People v Quezada

[*1] People v Quezada 2023 NY Slip Op 51138(U) Decided on October 23, 2023 Criminal Court Of The City Of New York, Bronx County González-Taylor, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2023
Criminal Court of the City of New York, Bronx County

The People of the State of New York,

against

Yokasta Quezada, Defendant.



Docket No. CR-002272-23BX



For the People:
Darcel D. Clark, District Attorney, Bronx County
(by: ADA Sierra Fischer)

For the Defendant:
Steven Kessler, Esq. Yadhira Gonz¡lez-Taylor, J.

By motion filed August 28, 2023, defendant moves for dismissal of the accusatory instrument pursuant to Criminal Procedure Law ("CPL") § 30.30. Specifically, defendant contests the validity of the People's CoC because she alleges that the People: filed their Certificate of Compliance ("CoC") and their Statement of Readiness ("SoR") on the 91st day following arraignment; belatedly disclosed "the complaints medical records and EMS records" without filing a supplemental CoC; and failed to turn over any Giglio material.

By motion filed August 29, 2023, defendant moves for dismissal of the accusatory instrument for facial insufficiency. Alternatively, defendant moves to suppress and preclude evidence pursuant to HuntleyMapp/Dunaway and Sandoval, respectively.

Although defense counsel's motion was due July 28, 2023, and the defense provided the Court with no explanation concerning the delay in filing, the Court accepted defendant's motions and gave the People an extension of time to oppose by September 28, 2023, which was extended by the Court upon the People's request to October 9, 2023. The amended motion schedule did not provide for defense counsel to file a reply brief. However, defendant filed a reply brief on October 22, 2023. Accordingly, the arguments set forth in defendant's reply brief will not be considered in the Court's analysis.

Upon review and consideration of the submissions, court file and relevant legal authority, the Court finds that the People's CoC, filed May 1, 2023, was valid, and further:

DENIES defendant's motion for dismissal pursuant to CPL § 30.30;

DENIES defendant's motion for dismissal due to facial insufficiency of the information;

GRANTS defendant's motion for Huntley/Mapp, Dunaway pre-trial hearings; and

REFERS the issue of preclusion pursuant to Sandoval to the trial court.

RELEVANT PROCEDURAL BACKGROUND

On January 29, 2023, defendant Yokasta Quezada was arrested and charged with two counts each of Penal Law ("PL") §§ 120.00 (1) (assault in the third degree) PL 240.26 (1) (harassment in the second degree), a misdemeanor and violation, respectively. On January 30, [*2]2023, defendant was arraigned and released on her own recognizance. On April 11, 2023, the People filed a Superseding Information which dropped one count each of PL§§ 120.00 and 240.26 (1).

The People filed their CoC and SoR on May 1, 2023. On June 14, 2023, the People filed two supplemental CoCs ("SCoC"), the first SCoC advising defendant that they had come into possession of FDNY materials in response to their subpoena, and that although the matter had been dismissed and sealed, the People were disclosing the affidavit pertaining to a cross-complainant who was no longer cooperative. The second SCoC advised the People that in response to their subpoena, the complainant's medical records had been received. At a discovery conference held on July 14, 2023, and after a lengthy discussion concerning an email exchange between the parties about outstanding discovery, the Court held that:

1. Defendant was not entitled to an English translation of Spanish-language communications observed on body worn camera footage;2. Defendant was not entitled to Giglio material based upon the People's representation that the prosecution would not call any police witnesses, and because defense counsel did not articulate a reason for Giglio disclosure;3. There was no arrest paperwork pertaining to the complaining witness; and4. Defendant's request for the information concerning another cross-complainant was denied because it had not been raised as soon as practicable as required by CPL § 245.20 (4) (c).(Exhibit 3, pg. 3-12, annexed to the affirmation in support of the People's opposition).

The Court deemed the CoC valid and instructed defense counsel to limit the scope of his motion to whether the prosecution was timely pursuant to CPL § 30.30 (Id. at 16-17). Nevertheless, in contravention of the Court's instructions, defense counsel filed separate motions to dismiss pursuant to CPL § 30.30 and to dismiss for facial insufficiency on August 28, 2023 and August 29, 2023, respectively. Counsel did not seek an extension to file the motions and the Court was not aware that the defense had filed until the clerk provided a copy. After conferring with the parties, the Court agreed to accept the belated filings and amended the motion schedule.

DISCUSSION

I. Applicable Legal Standards

CPL § 30.30 Challenge

In a motion to dismiss misdemeanor charges pursuant to CPL § 30.30 (1), a defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within ninety days (see CPL § 30.30 [1] [b]); People v Luperon, 85 NY2d 71, 77-78 [1995]).

Generally, a criminal action is commenced by the filing of an accusatory instrument against a defendant, and it is settled law that the date on which the action is commenced is excluded from the CPL § 30.30 computation (see CPL § 1.20 [17]; People v Stiles, 70 NY2d 765, 767 [1987]).

Following legislative reforms to the CPL, after January 1, 2020, the People must now also satisfy their statutory obligations pursuant to CPL § 245.50 (3), which provides that "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until [*3]it has filed a proper certificate pursuant to subdivision one of this section" (see People v Kendzia, 64 NY2d 331, 337 [1985]; People v Pierna, 74 Misc 3d 1072, 1087 [Crim Ct, Bronx County 2022]; People v Aquino, 72 Misc 3d 518, 520 [Crim Ct, Kings County 2021]). Consequently, courts examine the prosecution's efforts to ensure that it has served all known discoverable materials pursuant to CPL § 245.20 to determine the validity of a CoC (see People v Adrovic, 69 Misc 3d 563, 574-575 [Crim Ct, Kings County 2020]; People v Vargas, 76 Misc 3d 646, 652 [Crim Ct, Bronx County 2022]).

Facial Insufficiency Challenge

To meet the jurisdictional standard for facial sufficiency, a misdemeanor complaint "need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense" (see People v Smalls, 26 NY3d 1064, 1066 [2015]; see also CPL § 100.40 [1] [b]; § 70.10). The accusatory instrument must set forth non-hearsay facts of an evidentiary nature which, if true, establish every element of the offense charged (see People v Suber, 19 NY3d 247 [2012]; People v Dumas, 68 NY2d 729 [1986]). It is well-settled that "mere conclusory allegations are insufficient [ ] and a purported information which fails to meet these requirements is fatally defective" (see People v Pamulo, 48 Misc 3d 1227 [A], 2015 NY Slip Op 51286 [U], **2 (Crim Ct, New York County 2015] [citations omitted] citing People v Alejandro, 70 NY2d 133, 136 [1987]). However, "[t]he court should approach factual allegations with a fair, not overly restrictive, or technical reading" (see People v Suquilanda, 80 Misc 3d 1220 [A], 2023 NY Slip Op 51045 [U], *2 [Crim Ct, Bronx County 2023] citing People v Casey, 95 NY2d 354, 360 [2000]).

However, "[t]he prima facie case requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt" (see People v Washington, 46 Misc 3d 1210 [A], 2015 NY Slip Op 50030 [U], ***3 [ Crim Ct, New York County 2015] [internal citations omitted]. Consequently, the accusatory instrument need only set forth factual allegations which "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense" (see Id. [internal citations omitted]).

II. The Parties' Arguments

Defense counsel maintains that because defendant was arraigned on January 30, 2023, the 90th day following his arraignment was Sunday, April 30, 2023 (CPL § 30.30 affirmation of defendant's counsel at 2). Defense avers that CPL § 30.30 does not give the prosecutors additional time to declare readiness for trial where the 90th day following arraignment falls on a Saturday or Sunday (Id.). Defendant claims that the People filed their CoC on May 1, 2023, the 91st day following defendant's arraignment and, therefore, the charges should be dismissed (Id.). Defendant further argues that the prosecution's CoC dated May 1, 2023, was not filed in good faith because the complainant's medical records, FDNY records and defendant's arrest report were belatedly disclosed, and he complains that no Giglio disclosures have been served (Id. at 2-3).

Counsel also claims that the factual allegations in the information are insufficient to "reach the level of physical injury," and argues that "defendant never intended to harass the complainant" (Facial Insufficiency affirmation at 2). Lastly, defendant seeks suppression of his statement and physical evidence or, alternatively Huntley/Dunaway/Mapp pre-hearings and a [*4]Sandoval hearing (Id. at 2-4).

Initially, the People's opposition asserts that the Court already adjudicated outstanding discovery issues and, thus, limited the scope of defendant's motion to the date and time of the People's CoC filing (affirmation in support of People's opposition at § A).

The prosecution avers the CoC was filed in good faith after they exercised due diligence to procure discoverable materials in response to CPL §§ 245.50 (1) and 245.60 (affirmation in support of People's opposition at § B). The People maintain that statutory compliance with CPL §§ 245.20 does not require complete compliance (affirmation in support of People's opposition at § C). The People also aver that dismissal is drastic and unwarranted where alternative forms of relief are provided by statute (affirmation in support of People's opposition at § E).

Next, the prosecution declares that in the absence of any specific reference in CPL § 30.30 concerning how to calculate speedy trial time when the deadline falls on a weekend or holiday, General Construction Law § 25-a (1), which provides that under these circumstances the deadline is extended to the next day, should control (affirmation in support of People's opposition at § F).

The People consent to that portion of defendant's motions which seeks omnibus hearings (affirmation in support of People's opposition at § II) and calculate that a total of 90 days are chargeable to the prosecution, the time statutorily prescribed to declare readiness for trial (affirmation in support of People's opposition at § IV).[FN1]

Lastly, the People assert that the information makes out a prima facie case of assault by alleging that defendant perpetrated physical injury against the deponent which caused injury, including pain, soreness, tenderness and swelling to the face and body (affirmation in support of People's opposition at § III).

III. The Court's Analysis

CPL § 30.30 Claim

It is settled law that where a misdemeanor is the top charge of an accusatory instrument, the prosecution must declare its readiness for trial within ninety days as prescribed by CPL § 30.30 (1) (b) (see CPL § 30.30 [1] [b]; see also People v Flores, 79 Misc 3d 1239 [A], 2023 NY Slip Op 50834 [U], *2)].

This Court has previously held that reliance upon General Construction Law is warranted where CPL 30.30 is silent as to the relevant computation of time (see People v Infante, 79 Misc 3d 1222 [A], 2023 NY Slip Op 50705 [U], *3 [Crim Ct, Bronx County 2023]; People v Nichols, 70 Misc 3d 1211 [A], 2023 NY Slip Op 50591 [U], *2 [Crim Ct, Bronx County 2023]).

Similarly, for the case at bar, CPL § 30.30 (1) (b) does not provide any guidance to the Court on how to assess the implications of a speedy trial deadline that falls the weekend or a holiday. Accordingly, we are persuaded by the People's argument that we should be guided by General Construction Law § 25-a (1) which provides, in pertinent part, that:

When any period of time, computed from a certain day, within which or after which or [*5]before which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day [ ].(see McKinney's Gen Cons Law, § 25-a [1] [emphasis added]).

As noted by the prosecution, when the Appellate Term, Second Department considered the issue in People v Powell, the court held "that the General Construction Law should be read into every statute subsequently enacted, unless the wording of said statute plainly expresses a contrary intent" (see Powell, 179 Misc 2d 1047, 1048 [App Term, 2d Dept 1999]). The facts are bar are identical to those presented in Powell, where the prosecution declared their readiness for trial on the 91st day following arraignment because the ninetieth day fell on a Sunday (see Powell at 1048).

Accordingly, we find that the People's CoC, filed on Monday, May 1, 2023, the ninetieth day following defendant's arraignment was valid.

Facial Insufficiency Claim

While defense counsel did not raise the issue of facial insufficiency of the accusatory instrument at the discovery conference, it is well-settled that "[a] motion objecting to the complaint because it does not state facts sufficient to constitute a cause of action may be made at any time before trial or at the trial" (see Booth v Carleton Co., 236 AD 296, 298 [1st Dept 1932]; see also People v Armenta, 27 Misc 3d 1218[A], 2010 NY Slip Op 50792 [U], *1 [Crim Ct, Kings County 2010] ["The People's primary contention in opposition to the defendant's motion to dismiss for facial insufficiency is that it is untimely. However, the facial sufficiency of a complaint, i.e., that all elements of the offense are made out, is a jurisdictional issue and as such may be raised at any time"] [internal citations omitted]).

In pertinent part, the Superseding Information provides that on January 29, 2023 at approximately 3:35 p.m. in front of 1223 Woodycrest Ave., County of the Bronx, State of New York, Raisa Castano, states that:

Deponent states that at the above time and place, defendnat [sic] punched deponent about the fact and body multiple times with a closed fist.Deponent further states that as a result of defendant's aforementioned conduct, deponent suffered substantial pain, soreness, swelling and tenderness to deponent's face and body.Deponent further states that defendant's aforementioned actions caused depoent [sic] to experience annoyance, alarm and fear for her physical safety.
A. Assault in the Third Degree

Penal Law § 120.00 (1) provides that "[a] person is guilty of assault in the third degree when, [w]ith the intent to cause physical injury to another person, he causes such injury to such person or to a third person" (see PL § 120.00 [1]). New York Criminal Jury Instructions ("CJI") further provides, in pertinent part, that "PHYSICAL INJURY means impairment of physical condition or substantial pain" and "INTENT means conscious objective or purpose. Thus, a person acts with intent to cause physical injury to another when that person's conscious objective or purpose is to cause physical injury to another" (see (CJI2d[NY] Penal Law § 120.00 [1], https://www.nycourts.gov/judges/cji/2-PenalLaw/120/120-00(1).pdf [last accessed October 24, 2023]).

The accusatory instrument alleges that the deponent, who is the complainant, was punched in the face and body multiple times with a closed fist. Deponent further stated that as a result of defendant's actions, she suffered substantial pain, soreness, swelling and tenderness to her face and body. Viewed in the light most favorable to the People, these factual allegations, that defendant repeatedly punched the deponent in the face and body and that deponent experienced physical injury including swelling, soreness and pain, suffice to establish probable cause to believe that the defendant acted intentionally to injure the deponent and that she suffered physical harm as a consequence of defendant's behavior (see People v Calixto, 908 NYS2d 339, 343 [Crim Ct, New York County 2010][holding that the specific allegations, including discoloration of the victim's face, were sufficient at the pleading stage to support the element of physical injury for assault in the third degree] but see People v Chavez, 972 NYS2d 858, 864 [Crim Ct, Bronx County 2013]["Defendant's act of pushing the arresting officer away from him, without more, does not demonstrate an intent to injure"]).

B. Harassment in the Second Degree

Penal Law § 240.26 (1) provides that "[a] person is guilty of harassment in the second degree when, [w]ith the intent to harass, annoy or alarm another person, he or she strikes, shoves, kicks or otherwise subjects such person to physical contact, or attempts or threatens to do the same" (see PL § 240.26 [1]). CJI further 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" and "INTENT means conscious objective or purpose. Thus, a person acts with intent to harass, annoy or alarm a person when his or her conscious objective or purpose is to do so" (see (CJI2d[NY] Penal Law § 240.26 [1], https://www.nycourts.gov/judges/cji/2-PenalLaw/240/240-26.pdf [last accessed October 24, 2023]).

Here, in the Superseding Instrument, deponent asserts that defendant's actions caused her to experience annoyance, alarm, and fear for her physical safety. Viewed in the light most favorable to the People, these factual allegations, coupled with the allegation that defendant continually punched deponent with a closed fist which caused her to suffer physical pain, suffice to establish probable cause to believe that defendant acted deliberately to cause the deponent annoyance and alarm (see People v Lewis, 61 NYS3d 467, 472 [Crim Ct, New York County 2017]["[C]ourts have found that when harassment in the second degree is pled in conjunction with an intentional assault, that the intent to harass, annoy, or alarm element may be inferred"][internal quotations omitted]; see also Suquilanda at *4).

Counsel's argument for dismissal for facial insufficiency is premised on a bald declaration that "defendant never intended to harass the complainant," and his assertion that the facts as alleged do not suffice to establish physical injury. However, the Court finds that pursuant to CPL § 100.40 (1) (c) and § 100.15 (3), based upon the four corners of the People's complaint, the accusatory instrument is deemed facially sufficient on both charges.

IV. The CPL § 30.30 Calculation

Although academic, in the case at bar, the People's 30.30 speedy trial calculation commenced on January 30, 2023, the day after defendant's arraignment, and the matter was [*6]adjourned to March 14, 2023 for conversion (January 30, 2023 to March 14, 2023 = 43 days chargeable). On May 1, 2023, the People filed their CoC and SoR (March 14, 2023 to May 1, 2023 = 48-1= 47 days because the ninetieth day fell on a Sunday).[FN2]

Consequently, 90 days in total are chargeable to the People, and their readiness was declared within the time statutorily prescribed when the top charge is a misdemeanor (see CPL § 30.30 [1] [b]; People v Flores, 79 Misc 3d 1239 [A], 2023 NY Slip Op 50834[U], *2 [Crim Ct, Bronx County 2023] citing People v Galino, 38 NY3d 199, 205 [Ct of App 2022]).

CONCLUSION

Based upon the foregoing, the People's CoC was valid and defendant's motion for dismissal of the accusatory instrument on statutory speedy trial grounds pursuant to CPL § 30.30 is DENIED. Additionally, the Court:

DENIES defendant's motion for dismissal of the accusatory instrument due to facial insufficiency;

GRANTS defendant's motion for Huntley/Mapp, Dunaway pre-trial hearings; and

REFERS the issue of preclusion pursuant to Sandoval to the trial court.

This constitutes the opinion, decision, and the order of the Court.

Dated: October 23, 2023
Bronx, New York

_________________________________
Hon. Yadhira Gonz¡lez-Taylor, J.C.C. Footnotes

Footnote 1:The People set forth their opposition to that portion of defendant's motions which seeks dismissal for facial insufficiency. Insofar as the Court will not adjudicate this argument, the issue is rendered moot.

Footnote 2:Discussion of the People SCoC and second SCoC is not germane to the Court's analysis because their CoC, filed May 1, 2023, was valid.