People v. Cardona
| Decision Date | 21 October 2013 |
| Citation | 973 N.Y.S.2d 915,42 Misc.3d 194,2013 N.Y. Slip Op. 23356 |
| Parties | The PEOPLE of the State of New York, v. Jacqueline CARDONA, Defendant. |
| Court | New York Criminal Court |
OPINION TEXT STARTS HERE
Robert T. Johnson, District Attorney, Bronx County, by Katherine Gregory, Esq., Assistant District Attorney, for the People.
Jacob Lemon–Strauss, Esq., the Bronx Defenders, for the Defendant.
Defendant is charged with one count each of Endangering the Welfare of a Child (PL Sec. 260.10), and Criminal Possession of a Controlled Substance in the Seventh Degree (PL Sec. 220.03), both Class A misdemeanors, as well as one count of Unlawful Possession of Marijuana (PL Sec, 221.05), a violation.
By omnibus motion dated June 12, 2013, Defendant seeks the following: dismissal of the charge of Endangering the Welfare of a Child, asserting that the People's complaint is facially insufficient as to that count; suppression of all physical evidence seized and statements made to law enforcement personnel; and suppression of any evidence of any prior bad acts or immoral conduct.
The Court has reviewed the Court file, Defendant's motion, the People's Response dated July 3, 2013. For the reasons stated below, the motion to dismiss is denied.
The motion for pre-trial hearings is granted, to the extent of ordering a hearing to determine if there was probable cause for Defendant's arrest and whether or not physical evidence was seized and statements were taken in violation of Defendant's rights under the United States and New York Constitutions.
A hearing regarding whether or not the People can use any prior bad acts or immoral conduct against the Defendant is referred to the trial court.
Pursuant to the Criminal Court complaint, between November 21, 2012 and December 3, 2012, at approximately 5:00 PM, while inside of 2264 Davidson Avenue, Bronx, New York, the Defendant “on three separate occasions” approached the informant, a 14 year old child, “handed informant a lit cigarette and informant smoked said cigarette.” See Criminal Court complaint dated December 17, 2012, p. 1.
On December 17, 2012, at approximately 2:45 PM, while inside of 2264 Davidson Avenue, Bronx, New York, Defendant is alleged “to have on her person, in her left front pocket, one (1) ziplock bag containing a dry, leafy green substance with a distinctive odor, and one (1) foil wrapper containing a white powdery substance.” See Criminal Court complaint dated December 17, 2012, p. 1–2. The arresting officer asserts that based upon his “training and experience ... the aforementioned substances are alleged and believed to be marijuana and cocaine respectively.” See Criminal Court complaint dated December 17, 2012, p. 2.
(A) The People's Complaint is Facially Sufficient.
Defendant asserts that the charge of Endangering the Welfare of a Child is facially insufficient in the instant case because “The actions (Defendant) allegedly took were not likely to be injurious to a child.” See, Defendant's motion dated June 12, 2013, p. 6 para. 7. The Defendant also contends that “(t)he complaint does not allege that (Defendant) gave (the child) a large amount of cigarettes...smoking...three cigarettes is not likely to be injurious to the physical, mental or moral welfare of a child.” See, Defendant's motion dated June 12, 2013, p. 7 para. 8.
Further, Defendant asserts that “(i)n this complaint, there is no fact alleged that would allow anyone to infer that (Defendant) knew that handing a fourteen year old three...cigarettes would likely be injurious to the physical, mental or moral welfare of (the child).” See, Defendant's motion dated June 12, 2013, p. 8 para. 10.
CPL Sec. 100.15 provides that 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 information before this Court regarding the charge of Endangering the Welfare of a Child are clearly facially sufficient.
Under PL Sec. 265.01(1), a person is guilty of endangering the welfare of a child when, “(h)e knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than...
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People v. Moore
...the police acted unlawfully in giving defendant (who was 17-years old at the time) a cigarette is without merit (see People v. Cardona , 42 Misc. 3d 194, 973 N.Y.S.2d 915 (Crim. Ct. Bronx Co. 2013 (Wilsson, J.). The Second Department has held that the police may engage in a ruse even with r......
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Jane Doe v. E. Irondequoit Cent. Sch. Dist.
...People v. Toft, 156 A.D.3d 1234, 1235 (3d Dept. 2017), handing a child a lit cigarette for him to smoke, see, People v. Cardona, 42 Misc.3d 194, 973 N.Y.S.2d 915 (Crim. Ct., City of New York, Bronx County 2013), or selling fireworks to a child, see, People v. Suquisupa, 167 Misc.2d 109, 637......