People v. Martz

• Decision Date: 28 July 2010
• Docket Number: No. 2008NA006851.,2008NA006851.
• Parties: The PEOPLE of the State of New York, v. David MARTZ, Defendant.
• Court: New York District Court

28 Misc.3d 1215

958 N.Y.S.2d 62

2010 N.Y. Slip Op. 51327

The PEOPLE of the State of New York,

v.David MARTZ, Defendant.

No. 2008NA006851.

District Court, Nassau County, New York,

First District.

July 28, 2010.

OPINION TEXT STARTS HEREKathleen Rice, Nassau County District Attorney–Steven Schwartz, Esq, ADA. Agulnick & Gogel, LLC–Attorneys, for defendant.

ANDREW M. ENGEL, J.

The Defendant is charged with Endangering the Welfare of a Child, in violation of Penal Law § 260.10(1), and two counts of Public Lewdness, in violation of Penal Law § 245.00. Count Four, a superceding count replacing the original Count Two ( see:CPL § 100.50), charging the Defendant with Public Lewdness, alleges that on March 15, 2008, at approximately 2:40 p.m., in a public men's room at the Roosevelt Field Mall (“the Mall”), the Defendant “did expose his penis and masturbate his penis with his hand in clear view of the victim, a 13 year old boy.” ( District Court Information, 3/15/08) Count Three, charging the Defendant with a second count of Public Lewdness, alleges that the Defendant committed the same conduct on the same date and at the same location, at approximately 2:10 p.m. Count One, charging Endangering the Welfare of a Child, refers to both of these alleged incidents.

The Defendant moved to dismiss “one or more” ( Notice of Motion 5/5/10) of the charges, alleging that the accusatory instruments are facially insufficient. The Defendant argues that the supporting deposition of the 13 year old in question, the only person with first hand knowledge of the Defendant's alleged conduct, addresses only one of the alleged acts of public lewdness. The Defendant further argues that, while the Defendant's written admission discusses two acts of alleged public lewdness, “there is a total lack of corroboration for the alleged confession by the defendant that he stroked himself and masturbated on a second occasion with the same complainant.” ( Agulnick Affirmation 5/5/10, ¶ 19)

In opposition to the Defendant's motion, the People do not contest the Defendant's underlying premise that the supporting deposition of the only eyewitness addresses only one of the alleged acts of public lewdness; nor do the People contest that an uncorroborated confession cannot render an otherwise facially insufficient accusatory instrument sufficient. The People, nevertheless, suggest that the Defendant's admission of a second act of public lewdness is sufficiently corroborated by the supporting depositions of the 13 year old boy and his mother.

On June 9, 2001 the court issued a preliminary order noting that the Defendant's admission was not annexed to the informations and that the complaining witness' supporting deposition was dated March 15, 2008, but alleged that the events in question took place on May 14, 2008. Given the fact that neither of these issues were addressed by the parties' motion papers, the court set the matter down for conference and oral argument on June 9, 2010.

On June 9, 2010 the Defendant argued that he was unaware that the admission was not annexed to the informations. He further argued that the complaining witness' supporting deposition should be deemed a nullity given that it alleged incidents occurring on a date other than the one for which the Defendant stands accused. According to the Defendant, without a proper supporting deposition from the complaining witness there are no non-hearsay allegations which could support the charges brought against him.

The People argue, on the one hand, that the filing of the Defendant's admission with the court is the same as annexing it to the informations. On the other hand, the People concede that, as of the time of the oral argument, there was no supporting deposition which laid a proper foundation for the consideration of the Defendant's admission in determining the facial sufficiency of the informations. The People further argue that the date of the alleged incident set forth in the complaining witness' supporting deposition is an obvious scrivener's error, it being impossible for the events to have taken place two months after the date of the complaining witness' supporting deposition. Given this error, the People suggest that when the complaining witness' supporting deposition is read in conjunction with his mother's supporting deposition, which contains the correct date of the alleged crimes, they are sufficient to support the informations. The People further indicated that it was their intention to file new supporting depositions curing the defect in the complaining witness' supporting deposition and laying a proper foundation for the consideration of the Defendant's admission.

Following oral argument, the court reserved decision and indicated to the parties that if no new supporting depositions were filed before July 28, 2010 the court would render a decision based upon the papers previously submitted; if new supporting depositions were filed before that date the Defendant would be given the opportunity to address those papers.

On July 27, 2010 the People filed a superceding information, replacing Count 2 with Count 4, charging the Defendant with the aforesaid act of public lewdness. The new papers consist of a District Court Information subscribed by Detective Sergeant Curt. L. Beaudry, the Defendant's written admission of March 15, 2008, the supporting deposition of the complaining witness' mother, and the supporting depositions of the complaining witness dated March 15, 2008 and July 26, 2010. The Defendant has been arraigned on the superceding information and Count Two has been dismissed pursuant to CPL § 100.50. The parties have stipulated that the branch of the Defendant's motion to dismiss the superceded Count Two, and the People's opposition thereto, shall be applied to the newly filed Count Four.

The supporting deposition of the complaining witness dated July 26, 2010 alleges that the allegations contained in his supporting deposition dated March 15, 2008 are “true and accurate in all respects except that the events described occurred on March 15, 2008, not May 15, 2008. The complaining witness' supporting deposition dated March 15, 2008 alleges, in sum and substance, the following: at about 2:10 p.m., at the Roosevelt Field Mall, he went into the men's room near Nordstrom's where he noticed the Defendant, using the urinal to his left, staring at him. When the complaining witness went to dry his hands he noticed the Defendant stroking his own erect penis while he stared at the complaining witness. The complaining witness then left the men's room to look for his sister and his mother, who works at Nordstrom's. Upon finding his mother, the complaining witness could not speak with her because she was with a customer. After about one-half hour the complaining witness began to have a bad stomach ache so he returned to the same bathroom as earlier. Before entering the bathroom the complaining witness saw the Defendant exit, then turn around and re-enter the bathroom ahead of him. With his stomach hurting too badly to make it to another bathroom, the complaining witness entered the bathroom, went straight into a stall and locked the door. When done, the complaining witness immediately left the bathroom, without washing his hands. In the hallway, after exiting the bathroom, the Defendant approached the complaining witness and said, “Yo, do you want to go someplace?” The complaining witness said, “No,” and ran away crying.

The superceding District Court Information subscribed by Det. Sgt. Beaudry alleges that on March 15, 2008, at 2:40 p.m., in a public men's room at the Roosevelt Field Mall, the Defendant did “expose his penis and masturbate his penis with his hand in clear view of the victim, a 13 year old boy.” Det. Sgt. Beaudry further states that these allegations are based upon “information and belief, the source of said information, and the basis for said belief, the supporting depositions of the victim and complainant, and the defendant's Statement of Admission made to your deponent, which are annexed hereto and made a part hereof.”

The Defendant's admission states, in sum and substance, in pertinent part, that on March 15, 2008 at “around 2:00 p.m., maybe 2:30 p.m.” he entered the bathroom and used the second urinal next to the entrance. At that time there was a male thirteen to fourteen years old at the urinal to his immediate right. When the boy went to the sink to wash his hands the Defendant “got excited so [he] started to stroke [himself].” While doing so, the Defendant was standing away from the urinal so if anyone looked they could see him. The Defendant was looking at the boy; and, the boy saw the Defendant stroking himself. The boy then left the bathroom and the Defendant continued stroking himself for another minute or two. The Defendant then washed his hands, left the bathroom and continued to shop. About ten minutes later the Defendant returned to the same bathroom and went into a stall. Upon exiting the stall the Defendant went to the urinal and after urinating again started stroking himself. While this was going on the same boy exited a stall and saw the Defendant stroking himself. The boy then went to the sink, washed his hands and left the bathroom. The Defendant followed the boy, walked up to him and said, “Do I know you, do you want to go somewhere?” The boy said, “No,” and walked away. The Defendant returned to the bathroom and washed his hands.

The informations will be found facially sufficient where, in conformity with CPL §§ 100.15 and 100.40, they contain an accusatory part, designating the offenses charged, CPL § 100.15(2), setting forth every element thereof, People v. Hall, 48 N.Y.2d 927, 425 N.Y.S.2d 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...