People v. Harris

• Decision Date: 09 March 2023
• Docket Number: Docket No. CR-014262-22QN
• Parties: The People of the State of New York v. Harris, Defendant.
• Court: New York Criminal Court

2023 NY Slip Op 50167(U)

The People of the State of New York v. Harris, Defendant.

Docket No. CR-014262-22QN

Criminal Court of the City of New York, Queens County

March 9, 2023

Unpublished Opinion

MOTION DECISION

For the People: Melinda Katz, District Attorney of Queens County (by Andy Laine)

For Ms. Harris: The Legal Aid Society (by Diana Sidakis)

Wanda L. Licitra, J.

Wanda L. Licitra, J.C.C.

In this case, the People were not ready for trial for 84 days after arraignments and then filed a statement of readiness. The defense, by a C.P.L. § 30.30 motion to dismiss, now challenges that statement of readiness. They argue that it was illusory because the People's information was facially insufficient. The defense asserts two reasons for this: first, that the information fails to establish "physical injury," which is a necessary element of the top charge, third-degree assault; and second, that the information contains duplicitous counts. The People respond that the information sufficiently alleges physical injury because it alleges "a laceration and bleeding" and "substantial pain." They also argue that the information is not duplicitous "as each element of the specific charge are [sic] made out." In reply, the defense notes that the People failed to abide by the court's deadlines in filing their response to the motion.

The court has considered the defense's motion, the People's response, and the defense's reply, as well as the court file.

LEGAL ANALYSIS

In this case, which only charges misdemeanors punishable by up to 364 days in jail, the People have 90 days to be ready for trial. (C.P.L. § 30.30[1][b]). "Whether the People have satisfied this obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion." (People v. Cortes, 80 N.Y.2d 201 208 [1992]).

I. Calculating the time elapsed between the filing of the accusatory instrument and the People's first valid declaration of readiness

The court begins by computing the time between the filing of the first accusatory instrument and the People's first valid declaration of readiness. (Cortes, 80 N.Y.2d at 208). The People commenced this case on June 14, 2022, and filed their statement of readiness on September 6, 2022. If that statement of readiness is valid, then 84 days elapsed during this period.

The defense argues that the People's statement of readiness was invalid because the People failed to first file a facially sufficient information. If the People do not first file a facially sufficient information, then their statement of readiness is illusory. (People v. Colon, 59 N.Y.2d 921 [1983]; People v. Maslowski, 187 A.D.3d 1211 [2d Dep't 2020]; People v. Sosa, 71 Misc.3d 140 [A] [App. Term, 2d Dep't 2021]). An information is facially sufficient if it meets "the requirements of sections 100.15 and 100.40" of the criminal procedure law. (C.P.L. §§ 30.30[5-a], 100.40[1], 100.15). It must do so with respect to all its charges. (C.P.L. § 30.30[5-a]; see, e.g., People v. Matos, 180 N.Y.S.3d 890, 893 [Crim. Ct., Kings County 2023]). The defense identifies two facial sufficiency issues that it believes each invalidate the People's statement of readiness.

First the defense posits that the information's top count third-degree assault, is facially insufficient because it fails to establish physical injury. An information is facially sufficient only if it contains non-hearsay evidentiary factual allegations that, if true, establish "every element" of the charged offenses. (C.P.L. §§ 100.40[1][c], 100.15[3]; see also People v. Sanson, 59 Misc.3d 4, 6 [App. Term, 2d Dep't 2018]; People v. Sumter, 151 A.D.3d 556, 558 [1st Dep't 2017] [rejecting the dissent's argument that not "every element" must be established for an information to be facially sufficient]). Of course, the law does not require that an information contain the most precise words that most clearly express the alleged narrative. (Sanson, 59 Misc.3d at 6). So long as the factual allegations "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." (See id. [internal quotation marks omitted]).

Physical injury is a necessary element of third-degree assault, (P.L. § 120.00[1]), and the penal law defines "physical injury" as "impairment of physical condition or substantial pain." (P.L. § 10.00[9]). In lieu of establishing an impaired physical condition, establishing "substantial pain" cannot be "wholly subjective." (Matter of Philip A., 49 N.Y.2d 198, 200 [1980]). Instead, "there is an objective level," below which "the question is one of law" and should result in a court's dismissal. (Id.). For instance, as a rule of law, "petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives are not within the definition" of acts that may cause substantial pain. (Id.).

Because an analysis of pain cannot be wholly subjective, an information's mere invocation of the term "substantial pain" is not itself sufficient. (E.g., People v. Lugo, 47 Misc.3d 1222 [A], at *2 [Crim. Ct., Bronx County 2015] [observing that "substantial pain, standing alone, does not establish" physical injury]; People v. Perez, 40 Misc.3d 448, 450-51 [Crim. Ct., Queens County 2013] [same]; People v. Dipoumbi, 23 Misc.3d 1127[A], at *2 [Crim. Ct., NY County 2009] [same]; see also People v. A.S., 28 Misc.3d 381, 383-85 [Crim. Ct., NY County 2010] [finding facial insufficiency where the information alleged a shove and punch, resulting in substantial pain, but failed to describe any of the alleged injuries]). Instead, the information should allege additional facts that objectively support the claim of substantial pain. (See People v. Strong, 179 Misc.2d 809, 811 [App. Term, 2d Dep't 1999] [information alleging hits, kicks, "a lot of pain," and "injury to my back and side" did not establish physical injury]).

At the same time, however, where there are not independent allegations of an impaired physical condition, some indication of subjective pain will be necessary. (See People v. Frederique, 31 Misc.3d 1215 [A], at *2-*3 [Dist. Ct., Nassau County 2011] [finding facial insufficiency despite an alleged "severe knee sprain requiring immediate medical contention" where there was no subjective statement of pain or facts supporting an impaired physical condition]; People v. W.J., 27 Misc.3d 1212 [A], at *1-*2 [Crim. Ct., NY County 2010] [finding facial insufficiency where an officer observed blood on a person's shirt and lacerations on their face, but there was no subjective statement of the degree of pain]; see generally People v. Carlson, 2002 NY Slip Op. 50173[U], at *2-*3 [City Ct., White Plains 2002] [collecting cases where an information was found facially insufficient without a subjective statement of the degree of pain]).

Here, the information alleges that Ms. Harris "put her hand around [the complainant's] neck, applied pressure, and dug her nails into his neck causing him to have trouble breathing as well as a laceration and bleeding to his neck, and substantial pain." This is facially sufficient to establish third-degree assault. It provides a subjective level of pain, "substantial," and it also provides allegations that would objectively corroborate that level of pain-lacerations and bleeding. (See People v. Henderson, 92 N.Y.2d 677 [1999] [finding facial sufficiency where an information alleged "substantial pain," "contusions," and "swelling" after the complainant was kicked]).

Second, the defense argues that the information is facially insufficient because it contains duplicitous counts. The People may not state ready for trial on an information that contains a duplicitous count. Criminal Procedure Law § 30.30[5-a] mandates that "a statement of readiness shall not be valid" unless the People certify that "all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed." (See also People v. C.H., 75 Misc.3d 636, 639-41 [Crim. Ct., Queens County 2022]). It is "well established" that C.P.L. § 100.15[2], in turn, requires that an accusatory instrument not contain duplicitous counts. (Id.; see also People v. Rodriguez, 50 Misc.3d 1223 [A], at *7 [Crim. Ct., Queens County 2016]; People v. Freeman, 34 Misc.3d 1217 [A], at *5 [Crim. Ct., Kings County 2012]; People v. Alston, 31 Misc.3d 1201 [A], at *1-*2 [Crim. Ct., Kings County 2011]; People v. Smiley, 28 Misc.3d 1229 [A], at *3 [Crim. Ct., Queens County 2010]; People v. Barhan, 147 Misc.2d 253, 256 [Crim. Ct., NY County 1990]; People v. Todd, 119 Misc.2d 488, 489-90 [Crim. Ct., NY County 1983]; C.P.L. §§ 100.15[2], 200.30[1]).

An information is duplicitous "when a single count charges more than one offense." (People v. Alonzo, 16 N.Y.3d 267, 269 [2011]). Duplicity creates several problems because it makes unclear what specific acts constitute the count. It undermines the defense's "notice" as to what the specific charges are, impairing their "opportunity to defend." (Id.). It undermines the requirement of jury unanimity because jurors may split on what acts they believe a person guilty, but all nonetheless vote guilty of the count. (Id.). And it impairs the protection against double jeopardy because it makes...