Opinion
2015KN041405
12-14-2015
The People of the State of New York v. George Fibble, Defendant.
Nicholas Fribourg, Brooklyn Defender Services, 177 Livingston Street, Brooklyn, NY 11201, attorney for defendant Kenneth Thompson, District Attorney, Kings County, by Thomas Bellifemine Esq., Assistant District Attorney, Brooklyn, of Counsel for the People
Nicholas Fribourg, Brooklyn Defender Services, 177 Livingston Street, Brooklyn, NY 11201, attorney for defendant Kenneth Thompson, District Attorney, Kings County, by Thomas Bellifemine Esq., Assistant District Attorney, Brooklyn, of Counsel for the People Andrew Borrok, J.
The defendant is charged with Public Lewdness (Penal Law (PL) § 245.00[A]), Endangering the Welfare of a Child (PL § 260.10[1]), and Exposure of a Person (PL § 245.01) and seeks dismissal of the Information for facial insufficiency and in the interest of justice pursuant to Criminal Procedure Law (CPL) § 170.40. For the reasons set forth below, the defendant's motion is denied in its entirety.
THE RELEVANT FACTS AND CIRCUMSTANCES
On June 27, 2015, the defendant was arraigned on the pending charges and the People indicated that they were ready for trial because the accusatory instrument is a first party complaint that contains non-hearsay factual allegations which make out a prima facie case of the pending charges. The court deemed the accusatory instrument an information and adjourned the matter to All Purpose Part 2 (AP2) until July 6, 2015 for Discovery by Stipulation (DBS). On July 6, 2015, the People served and filed DBS and the matter was adjourned until September 9, 2015 for any necessary hearings and trial. However, because the defendant was incarcerated on a parole hold, the case was advanced on August 5, 2015 so that bail ($1) could set. The court set the $1 bail, and then further adjourned the case until August 26, 2015 for any necessary hearings and trial.
On August 26, 2015, the People indicated that they were ready to proceed, however, the defendant was not prepared to proceed to trial because his attorney was then on paternity leave. Accordingly, the court further adjourned the case until September 9, 2015.
On September 9, 2015, the People were not ready to proceed and requested that the case be adjourned for 12 days until September 21, 2015. The court, instead, further adjourned the case until October 2, 2015 on which date the People again indicated that they were ready to proceed. The defendant however was not produced by the Department of Corrections and the matter was necessarily further adjourned until October 6, 2015 for the defendant to be produced and for any necessary hearings and trial.
Off-calendar, on October 5, 2015, the defendant served and filed the instant motion. At the October 6, 2015 scheduled court date, the court instructed the People to file any opposition papers by October 14, 2015 and further adjourned the case until October 26, 2015 for the court's decision. On October 26, 2015, the People served and filed their opposition papers in court and the matter was again adjourned until December 14, 2015 for the court's decision on the defendant's motion. DISCUSSION I. Timeliness of Defendant's Motion
A. Dismissal in the Interest of Justice (CPL § 170.40)
The Legislature has provided clear rules for pretrial motions with a view towards ending the bombardment of courts with last minute motions and other dilatory tactics. CPL § 255.20 provides that except as otherwise provided by law, all pretrial motions must be served or filed within 45 days after arraignment or commencement of trial or within such additional time as the court may fix prior to the entry of judgment. The court must also entertain any appropriate pre-trial motion(s) based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within such 45 day period. CPL § 255.20(3).
"The Legislature's purpose in enacting CPL 250.20 was to regulate pretrial proceedings by requiring a single omnibus motion to be made promptly after arraignment and thus to avoid the proliferation experienced under prior procedure in which a defendant could bombard the courts and Judges with dilatory tactics continuing right up to the eve of trial (see 1972 Report of NY Judicial Conference Advisory Committee on the CPL, 1973 McKinney's Session Laws of NY, pp 2076-2077)." People v Lawrence, 64 NY2d 200, 203 (1984).
CPL § 170.30(2) provides an exception from this 45 day requirement for motions to dismiss on the grounds that the defendant has been denied the right to a speedy trial (i.e., CPL §30.30 motions brought pursuant to CPL 170.30(1)(e)). However, no such exception exists for CPL § 170.40 motions to dismiss in the interest of justice brought pursuant to CPL § 170.30(1)(g).
The defendant brought the instant motion 100 days following his arraignment but has not plead that he could not with reasonable diligence have previously been aware of the grounds for the instant motion within the 45 day period required by CPL § 255.20. Accordingly, this branch of the defendant's motion to dismiss pursuant to CPL §170.40 was made untimely and is therefore denied.
B. Dismissal for Facial Sufficiency The failure of the factual portion of an accusatory instrument to contain allegations which, if true, would establish every element of the offense charged is a jurisdictional defect that is non-waivable and may be raised at any time. People v Casey, 95 NY2d 354, 362 (2000). Accordingly, this branch of the defendant's motion to dismiss for facial sufficiency is not untimely. The People's application that the defendant's motion should be dismissed in its entirety as untimely is therefore denied. II. Dismissal of the Information for Facial Insufficiency
An information is sufficient on its face when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof. CPL §§ 100.40(1), 100.15. Reasonable cause exists where there are sufficient facts set forth in the accusatory instrument which would convince a person of ordinary intelligence, judgment and experience that such offenses were reasonably likely to have been committed and that such offenses were committed by the defendant. CPL § 70.10(2). Provided that the factual allegations give the defendant sufficient notice to prepare a defense and are adequately detailed to prevent the defendant from being tried twice for the same offense, the allegations should not be given an overly restrictive or technical reading. People v Casey, 95 NY2d 354, 360 (2000). Although the requirement is not the same as the People's burden at trial to prove every element of the offenses charged beyond a reasonable doubt, the failure to satisfy the requirements of CPL § 100.40(1)(c) creates a jurisdictional defect to the criminal action requiring dismissal. See People v Henderson, 92 NY2d 677, 680 [1999]); People v Alejandro, 70 NY2d 133, 137 (1987); People v Kalin, 12 NY3d 225 (2009).
In the case under consideration, the factual portion of the instant accusatory instrument provides that:
On June 26, 2015 at about 5:50 p.m. at 366 Sutter Avenue, in the County of Kings, State of New York:Public Lewdness (PL § 245.00[A])
Deponent [Police Officer Nicholas Albergo] states that on the above mentioned time and place, a public playground, the deponent observed the defendant standing with the defendant's pants below defendant's hips and with defendant's penis open to public view, and that deponent was able to observe defendant's private and intimate parts, to wit, defendant's penis.
Deponent further states that within said playground were at least seven children and that based upon their size and verbal abilities were between the ages of five and ten, that said children were between 3 feet and 4 feet tall, and that these children were playing in close proximity to the defendant.
A person is guilty of Public Lewdness "when he intentionally exposes the private or intimate parts of his body in a lewd manner or commits any other lewd act (a) in a public place, or (b) in private premises under circumstances in which he may readily be observed from either a public place or from other private premises, and with intent that he be so observed. PL § 245.00. Lewd is defined as "lustful, indecent, lascivious, or lecherous." Black Law's Dictionary, 3rd Edition.
The defendant argues that the accusatory instrument is not facially sufficient because the accusatory instrument does not contain factual allegations that the defendant acted in a lewd manner and that New York courts have held that "nudity in itself is not prohibited and lewdness cannot be presumed from the mere fact of nudity." Defense Affirmation, pg.4 citing People v Hardy, 77 Misc 2d 1092 (2d Dept., 1974) citing Matter of Excelsior Pictures Corp. v Regents, 3 NY2d 237, 242 (1957); People v Gilbert, 72 Misc 2d 75, (Crim. Ct, Kings County 1972); People v Price, 33 NY2d 831 (1973); People v McNamara, 78 NY2d 626 (1991). The court does not agree. Simply put, the defendant conflates the specific holdings in the cases that he cites that nudity under those certain circumstances was not sufficient to make out the charge of Public Lewdness to argue that as a general proposition nudity under all circumstances is not sufficient to make out the charge of Public Lewdness. This court simply declines to extend such a broad application of these holdings to create a blanket rule.
Courts have long recognized that the time, place and manner in which conduct allegedly occurred matters. Put another way, the court is not an ostrich — context matters. It is well settled that intent may be inferred from the defendant's actions. People v Makwana, 17 Misc 3d 296 (Crim. Ct, Queens County 2007). Review of the cases cited by the defendant lends no support to the defendant's insistence that the accusatory instrument is facially insufficient as a matter of law.
See e.g., "Whether an act is decent or indecent depends upon the time, the place, and all the circumstances surrounding its commission, including the intention, actual or implied, of the actor." Collins v The State, 160 Ga.App. 680, 683 (1981) citing Key v State, 131 Ga.App. 126, 127 (1974).
For example, the court in Matter of Excelsior Pictures Corp. held that denial of a license to exhibit publicly the motion picture "Garden of Eden" which film depicts a fictional nudist group in a secluded private camp in Florida was improper. The court indicated that the pictured episodes were relevant to the "adequate expression of ideas" (United States v Kennerley, 209 F. 119, 120-121 [SDNY 1913]) and indicated that there simply was no legal basis for censorship. Matter of Excelsior Pictures Corp., 3 NY2d at 240; See also People v Muller, 96 NY 408, 411 (1884); United States v One book Called "Ulysses", 5 F. Supp. 182, 184 (SDNY 1933); United States v Limehouse, 285 U.S. 424 (1932); American Civil Liberties Union v Chicago, 3 Ill. 2d 334 (1954), appeal dismissed 348 U.S. 979 (1955); Roth v United States and Alberts v California, 354 U.S. 476 (1957) and generally, Lockhart and McClure, Literature, The Law of Obscenity, and the Constitution, 38 Minn. L. Rev. 295. Censorship and the expression of ideas are not at issue in the case before the court. The McNamara court held that an accusatory instrument that alleges that the defendant committed sexual acts in the back of a parked car did not sufficiency allege that the conduct occurred in a "public place." There is simply no doubt in the instant case that the alleged behavior in this case took place in a public place. The Hardy court held that simply alleging that the defendant was sunbathing in the nude at a beach was not sufficient to convince a person of ordinary intelligence, judgment and experience that the defendant had exposed her private or intimate parts of her body in a lustful, indecent, lascivious or lecherous manner or otherwise committed any such act. This court would agree. The Price court held that merely alleging that the defendant who was wearing a revealing top while walking in public on a street was not sufficient as a matter of law to prove that the defendant was guilty of Public Lewdness. The Price court reasoned that "legislation may not control the manner of dress, absent commercial exploitation of exposure, or absent conduct or dress under circumstances creating or likely to create public disorder." This court would also agree. But, these cases cited by the defendant (i.e., the mere fact that prudish sensibilities might be offended by nude sunbathing at a beach or a provocative top, without more, the charge of public lewdness was not sufficiently alleged because of the specific conduct and the location in which the conduct allegedly occurred) does not compel the result that the accusatory instrument in this case under these circumstances is facially insufficient.
People v Price, 33 NY2d 831 (1973)
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Allegations of being nude at a public playground where children play simply is not the same. The Legislature has recognized that New York City Parks, because in particular of their use by children, require special rules and special protection. For example, adults are allowed in exclusive children playground areas only when accompanied by a child under the age of twelve. See Rules of City of NY Dept of Parks and Recreation [56 RCNY] § 1-05[s][1]). The accusatory instrument in this case provides that the defendant was inside a playground with his pants at his ankles and his genitals exposed where children were playing. At the very least, this is indecent. Therefore, the defendant's motion to dismiss the accusatory instrument as facially insufficient with respect to the charge of Public Lewdness is denied. Endangering the Welfare of a Child (PL § 260.10[1])
A person is guilty of Endangering the Welfare of a Child "when he knowingly acts in a manner likely to be injurious to the physical, mental, or moral welfare of a child less than seventeen years old . . .." PL § 260.10[1]. The purpose of this statute is "to protect the physical health, morals and well-being of children. . . ." People v Bergerson, 17 NY2d 398, 401 (1966). Thus, the Court of Appeals has held that "[t]he statute is broadly written and imposes a criminal sanction for the mere likelihood' of harm." People v Johnson, 95 NY2d 368, 372 (2000).
The defendant argues that the court must dismiss the accusatory instrument as facially insufficient because the accusatory instrument does not sufficiency allege the ages of the children or set forth any nexus between the defendant's alleged actions and any children present. Defense Affirmation, pg. 6. The court does not agree.
The defendant seems to rely on the decisions of some courts which have dismissed certain accusatory instruments as facially insufficient because those instruments merely stated the child's date of birth (without identifying the source of that information or the basis upon which the informant police officer knew such information) or stated that the child appeared to be under the age of 17 without describing the person in more specific particularity to support the conclusion that the person appeared to be under the age of 17. See People v Gomez, 30 Misc 3d 643 (Sup Ct, Bronx County 2010); People v Mercado, 184 Misc 2d 40 (Crim Ct, Bronx County 2000); People v Seward, 173 Misc 2d 1020, 1021 (Mt. Vernon County Court, 1997). These cases however do not suggest that where, as here, the officer can describe the children sufficiently so as to clearly identify them as children both based on their location (i.e., in a playground) and based upon their height (i.e., between 3 and 4 feet tall) and verbal abilities, as being between the ages of five and ten, that the court must dismiss the accusatory instrument as facially insufficient. Viewed in the light most favorable to the People and not given an overly restrictive reading, the accusatory instrument is sufficient to charge the defendant. Therefore, the defendant's motion to dismiss the charge of Endangering the Welfare as facially insufficient is denied. The foregoing constitutes the opinion, decision and order of the court. Dated: December 14, 2015 Brooklyn, New York _____________________________ ANDREW BORROK J.C.C.