2017 NY Slip Op 50004(U)


Criminal Court of the City of New York, New York County.

Attorney(s) appearing for the Case

Cyrus R. Vance, Jr. , New York County District Attorney, by A.D.A. Samantha Schott , for the People.

Kushner Law Group, P.L.L.C., by Michael P. Kushner, Esq. , for the Defendant.


Defendant, charged with one count each of assault in the third degree (Penal Law § 120.00(1)), attempted assault in the third degree (Penal Law § 110/120.00(1)), and harassment in the second degree (Penal Law § 240.26(1)) moves to dismiss the assault count, arguing — some three years after the SSI was filed — that the accusatory instrument fails to make out a prima facie case of "physical injury." For the following reasons, defendant's motion is DENIED.


A. The Allegations

According to the SSI, on July 26, 2013, in New York County, defendant punched the complainant, his wife, underneath her chin and in the back of her head with extreme force, causing her to fall backwards.

B. Legal Proceedings

Defendant was arraigned on July 27, 2013, on a misdemeanor complaint charging him with attempted assault in the third degree (Penal Law §§ 110/120.00(1)) and harassment in the second degree (Penal Law § 240.26(1)). The Court set bail and adjourned the case for conversion.

On September 27, 2013, by which time defendant had posted bail, the People filed an off-calendar certificate of readiness and an SSI. The SSI contained the same charges as those in the misdemeanor complaint, along with the added charge of assault in the third degree under Penal Law § 120.00(1).

Defendant filed this motion to dismiss in court on October 31, 2016, and the People given until November 21 to respond, declined to do so. The matter has been sub judice since November 21.


The SSI, sworn to by Police Officer Julio Silva, provides that, on or about July 26, 2013, in New York County,

I observed via video the defendant hit [the complainant] . . . underneath her chin with a closed fist, and then hit her in the back of the head with a closed first, both times with extreme force. I observed [the complainant] fall backwards and appear to be in a daze while clutching her face with her hands. I then observed the defendant throw four closed fist punches at the area where [the complainant] appears to be standing, slightly off camera. I observed that the defendant appears to be approximately six feet tall, two hundred and twenty pounds, and that the defendant[] appear[s] very muscular. I observed that [the complainant] appears to be approximately five feet five inches tall, and weighs approximately one hundred and fifty pounds. I observed a bleeding laceration to the inside of [the complainant]'s lip.


Even though the SSI does not contain the complainant's own description of the injuries she sustained or the degree of pain she suffered, it nevertheless sufficiently pleads the "physical injury" element of Penal Law 120.00(1).

A. Facial Sufficiency in General

A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 N.Y.3d 518 (2014); People v Alejandro, 70 N.Y.2d 133, 138-39 (1987). Accordingly, a misdemeanor information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." People v. Kalin, 12 N.Y.3d 225, 228-29 (2009) (citing People v Henderson, 92 N.Y.2d 677, 679 (1999) and CPL 100.40 (1)(c)). This is known as "the prima facie case requirement." Kalin, 12N.Y.3d at 229.

The prima facie case requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 115 (1986). Rather, the information need only contain allegations of fact that "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." People v Casey, 95 N.Y.2d 354, 360 (2000). A court reviewing for facial insufficiency must subject the allegations in the information to a "fair and not overly restrictive or technical reading," id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 N.Y.3d 738,(2012). See also Casey, 95 NY2d at 360. Under this standard, the information here is facially sufficient.

B. Pleading "Physical Injury"

Whether "physical injury" has been sufficiently pled in a misdemeanor case is surely one of the most frequently litigated issues in Criminal Court practice. As with any facial sufficiency issue, however, review is limited to a "fair and not overly restrictive or technical reading" of the accusatory instrument, Casey, 95 NY2d at 360, to determine whether there is a reasonable inference that the actions ascribed to the defendant caused "physical injury" to the complainant.

"Physical injury," means "impairment of physical condition or substantial pain." Penal Law § 10.00(9). This element can be sufficiently pled even in cases where the accusatory instrument describes only an act of violence and an injury, or even violence alone, but does not specifically allege that the violence caused the complainant substantial pain. In these cases, the instrument is sufficient as long as it alleges an act of violence that is sufficiently extreme to permit a reasonable inference that the violence was "an experience that would normally be expected to bring with it more than a little pain." People v. Chiddick, 8 N.Y.3d 445, 447 (2007).

To be sure, reviewing an instrument that alleges an act of violence but that does not specifically allege that the act caused substantial pain can be a complex matter. It will turn on a close examination of the particular facts alleged, and not every such instrument will make out a prima facie case. But, nevertheless, if the acts of violence alleged, taking into account all of the surrounding circumstances alleged in the accusatory instrument — including any injury described — can lead a court to conclude that there is a reasonable inference that the violence likely caused "more than a little pain," id., the instrument sufficiently pleads physical injury. E.g., People v. Calixto, 29 Misc.3d 798 (Crim Ct NY County 2010) (information that described acts of violence and their result, but did not contain allegations by victim as to nature or duration of the injuries sustained, was facially sufficient as to "physical injury" element).

C. The SSI Pleads a Prima Facie Case of "Physical Injury"

Here, the Court readily concludes that the allegations in the SSI make out a prima facie case of physical injury. The Court relies, first, on the acts of violence described in the SSI: the defendant punched the complainant with great force both under her chin and behind her head. He also threw four additional punches. Even without a conclusive accusation that those punches connected, they nevertheless suggest a level of fury that leads to the reasonable inference that the first two punches were extremely violent. In this regard, the case is similar to People v. Morris, 44 Misc.3d 810 (Crim Ct NY County 2015). There, the information described acts of violence, but did not allege that those acts caused substantial pain. Nevertheless, this Court found that the information made out a prima facie case of "physical injury" because "[t]he experience of being slapped and bit during a fight by someone who is clearly very angry would normally be expected to cause more than a little pain." Id. at 820, internal quotation marks omitted. The same is true here.

Next, the Court considers the result of the defendant's violent conduct, as alleged in the SSI. Defendant's conduct caused the complainant to fall backwards and hold her face with her hands while "in a daze." In addition, the complainant sustained a "bleeding laceration" to the inside of her lip. These results, taken in combination with the acts of violence that caused them, further support the reasonable inference that the defendant struck the complainant with great force and caused an injury that was serious enough to rise to the level of "substantial pain." See, e.g., People v. Williams, 24 A.D.3d 187 (1st Dept 2005) (trial evidence legally sufficient as to physical injury where defendant repeatedly punched victim, causing bruising, swelling, laceration and loss of consciousness); People v. Almonte, 102 Misc.2d 950 (Sup Ct NY County 1980) (trial evidence sufficient as to physical injury where defendant punched complainant, causing bleeding laceration to complainant's upper lip).

Finally, the Court notes the great discrepancy in size and apparent physical strength between the complainant and the victim. The SSI describes the defendant as "very muscular," some seven inches taller than the complainant, and also alleges that he outweighed her by about seventy pounds. While these facts alone would not be sufficient to make out a prima facie case of physical injury, they certainly contribute to the reasonable inference that the defendant did in fact cause physical injury to the much, much, smaller person whom he punched repeatedly. See, e.g., People v. Martinez, 125 A.D.3d 735, 736 (1st Dept 2015) (in sex offenses, discrepancies in age, size and strength are relevant to considering whether defendant's conduct placed complainant in fear of physical injury).

Accordingly, the Court concludes that the SSI here makes out a prima facie case of the "physical injury" element of assault in the third degree.

Nor is the Court persuaded to hold otherwise by the cases proffered by the defendant in support of this motion. Defendant relies primarily on People v. Dipoumbi, 23 Misc.3d 1127(A) (Crim Ct NY County 2009), a case where the defendant was charged with assault in the third degree in an information that alleged that he had opened the door of a taxi cab and hit the complainant's arm, causing swelling and substantial pain. But that case is readily distinguishable. There, the information contained "no description of the amount of force that the defendant employed to open the door." Id. Here, by contrast, the information describes a large, muscular defendant striking the far smaller complainant in the face, twice, with sufficient force to cause her to fall backwards. In fact, Dipoumbi goes on to specifically distinguish the facts there from cases where the accusatory instrument alleges "a punch to the face," an act that, even "without more" is sufficiently violent to plead "physical injury." Id. (citing People v. Malone, 180 Misc.2d 744 (Crim Ct NY County 1999)).

Defendant also relies on People v. Strong, 179 Misc.2d 809 (App Term 2d Dept 1999). There, the court found that an information alleging that the defendant "hit and kicked" the complainant, causing "a lot of pain," was facially insufficient as to the "physical injury" element. This Court disagrees with Strong and declines to follow it. This Court has always been of the view that when a victim alleges that an act of violence caused her "a lot of," or "substantial," pain,1 that language alone is sufficient for a pleading:

Where an information alleges both a deliberate act of violence and that that act caused "substantial pain," the prima facie case requirement is met. Because facial sufficiency review is limited to the face of the pleading, there is no occasion for a court to look behind the pleading and conclude that there is some doubt as to whether the act of violence it alleges actually caused substantial pain. In other words, there is a "reasonable inference" that if a person reports having experienced "substantial pain," she did, in fact, experience substantial pain.

Morris, 44 Misc 3d at 818. But in any event, Strong is distinguishable on its facts, since the conduct ascribed to the defendant in the SSI here is considerably more violent than the conduct described in the accusatory instrument there.

Finally, defendant relies on an unreported decision, People v. Garguilo, Docket No. 94-70 N CR (App Term 9th and Tenth Dists October 21, 1996), which held that "[a]llegations that defendant punched defendant in the eye, causing lacerations, contusions, swelling and discoloration, without more, fail to establish the requisite element of physical injury." As discussed above, this Court has always held that an accusatory instrument that describes an act of violence that results in an injury can make out the "physical injury" element — even if the instrument does not specifically describe the level or duration of pain caused — as long as there is a reasonable inference that the violence caused "more than a little" pain. Chiddick, 8 NY3d at 447. The allegations described in Garguilo clearly meet this test. Accordingly, this Court disagrees with Garguilo and declines to follow it.

Accordingly, since the SSI here pleads a prima facie case of "physical injury," defendant's motion to dismiss is denied.

D. Conclusion

For the above reasons, defendant's motion to dismiss is denied.


The motion to dismiss is denied.

This constitutes the Decision and Order of the Court.


1. In this context, "substantial" means "more than a little." Chiddick, 8 NY3d at 447. To this Court, at least, "a lot" also means "more than a little."


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