People v. Garcia

• Citation: 998 N.Y.S.2d 605,46 Misc.3d 620,2014 N.Y. Slip Op. 24351
• Decision Date: 19 November 2014
• Docket Number: 2014NY033142.
• Parties: The PEOPLE of the State of New York v. Nancy GARCIA, Defendant.
• Court: New York Criminal Court

46 Misc.3d 620

998 N.Y.S.2d 605

2014 N.Y. Slip Op. 24351

The PEOPLE of the State of New York

v.Nancy GARCIA, Defendant.

2014NY033142.

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

Nov. 19, 2014.

New York County Defender Services, Inc., by Justin Levy, Esq., for the defendant.

Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Sarah Walsh, for the People.

Opinion

STEVEN M. STATSINGER, J.

Defendant is accused of Custodial Interference in the Second Degree under Penal Law § 135.45(1) ; she is alleged to have picked up her child at school in violation of a Family Court Order granting custody of the child to the child's father. It is a question of first impression whether a child's school can be her “lawful custodian” under § 135.45(1). As discussed below, the Court concludes that it can.

But, nevertheless, the Information here fails to allege facts necessary to support two of the remaining elements of § 135.45(1) —intent and knowledge. Accordingly, defendant's motion to dismiss for facial insufficiency is GRANTED.¹ Sealing is stayed for 30 days.

I. FACTUAL BACKGROUND

A. The Allegations

According to the Information, on April 25, 2014, defendant picked up her daughter, N.L.,² from school, without the permission of the child's father. Before this occurred, Family Court had entered an order awarding the father custody of N.L.

B. Legal Proceedings

Defendant was arraigned on April 25, 2014, on a Misdemeanor Complaint charging her with Custodial Interference in the Second Degree, under Penal Law § 135.45(1). The Court released the defendant and adjourned the case to May 12 for conversion. On May 4, off-calendar, the People filed a Certificate of Readiness (“C.O.R.”) and two necessary Supporting Depositions. However, on May 12, the Court held that the People also needed to file the Family Court Order of Custody in order for the Misdemeanor Complaint to be converted, and adjourned the case to June 12 for that purpose. On May 20, again off-calendar, the People filed a C.O.R. and a certified copy of that order. The Court deemed the Misdemeanor Complaint an Information on June 12.

Defense counsel filed the instant motion to dismiss on July 17, 2014, and the People responded on September 17. The matter has been sub judice since then.

II. THE ACCUSATORY INSTRUMENT

The Misdemeanor Complaint, sworn out by Police Officer Samantha Villanueva, provides that:

I am informed by Olga Perez, who is employed as a School Safety Agent, that [at 2:45 p.m. on April 25, 2014], she observed the defendant pick up [N.L.] from school [located] at [East 103rd Street and Second Avenue in New York County].

I am informed by Edgardo Lopez ... that [N.L.] is his daughter and that the defendant did not have permission or authority to pick [N.L.] up from school. I am further informed by Mr. Lopez that, pursuant to an Order of Custody, issued by the Family Court of the State of new York and stamped April 23, 2014, Mr. Lopez has custody of [N.L.]

The Misdemeanor Complaint was corroborated by the Supporting Depositions of Officer Perez, dated May 2, 2014, and Edgardo Lopez, dated May 2, 2014.

In addition, the certified copy of the Custody Order reveals that Edgardo Lopez is the father of N.L., who was born in 2007, and that the defendant is the child's mother. The Order awards custody of N.L. and four other children to Edgardo Lopez, and also provides that defendant is permitted to have supervised agency visits with N.L. The Order is dated August 11, 2010, and the certified copy is dated April 23, 2014.

The Order has two boxes indicating service options: “Order mailed on [specify date(s) and to whom mailed]” and “Order received in court on [specify date(s) and to whom given].” Neither box, however, is checked.

III. DISCUSSION.

The Information here, which comprises the Misdemeanor Complaint, two Supporting Depositions and the Family Court Order of Custody, is facially insufficient. While it sufficiently alleges the child's age, that defendant is the child's mother, and that she took the child from the child's “lawful custodian,” it does not make out a prima facie case that defendant intended to hold the child for a “protracted period,” and that she knew she lacked the legal right to pick the child up from school.

A. Facial Insufficiency in General

A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 N.Y.3d 518, 992 N.Y.S.2d 672, 16 N.E.3d 1150 (2014) ; People v. Alejandro, 70 N.Y.2d 133, 138–39, 517 N.Y.S.2d 927, 930–31, 511 N.E.2d 71, 74 (1987). Accordingly, a misdemeanor Information must set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof.” People v. Kalin, 12 N.Y.3d 225, 228–29, 878 N.Y.S.2d 653, 655, 906 N.E.2d 381, 383 (2009) (citing People v. Henderson, 92 N.Y.2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165 (1999) and CPL 100.40(1)(c) ). This is known as “the prima facie case requirement.” Kalin, 12 N.Y.3d at 229, 878 N.Y.S.2d at 655, 906 N.E.2d at 383.

The prima facie case requirement does not necessitate that the Information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S.2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the information need only contain allegations of fact that “give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense.” People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the information to a “fair and not overly restrictive or technical reading,” id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15 ; People v. Jackson, 18 N.Y.3d 738, 747, 944 N.Y.S.2d 715, 721–22, 967 N.E.2d 1160, 1166–67 (2012). See also Casey, 95 N.Y.2d at 360, 717 N.Y.S.2d at 91, 740 N.E.2d at 236.

Under these principles, the Information is facially insufficient.

B. The Statute

Penal Law § 135.45(1) provides that a person commits Custodial Interference in the Second Degree when, “[b]eing a relative of a child less than sixteen years old, intending to hold such child permanently or for a protracted period, and knowing that he has no legal right to do so, he takes or entices such child from his lawful custodian.” This offense has five elements: (1) defendant is the relative of a child; (2) the child is less than sixteen years old; (3) defendant intends to hold the child permanently or for a protracted period; (4) defendant takes or entices the child from her lawful custodian, and; (5) defendant knows she has no legal right to do so.

C. The Information Here is Facially Insufficient

The facts pled here make out only the first three elements of the offense. The Information is facially insufficient as to the remaining two.

1. Relationship and Age of Child Are Sufficiently Pled

Neither the Misdemeanor Complaint nor the Supporting Depositions allege that defendant is N.L.'s mother and that N.L. was less than sixteen years old on the date of the offense. But the Court can incorporate the content of the Family Court Order of Custody into its assessment of the facial sufficiency of the Information. E.g., People v. Henry, 167 Misc.2d 1027, 641 N.Y.S.2d 1003 (Dist.Ct., Nassau County, 1996) (court considered order of protection filed along with complaint); People v. Eastmond, 19 Misc.3d 824, 855 N.Y.S.2d 353 (Crim.Ct.N.Y.County 2008) (court considered statement notice); People v. Leyva, 19 Misc.3d 498, 856 N.Y.S.2d 452 (Crim.Ct.N.Y.County 2008) (collecting cases). Based on the Family Court Order, the Court concludes that the Information sufficiently pleads relationship and age.

The term “relative,” used in § 135.45(1) means “a parent, ancestor, brother, sister, uncle or aunt.” Penal Law § 135.00(3). Since the Family Court Order reveals that defendant is N.L.'s mother, that element is sufficiently pled. Moreover, the Order also reveals that N.L. was seven years old on April 25, 2014, the date of the offense.

2. “Lawful Custodian” Is Sufficiently Pled

The Information alleges that the defendant picked up her child from school. As a matter of first impression, the Court concludes that the phrase “lawful custodian” in Penal Law § 135.45(1) can include either a person or an institution, and that the school was the child's “lawful custodian.”

The Penal Law does not define the term “custodian.” But, as always, New York Penal Law provisions are construed “according to the fair import of their terms to promote justice and effect the objects of the law.” Penal Law § 5.00. To determine the “fair import” of the term “custodian,” the Court first turns to Blacks Law Dictionary, which provides that a “custodian” is a “person or institution that has charge or custody (of a child, property, papers, or other valuables).” Blacks Law Dictionary, 9th ed. (2009), emphasis added. This strongly suggests that the Legislature understood the meaning of the term “custodian” and intended that it include institutions.

Further supporting this is the fact that, the term “custodian” appears throughout New York's statutory law, but does not exclusively refer to a natural person, even though it is true that in some areas the term refers only to a person. The Court begins with the other provisions of the Penal Law, outside of Article 135, that use the term “custodian.”³ Most, but not all, of those sections use the term to refer only to a natural person. Penal Law § 140.10(c) and (d) refer to the “custodian” of a school. Section 263.05 uses the term “custodian” in reference to a child in a way that could only refer to a person, while section 265.45 describes a “person” who is the “custodian” of certain firearms. On the other...