People v Ovalle-Fajardo

[*1] People v Ovalle-Fajardo 2018 NY Slip Op 51149(U) Decided on July 2, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 2, 2018
Criminal Court of the City of New York, Bronx County

The People of the State of New York, Plaintiff,

against

Pablo Ovalle-Fajardo, Defendant.



2018BX006637



For the Defendant: Peter Frankel, Esq.

Cohen, Frankel and Ruggerio

20 Vesey Street, Suite 1200

New York, New York 10007

For the People: ADA Nakary Garcia

Bronx District Attorney's Office

168 East 161st Street

Bronx, New York 10451
Jeffrey Rosenblueth, J.

MOTION TO DISMISS COUNT THREE OF THE ACCUSATORY INSTRUMENT FOR FACIAL INSUFFICIENCY: DENIED

Defendant is charged in the misdemeanor information with Assault in the Third Degree [PL § 120.00(1)] under count one, Criminal Possession of a Weapon in the Fourth Degree [PL § 265.01(1)] under count two, Unlawfully Possessing Noxious Material [PL § 270.05(2)] under count three and Harassment in the Second Degree [PL §240.26(1)] under count four. The misdemeanor information reads, in pertinent part, that:

"Angel Ramos states that on or about December 6, 2017 at approximately 7:45 P.M. at the northeast corner of Devoe Avenue and East 177th Street, [c]ounty of the Bronx... he and defendant engaged in a verbal dispute, at which point, defendant pointed one (1) black canister in the direction of [him]. [He] further states that defendant applied pressure to the top of said canister ejecting a streaming liquid that landed on the right side of [his] face, neck and body. [He] further states that, as a result of defendant's aforementioned conduct [he] suffered substantial pain, redness, burning, soreness and swelling to the right side of his face and eyes. [He] further states that defendant's aforementioned conduct caused [him] to experience trouble breathing and blurred vision. [He] further states that [*2]defendant's aforementioned conduct caused him to experience annoyance, alarm and fear for his physical safety. [He] further states that as a result of defendant's aforementioned conduct he sought medical treatment."

On May 14, 2018 in Part AP-3 this Court granted a Mapp/Huntley/Wade/Dunaway hearing and denied defendant's motion to dismiss the information for facial insufficiency with respect to count one (Assault in the Third Degree), count two (Criminal Possession of a Weapon in the Fourth Degree) and count four (Harassment in the Second Degree). Defendant's motion to dismiss count three (Unlawfully Possessing Noxious Material) of the accusatory instrument for facial insufficiency pursuant to PL§170.30(1)(a) and CPL §170.35 is now before the Court.

Defendant claims that the charge is facially insufficient because the crime of Unlawfully Possessing Noxious Material requires a laboratory report to corroborate that the substance was, in fact, a noxious material. Defendant further claims that there are no facts to support the allegation that defendant possessed the canister with circumstances evincing an intent to use it, inflict physical injury or cause annoyance to a person.

The People, in opposition to defendant's motion, contend that the Possession of Noxious Matter charge is facially sufficient in that it adequately provides detailed facts to support the charge and suitable notice for defendant to prepare a defense. The People further contend that a laboratory report is not necessary to demonstrate the existence of a noxious material.

Defendant's motion to dismiss count three of 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 [*3]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 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 § 270.05(2), Unlawfully Possessing or Selling Noxious Material, provides that: "A person is guilty of unlawfully possessing noxious material when he possesses such material under circumstances evincing an intent to use it or to cause it to be used to inflict physical injury upon or to cause annoyance to a person, or to damage property of another, or to disturb the public peace."

PL § 270.05(1) defines "noxious material" as "any container which contains any drug or other substance capable of generating offensive, noxious or suffocating fumes, gases or vapors, or capable of immobilizing a person."

Defendant relies on People v. Gunatilaka, 156 Misc 2d 958 to support his claim that a laboratory report is required in this case to prove the presence of a "noxious material." In Gunatilaka, police officers found a can labeled "CS Tear Gas Chemical Spray" from the seat of a police car where the defendant had just been sitting. The court ruled that a laboratory report was necessary because... "without proper foundation, the cannister's label is hearsay and as such cannot serve to establish the nature of the material possessed...one cannot conclude based on the labeling alone that there was tear gas in the canister at the time defendant allegedly possessed the device" (emphasis added), Id.

Here, however, unlike in Guanatilaka, additional facts were alleged to establish reasonable cause that the substance inside of the black cannister in defendant's possession contained a "noxious substance." Significantly, the accusatory instrument alleges that after defendant sprayed Angel Ramos's face with the streaming liquid emanating from a black cannister the complainant suffered "substantial pain, redness, burning, soreness and swelling to the right side of his face and eyes...trouble breathing and blurred vision." Thus, when viewing the accusatory instrument in the light most favorable to the People and drawing all reasonable inferences from it (see People v Williams, 84 supra; People v Contes, supra; People v Barona, supra; People v. Mellish, supra) it is apparent that the nature of the liquid substance was a "noxious material" capable of temporarily "immobilizing a person," (see PL § 270.05); Donnino, Practice Commentaries, McKinney's Cons. Laws of NY, Book 33, PL 270.05 (2008 ed.); (see also People v. Givenni, 27 Misc 3d 1135; People v. Newton, 57 Misc 3d 545).

Additionally, with respect to the element of intent, "[p]ossession of noxious material is presumptive evidence of intent to use it or cause it to be used in violation of this section," [PL § 270.05(3)]. In any event, defendant's intent to use the "noxious material" to inflict physical injury or annoyance upon Angel Ramos was sufficiently established in the accusatory instrument [*4]inasmuch as it alleged that prior to defendant's act of spraying the liquid from the cannister he and the complainant had "engaged in a verbal dispute."

Order entered accordingly.

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

Dated: July 2, 2018

____________________________

JEFFREY ROSENBLUETH, J.C.C.