Opinion
No. 2015KN072002.
05-05-2016
The PEOPLE of the State of New York v. Raymond Hart Damien SOTO, Defendant.
Iliana Santiago, Brooklyn Defender Services, Brooklyn, attorney for defendant Raymond Hart. Lauren Monosoff, Legal Aid Society, Brooklyn, attorney for defendant Damien Soto. Kenneth Thompson, District Attorney, Kings County, by Shaun Martinez Esq., Assistant District Attorney, Brooklyn, of Counsel for the People.
Iliana Santiago, Brooklyn Defender Services, Brooklyn, attorney for defendant Raymond Hart.
Lauren Monosoff, Legal Aid Society, Brooklyn, attorney for defendant Damien Soto.
Kenneth Thompson, District Attorney, Kings County, by Shaun Martinez Esq., Assistant District Attorney, Brooklyn, of Counsel for the People.
ANDREW BORROK, J.
The defendants, who are charged with Hindering Prosecution in the Third Degree (Penal Law (PL) § 205.55 ) seek dismissal of the Information as facially insufficient. For the reasons set forth below, the defendants' motions are granted.
THE FACTS RELEVANT TO THE DEFENDANT'S MOTION
The defendants were arraigned on November 4, 2015 on the pending charges where the People did not announce ready because the accusatory instrument was not converted. The factual portion of the instant accusatory instrument served and filed at arraignment provides that:
On (1) October 29, 2015 at about 12:30 p.m. at 70 Herkimer Street, in the County of Kings, State of New York:
Deponent [Police Officer Carlos Rivero] states that on the above mentioned time and place, the deponent is informed by Henri Arazi, property manager of the above place, that at the above time and place, an apartment building under renovation, one unapprehended other did enter said building and cut pipes out of walls on five different floors of said building.
Deponent is further informed by the informant that at the above time and place informant did observe said unapprehended other in the basement of the above mentioned building, holding a saw in said unapprehended other's hand and using said saw to cut pipes located in said basement.
The deponent is further informed by the informant that informant is the custodian of the above mentioned building and basement and that the unapprehended other did not have permission or authority to enter or remain inside said building and the unapprehended other did not have permission or authority to take, use, otherwise exercise dominion or control over the contents of the building.
The deponent is further informed by the informant that informant observed said unapprehended other exit the above mentioned building, holding the above mentioned saw and a hammer, and approach defendants standing next to a car parked on the same block as said building.
The deponent is further informed by the informant that the informant observed defendants and said unapprehended other get into the above mentioned car and drive away.
The deponent states that the deponent recovered the above mentioned hammer and saw from the above mentioned car.
The court adjourned the matters to Part AP6 until January 4, 2016 for conversion. On January 4, 2016, the People indicated that on December 22, 2015, they had served on the defendant and filed with the court a statement of readiness and supporting deposition and that they were ready for trial. The court adjourned the matters until February 2, 2016 for discovery by stipulation (DBS). On February 2, 2016, the People served and filed DBS and the cases were further adjourned until March 14, 2016 for any necessary hearings and trial. On March 14, 2016, the defendants served and filed the instant motion. At that calendar appearance, the court indicated that the People could file any opposition papers off-calendar by March 30, 2016. The court then adjourned Mr. Hart's case until May 5, 2016 and Mr. Soto's case until May 12, 2016 for the court's decision.
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). When evaluating whether an accusatory instrument is facially sufficient, the court must view the facts alleged in the light most favorable to the People. See People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 (1983). 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 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000) ; People v. Kalin, 12 N.Y.3d 225, 878 N.Y.S.2d 653, 906 N.E.2d 381 (2009). 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 N.Y.2d 677, 680 [1999] ); People v. Alejandro, 70 N.Y.2d 133, 137, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987) ; People v. Kalin, 12 N.Y.3d 225, 878 N.Y.S.2d 653, 906 N.E.2d 381 (2009).
The defendants argue that the court must dismiss the the accusatory instrument as not facially sufficient because the accusatory instrument does not contain factual allegations that the unapprehended other had committed a felony. Defense Affirmations at pg. 6 and 11, 878 N.Y.S.2d 653, 906 N.E.2d 381. In support of the motions, the defendants rely on People v. Chico (90 N.Y.2d 585, 588, 665 N.Y.S.2d 5, 687 N.E.2d 1288 (1997) ). The court agrees.
A person is guilty of Hindering Prosecution in the Third Degree (PL § 205.55) “when he renders criminal assistance to a person who has committed a felony.” PL § 205.55. In order to be found guilty of a violation of Hindering Prosecution in the Third Degree (PL § 205.55), the People must prove beyond a reasonable doubt that (i) the defendant renders criminal assistance, (ii) the commission of a felony by the person assisted, and (3) the defendant's knowledge or belief that the felon engaged in the aforementioned criminal conduct. People v. Chico, 90 N.Y.2d 585, 588, 665 N.Y.S.2d 5, 687 N.E.2d 1288 (1997). A person “renders criminal assistance” when “with intent to prevent, hinder, or delay the discovery or apprehension of, or the lodging of a criminal charge against, a person who he knows or believes has committed a crime or is being sought by law enforcement officials for the commission of a crime, or with intent to assist a person in profiting or benefiting from the commission of a crime, he: (1) harbors or conceals such person; or (2) warns such person of impending discovery or apprehension; or (3) provides such person with money, transportation, weapon, disguise, or other means of avoiding discovery of apprehension; or (4) prevents or obstructs, by means of force, intimidation or deception, anyone from performing an act which might aid in the discovery or apprehension of such person or in the lodging of a criminal charge against him; or (5) suppresses, by any act of concealment, alteration or destruction, any physical evidence which might aid in the discovery or apprehension of such person or in the lodging of a criminal charge against him; or (6) aids such person to protect or expeditiously profit from an advantage derived from such crime. PL § 205.50. Proof is not required that the assisted person was ever arrested or convicted of the felony, however, each element of the underlying felony must be made out. Chico, 90 N.Y.2d at 588, 665 N.Y.S.2d 5, 687 N.E.2d 1288.
In the case before the court, the accusatory instrument alleges that the unapprehended other cut pipes out of the walls on five different floors of an apartment building under renovation. The accusatory instrument further alleges that Henri Arazi, the property manager, did not give the unapprehended other permission or authority to be in the building or to cut the pipes. The People argue in their opposition papers that it was reasonably likely that the unapprehended other was committing Criminal Mischief in the Third Degree (PL § 145.05(2)) or Criminal Mischief in the Second Degree (PL § 145.10), both felonies, and that the failure to allege the actual dollar amount of the alleged damage does not render the accusatory instrument facially insufficient. People's Affirmation in Opposition to Defendant's Motion to Dismiss for Facial Insufficiency, pg. 9–10. This court does not agree.
Criminal Mischief is addressed in Section 145 of the Penal Law. The critical difference between a misdemeanor and a felony is that to be guilty of a felony, the dollar amount of the damage must exceed $250. Inasmuch as allegations that the damage caused exceeds a certain dollar amount is an element of both Criminal Mischief in the Second Degree (PL § 145.10) and Criminal Mischief in the Third Degree (PL § 145.05(2)) and Hindering Prosecution in the Third Degree (PL § 205.55) requires allegations that criminal assistance was rendered in the commission of a felony, the failure to allege that the damage caused is at least equal to $250 is fatal.
A person is guilty of Criminal Mischief in the Second Degree (PL § 145.10), a class D felony, when, with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he has such right, he damages property of another person in an amount exceeding $1500. A person is guilty of Criminal Mischief in the Third Degree (PL § 145.05(2)), a class E felony, when, with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he has such right, he damages property of another person in an amount exceeding $250. On the other hand, a person is guilty of Criminal Mischief in the Fourth Degree (PL § 145.00(1)), a class A misdemeanor, when, having no right to do so nor any reasonable ground to believe that he has such right, he intentionally damages property of another person.
Accordingly, the defendants' motions to dismiss the accusatory instrument as facially insufficient are granted.
The foregoing constitutes the decision and order of the court.