People v. Patten

• Decision Date: 10 June 2011
• Docket Number: CR07282B-2010
• Parties: The People of the State of New York, v. Derek Patten, Defendant.
• Court: New York Court of Appeals Court of Appeals

2011 NY Slip Op 21199

The People of the State of New York,

v.Derek Patten, Defendant.

CR07282B-2010

City Court of Long Beach

Decided on June 10, 2011

The People of the State of New York are represented by:

Assistant District Attorney Daniel Grusenmeyer, of counsel to

The Honorable Kathleen Rice, District Attorney for the County of Nassau, State of New York

Nassau County District Attorney's Office

Long Beach Office, District Court Bureau

The defendant, Derrick Patten, is represented by:

Christopher Graziano, Esq.

Frank D. Dikranis, J.

The defendant has been charged by information with Riot in the Second Degree, a violation of Penal Law §240.05. The defendant now moves for an order dismissing the information as facially insufficient or, alternatively, precluding the People from questioning the defendant at trial regarding any prior convictions. The People oppose the motion and the defendant submits a reply.

In the information, it is alleged that on August 1, 2010, in the County of Nassau, the defendant, "while acting simultaneously with at least six other people in a public place, did engage in several physical fights with others, including kicking and punching others, and did recklessly cause a large crowd to gather causing public alarm. Your deponent was able to recognize the defendant, Derrick D. Patten, as one of the persons that did engage in the above described fighting." The information is subscribed by Long Beach Police Officer Brett Curtis and is based upon personal knowledge, the source of which is described as follows: "Your deponent[']s review of the video Back of Pine Box' and the statements of Police Officers Robert Fales and Michael Garofalo whose supporting deposition[s] are attached hereto and made a part hereof."

Police Officer Robert Fales's supporting deposition reads as follows:

"The 17th day of February 2011, I came to the LBPD DD Office to speak with Detective Rourke regarding a fight that occurred on August 1, 2010. I was working in uniformed patrol that evening and was assigned to a large fight in the area of 49 East Pine St.. Upon my arrival at about 7:04 p.m., I drove my marked police car up to the area of 39 E Pine [S]t., a driveway that leads to the rear parking area of Pine Towne Houses. I saw numerous males and female blacks milling about the area and leaving the rear parking area towards E Pine St.. I also reviewed the video Back of Pine Box Fight' and I recognize a tall male black who was wearing a blue SANITATION' t-shirt and a baseball hat as being the sidewalk/driveway area as I arrived on the scene of the fight call on 8/1/10."

Police Officer Michael Garofalo's supporting deposition reads as follows:

"I came to the LBPD Detective Office to speak with Detective Rourke regarding a fight that occurred on 8/1/2010. On that day, I was working the evening shift in uniformed patrol. At about 6:55, p.m., I responded to the area of 49 East Pine St. For a large disturbance. I responded to the rear parking lot of Pine Towne Houses near 55 E Pine St.. I did observe a large group of males and females fighting and leaving the area towards a driveway at about 39 E Pine St. Today, 2/17/2011, I have viewed a video, Back of Pine Box Fight' in the DD Office with Detective Rourke. In that video, I recognize a tall, muscular, bald, male black who was wearing black shorts and a white tank top t-shirt as being on the scene of the fight call I responded to on 8/1/2010. I also recognized a female black who was wearing a bright teal/blue to[p] and faded blue jeans and I think she was the sister of James Hodge as also being on the scene of the 8/1/2010 fight. I also recognized a tall, male black who was wearing a blue t-shirt with SANITATION' on the back as being on the scene of the fight. I responded to the area of the driveway and assisted PO Fales who had been in that area."

Pursuant to CPL §100.15(1), a facially sufficient information must contain an accusatory part and a factual part. The accusatory part must designate the offense charged, setting forth every element thereof (see CPL §100.15[2]; People v. Hall, 48 NY2d 927[1979]). The factual part must contain "a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges", which is based either upon the complainant's personal knowledge or upon information and belief (CPL §100.15[3]). The factual part, together with any supporting depositions, must also contain non-hearsay allegations which, if true, establish every element of the offense charged (see CPL §100.40[1]; People v. Casey, 95 NY2d 354 [2000]), and must provide reasonable cause to believe that the defendant committed the offense (see People v. Alejandro, 70 NY2d 133 [1987]).

In his motion to dismiss the accusatory instrument for facial insufficiency, the defendant contends that the police officers' observations of the video(s) referenced in the information and the supporting depositions constitute impermissible hearsay. In support of such contention, the defendant relies heavily upon People v. Allison, 21 Misc 3d 1108A(Dist. Ct. Nassau County 2008), and People v. Schell, 18 Misc 3d 972 (Crim. Ct. Richmond County 2008).

In People v. Allison, supra, the defendant was charged by information with Petit Larceny in connection with her alleged engagement in unauthorized markdowns at her cashier's station in the department store at which she worked. The factual portion of the information was subscribed by a police sergeant and was based upon information and belief, the source of which was the supporting deposition of Christina Stempfel, another employee of the department store. In her supporting deposition, Ms. Stempfel stated that, after a loss prevention supervisor brought to her attention a receipt with unauthorized markdowns, she observed the defendant, through prerecorded surveillance video, conduct unauthorized markdowns on three occasions.

In granting the defendant's motion to dismiss the accusatory instrument as facially insufficient, the court noted that Ms. Stempfel did not attempt to "lay an appropriate foundation for the video tape she viewed". The court indicated that if Ms. Stempfel had contemporaneously observed the alleged markdowns either in person or through video monitoring, it would have deemed her description of the defendant's actions as "facts of an evidentiary character" as required by CPL 100.15(3). The court also suggested that the People could have submitted an affidavit from "appropriate individuals authenticating the videotape upon which Ms. Stampfel relied, establishing that the videotaping truly and accurately depicted what was before the camera on the given dates, that it was not altered in any way and establishing a proper chain of custody" (People v. Allison, supra). Relying on People v. Schell, supra, the court concluded that since the People failed to properly authenticate the videotape, Ms. Stempfel's observations of such videotape constituted hearsay, warranting dismissal of the accusatory instrument (see People v. Allison, supra; People v Schell, supra [dismissing accusatory instrument as facially insufficient where deponent indicated his observations were based upon review of surveillance video; such observations deemed to be "hearsay, unsupported by sworn allegations of fact"]).

This Court disagrees with the analysis in Allison and Schell. First, observations of avideotape are not hearsay.¹ Indeed, "one who personally observes the content of a videotape can give sworn testimony about his observations without violating the hearsay rule" (People v. Lambert, 2002 NY Slip Op 50278U [Crim. Ct. Queens County 2002]). Second, contrary to the court's apparent conclusion in People v. Allison, "facts of an evidentiary character" are not only those facts that would be admissible at trial. This Court construes the requirement of CPL 100.15(3) of alleging "facts of an evidentiary character supporting or tending to support the charges" to merely require the deponent to make nonhearsay allegations of fact which show the basis for the conclusion that the defendant committed the crime[s] charged (see generally People v. Dreyden, 15 NY3d 100 [2010]). While these allegations of fact cannot be conclusory in nature (see id.; People v. Dumas, 68 NY2d 729 [1986]), they need not necessarily be admissible at trial and thus, an evidentiary foundation need not be laid for the purposes of the supporting deposition.²

Relating the above to the instant circumstances, "there should be no hearsay impediment to the inclusion in an information of what a police officer observes with his own eyes and ears when he views a videotape" (see People v. Lambert, supra).³ As such, this Court rejects defendant's argument that the information must be dismissed based upon Allison and Schell.

However, this does not end the inquiry. This Court must review the information and the supporting depositions in order to determine whether the information contains factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the crime of Riot in the Second Degree.

In the instant matter, it is evident that Police Officer Curtis's only knowledge of the defendant's alleged commission of the crime comes from his observation of a video he identifies only as "Back of Pine Box". Police Officer Curtis does not indicate that he has any knowledge of the time, date, or location of the events depicted in the video.

In their supporting depositions, Police Officers Fales and Garafalo allege that they were at the scene of a fight on August 1, 2010 in the vicinity of the rear parking lot of Pine Towne Houses. These officers subsequently viewed a video they identify...