People v Vranici

[*1] People v Vranici 2018 NY Slip Op 50356(U) Decided on March 14, 2018 Criminal Court Of The City Of New York, New York County Roper, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 14, 2018
Criminal Court of the City of New York, New York County

The People of the State of New York, Plaintiff,

against

Maksim Vranici, Defendant.



2017NY058999



Deron Castro, Queens, for Defendant.

Cyrus R. Vance, Jr., District Attorney, New York County (Veronika Alayeva of counsel), for the People.
Sandra E. Roper, J.

INTRODUCTION

Defendant moves This Honorable Court to dismiss all counts of Penal Law charges against defendant as facially insufficient pursuant to CPL 170.30 and other enumerated motions. For the reasons set forth below, defendant's motion to dismiss is denied.

PROCEDURAL HISTORY

On November 17, 2017, defendant was arraigned on a criminal complaint charging one count of Forcible Touching (Penal Law §130.52 [1]), and one count of Sexual Abuse in the Third Degree (Penal Law §130.55). The court adjourned the case to January 2, 2018 for conversion to an information. Off calendar, on November 30, 2017 the People served and filed certificate of readiness and supporting depositions of complaining witness and deponent officer. At the appearance of all parties on January 2, 2018, the court deemed complaint an information, set defense motions due by January 29, 2018 off calendar and adjourned to March 1, 2018 for People's response and the court's decision. Off calendar, on January 29, 2018 defendant timely served and filed the instant Omnibus Motion for: dismissal of the information pursuant to CPL 170.30; Bill of Particulars pursuant to CPL 200.95; Discovery pursuant to CPL 240.40, Subd. 1(a), 1(b) and 1(c); Huntley/Dunaway Hearing; Disclosure of Prior Uncharged Criminal, Vicious or Immoral Acts; Luck/Sandoval; Reservation of Rights and further relief as to This Honorable Court may deem just and proper. At the appearance [*2]of all parties, on March 1, 2018, People served and filed response and Voluntary Disclosure Form (VDF). The court granted Huntley/Dunaway Hearings, reserving decision on facial sufficiency at the adjourned date on March 14, 2018.

THE INFORMATION

The factual portion of the accusatory instrument converted to an information herein, sworn by the deponent sets forth the following:

"On or about August 21, 2017 at about 12:55 P.M.,[complaining witness] observed a white male, approximately 5 feet 10 inches tall, weighing about 240 pounds, with brown shaved hair and wearing a dark blue work uniform, place his hands on her buttocks and squeeze. I [deponent officer] am informed by [complaining witness] that she did not consent to the man touching her.I [deponent officer] observed, via recorded video surveillance, the defendant walking toward an elevator with [complaining witness]. I observed that the defendant is a white male who is 5 feet 10 inches tall, weighs approximately 200 pounds, with short brown hair. I observed that in the video, the defendant is wearing a dark blue work uniform."

The charges are:

One count of Forcible Touching (Penal Law §130.52 [1]):A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose:1. forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor's sexual desire;One count of Sexual Abuse in the Third Degree (Penal Law §130.55):A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter's consent; . . .

FACIAL SUFFICIENCY

An information is facially sufficient when it comports with the requirements as set forth in CPL 100.40[1]:

1. An information, or a count thereof, is sufficient on its face when:(a) It substantially conforms to the requirements prescribed in section 100.15; and(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof.

see People v. Dumas, 68 NY2d 729, 497 N.E.2d 686, 506 N.Y.S.2d 319 [1986]; see also People v. Alejandro, 70 NY2d 133, 511 N.E.2d 71, 517 N.Y.S.2d 927 [1987]). "Reasonable cause to believe that a person has committed an offense 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 is reasonably likely that such offense was committed and that such person committed the offense [ ]" (CPL 70.10 [2]). The measure of "reasonable cause" is the same as that of the well-established constitutional standard of [*3]"probable cause". (People v Johnson, 66 NY2d 398, 402, n. 2, 488 [1985]). The factual allegations contained within the accusatory instrument must be strong enough to support a reasonable belief by an ordinary person that it is more likely or probable than not that the accused defendant did indeed commit the criminal offense being accused of (People v Mercado, 68 NY2d 874, 877 [1986]; People v Carrasquillo, 54 NY2d 248, 254 [1981] ["conduct equally compatible with guilt or innocence will not suffice"]). Mere conclusory allegations will render the instrument defective (People v. Dumas, 68 NY2d 729 [1986]).

The court's standard of review for facial sufficiency must accept as true all the factual allegations contained within the information and must consider all reasonable inferences that may be drawn from them (People v. Jackson, 18 NY3d 738, 741 [2012]; see CPL 100.40 [1] [c]). Further, "[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 and technical reading" (People v. Casey, 95 NY2d 354, 360 [2000]).

DISCUSSION

This Honorable Court finds that this Information is facially sufficient.

Defendant's argument strains credulity that the information does, "not provide sufficient detail indicating that defendant committed the listed offenses." Here, we have the victim as the complaining witness who also executed a supporting deposition. She observed and experienced firsthand the defendant "place his hands on her buttocks and squeeze." The deponent officer viewed recorded video surveillance which corroborates largely the same description as that sworn to by the complaining witness victim. There is an insignificant difference between complaining witness' "brown shaved hair" and deponent officer's "short brown hair" descriptions. Weight is one of the most arbitrary identifying descriptions based upon the observer's perspective. A petite person may perceive a 240 pound man whereas that same man may be perceived as 200 pounds by someone of more heft. It is of no moment that the informant officer's description and the deponent's description are not identically the same.

Defendant further argues that the failure of the information to contain the date and time of the recorded surveillance video is fatal. The information states at its outset the date, time and place where defendant committed the offenses charged herein. To wit, "August 21, 2017 at about 12:55 P.M." The information must be read as a whole, not piecemeal. The informant officer's statement is not simply a superfluously added paragraph, as defendant argues, but rather an integral part of the information. The information read as a whole presents reasonable cause to believe that this defendant has committed the offenses charged herein. The facts provided within the instant information undoubtedly evinces reliable evidence which collectively is 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 this defendant committed the offense.

Arguendo, even if this court may have found to the contrary that the failure to specify the date and time of the recorded surveillance video was a defect in the information, this court would have granted leave for the amend, supplement or modify to so include by way of superseding information.

The factual allegations are of such specificity to belie defendant's argument of vagueness which may expose defendant to double jeopardy. Rather, victim complaining witness unequivocally [*4]with abject specificity states when, where and how defendant "placed his hand on her buttocks and squeezed." Defendant intentionally and for no legitimate purpose forcibly touched and made contact with her buttocks, a sexual and intimate body part, for the purpose of degrading her, abusing her and of gratifying his sexual desire without her consent. Accordingly, the court finds that each count of forcible touching and sexual abuse are sufficiently plead.

Motion to dismiss for facial insufficiency is DENIED.

BILL OF PARTICULARS

The defendant's request is untimely pursuant to CPL 200.95 and CPL 240.80. Defendant's motion for a bill of particulars is DENIED.

DISCOVERY

The People have indicated in their VDF that they will be utilizing tapes or electronic recordings as evidence in this matter. Defendant and People are directed to schedule a date convenient to both parties to listen to or copy the recordings pursuant to CPL 240.20 [1] [g]. Defendant's motion for discovery is otherwise DENIED.

HUNTLEY/DUNAWAY MOTIONS

People provided statement notice pursuant to CPL 710.30 [1] [a]. The Court of Appeals has held that, "there must be a hearing whenever a defendant claims his statement was involuntary, no matter what facts he puts forth in support of such claim" (People v Weaver, 49 NY2d 1012 [1980]). At adjourned date for response and decision on March 1, 2018, the court previously granted Huntley/Dunaway hearing from the bench.

DISCLOSURE OF PRIOR UNCHARGED CRIMINAL, VICIOUS OR IMMORAL ACTS

Pursuant to CPL 240.43, when requested by the defendant, the prosecutor shall notify the defendant of all specific instances of a defendant's prior uncharged criminal, vicious, or immoral conduct of which the prosecutor has knowledge and which the prosecutor intends to use at trial for purposes of impeaching the credibility of the defendant. This is a motion in limine therefore reserved for the trial court.

CONTINUING DISCLOSURE DUTY

People must comply with their continuing duty to disclose, including favorable evidence to the defendant (CPL 240.20 [2]; 240.60; Brady v Maryland, 373 US 83 [1963]).

MOTION FOR LUCK/SANDOVAL HEARING

Defendant's motion to preclude People from introducing for the purpose of impeaching defendant's credibility at trial, evidence of the defendant's prior uncharged criminal, vicious or immoral acts is reserved for the trial court.

RESERVATION CLAUSE

Defendant's motion to file further pre-trial motions is GRANTED to the extent they are based on law or new facts that "defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised" within 45 days after the defendant's arraignment and before trial (CPL 255.20 [3]).

RECIPROCAL DISCOVERY

The People's request for reciprocal discovery under CPL 250.20 and CPL 240.30 (1) is GRANTED as follows:

(1) Eight days having passed from the People's demand for alibi notice, the defendant is precluded from offering evidence that he was at some place other than 70 Pine Street in Manhattan at the time of the alleged incident, unless the defendant can show good cause for the delay (CPL 250.20 [1]).(2) Defendant shall disclose and make available, subject to constitutional limitations, all CPL 240.30 (1) and CPL 240.30 (2) discovery materials.(3) As more than 30 days have passed since defendant's arraignment, the defendant is precluded from offering psychiatric evidence, unless the defendant can show good cause for the delay (CPL 250.10 [2]).

The foregoing constitutes the opinion, decision, and order of This Honorable Court.

Dated: March 14, 2018

New York, New York

SO ORDERED:

______________________________

SANDRA E. ROPER

Judge of the Criminal Court