People v. Each, 2009 NY Slip Op 52158(U) (N.Y. Dist. Ct. 10/23/2009)
| Decision Date | 23 October 2009 |
| Docket Number | 2009NA013341 |
| Citation | 2009 NY Slip Op 52158 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, v. ORLANDO EACH, Defendant. |
| Court | New York District Court |
Hon. Kathleen Rice, Nassau County District Attorney.
Keith A. Lavallee, Esq., Attorney for Defendant.
The Defendant is charged under Docket Number 2009NA013341 with Stalking in the Fourth Degree, in violation of Penal Law § 120.45(1), and under Docket Number 2009NA013342 with Criminal Mischief in the Fourth Degree, in violation of Penal Law § 145.00(1). The Defendant now moves for an order dismissing the charges against him, alleging that the accusatory instruments are facially insufficient. The People oppose the motion.
An information will be found facially sufficient where, in conformity with CPL §§ 100.15 and 100.40, it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereof, People v. Hall, 48 NY2d 927, 425 NYS2d 56 (1979), and a factual part containing "a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]" CPL § 100.15(3) based upon either the complainant's personal knowledge or upon information and belief. CPL § 100.15(3) The factual part, taken together with any supporting depositions, must contain non-hearsay allegations which, if true, establish every element of the offence charged, People v. Moore, 5 NY3d 725, 800 NYS2d 49 (2005); People v. Thomas, 4 NY3d 143, 791 NYS2d 68 (2005) "provid[ing] reasonable cause to believe that the defendant committed the offense[.]" People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987); CPL § 100.40(4)(b) " Reasonable cause to believe that a person has committed an offense' 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 § 70.20
Penal Law §145.00(1) "In general, criminal mischief requires a culpable mental state (intentionally' or recklessly'), damage to the property of another, and no right to do so nor any reasonable ground to believe that one has such right." Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 145.00, at 102
The information charging the Defendant with Criminal Mischief in the Fourth Degree alleges that on May 14, 2009, at about 12:45 p.m., at 3807 Voorhis Lane, Seaford, New York, "the defendant Each, Orlando did drive his 93 Ford Explorer NY reg EJV2699 on to the front lawn of the victims (sic) Joanne Molnar (sic) home, located at 3807 Voorhis La Seaford and did cause damage to the lawn." The supporting deposition of the complainant, Joanne Molnar, alleges that she was advised by her neighbor, Robert Mulcahy, that a white male, wearing a white baseball cap drove a blue Ford Explorer over her front lawn and then sped away. Ms. Molnar further avers that he lawn sustained damage in the approximate amount of $200.00. The supporting depositions of Mr. Mulcahyassert that he observed a young white male, wearing a white baseball cap, who he identified as the Defendant, come from the dead end of Voorhis Lane, drive onto his neighbor's lawn at 3807 Voorhis Lane at a high rate of speed, causing "a good amount of damage," and then proceed east on Voorhis Lane.
The Defendant does not claim that the information fails to properly allege the necessary elements of damage to the property of another and the absence of any right to cause such damage. The Defendant does allege that the information is facially insufficient in that it fails to contain "a sufficient allegation that the defendant's alleged conduct was intentional' [and that] the identity of defendant is not properly alleged." As to the former claim, the Defendant suggests that the alleged act of driving on the complainant's lawn may have been the result of negligence, and not an intentional act. As to the latter claim, the Defendant argues that the complainant's supporting deposition contains nothing but hearsay statements, reciting what she was told by her neighbor; and, the supporting deposition of the neighbor does not identify the individual he saw drive across the complainant's lawn.
In opposition, the People do not contest that the complainant's supporting deposition contains almost exclusively hearsay statements. They do, however, point to the two (2) supporting depositions of Mr. Mulcahy as supporting every element of the crime charged. The People argue that Mr. Mulcahy's supporting deposition of May 14, 2009 provides a first hand account of the Defendant's conduct, from which his intent can reasonably be inferred; and, that Mr. Mulcahy's supporting deposition of May 16, 2009 establishes the Defendant's identification as the individual who drove across the complainant's lawn.
Mr. Mulcahy's supporting deposition of May 16, 2009 clearly identifies the Defendant as the individual who drove a vehicle onto the complainant's law.
"[A] defendant's intent is the product of the invisible operation of his mind,' to be determined, inevitably, on the basis of defendant's statements and conduct (282 AD2d 102, 726 NYS2d 71)." People v. Samuels, 99 NY2d 20, 750 NYS2d 828 (2002) "Often there is no direct evidence of a defendant's mental state and [one] must infer the mens rea circumstantially from the surrounding facts (People v. Bracey, 41 NY2d 296, 301, 392 NYS2d 412, 360 NE2d 1094)." People v. Smith, 79 NY2d 309, 582 NYS2d 946 (1992); See also: People v. Persaud, 25 AD3d 626, 808 NYS2d 723 (2nd Dept. 2006) lv. den. 6 NY3d 837, 814 NYS2d 85 (2006); People v. Britton, 49 AD3d 893, 853 NYS2d 898 (2nd Dept. 2008)
Viewing the allegations contained in Mr. Mulcahy's supporting depositions in a light most favorable to the People, People v. Martinez, 16 Misc 3d 1111(A), 847 NYS2d 898 (Table), (Dist.Ct. Nassau Co. 2007); People v. Delmonaco, 16 Misc 3d 526, 837 NYS2d 869 (Dist.Ct. Nassau Co. 2007); People v. Mendelson, 15 Misc 3d 925, 834 NYS2d 445 (Dist.Ct. Nassau Co. 2007) and without giving them an overly restrictive or technical reading, People v. Casey, 95 NY2d 354, 717 NYS2d 88 (2000); People v. Baumann & Sons Buses, Inc., 6 NY3d 404, 813 NYS2d 27 (2006), the court finds that they are sufficient to serve the purpose of providing the Defendant with notice enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from again being tried for the same offense. People v. McDermott, 69 NY2d 889, 515 NYS2d 225 (1987); People v. McGuire, 5 NY2d 523, 186 NYS2d 250 (1959) Moreover, it may be inferred from the facts alleged therein, particularly that the Defendant began the operation of his motor vehicle in a dead end and accelerated to a high rate of speed as he drove onto the complainant's lawn, then speeding away, that he intended to cause damage to the complainant's property. See: People v. Douglas, 291 AD2d 455, 737 NYS2d 545 (2nd Dept. 2002), [defendant's intent to damage property may be inferred from the fact that he drove his sport utility vehicle in the glass entryway of a movie theater]; In re Kayla C., 35 AD3d 1187, 826 NYS2d 549 (4th Dept. 2006), [respondent's intent to cause property damage may be inferred from evidence that she drove her vehicle into the vehicle in front of her]; People v. Haynes, 39 AD3d 562, 833 NYS2d 193 (2nd Dept. 2007) lv. den. 9 NY3d 845, 840 NYS2d 771 (2007), [defendant's intent to cause serious physical injury could reasonably be inferred from testimony that he drove his car across a parking lot straight into the victim]; People v. Gianni, 303 AD2d 1012, 756 NYS2d 688 (4th Dept. 2003) lv. den. 100 NY2d 581, 764 NYS2d 391 (2003), [defendant's intent to cause damage during a police pursuit my properly be inferred from evidence that the defendant struck one vehicle three times and another vehicle two times]; People v. Ollman, 309 AD2d 1241, 765 NYS2d 541 (4th Dept. 2003) lv. den. 1 NY3d 541, 775 NYS2d 245 (2003), [defendant's intent to cause serious physical injury could be inferred from evidence that he hit two people with his car].
The court's finding notwithstanding, the ultimate question of whether the damage caused to the complainant's property was the result of the driver's intentional conduct or negligence is to be determined by the trier of facts. While the allegations set forth are sufficient for pleading purposes, such a showing is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Swamp, 84 NY2d 725, 622 NYS2d 472 (1995); People v. Porter, 75 AD2d 901, 428 NYS2d 63 (2nd Dept. 1980)"Of course, the People retain[] their burden to prove those elements at trial beyond a reasonable doubt." People v. Inserra, 4 NY3d 30, 790 NYS2d 71 (2004)
Accordingly, that branch of the Defendant's motion which seeks to dismiss the charge of Criminal Mischief in the Fourth Degree is denied.
"A person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person and knows or reasonably should know that such conduct: 1. is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person's immediate family or a third party with whom such person is acquainted." Penal Law §120.45(1)
The information under which the Defendant is charged alleges two incidents which form the basis of the stalking charge. The first is alleged to have occurred on...
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