People v. Vasquez, AP-3

Decision Date30 September 1987
Docket NumberAP-3
Citation137 Misc.2d 71,520 N.Y.S.2d 99
PartiesThe PEOPLE of the State of New York v. Angelica VASQUEZ, Myran Mouseraut, Estelle Abrams, Denise Rodriguez, Thelma Stone, Carletta McMullan, James Longmire, Rajkumar Naipaul, Shirley Ramsey, Schoni Bailey, Gladys Holmis, Betty Ubawidi, Defendants
CourtNew York City Court

Mario Merola, Dist. Atty., Bronx County, for the people; Alexander Cane, Asst. Dist. Atty., of counsel.

Murray Richman, Bronx, for Angelica Vasquez.

John R. DePaola, Flushing, for Estelle Abrams and Myran Mouseraut.

J.P. Carazza, Bronx, for Denise Rodriguez.

Benjamin Heinrich, Bronx, for Carletta McMullan, Shirley Ramsey and Betty Ubawiki.

Joseph L. Galiber, Bronx, for James Longmire, Rajkumar Naipaul and Schone Bailey.

Justin Levine, Bronx, for Thelma Stone.

HARVEY M. SKLAVER, Judge.

I.

These cases arise out of an undercover operation conducted by a division of the New York State Department of Mental Hygiene into the operations of the Bronx Developmental Center, a school for mentally retarded and developmentally disabled persons (Mental Hygiene Law, § 13.17). It appears that an investigator was placed in the school as an aide in order to observe and report on the actions of the personnel vis-a-vis the residents. The foregoing is not yet part of the record but was revealed by counsel during a bench conference and is mentioned in order to set forth the background for what follows herein.

II.

The defendants are charged in three separate dockets with various acts committed against various residents of the school. Each docket charges the defendant with attempted assault in the third degree (P.L. 110/120.00, subd. 1) harassment (P.L. 240.25, subd. 1) and endangering the welfare of an incompetent person (P.L. 260.25). Each complaint is by the investigator and is identical in form. Each varies only as to the date and time of the incident, the nature of the incident and the name of the resident. For example the first paragraph in docket 7X035246 alleges that the investigator observed the defendant "with intent to cause physical injury to [complaining witness], did attempt to cause injury, in that the deft did punch [complaining witness] in the face with closed fist, causing her to suffer substantial pain." The second paragraph alleges that the defendant, "with the intent to harass, annoy or alarm did subject [complaining witness], to physical contact," in that the defendant punched the complaining witness and cursed at her. The third paragraph alleges that the defendant "did knowingly act in a manner likely to be injurious to the physical, mental or moral welfare of [complaining witness], who is unable to care for herself because of mental disease or defect" in that defendant punched her in the face. Finally, the last paragraph, on information and belief, is that the complaining witness "have [sic] been adjudged to be mentally incompetent." The complaint was signed by the investigator.

III.

The defendants were arraigned on these complaints and subsequently, in the All Purpose Part, the People filed a corroborating affidavit by Levestor Cannon, the Director of Mental Retardation at the Bronx Developmental Center. In it Mr. Cannon states that he has read the accusatory instrument, that he has reviewed the medical records pertaining to the complaining witness and that "the assertion, upon information and belief, of mental incompetence is true." Upon the filing of the affidavit the People asked that the complaints be deemed informations. The defendants opposed this on two grounds. First, they argued, the suffering of substantial pain as it relates to the attempted assault is subjective on the part of the victim and, accordingly, requires the victim's (complaining witness') supporting deposition. In short, it is a fact as to which the investigator cannot state on her own knowledge. Second, the defendants argued, the purported corroborating affidavit by the Director of Mental Retardation is itself a hearsay affidavit for, as it states, the complaining witness' mental incompetence is based upon information and belief.

IV.

The defendants are not charged with assault; they are charged with attempted assault. This distinction is critical because it relieves the People of the burden of proving each element of the completed crime. Here the People need not prove that the defendant actually caused pain to the complaining witness but only that (to paraphrase P.L. 110.00) the defendant "intend[ed]" to cause substantial pain and "engage[d] in conduct which tend[ed] to effect" that result. To state the point analogistically, the People need only prove a "swing", not a "swing and a hit". In other words, to answer the question of whether a person has made an attempt to commit a crime requires focusing on the mind and actions of that person and not upon the result of the acts, People v. Rosencrants, 89 Misc.2d 721, 392 N.Y.S.2d 808; People v. Bracey, 41 N.Y.2d 296, 392 N.Y.S.2d 412, 360 N.E.2d 1094. And the actor's state of mind can be inferred from the actions he took (see CJI 9.31). Thus, the investigator's complaint herein is sufficient to constitute an information as to the attempted assault. It should be noted in passing that while the factual part of the complaint alleges a completed assault in that the defendant hit the complaining witness "causing her to suffer substantial pain" that does not preclude the defendant's being charged with attempted assault, People v. Williams, 120 Misc.2d 68, 465 N.Y.S.2d 648.

V.

The charge of endangering the welfare of an incompetent person presents the court with a problem not previously addressed in the reported decisions, namely, the relationship of P.L. 260.25 to the various provisions of the Mental Hygiene Law.

The penal offense occurs when the defendant "knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself because of mental disease or defect" (P.L. 260.25). As to this charge the investigator states in the complaint that she "observed that at the aforementioned date, time and location the deft did knowingly act in a manner likely to be injurious to the physical, mental or moral welfare of [complaining witness], who is unable to care for herself because of mental disease or defect, in that the deft did punch [complaining witness] in her face with closed fist." Of course, the portion of the allegation relating to the punch is based on personal observation but the portion relating to mental disease or defect is an unsupported conclusion. 1 The investigator, to set forth the basis for her assertion as to the complaining witness' condition, added:

"Deponent further states that she is informed by Levestor Cannon, Director of Mental Retardation, that [complaining witness] have been adjudged to be mentally incompetent."

That statement being hearsay, the People filed a corroborating affidavit by Mr. Cannon in which he stated:

"1. I, LEVESTOR CANON [sic], Director of Mental Retardation at the Bronx Developmental Center, hereby assert that I have read the accusatory instrument relating to this matter.

2. That I have reviewed the medical records pertaining to [complaining witness], the complainant in this case, and that the assertion, upon information and belief, of mental incompetency is true." [Emphasis added].

The issue here is whether this affidavit is sufficient to convert the complaint to an information.

An adjudication of mental incompetence is not an element of the crime of endangering the welfare of an incompetent person (P.L. 260.25). Under that section, a person commits the crime when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person "who is unable to care for himself because of mental disease or defect." Contrast this with section 78.01 of the Mental Hygiene Law which provides that:

"The supreme court, and the county courts outside the city of New York, have exclusive jurisdiction over the custody of a person and...

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