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People v. Lewis

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

August 31, 2017

The People of the State of New York, Plaintiff,
v.
Alphonso Lewis, Defendant.

          For the Defendant: Alexzandria Poole, Esq. New York County Defender Services

          For the People: A.D.A. Chloe Kendall New York County District Attorney's Office

          DAVID FREY, J.C.C.

         The defendant was originally charged with one count each of Assault in the Third Degree (PL 120.00[1]) (intent to cause physical injury), Endangering the Welfare of a Child (PL 260.10[1]), and Harassment in the Second Degree (PL 240.26[1]). On April 6, 2017, another judge of this court dismissed the charges for facial insufficiency on two grounds: (1) the complaint contained hearsay, and (2) "the information failed to establish that he acted with intent to cause physical injury." On May 3, 2017, on the People's motion to renew and reargue, the People were granted leave by that judge to file a superseding information on or before May 19, 2017. On May 10, 2017, the People filed and served a certificate of trial readiness (COR) and a superseding information (SSI) signed by the victim with expanded factual allegations, charging defendant with one count each of Assault in the Third Degree (PL 120.00[1]) (intent to cause physical injury), Assault in the Third Degree (PL 120.00[2]) (recklessly causing physical injury), Endangering the Welfare of a Child (PL 260.10[1]), and Harassment in the Second Degree (PL 240.26[1]). On July 7, 2017, the defendant moved to dismiss the SSI for facial insufficiency. The case was adjourned for trial to September 13, 2017, and decision on defendant's motion to dismiss was reserved.

         For the reasons stated below, defendant's motion is denied.

         BACKGROUND

         The complaining witness, a nine-year-old child, [1] in his sworn misdemeanor information stated,

I am nine (9) years old and my date of birth is [REDACTED], 2007.... During the 2015-2016 school year, I was a third grade student at PSMS 165... and... the defendant was a lunch and recess monitor at my school. On April 19, 2016, when all the third grade classes were going to recess, I was talking to my friends and the defendant told everyone to stop talking. At first, I stopped talking but then I told my friends one last thing and the defendant saw me talking. When the defendant saw me talking, he approached me, grabbed me on the upper part of my right arm such that his whole hand was wrapped around the top of my arm and he squeezed my arm with his fingers very tightly. When he did this, I felt pain. While his hand was wrapped around my arm and squeezing my arm, he stated in substance YOU'RE GOING TO THE BACK OF THE LINE. He then kept his hand wrapped around my upper arm tightly and squeezing and forced me to go from the middle of the line where I was standing to the back of the line. While he was holding me in this way and forcing me to the back of the line, my arm hurt a lot causing my eyes to tear up. Because of what the defendant did to me, I had three (3) round bruises on my right upper arm, and my arm was sensitive to touch and in pain for approximately four to five days.

         The defendant claims that the People have fallen short in proving intent for the intentional assault and harassment charges (PL 120.00[1] and 240.26[1]), because the defendant only "grabbed" the complaining witness. The defendant argues that grabbing can either be done with innocent or not-so-innocent intent, and that the court must look at the surrounding circumstances to infer an intent to cause a physical injury (Defense Counsel's Affirmation, dated July 7, 2017, at p.6-7, ¶¶ 8-14). Likewise, the defendant states the reckless assault (PL 120.00[2]) charge should be dismissed, because the People have failed to make out those elements as well, mainly because the defendant could not be said to have consciously disregarded the risk of injuring the complaining witness, and because his conduct was not a gross deviation from the standard of conduct expected of him. The defendant also claims that the People have failed to prove defendant's age for the reckless endangerment charge, because they only have the complaining witness's word, and not his parents or a birth certificate.

         The People argue that most of defense counsel's arguments are trial issues, should not be determined on a motion to dismiss for facial insufficiency, and the superseding information was facially sufficient.

         FACIAL SUFFICIENCY

         Criminal Procedure Law (CPL) 100.40(1) states that an information is sufficient on its face when it substantially conforms with CPL 100.15; the allegations provide reasonable cause [2] to believe that the defendant committed the offense charged; and the non-hearsay allegations in conjunction with any supporting deposition establish, if true, every element of the offenses 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 be given a fair and not overly restrictive or technical reading" (People v Casey, 95 N.Y.2d 354, 360 [2000]).

         A. RECKLESS ASSAULT IN THE THIRD DEGREE (PL 120.00[2]).

         This count requires the People to allege that the defendant recklessly caused physical injury to another person. The injuries alleged are sufficient to sustain the "physical injury" element (People v Henderson, 92 N.Y.2d 677 [1999]). A defendant acts "recklessly" when they (1) engage in conduct that conduct creates or contributes to a substantial and unjustifiable risk that physical injury to another person will occur, (2) are aware of and consciously disregards that risk, and (3) when that risk is of such nature and degree that disregard of it ...


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