OPINION OF THE COURT
MICHAEL J. YAVINSKY, J.
The defendant is charged with one count each of assault in the third degree (Penal Law § 120.00 ) and harassment in the second degree (Penal Law § 240.26 ).
Defendant, in an omnibus motion, seeks: (1) dismissal of the count of assault in the third degree for facial insufficiency, (2) a Huntley/Dunaway hearing, (3) a Wade/Dunaway hearing, (4) an order precluding statement and identification testimony, (5) a Sandoval hearing, and (6) reservation of rights.
The defendant's omnibus motion is decided as follows:
Dismissal of Count One for Facial Insufficiency
The defendant moves to dismiss the count of assault in the third degree for facial insufficiency pursuant to Criminal Procedure Law § 170.30 (1) (a) and § 170.35. In his motion, the defendant has raised an issue that arises on occasion: can the People sustain their pleading burden where the charge is assault in the third degree and only an eyewitness provides information in support of the physical injury element? Put differently, may the People satisfy the prima facie case requirement without any information from the alleged victim as to the nature and duration of any injuries suffered by that victim? As is frequently the case in a facial sufficiency analysis, it depends upon the specific factual allegations put forth in any particular case. Upon review of the facts alleged in this case, and for the reasons stated herein, the defendant's motion is denied.
Section 100.40 (1) of the Criminal Procedure Law states that an information is sufficient on its face when it substantially conforms with the requirements of CPL 100.15, when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the nonhearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof. "So 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
When analyzing the factual allegations of an information, and whether or not those allegations provide reasonable cause to believe the defendant committed the charged offense, it is important to keep in mind the definition of reasonable cause that the Legislature has provided us in Criminal Procedure Law § 70.10 (2):
The factual portion of the instant accusatory instrument alleges that on April 12, 2010 at about 1:35 A.M. in front of 87 East Second Street in the County and State of New York:
The People filed and served the supporting deposition of Ms. Howard, wherein she attested that the allegations in the accusatory instrument are true, except
The defendant argues that the information is facially insufficient because the factual allegations supplied by Ms. Howard cannot serve to establish that Ms. Englehart suffered physical injury as defined in the Penal Law, and that such physical injury is an essential element of assault in the third degree. More specifically, the defendant contends that a third party such as Ms. Howard is incapable of describing the subjective feeling of pain experienced by Ms. Englehart. In essence, the defendant would have this court pronounce a bright-line rule that the People can never sustain their pleading burden without an allegation from the victim because the current state of the law requires that there be some subjective allegation as to what that victim felt or suffered as a result of the defendant's assaultive conduct. This court finds this argument to be unpersuasive.
A person is guilty of assault in the third degree when "[w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person." (Penal Law § 120.00.) Pursuant to Penal Law § 10.00(9), the required element of "physical injury" is defined as "impairment of physical condition or substantial pain." (See also People v Henderson, 92 NY2d at 680.) Notably, the issue of "[w]hether the `substantial pain' necessary to establish an assault charge has been proved is generally a question for the trier of fact." (People v Rojas, 61 N.Y.2d 726, 727 , citing Matter of Philip A., 49 N.Y.2d 198, 200 .) As the Court of Appeals has noted, "`substantial pain' cannot be defined precisely" and, although "it is more than slight or trivial pain[, it] need not ... be severe or intense" (People v Chiddick, 8 N.Y.3d 445, 447 ). In reaching a determination as to whether pain is sufficiently substantial to satisfy this element of assault in the third degree, the subjective reaction of the victim is just one factor for the trier of fact to consider. (People v Rojas, 61 NY2d at 727-728.) That is, "sometimes an objective account of the injury, unaccompanied by testimony about the degree of pain the victim experienced, will be enough." (People v Chiddick, 8 NY3d at 447.)
Moreover, it is important to keep in mind that "[i]n assessing the facial sufficiency of a misdemeanor complaint, the court `is not required to ignore common sense or the significance of the conduct alleged.'" (People v Gonzalez, 184 Misc.2d 262, 264 [App Term, 1st Dept 2000], quoting People v Abdul, 157 Misc.2d 511, 514 [Crim Ct, NY County 1993].) Rather, a court must look to the "confluence of events and circumstances." (People v Hitchcock, 98 N.Y.2d 586, 592 .) For example, the intent of a defendant can be inferred from the nature of the actions taken by the defendant. (See People v Bracey, 41 N.Y.2d 296, 301  ["intent can ... `be inferred from the defendant's conduct and the surrounding circumstances'" (citation omitted)].)
Here, taking the complaint and supporting deposition together, it is alleged that the eyewitness, Ms. Howard, observed the defendant punch the victim, Ms. Englehart, with a closed fist more than once, and that the force of those punches were "so hard [that the eyewitness] could hear it over New York City noise." Moreover, the eyewitness specifically described additional contextual facts about the assault and the victim's reaction, more specifically that she could hear the victim's cries during the assault, and she could see the defendant as he stood above the victim during the assault, straddling her body as she lay on the ground. Additionally, upon arriving on the scene moments later, Officer Rinaldi alleges that he found the victim laying on the sidewalk and observed redness on her forehead. While the most direct and strongest allegation about any physical injury suffered by a victim would typically come from the victim herself, there is an objective line above which one can reasonably infer the requisite level of physical injury based upon the specific allegations regarding the nature of the assault itself.
Accordingly, the information is sufficient at the pleading stage to support each essential element of assault in the third degree. As such, the defendant's motion to dismiss this count for facial insufficiency is denied.
Motion to Suppress Statements
The branch of the defendant's motion that is to suppress evidence of statements allegedly made by the defendant to law enforcement personnel (CPL 710.20) is granted to the extent that a Huntley/Dunaway hearing is ordered to be held before trial. (CPL 710.60.) The motion to suppress such statements is otherwise held in abeyance pending this hearing and is referred to the hearing judge for determination.
Motion to Suppress Identification Evidence
The branch of the defendant's motion that is to suppress evidence of pretrial identification procedures (CPL 710.20) is granted to the extent that a Wade hearing is ordered to take place before trial. (CPL 710.60.) The motion to suppress the identification procedure is otherwise held in abeyance pending this hearing and is referred to the hearing judge for determination.
Motion to Preclude Statement and Identification Evidence
The branch of the defendant's motion that is to preclude evidence of unnoticed statements or identification procedures (CPL 710.30) is denied, with leave granted for the defendant to renew this branch of the motion upon learning that the People intend to introduce any such evidence at the defendant's trial.
Motion for a
The branch of the defendant's motion that is to preclude the People from introducing, for the purpose of impeaching the defendant's
Reservation of Rights
The branch of the defendant's motion seeking the right to make further motions is granted to the extent provided for by CPL 255.20(3).