People v. Jones
| Docket Number | 2020-825 Q CR |
| Decision Date | 02 September 2022 |
| Citation | 175 N.Y.S.3d 413 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jamill JONES, Appellant. |
| Court | New York Supreme Court — Appellate Term |
Eric Renfroe, for appellant.
Queens County District Attorney (Johnnette Traill and Danielle S. Fenn of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, DONNA-MARIE E. GOLIA, JJ.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged with assault in the third degree ( Penal Law § 120.00 [1] ) in a superseding information with corroborating affidavits from an eyewitness and Dr. Anne Laib, which alleged, among other things, that the deponent, a New York Police Department detective, was informed by the above-mentioned eyewitness that he had observed a man strike the victim in the face causing the victim to fall backward to the ground. The superseding information further alleged that the eyewitness observed the victim, who appeared to be unconscious or semi-conscious, bleeding from his head, ears, mouth and nose. Further, the deponent stated that he recovered video surveillance footage from cameras at a business located near the location of the incident described above and that, upon viewing the video, which depicted the incident described by the eyewitness, he recognized defendant as the assailant. The deponent also stated that he was informed by Dr. Anne Laib, from the Chief Medical Examiner's Office, that the victim was treated for physical injuries, including a skull fracture
and "other traumatic brain injuries," from which the assaulted individual ultimately died.
Defendant moved to, among other things, dismiss the accusatory instrument as facially insufficient, contending that, since the deponent detective did not have the requisite knowledge of defendant to identify him, deponent's statement that he recognized defendant was conclusory and was based upon impermissible hearsay. The People opposed the motion and, in a decision and order dated April 3, 2019, the Criminal Court (Jeffrey A. Gershuny, J.) denied it.
Prior to the commencement of trial, a prosecutor's information was filed with the court and defendant was arraigned thereon. Defendant moved to dismiss the prosecutor's information (see CPL 170.30 [1] [a] ; 170.35 [3] [b]) and the underlying accusatory instrument based upon the same grounds raised in his prior motion, as well as the fact that the trial court had, in the interim, ruled that it would not permit the deponent detective to testify that he recognized defendant from the video. The People opposed the motion and, in a decision and order dated January 30, 2020, the court (Joanne B. Watters, J.) denied defendant's motion, finding that the basis for denying the first motion was still applicable and adhering to that decision.
The case proceeded to a jury trial during which the prosecutor informed the court that there was a witness the People would like to call to testify as to the identity of defendant. Specifically, the People informed the trial court that, during the course of their continuing investigation, indeed during the luncheon recess, they discovered an additional witness, a police officer, who is also a relative of defendant's fiancée. This witness, the People stated, had viewed the video surveillance footage and recognized defendant as the assailant. A hearing pursuant to ( People v. Rodriguez , 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268 (1992) was conducted and, by order issued February 4, 2020, the court (Joanne B. Watters, J.) found that the witness and defendant were well known to each other, and determined that the witness would be permitted to testify pertaining to his identification of defendant on the surveillance video, which video had already been entered into evidence and published to the jury. Following the trial, defendant was convicted of assault in the third degree and sentenced.
On appeal, defendant first contends that the prosecutor's information and the underlying superseding information were facially insufficient, and that the superseding information was never properly converted because it impermissibly relied upon hearsay and conclusory factual allegations to establish defendant's identity as the assailant.
To be legally sufficient, an information must allege facts of an "evidentiary character supporting or tending to support the charges" ( CPL 100.15 [3] ; see CPL 100.40 [1] [a] ), and must contain "[n]on-hearsay allegations" which "establish, if true, every element of the offense charged and the defendant's commission thereof" ( CPL 100.40 [1] [c] ; see People v. Slade , 37 N.Y.3d 127, 136, 148 N.Y.S.3d 413, 170 N.E.3d 1189 [2021] ). However, ( People v. Konieczny , 2 N.Y.3d 569, 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004], quoting People v. Casey , 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ).
The complainant police officer stated in the superseding information that he "viewed" the surveillance "video depicting the ... occurrence ... and observed a male whom he recognizes to be defendant Jamill Jones ... strike" the victim. Merely stating what one sees on a video, which has no audio (see People v. Ogando , 64 Misc.3d 310, 313, 102 N.Y.S.3d 400 [Crim. Ct., N.Y. County 2019] ; People v. Ham , 43 Misc.3d 1227[A], 2014 N.Y. Slip Op. 50826[U], *2-3, 2014 WL 2438434 [Crim. Ct., Kings County 2014] ; People v. Patten , 32 Misc.3d 440, 444 n. 1, 927 N.Y.S.2d 542 [Long Beach City Ct. 2011] ; see generally People v. Caviness , 38 N.Y.2d 227, 230, 379 N.Y.S.2d 695, 342 N.E.2d 496 [1975] ) and includes no nonverbal assertions (see Ogando , 64 Misc.3d at 313, 102 N.Y.S.3d 400, 102 N.Y.S.3d ; Patten , 32 Misc.3d at 444 n. 1, 927 N.Y.S.2d 542 ; see generally People v. Nieves , 67 N.Y.2d 125, 131 n. 1, 501 N.Y.S.2d 1, 492 N.E.2d 109 [1986] ; Caviness , 38 N.Y.2d at 230, 379 N.Y.S.2d 695, 342 N.E.2d 496 ) does not constitute hearsay (see Ogando , 64 Misc.3d at 313, 102 N.Y.S.3d 400, 102 N.Y.S.3d ; People v. Clyburn , 56 Misc.3d 1204[(A]), 2017 N.Y. Slip Op. 50866[(U]), 2017 WL 2803222 [Crim. Ct., N.Y. County 2017] ; People v. Green , 52 Misc.3d 1214[(A]), 2016 N.Y. Slip Op. 51155[(U]), 2016 WL 4098310 [Crim. Ct., Queens County 2016] ; People v. Hossain , 50 Misc.3d 610, 23 N.Y.S.3d 802 [Crim. Ct., N.Y. County 2015] ; People v. Miller , 49 Misc.3d 1204[A], 2015 N.Y. Slip Op. 51391[U], *2 and n. 1, 2015 WL 5736947 [Crim. Ct., Kings County 2015] ; Ham , 2014 N.Y. Slip Op. 50826[(U]) ; People v. West , 41 Misc.3d 542, 970 N.Y.S.2d 867 [Crim. Ct., Bronx County 2013] ; People v. Giarraputo , 37 Misc.3d 486, 949 N.Y.S.2d 852 [Crim. Ct., Richmond County 2012] ; Patten , 32 Misc.3d 440, 927 N.Y.S.2d 542 ; People v. Lambert , 2002 N.Y. Slip Op. 50278[(U]), 2002 WL 1769931 [Crim. Ct., Queens County 2002] ; see generally People v. Dunham , 70 Misc.3d 132[A], 2020 N.Y. Slip Op. 51554[U], *1, 2020 WL 7759492 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2020] ["admission of the silent surveillance video into evidence did not violate the rule against hearsay as it is not assertive in nature"]; but see People v. Kelly , 35 Misc.3d 1233[(A]), 2012 N.Y. Slip Op. 50983[(U]), 2012 WL 1958994 [Crim. Ct., Kings County 2012] ; People v. Allison , 21 Misc.3d 1108[A], 2008 N.Y. Slip Op. 52008(U), 2008 WL 4491495 [Dist. Ct., Nassau County 2008] ; People v. Schell , 18 Misc.3d 972, 849 N.Y.S.2d 882 [Crim. Ct., Richmond County 2008] ).1
"The requirement that an accusatory instrument contain nonconclusory allegations is part of the prima facie case requirement" ( People v. Jackson , 18 N.Y.3d 738, 746, 944 N.Y.S.2d 715, 967 N.E.2d 1160 [2012] ). A statement in an accusatory instrument that the deponent recognized the defendant is not conclusory and any questions as to the source of the deponent's knowledge is a matter to be raised at trial (see People v. Singleton , 73 Misc.3d 149[(A]), 2022 N.Y. Slip Op. 50011[(U]), 2022 WL 98156 [App. Term, 1st Dept. 2022] ; People v. Roldan , 71 Misc.3d 135[(A]), 2021 N.Y. Slip Op. 50426[(U]), 2021 WL 1974354 [App. Term, 1st Dept. 2021] ; People v. Banaszek , 71 Misc.3d 132[A], 2021 N.Y. Slip Op. 50324[U], 2021 WL 1521933 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2021] ; People v. Bennett , 70 Misc.3d 134[(A]), 2021 N.Y. Slip Op. 50016[(U]), 2021 WL 192653 [App. Term, 1st Dept. 2021] ; see also People v. Jackson , 61 Misc.3d 136[A], 2018 N.Y. Slip Op. 51548[U], *2, 2018 WL 5850170 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2018] ; see generally Konieczny , 2 N.Y.3d at 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 ; Casey , 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 ; cf. People v. Jackson , 75 Misc.3d 203, 163 N.Y.S.3d 913 [Crim. Ct., Bronx County 2022] ; People v. Garcia , 48 Misc.3d 1204[(A]), 2015 N.Y. Slip Op. 50955[(U]), 2015 WL 3915768 [Crim. Ct., NY County 2015] ). Moreover, the allegation here is not "a conclusion drawn by a police officer that involves the exercise of professional skill or experience, [in which case] some explanation concerning the basis for that conclusion must be evident from the accusatory instrument" ( Jackson , 18 N.Y.3d at 746, 944 N.Y.S.2d 715, 967 N.E.2d 1160 ).
Additionally, the superseding information, together with the supporting depositions, sufficiently alleged that defendant intended to cause physical injury to the assaulted individual and, in fact, caused physical injury by striking the victim in the face and causing him to fall backward and to sustain, among other things, a laceration to his chin (see People v. Mercado , 94 A.D.3d 502, 941 N.Y.S.2d 501 [2012] ; People v....
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