62 Misc 3d 148(A)
N.Y. App. Term 2nd
2019

People v Cordova (Miguel)

2017-1712 Q CR

Appellate Term, Second Department

February 22, 2019

2019 NY Slip Op 50227(U) | 62 Misc 3d 148(A)

MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Queens County District Attorney (John M. Castellano and Edward D. Saslaw of counsel), for Appellant. New York City Legal Aid Society (Susan Epstein of counsel), for respondent.

Appeal from a January 24, 2017 oral order of the Criminal Court of the City of New York, Queens County (Peter Vallone, Jr., J.), and from an order of that court dated June 14, 2017. The January 24, 2017 oral order, insofar as appealed from, granted the branch of defendant‘s oral motion seeking to dismiss the count of the accusatory instrument charging defendant with assault in the third degree. The order dated June 14, 2017, insofar as appealed from, upon reargument, adhered to the determination in the January 24, 2017 order granting the branch of defendant‘s motion seeking to dismiss the count of the accusatory instrument charging defendant with assault in the third degree.

ORDERED that so much of the appeal as is from the January 24, 2017 order is dismissed, as that order was superseded by the order dated June 14, 2017, made upon reargument; and it is further,

ORDERED that the order dated June 14, 2017, insofar as appealed from, is reversed, on the law, and, upon reargument, the branch of defendant‘s motion seeking to dismiss the count of the accusatory instrument charging defendant with assault in the third degree is denied.

Defendant was charged with assault in the third degree (Penal Law § 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]). The factual allegations set forth in the accusatory instrument are that defendant “punched the complainant in his face causing swelling and lacerations to his face,” and that those actions caused the complainant “annoyance and alarm as well as substantial pain.” A supporting deposition by the complainant states that he had read the accusatory instrument and that the facts therein stated to be on information furnished by him are true based on his personal knowledge.

Defendant‘s oral motion to dismiss the accusatory instrument for facial insufficiency was granted by oral order on January 24, 2017. The People moved for leave to reargue their opposition to the motion and, by order dated June 14, 2017, the Criminal Court granted reargument and, upon reargument, denied the branch of defendant‘s motion seeking to dismiss the count of the accusatory instrument charging him with harassment in the second degree, and adhered to so much of its prior order as granted the branch of defendant‘s motion seeking to dismiss the count of the accusatory instrument charging him with assault in the third degree. The People appeal from the portion of each order that granted the branch of each of defendant‘s motions seeking to dismiss the count of the accusatory instrument charging defendant with assault in the third degree (see CPL 450.20 [1]). So much of the appeal as is from the stated portion of the oral order is dismissed as that order was superseded by the written order.

To be facially sufficient, an information, together with any supporting deposition accompanying it or filed in connection therewith (see CPL 100.20), must set forth nonhearsay allegations that establish, if true, every element of the offense charged and the defendant‘s commission thereof (see CPL 100.15 [3]; 100.40 [1] [c]; People v Dumay, 23 NY3d 518, 522 [2014]; People v Kalin, 12 NY3d 225, 228-229 [2009]; People v Hill, 51 Misc 3d 134[A], 2016 NY Slip Op 50543[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; People v Weiss, 17 Misc 3d 6, 8 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]). “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, they should be given a fair and not overly restrictive or technical reading” (People v Casey, 95 NY2d 354, 360 [2000]; accord People v Kalin, 12 NY3d at 230; People v Konieczny, 2 NY3d 569, 575 [2004]).

We find that the nonhearsay allegations in the factual part of the accusatory instrument and supporting deposition sufficiently allege that defendant intentionally caused physical injury to the victim by means of inflicting substantial pain (see Penal Law §§ 10.00 [9]; 120.00 [1]; People v Chiddick, 8 NY3d 445, 447-448 [2007]; People v Henderson, 92 NY2d 677, 680 [1999]; People v Raymond, 51 Misc 3d 149[A], 2016 NY Slip Op 50834[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016], lv denied 28 NY3d 973 [2016]).

Accordingly, the order dated June 14, 2017, insofar as appealed from, is reversed, and, upon reargument, the branch of defendant‘s motion seeking to dismiss the count of the accusatory instrument charging defendant with assault in the third degree is denied.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

Paul Kenny

Chief Clerk

Decision Date: February 22, 2019