[976 N.Y.S.2d 836] Robert T. Johnson, District Attorney, Bronx County, by Suzanne Carmody, Esq., Assistant District Attorney, for the People.
Steven Banks, Esq., Legal Aid Society, by Alec Pine, Esq., for the Defendant.
JOHN H. WILSON, J.
By a superceding information dated February 6, 2013, Defendant is charged with one count of Harassment in the Second Degree (PL Sec. 240.26(1)), a violation.
By motion dated September 24, 2013, Defendant seeks dismissal of the sole charge, asserting that the People's complaint is facially insufficient.
The Court has reviewed the Court file, Defendant's motion, and the People's Response dated October 29, 2013.
For the reasons stated below, the motion to dismiss is denied.
Pursuant to the superceding information, on or about October 11, 2012, at approximately 10:22 AM, in front of 2715 Grand Concourse, Bronx, New York, defendant " spat in (Police Officer Paul White's) face, which struck his eyes and mouth." See, superceding information dated February 6, 2013, p. 1.
Officer White further states that " as a result of defendant's aforementioned conduct, he experienced annoyance, alarm and fear for his personal safety." See, superceding information dated February 6, 2013, p. 2.
Under CPL Sec. 100.15, every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986).
Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987).
On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court information are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt.
See, People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S.2d 652, 504 N.E.2d 1079 (1986).
Applying these principles to the instant matter, the factual allegations contained in the misdemeanor complaint ...