Criminal Court of the City of New York, Queens County
Attorney for defendant: Zachary Reibstein
Attorney for the People: ADA Priya Ravishankar
Elisa S. Koenderman, J.
Elisa S. Koenderman, JCC
The defendant, Jonathan Perez, is charged with Assault in the Second Degree, Penal Law ["PL"] § 120.00(1), Endangering the Welfare of a Child, PL § 260.10(1) and Harassment in the Second Degree, PL § 240.26(1). The defendant moves to dismiss the charge of Assault in the Third Degree for facial insufficiency . Because the evidentiary facts alleged do not support every element of the crime, the charge is jurisdictionally defective and the defendant's motion therefore is granted.
To be sufficient, an information must allege "facts of an evidentiary character" (CPL § 100.15) which provide reasonable cause to believe that the defendant committed the offense charged (see CPL § 100.40[b]). 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). Further, the nonhearsay factual allegations of the information and any supporting depositions, if accepted as true, must establish the defendant's commission of every element of the offense charged (see CPL § 100.40[c]; see People v Dumas, 68 N.Y.2d 729 ; see also People v Alejandro, 70 N.Y.2d 133 ). This is known as the prima facie case standard for an information (see People v Kalin, 12 N.Y.3d 225, 229 ).
The prima facie case standard for an information comprises two requirements (see People v Casey, 95 N.Y.2d 354, 362 ). First, the information must allege every element of the charged offense and second, those allegations must be non-hearsay (see id.; Kalin, 12 N.Y.3d at 229). Because a hearsay pleading defect does not implicate any fundamental rights, a defendant either may waive it by consenting to prosecution on a misdemeanor complaint or forfeit it by pleading guilty (see People v Keizer, 100 N.Y.2d 114, 122 ; Casey, 95 N.Y.2d at 367). In contrast, a pleading error which omits the elements of a charged crime is of constitutional dimension since it impairs a defendant's basic right to fair notice sufficient to enable him to prepare a defense and prevent double jeopardy (Casey, 95 N.Y.2d at 366). Consequently, the failure to allege a complete element of a charged offense is a non-waivable jurisdictional defect (see People v Fernandez, 20 N.Y.3d 44, 47 ; People v Dreyden, 15 N.Y.3d 100, 103 ; Kalin, 12 N.Y.3d at 229; Casey, 95 N.Y.2d at 366-367; People v Jones, 9 N.Y.3d 259, 263 ; Alejandro, 70 N.Y.2d at 139).
Fundamental principles of justice and fairness mandate that an accusatory instrument "factually describe the elements of the crime and the particular acts of the defendant constituting its commission" (Casey, 95 N.Y.2d at 363). Whether it is denominated as a misdemeanor complaint or an information, the instrument must allege facts of an evidentiary character which provide reasonable cause to believe that the defendant committed the crime charged (see People v Suber, 19 N.Y.3d 247, 251 ). A misdemeanor complaint which violates the reasonable cause requirement by failing to allege sufficient evidentiary facts to support an element of the crime charged is jurisdictionally defective (see Fernandez, 20 N.Y.3d at 47; Dreyden, 15 N.Y.3d at 103). Because "a misdemeanor complaint is a misdemeanor information... with hearsay allegations permitted, " a misdemeanor complaint must allege evidentiary facts supporting every element of the offense charged (id. at 50). Thus, a misdemeanor complaint also must comply with the first requirement of the prima facie case standard for an information in order to be jurisdictionally sufficient.
Here, the defendant is charged in a misdemeanor complaint with one count of Assault in the Third Degree. The complaint alleges, in pertinent part, that on December 19, 2012 in Queens County, the defendant "grabbed [Sonia Cruz], pushed her and punched her in the back, causing her substantial pain." At arraignment, the Court found the facts alleged insufficient to establish the element of physical injury and directed the People to file and serve a jurisdictionally sufficient superceding information for that charge. On the next adjournment date, the People declined to file such an instrument. Thereafter, the defendant filed and served the instant motion to dismiss.
The defendant contends that the allegation that the complainant suffered substantial pain, without more, does not establish that he caused physical injury to her. Citing to In the Matter of Philip A, 49 N.Y.2d 198 (1980), the defendant notes that the accusatory instrument does not allege that the complainant sustained even mere redness. Thus he argues that it fails to adequately plead an element of the crime of Assault in the Third Degree and that the charge therefore must be dismissed as jurisdictionally defective. The People counter that the allegation that the complainant suffered substantial pain as a result of the defendant's actions is sufficient, for pleading purposes, to establish physical injury. They assert that whether the complainant suffered physical injury is a question of fact, and that "a reasonable jury could infer that the complainant suffered substantial pain as a result of a punch to the back." They state that there is a "critical distinction between the standards of proof at the pleading versus trial stages" and claim that Matter of Philip A., supra, addresses "what evidence [is] legally sufficient to establish physical injury... beyond a reasonable doubt at trial." Relying on People v Henderson, 92 N.Y.2d 677 (1999), they contend that criminal complaints frequently are drafted in the hours immediately following an alleged assault before the complainant fully can assess its "lasting effects" (id. at 680). Thus, they ask the Court to deny the defendant's motion and to allow them "the opportunity at trial to detail the nature and extent of the injuries suffered by the complainant, and to offer... proof that the complainant suffered either substantial pain or impairment of physical condition."
Although the standard for legally sufficient evidence differs in certain respects from the prima facie case standard, they are substantively equivalent (see People v Suber, 19 N.Y.3d 247, 251 ; People v Swamp, 84 N.Y.2d 725, 730 ). Legally sufficient evidence is defined as "competent evidence, which if accepted as true, would establish every element of an offense charged and the defendant's commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent" (CPL § 70.10; see also Suber, 19 N.Y.3d at 251). Competent evidence is evidence that is admissible because it is not subject to a per se exclusionary rule (see Suber, 19 N.Y.3d at 252). In contrast, the prima facie case standard requires "non-hearsay allegations that establish, if true, every element of the offense charged and the defendant's commission thereof" (id. at 251 [internal citations omitted]). While the standard for legally sufficient evidence excludes all incompetent evidence, the only type of evidence which the prima facie case standard excludes is hearsay (see id.). Moreover, the mandate that legally sufficient evidence be corroborated is not applicable to the prima facie case standard (see id. at 252) . In this sense, the prima facie case standard "does not rise to the level of legally sufficient evidence that is necessary... to survive" a motion for a trial order of dismissal (id., citing Kalin, 12 N.Y.3d at 230 [internal citations omitted]). Nevertheless, an information must "give an accused notice sufficient to prepare a defense and [be] adequately detailed to prevent a defendant from being tried twice for the same offense" (Kalin, 12 N.Y.3d at 230, citing People v Konieczny, 2 N.Y.3d 568, 575  [internal citations omitted]). Specifically, where a defendant is charged with Assault in the Third Degree, the information "must set forth sufficient factual allegations to warrant the conclusion that the victim suffered an impairment of physical condition or substantial pain and otherwise is fatally defective" (Henderson, 92 N.Y.2d at 680).
In Matter of Philip A., supra, the New York Court of Appeals decided what kind of evidence is required as a matter of law to establish substantial pain for Assault in the Third Degree. There, the court accepted as "proven" that the defendant "twice hit the complainant in the face, causing him to cry, his face to feel like bumps were coming on it though none did, causing red marks on his face, and causing him pain" (Matter of Philip A., 49 N.Y.2d at 200). Finding this evidence "insufficient to establish substantial pain beyond a reasonable doubt, " it reversed the conviction and dismissed the accusatory instrument (id.). The court determined that the evidence was legally insufficient not because it was incompetent or because corroboration was required by law, but because of the nature of the proof presented. Contrary to the People's contention, the holding in Philip A. therefore applies not just to the sufficiency of evidence presented at trial but to the sufficiency of the factual allegations of an information. Consequently, if the facts alleged at trial do not support a requisite element of the crime, then neither would the same facts alleged in an information.
In construing the statutory definition of physical injury as substantial pain, the court noted that, "[i]t is clear... that the legislature did not intend a wholly subjective criterion to govern" (id.). The court explained that although the question of whether substantial pain has been proved is generally for the trier of fact, who can consider "among other factors, the subjective reaction of the person claimed to have been assaulted...[, ] there is an objective level... below which the question is one of law, and the charge should be dismissed" (id. [internal citations omitted]). Hence, the court unequivocally rejected the interpretation that substantial pain may be based entirely upon the ...