People v. N.T.

• Court: New York Justice Court
• Writing for the Court: Gary C. Hobbs, J.
• Citation: People v. N.T., 2015 NY Slip Op 51619(U), xxxx (N.Y. Just. Ct. Nov 10, 2015)
• Decision Date: 10 November 2015
• Docket Number: xxxx
• Parties: People of the State of New York v. N.T., Defendant

2015 NY Slip Op 51619(U)

People of the State of New York v. N.T., Defendant

xxxx

Justice Court of the Town of Wells, Hamilton County

Decided on November 10, 2015

For the People:

James E. Conboy, Esq., Montgomery County District Attorney, Special Prosecutor

For Defendant:

James C. Knox, Esq., of counsel, E. Stewart Jones, Hacker Murphy, LLP

Gary C. Hobbs, J.

The Defendant, N.T., through his attorney, James C. Knox, Esq., having filed an omnibus motion seeking dismissal of the charges of Forcible Touching [Penal Law § 130.52] and Endangering the Welfare of a Child [Penal Law § 260.10] and upon reading and filing of the Notice of Motion and affirmation of James C. Knox, Esq., in support of said motion, and the Reply Affirmation of James E. Conboy, Esq., Special Prosecutor, in opposition to said motion, together with a review of all documents annexed in support and opposition to said motion, the Court renders the following decision and order.

BACKGROUND FACTS

The defendant is charged in this Court with the misdemeanors of Forcible Touching [Penal Law § 130.52] and Endangering the Welfare of a Child [Penal Law § 260.10]. Based on the misdemeanor complaints and the supporting deposition of the alleged victim, it is alleged that, on or about August 12, 2015, at approximately 10:30 p.m., the defendant (who is 16 years old) did intentionally place his hands down the pants of the alleged victim, a 12 year old child, without her consent, and did touch and insert his fingers into the victim's vagina.

Here, according to the supporting deposition of the alleged victim, on the day of the alleged incident, the defendant and alleged victim were together in a camper watching videos. The defendant began kissing the victim's neck and face. The defendant then "grabbed under my bra . . . I then tried to move over but he just moved over to me." The victim alleges that the defendant then "grabbed my hand and put it down on his pants. He put my hands around hispenis. I moved my hand away and he put it back so I said we should go to sleep." The victim further alleges that the defendant "put his hands down my pants under my underwear but I told him to go to sleep and I kept moving over." The alleged victim further states, "He was putting his fingers inside of me, but then I went to the bathroom and he went back to his bed after I shut the door to where my bed was."

MOTION TO DISMISS IN THE FURTHERANCE OF JUSTICE

CPL 170.40(1) provides that a court may dismiss an accusatory instrument if "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice [.]" The statute lists the following ten factors which the court should consider, "to the extent applicable[:]"

(a) the seriousness and circumstances of the offense;

(b) the extent of harm caused by the offense;

(c) the evidence of guilt, whether admissible or inadmissible at trial;

(d) the history, character and condition of the defendant;

(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;

(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

(g) the impact of a dismissal on the safety or welfare of the community;

(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;

(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; and

(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

A motion to dismiss in the interest of justice is not the appropriate mechanism for a defendant's assertion of his innocence. See: People v. Figueroa, 164 Misc 2d 814, 625 N.Y.S.2d 839 (Crim. Ct., Kings County 1995); People v. Prunty, 101 Misc 2d 163, 420 N.Y.S.2d 703 (Crim. Ct., Queens County 1979). The court may consider "the evidence of guilt whether admissible or inadmissible at trial." C.P.L. 170.40(1)(c). However, "[i]t is the evidence that is available to the People that is contemplated" by that statutory provision, i.e., that the court may only consider in a CPL 170.40 motion the evidence that the People are likely to introduce. People v. Figueroa, 164 Misc 2d 814, 625 N.Y.S.2d 839, quoting, People v. Prunty, 101 Misc 2d 163, 420 N.Y.S.2d 703 (Crim. Ct., Queens County 1979). The community's trust in the justice system would be undermined by the court preventing the "full airing of the proof available to both sides" at trial. People v. Figueroa, 164 Misc 2d 814, 625 N.Y.S.2d 839.

On a motion to dismiss in the interests of justice, the burden is on the Defendant to establish "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant would constitute or result in injustice." See: People v. Boulet, 88 Misc 2d 353, 355, 388 N.Y.S.2d 250 (City Ct., Rochester, 1976); People v. Verardi,158 Misc 2d 1039, 1042, 602 N.Y.S.2d 318 (Crim. Ct., Kings Cty, 1993).

In addition, it is well settled that the court's "discretionary authority to dismiss ... in furtherance of justice ... should be exercised sparingly and only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution ... would be an injustice." People v. Gordon, 20 Misc 3d 133 (Sup. Ct., App.Term, 2008), citing, People v. Candelaria, 50 AD3d 913, 913 [2nd Dept. 2008]. See also: People v. Jenner, 39 AD3d 1083, 835 N.Y.S.2d 501 (3d Dept. 2007).

In this case, the Defendant has failed to demonstrate the required "compelling factor" that would necessitate dismissal in the furtherance of justice. The fact that the defendant may be a "good kid," a "dedicated student," a "high school athlete" and has had no prior contact with the criminal justice system, while certainly a factor for this Court to consider, is not sufficient to demonstrate the required "compelling factor" in this case. [Knox affidavit, pg.4, ¶'s 13-14].

Here, the crimes alleged against the defendant are extremely serious crimes, involving alleged forcible touching with digital penetration against a 12 year old child. Contrary to the defendant's assertions, the factual allegations, if true, do not indicate that the defendant and victim engaged in "heavy petting" that was consented to by the victim. The victim's supporting deposition indicates that the defendant forced the victim to touch his penis by grabbing the victim's hand and placing it on his penis. When the victim removed her hand, the defendant allegedly grabbed her hand again and placed it on his penis. The victim alleged tried to get away from the defendant's advances by physically moving away from the defendant, telling the defendant to go to sleep, telling the defendant that he needed to work in the morning, and finally by leaving and going to the bathroom. The defendant allegedly put his hand down the victim's pants and under her underwear, without the victim's consent.¹ The harm to the victim from the defendant's alleged conduct is reported to be "enormous" with the victim being "deeply traumatized" resulting in "counseling related to the alleged offense." [Conboy affidavit, pg.1, ¶6].

The alleged evidence of the defendant's guilt does not support a dismissal of the charges. The potential evidence includes emails allegedly sent by the defendant to the victim which, if proven, certainly could be considered to be inculpatory. The remaining statutory factors cited by the Defendant have been considered and are found to be without merit. The Defendant's motion to dismiss in the furtherance of justice is DENIED.

MOTION TO DISMISS FOR FACIALLY INSUFFICIENCY

The standard for the facial sufficiency of a criminal information is well settled. In order to be sufficient, the factual portion of an information "must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges." [CPL § 100.15(3)]. In addition, under CPL 100.40 (1) an information is sufficient on its face when: "(a) It substantially conforms to the requirements prescribed in section 100.15"; and "(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and "(c) non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof."

Paragraphs (b) and (c) of CPL § 100.40 (1), when read in conjunction, places the burden on the People to make out their prima facie case for the offense charged in the text of the criminal information, when read together with any supporting depositions. People v. Jones, 9 NY3d 259, 261 (2007). The failure to assert sufficient non-hearsay factual allegations in the Information is a jurisdictional defect. People v Alejandro, 70 NY2d 133, 134-135 (1987). Thus, unless the accusatory instrument alleges or is based upon reasonable cause to believe defendant committed the offense, the court has no authority to enter an order that restrains defendant's liberty, as this is a basic constitutional prerequisite. CPL § 100.40, Practice Commentaries, Professor Peter Preiser, (2012), citing, People v. Dumas, 68 NY2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986]; County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991).

However, so long as the factual allegations of an information 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, the information should be given a fair and not overly restrictive or technical reading. See: People v. Konieczny, 2 NY3d 569, 780 N.Y.S.2d 546...