People v. Boyer

• Decision Date: 07 July 1980
• Citation: 105 Misc.2d 877,430 N.Y.S.2d 936
• Parties: PEOPLE of the State of New York v. Richard A. BOYER, Defendant. PEOPLE of the State of New York v. Eugene W. BLACK, Defendant. PEOPLE of the State of New York v. Fred O. T. AGYEMAN, Defendant. PEOPLE of the State of New York v. Robert L. BROWN, Defendant.
• Court: New York City Court

Page 936

430 N.Y.S.2d 936

105 Misc.2d 877

PEOPLE of the State of New York v. Richard A. BOYER, Defendant.

PEOPLE of the State of New York v. Eugene W. BLACK, Defendant.

PEOPLE of the State of New York v. Fred O. T. AGYEMAN, Defendant.

PEOPLE of the State of New York v. Robert L. BROWN, Defendant.

City Court of Syracuse, Criminal Division.

July 7, 1980.

Richard A. Hennessy, Jr., Dist. Atty. of the County of Onondaga by Joseph A. Lupia, Asst. Dist. Atty., for the People.

Joseph J. Heath, Syracuse, for defendant Robert L. Brown.

Frank H. Hiscock Legal Aid Society, Syracuse (Susan R. Horn, Syracuse, of counsel), for defendants Richard A. Boyer, Eugene W. Black, and Fred O. T. Agyeman.

PER CURIAM.

This decision pertains to motions by four individual defendants charged with violation of Penal Law § 260.05, Criminal Non-Support of a Child. Each prosecution is currently pending in the Syracuse City Court. Although these motions were made separately, based on facts particular to each case, and addressed to a particular judge, we find the issues raised to be so similar that they are most appropriately addressed in one comprehensive discussion. A need for uniformity and guidelines in effectively dealing with the numerous prosecutions for nonsupport that have occurred in recent months has further prompted this Court to join together in its findings.

RICHARD A. BOYER was arraigned on November 2, 1979, and charged with this Class A Misdemeanor. The matter was pretried extensively and then placed on the trial calendar. At the time of trial, prior to the selection of the jury, the defendant raised certain jurisdictional questions. Subsequently, the defendant made written motions addressed to Judge Joseph F. Falco, to dismiss. The contentions advanced by the defendant involve non-waiveable defects and are therefore properly before the Court at this time. People v. Weinberg, 34 N.Y.2d 429, 358 N.Y.S.2d 357, 315 N.E.2d 434 (1974); People v. Minuto, 71 Misc.2d 800, 337 N.Y.S.2d 88 (1972); People v. Conoscenti, 83 Misc.2d 842, 373 N.Y.S.2d 443 (1975); People v. Poll, 94 Misc.2d 905, 405 N.Y.S.2d 943 (1978).

EUGENE W. BLACK was arraigned on October 16, 1978. Defendant's omnibus motion contains requests for both dismissal and discovery and is before Judge James J. Fahey.

FRED O. T. AGYEMAN was arraigned on September 19, 1979, and an omnibus motion was subsequently presented to Judge Mathilde C. Bersani. At that time, discovery of various material was granted and defendant's requests for dismissal were denied, based solely on the original motion papers. Defendant's motion for a dismissal in the interests of justice was also denied. All motions to dismiss are now renewed, based upon newly discovered information and due to the Court's desire to maintain uniformity among its decisions.

ROBERT L. BROWN was arraigned on November 2, 1979, and has also made similar motions addressed to Judge Bersani.

I. SUFFICIENCY OF THE ACCUSATORY INSTRUMENT.

Each defendant moves to dismiss the accusatory instrument for the reasons that it is insufficient, conclusory and does not comply with CPL § 100.40(1):

"An information, or a count thereof, is sufficient on its face when:

"(a) It substantially conforms to the requirements prescribed in Section 100.15; and

"(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and,

"(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof."

The pertinent part of CPL § 100.15 referred to above provides:

"3. The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges . . . in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions." (Emphasis added)

A form instrument was utilized in the prosecution of all defendants charged with Criminal Non-Support. The text of the information utilized regarding Richard A. Boyer is as follows:

"I, Joseph A. Lupia, the complainant herein, of the office of the District Attorney of Onondaga County, at Syracuse, New York, hereby ACCUSE Richard A. Boyer, the DEFENDANT in this action and charge that from on or about the 1st day of December, 1978, to the 31st day of August, 1979, at the CITY of SYRACUSE, COUNTY OF ONONDAGA, State of New York, said Defendant did unlawfully commit the Misdemeanor of NON-SUPPORT OF A CHILD, contrary to the provisions of Section 260.05 of the Penal Law of the State of New York, to wit:

"1. The Defendant is the parent, legally charged with the care of the following (child) under the age of sixteen (16) years, to wit:

NAME DATE OF BIRTH

--------------------- -------------

Richard A. Boyer, Jr. 9-19-68

"2. Although able to do so, the defendant has failed or refused, without lawful excuse, to provide support for the aforementioned (child).

"3. On or about the 1st day of September, 1977, the defendant was ordered by the Family Court of the State of New York in and for the County of Onondaga to pay support as follows:

Respondent to pay $20.00 a week.

"On or about the 8th day of December, 1978, the defendant was ordered by Family Court of the State of New York, in and for the County of Onondaga to pay support as follows:

Respondent to pay $25.00 per week.

"The above crime constitutes a continuing course of conduct."

"That the source of deponent's information and belief are based upon and derived from the annexed affidavit of Sally Boyer, sworn to on the 19th day of July, 1979, and your deponent's review of the records and documents of the Family Court of Onondaga County and the Department of Social Services for Onondaga County, said records indicating the Defendant has failed to provide support as mandated."

Affixed to the instrument is the affidavit of Sally Boyer, which states, inter alia: " . . . that Richard A. Boyer has not provided me with any support . . . since 1976, except a used bicycle." ¹

It is clear that the texts of the instruments do not satisfy the above quoted provisions of the Criminal Procedure Law. There are no specific facts constituting the crimes alleged. The words contained in allegation number "2" are totally conclusory. This allegation merely represents a repetition of Penal Law § 260.05, ² and properly belongs in the accusatory part of the instruments. People v. Penn Central, 95 Misc.2d 748, 417 N.Y.S.2d 822 (1978).

Each and every element of the offense charged must be supported. Such factual basis for the elements of ability to pay and willful failure to pay, must take the form of separate factual allegations. People v. McGuire, 5 N.Y.2d 523, 186 N.Y.S.2d 250, 158 N.E.2d 830 (1959); People v. Case, 42 N.Y.2d 98, 396 N.Y.S.2d 841, 365 N.E.2d 872 (1977). The People must allege facts of an evidentiary nature to support the conclusory allegation that defendant willfully failed to provide support for his child, although he was able to do so.

Neither the attached affidavit of the mothers involved nor the reference to the Department of Social Services and/or Family Court Records can cure the deficiency in the accusatory instruments. They serve merely to provide a basis for the lack of receipt of support payments. A statement of non-payment is not sufficient alone to permit presumption that such failure to support was willful. Tucker v. Tucker, 41 A.D.2d 995, 343 N.Y.S.2d 1013 (3rd Dept., 1973).

The use of allegation "3" infers that failure to comply with a Family Court Order is an element of the offense charged. If this were indeed true, the criminal process would be utilized as a collection arm of Family Court, a blatantly impermissible use.

The People contend that the Order of Family Court is included simply to represent an indicia of the amount of support the defendant was capable of paying.

An Order of Family Court regarding support, unless accumulated arrears are reduced to judgment, is a non-final determination. Such an order is, at any time, subject to modification, cancellation, or defendant. Family Court Act § 451; ³ Reynolds v. Reynolds, 50 A.D.2d 993, 377 N.Y.S.2d 240 (3rd Dept., 1975).

In reality, a family court order of support is an indicia of the defendant's ability to pay a certain amount only as of the day the order is entered. The fact that Family Court made an order on a certain day, setting an amount of support, may not be a controlling factor in this court's review. It is entirely feasible that immediately following the entry of that order of support, the circumstances upon which it is based could change. This change would result in a new support hearing as to circumstances; in any event, the arrears accumulated could most probably be modified or totally vacated.

Proof of a civil determination may indeed be admissible in a criminal trial. However, this Court feels the non-final nature of the Family Court order would be a most difficult concept for a jury to grasp, requiring limiting instructions before this information were submitted. A balancing of all factors indicates the potential prejudice to the defendants is far weightier than the legal relevancy and probative value of the support orders. See Richardson on Evidence, Chapter VII, 1973.

A careful review of the Family Court Act and Personal Property Law § 49-b ⁴ confirms this Court's belief that, in the majority of cases, the criminal justice system is an unnecessary tool for collection of support. In fact, if enforcement of the support order were all these prosecutions sought to accomplish, we would be...