicked his legs, and twisted his body, refusing to be handcuffed. Deponent is further informed by informant that defendant's aforementioned conduct caused him to experience annoyance, alarm, and fear for his physical safety."

Defendant moves to dismiss the accusatory instrument pursuant to CPL §170.35, CPL §100.25 and CPL §100.40. Specifically, defendant contends that he was merely walking around the park and the information fails to allege that he was going to attempt to assault or harass the complainant (Guttlein affirmation, page 2 ¶ 7)

The People, in opposition to defendant's motion, contend that the information is facially sufficient in that it provides adequately detailed facts to support the charges and suitable notice for defendant to prepare a defense. The People further submit the allegation that defendant swung a closed fist at P.O. Mujaj is sufficient to support the attempted assault charge.

Defendant's motion to dismiss the accusatory instrument for facial insufficiency is decided as follows:

In order for a misdemeanor information to be sufficient on its face it must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe that defendant committed the offenses charged (CPL §100.15(3); CPL§ 100.40(1)[b]; CPL §70.10). These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses charged (see CPL §100.40(1)(c); People v. Henderson, 92 NY2d 677). Reasonable cause 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 (2)]. An information which fails to satisfy these requirements is jurisdictionally defective (see CPL §170.35); People v. Alejandro, 70 NY2d 133; People v. Dumas, 68 NY2d 729).

The People bear the burden of satisfying the facial sufficiency requirements by doing so within the "four corners" of the accusatory instrument [see People v. Jones, 9 NY3d 259; People v. Thomas, 4 NY3d 143; People v. Liranzo, 46 Misc 3d 140(A)]. In evaluating whether the pleaded allegations establish reasonable cause to believe that a person has committed an offense, the court must do so in the light most favorable to the People and consider all favorable inferences drawn therein [see People v Williams, 84 NY2d 925; People v Contes, 60 NY2d 620; People v Barona, 19 Misc 3d 1122[A]; People v. Mellish, 4 Misc 3d 1013(A)].

Although, mere conclusory allegations are insufficient (see People v. Dumas, supra) an information sufficient on its face need not articulate every fact necessary to prove the charged allegations (see People v. Mills, 1 NY3d 268; People v. Bello, 92 NY2d 523; People v. Mayo, 36 NY2d 1002). So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (see People v. Kasse, 22 NY3d 1142; People v Kalin, 12 NY3d 225; People v. Casey, 95 [*3]NY2d 354). Further, the facts alleged need only establish the existence of a prima facie case, even if it those facts would be insufficient to establish guilt beyond a reasonable doubt (see People v. Jennings, 69 NY2d 103). Moreover, in assessing the facial sufficiency of an information, the court " 'is not required to ignore common sense or the significance of the conduct alleged' ", People v. Gonzalez, 184 Misc 2d 262, 264 quoting People v. Abdul, 157 Misc 2d 511.

Penal Law § 205.30, Resisting Arrest, provides that: "a person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer from effecting a lawful arrest of himself or another person."

Penal Law § 110.00, Attempt to Commit a Crime, provides that: "a person is guilty of an attempt to commit a crime, when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime."

Penal Law § 120.00(1), Assault in the Third Degree, provides that: "a person is guilty of assault in the third degree when, with intent to cause physical injury to another person, he causes such injury to such person or to a third person."

Penal Law § 240.25, Harassment in the First Degree, provides that: "a person is guilty of harassment in the first degree when he or she intentionally and repeatedly harasses another person by following such person in or about a public place, or places, or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury."

Penal Law § 240.26(1), Harassment in the Second Degree, provides, in pertinent part, that: " a person is guilty of harassment in the second degree, when, with intent to harass, annoy or alarm another person he or she strikes, shoves, kicks or otherwise subjects such other person to physical contact or attempts or threatens to do the same."

Penal Law § 240.26(2), Harassment in the Second Degree, provides, in pertinent part, that: "a person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person, he or she follows a person in or about a public place or places."

Here, with respect to the offense of Harassment in the Second Degree, PL § 240.26(2), under count five, the information is facially sufficient inasmuch as it alleges that defendant followed the complainant in a public place and "[g]iving [the term] 'follow' its plain, ordinary and common meaning, its use in the accusatory instrument is, by itself, sufficiently evidentiary and descriptive so as to inform the defendant of the conduct that he is alleged to have violated, enabling him to prepare his defense", People v. Whidbee, 8 Misc 3d 1023(A); 2005 NY Slip Op 51239(U). Contrary to defendant's contention, PL § 240.26(2) does not require defendant to have engaged in any other conduct in addition to "following." Further, the requisite "intent to harass, annoy or alarm" can be inferred from the act itself or defendant's conduct and surrounding circumstances ( see People v. Bracey, 41 NY2d 296; People v. Strong, 179 Misc 2d 809). Here, the necessary intent can be reasonably inferred inasmuch as it is alleged that defendant followed the complainant and her small children in a public place despite her request that he cease doing so (see People v. Richards, 22 Misc 3d 798; People v. Whidbee, supra).

As to the crime of Resisting Arrest, PL §205.30, under count one in the information, as an initial matter, inasmuch as P.O. Mujaj had probable cause to arrest defendant for Harassment in the Second Degree pursuant to PL § 240.26(2), as indicated above, such arrest was [*4]"authorized"( see People v. Jensen, 86 NY2d 248). Further, the allegations that defendant flailed his arms, kicked his legs, twisted his body and refused to be handcuffed during the arrest process "clearly establish[ed] that he intended to prevent or attempted to prevent his [lawful] arrest" [People v. Diaz, 22 Misc 3d 624; see also People v. Barton, 30 AD2d 726; People v. Villegas, 53 Misc 3d 137(A), 2017 NY Slip Op 50134(U); People v. Cox, 44 Misc 3d 134(A), 2014 NY Slip Op 51162(U); People v. Smith, 42 Misc 3d 145(A), 2014 NY Slip Op 50306(U); People v. Gilpin, 36 Misc 3d 160(A), 2012 NY Slip Op 51822(U)]. Thus count one, Resisting Arrest, is facially sufficient.

With respect to the crime of Attempted Assault in the Third Degree, PL § 110/120.00, under count two in the information, an attempt to commit a crime is "an act, done with an intent to commit some other crime" and "although the defendant may have failed in his purpose, his conduct is nevertheless culpable and, if carried far enough, causes a sufficient risk of harm to be treated as a crime itself", People v. Bracey, 41 NY2d 296. To prove that a person attempted to commit a crime "it must first be established that defendant acted with a specific intent; that is, he intended to commit a specific crime. It is not enough to know that defendant intended to do some unspecified criminal act. [Further], it must be proven that defendant acted to carry out his intent...and intent may be inferred from an act alone or defendant's conduct and surrounding circumstances" , Id. Moreover, it can be inferred that "a person intends that which is the natural and necessary and probable consequences of the act done by him", People v. Getch, 50 NY2d 456.

Here, when viewing the information in the light most favorable to the People, it can be rationally inferred that when defendant allegedly swung his closed fist at P.O. Mujaj he intended to cause physical injury [FN1] to him as a means of achieving his ultimate goal of resisting arrest (see People v. Dreyden, 28 Misc 3d 5); [see also Matter of Shannon B., 70 NY2d 458; People v. Agron, 106 AD3d 1126; People v. Santos, 213 AD2d 302; People v. Mohamed, 58 Misc 3d 1205(A), 2018 NY Slip Op 50001(U); People v. Ormanian, 55 Misc 3d 566; People v. Smith, 55 Misc 3d 138(A), 2017 NY Slip Op 50522(U); People v. Raad, 47 Misc 3d 139(A), 2015 NY Slip Op 50591(U); People v. Khan, 15 Misc 3d 1131(A), 2007 NY Slip Op 50947(U)]. Further, actual physical injury is not required to establish a prima facie case of attempted assault in the third degree (see Matter of Marcel F., 233 AD2d 442). Thus, count one in the information, Attempted Assault in the Third Degree is facially sufficient.

With respect to the offense of Harassment in the Second Degree, PL § 240.26(1), under count four in the information, based upon the foregoing, inasmuch as the Court determined that defendant swung his closed fist at P.O. Mujaj with the intent to cause physical injury to him, at the very least it can also be reasonably inferred that he did so with the "intent to harass, annoy or alarm" him (see People v. Waite, 2002 NY Slip Op 50260(U) (1st Dep 2002); People v. Diaz, 22 Misc 3d 624; People v. Smoot,15 Misc 3d 136(A), 2007 Slip Op 507809(U); People v. English, 189 Misc 2d 230). Thus, count four in the information, Harassment in the Second Degree is facially sufficient.

With respect to the offense of Harassment in the First Degree, PL §240.25, under count three in the information, although this Court has determined that defendant possessed the [*5]requisite intent to harass, annoy or alarm the complainant it cannot be said his actions placed the complainant "in reasonable fear of physical injury" (PL § 240.25). Defendant's conduct "may have been disturbing... and induced discomfort, [however], no facts were alleged upon which to base an inference [that] defendant's conduct was ever threatening or abusive in tone or content...and [further] there was no prior encounter between defendant and [the complainant] that would cause defendant's conduct to be permeated with such hostile overtones that [the complainant's] alleged 'fear of physical injury' was 'objectively reasonable' " [People v. Montague, 39 Misc 3d 151(A), 2013 NY Slip Op 50982(U); see also Matter of Tyrone T. v. Katherine M., 78 AD3d 545; People v. Feliciano, 2002 NY Slip Op 50077(U) (App Term 9th & 10th Jud Dists 2013)]. Thus, count three in the information, Harassment in the First Degree, is facially insufficient [FN2]

Accordingly, defendant's motion to dismiss count three, Harassment in the First Degree, for facial insufficiency is granted.

Defendant's motion to dismiss count one, Resisting Arrest, count two, Attempted Assault in the Third Degree, count four, Harassment in the Second Degree under PL § 240.26(2) and count five, Harassment in the Second Degree under PL § 240.26(1), for facial insufficiency is denied.

DEFENDANTS REMAINING MOTIONS

The branch of defendant's motion for suppression of statements, or in the alternative, for a Huntley/Dunaway hearing is granted to the extent that a Huntely/Dunaway hearing is to be held prior to trial.

The branch of defendant's motion for suppression of physical evidence, or in the alternative, for a Mapp/Dunaway hearing is granted to the extent that a Mapp/Dunaway hearing is to be held prior to trial.

The branch of defendant's motion for suppression of identification, or in the alternative, for a Wade/Dunaway hearing is granted to the extent that a Wade/Dunaway hearing is to be held prior to trial.

A Sandoval hearing is to be held immediately prior to trial, if applicable. At or prior to that hearing, the People are to discharge their duty under CPL § 240.43. Additionally, the People are directed to disclose to the defendant the nature of any prior vicious or immoral criminal acts which they intend to introduce against defendant at trial pursuant to CPL § 240.43.

The branch of the motion requesting leave to make further motions, if necessary, after the People provide discovery, is granted. All motions should be made within the time prescribed by the rules of the Court.

Order entered accordingly.

This constitutes the decision and order of the Court. The Clerk of the Court is directed to [*6]forward a copy of this order and memorandum to the attorney for the defendant and the District Attorney.

Dated: January 30, 2018

____________________________

JEFFREY ROSENBLUETH, J.C.C. Footnotes

Footnote 1:Physical injury is defined by PL § 10.00(9) as impairment of physical condition or substantial pain.

Footnote 2:Additionally, assuming arguendo that this count was charged in connection with P.O. Mujaj as a "complainant", defendant's actions during his arrest do not meet the statute's "course of conduct" (PL § 240.45) requirement. The interaction between P.O. Mujaj and defendant was a "single isolated incident" and did not consist of "persistent acts over time" [Matter of Ebony J. v. Clarence D., 49 AD3d 309; People v. Biggio, 12 Misc 3d 1156(A), NY Slip Op 50931(U)].