The People, Respondent,v.Joseph Dumay, Appellant.

Brief

N.Y.May 1, 2014

To be argued by AMY DONNER (10 Minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF rne STATE OF NEW YORK, Respondent, - v- JOSEPH DUMAY, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT APL-2013-00147 STEVEN BANKS AMY DONNER Attorneys for Defendant- Appellant THELEGAL AID SOCIETY Criminal Appeals Bureau 199 Water Street, 5th Floor. New York, N.Y. 10038 (Tel.) (212) 577-3487 adonner@legal-aid.org November 20, 2013 TABLE OF CONTENTS TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 REPLY ARGUMENT POINT I CONTRARY TO RESPONDENT'S CLAIM, THE ACCUSATORY INSTRUMENT CHARG- ING APPELLANT WITH SECOND-DEGREE OBSTRUCTING GOVERNMENTAL ADMINIS- TION WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT FAILED TO ALLEGE EVIDENTIARY FACTS TO SUPPORT ITS CONCLUSORY ALLEGATIONS. C.P.L. §§100.15(3); 100AO(4)(B); P.L. §195.05; PEOPLE V. DREYDEN, 15 N.Y.3D 100 (2010); PEOPLE V. ALEJANDRO, 70 N.Y.2d 133 (1987) 2 CONCLUSION 14 1 TABLE OF AUTHORITIES STATE CASES Matter ofNeftali D., 85 N.Y.2d 631 (1995) 8 People v. Acosta, 80 N.Y.2d 665 (1993) 3 People v. Alejandro, 70 N.Y.2d 135 (1987) 2, 7-9 People v. Allen, 39 N.Y.2d 916 (1976) 12 People v. Ballard, 28 Misc.3d 129(A) (App. Term 9th & 10th Jud. Dists. 2010) 5 People v. Burwell, 53 N.Y.2d 849 (1981) 13 People v. Casey, 95 N.Y.2d 354 (2000) 8, 9, 12 People v. Connor, 63 N.Y.2d 11 (1984) 12 People v. Dreyden, 15 N.Y.3d 100 (2010) 2,6, 8-9, 12-13 People v. Fernandez, 20 N.Y.3d 44 (2012) 12 People v. Flynn, 79 N.Y.2d 879 (1992) 12-13 People v. Hightower, 18 N.Y.3d 249 (2011) 12 People v. Jackson, 18 N.Y.3d 738 (2012) 9 People v. Jones, 9 N.Y.3d 259 (2007) 12 People v. Roopchand, 65 N.Y.2d 837, 838 (1985), affg for the reasons stated below, 107 A.D.2d 35, 38 (2d Dept.) 13 People v. Wells, _N.Y.3d _,2013 N.Y. Slip. Op. 07511 (November 14,2013),2013 WL 6008906 13 People v. West, 56 NY2d 637 (1982) 13 11 CONSTITUTIONAL PROVISIONS N.Y. Const., Art. I, §6 13 U.S. Const., Amend. XIV 13 STATUTES C.P.L. §100.10(1) 10 C.P.L. §100.15(3) 2 C.P.L. §100.40 7,9 C.P.L. §100.40(1)(c) 10 C.P.L. §100.40(4)(b) 2 C.P .L. §170.65 11 C.P.L. §170.70 11 P.L. §110.00 3 P.L. §195.05 2 P.L. §265.00(5) 8 OTHER AUTHORITIES Merriam's Webster's Dictionary, http://www.merriam-webster.com/dictionary/prevent. last accessed 11/18/13 4 111 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------J( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOSEPH DUMAY, Defendant-Appellant. ---------------------------------------------------------------------J( PREL~INARYSTATEMENT This brief is submitted in reply to the arguments set forth in respondent's brief, which, pursuant to the scheduling letter of August 1, 2013, had to be filed and served by November 25,2013. It addresses several unavailing claims by Respondent. As to all other aspects of Appellant's appeal, he relies on his opening brief. 1 REPLY ARGUMENT POINT I CONTRARY TO RESPONDENT'S CLAIM, TIlE ACCUSATORY INSTRUMENT CHARG- ING APPELLANT WITH SECOND-DEGREE OBSTRUCTING GOVERNMENTAL ADMINIS- TION WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT FAILED TO ALLEGE EVIDENTIARY FACTS TO SUPPORT ITS CONCLUSORY ALLEGATIONS. C.P.L. §§IOO.l5(3); IOOAO(4)(B); P.L. §I95.05; PEOPLE V. DREYDEN, 15 N.Y.3D 100 (2010); PEOPLE V. ALEJANDRO, 70 N.Y.2d 133 (1987). Regardless of whether an information or a complaint standard is used, the accusatory instrument was facially insufficient because the prosecution failed to allege evidentiary facts to support its conclusory allegation that appellant intentionally "prevented" the officers' vehicle "from moving by standing behind it and preventing deponent from patrolling the neighborhood." The allegations fail to provide reasonable cause of either the mens rea or actus reus elements of obstructing governmental administration. Indeed, ironically, Respondent's brief itself consists mainly of conclusory allegations. 2 Contrary to Respondent's claim (RB. 20),1 the allegation that appellant stood behind a police car and slammed its trunk with an open hand does not establish reasonable cause that he intentionally attempted to prevent the officers from patrolling the neighborhood. A defendant is guilty of an attempt to commit a completed crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. P.L. §110.00. The alleged physical action must go beyond mere preparation and come "very near to the accomplishment of the intended crime." See People v. Acosta, 80 N.Y.2d 665,671 (1993). Here, the allegation that appellant stood behind a police car and slapped the trunk with an open hand does not establish reasonable cause that appellant come dangerously close to preventing the vehicle from patrolling the neighborhood. Certainly slapping a car with an open hand does not impede the vehicle's movement in any way. See AB.19. Moreover, contrary to Respondent's claim (RB.20-23)~ the allegation that appellant was "standing behind" the car does not establish reasonable cause for its conclusory allegation that appellant thereby "prevented said vehicle from moving." Standing behind a car could not have prevented the Numbers in parentheses preceded by "AB." refer to the pages of Defendant- Appellant's opening brief; those preceded by "RB." refer to Respondent's brief. Numbers preceded by "SA." refer to Respondent's Supplemental Appendix. 3 vehicle from moving unless the officer had no other means of egress from the parking spot. Respondent erroneously claims the conclusory allegation that appellant "prevented Officer Deats from patrolling the neighborhood constitutes an allegation that the vehicle was unable to move in any direction except reverse because movement in other directions was obstructed, and that defendant's position behind the vehicle prevented it from moving entirely" (RB.22-23). This is a huge logical leap. The term, "prevent," in these circumstances, is conclusory and the accusatory instrument does not provide evidentiary facts establishing reasonable cause to support it. Merriam's Webster's Dictionary defines prevent, inter alia, as "to stop (something) from happening or existing; to make (someone or something) not do something; to stop (someone or something) from doing something; and to deprive ofpower or hope of acting or succeeding." http://www.merriam-webster.com/dictionary/prevent. last accessed 11/18/13. Thus, to establish reasonable cause of attempt to interfere with patrolling the neighborhood, the accusatory instrument would have had to contain evidentiary factual allegations that the officers' vehicle was blocked from going forward. This it did not do. 4 Similarly unavailing is Respondent's attempt to gamer reasonable cause for intent to prevent the officer from patrolling the neighborhood from the general truism that intent can be inferred from the acts and surrounding circumstances (RB. 23-24). For there to be reasonable cause of the intent element, intent must be manifested by the circumstances. As explained in full detail in appellant's opening brief, the evidentiary facts alleged did not establish reasonable cause that appellant even was aware that the officers were attempting to pullout of that parking space and patrol the neighborhood (AB.17-21,25-26). Contrary to Respondent's claim, appellant does not contend that a facially sufficient showing of intent requires the accusatory instrument to contain an allegation that the officer communicated to him that by standing behind the patrol car, he was preventing the officer from moving it and patrolling the neighborhood (RB.24). As just discussed, the accusatory instrument instead could have alleged that the only way the police vehicle could have moved from that location was by striking appellant or that appellant was standing in the sole area of egress from the police car's location and that the car was visibly trying to move. Appellant's Reply Brief, pp. 4-5, ante; cf. People v. Ballard, 28 Misc.3d 129(A) (App. Term 9th & loth Jud. Dists. 2010) (accusatory instrument charging obstructing 5 governmental administration facially sufficient where alleged defendant backed his vehicle into officer while the officer was writing summons against defendant for vehicular violation and the defendant left the scene without having been given the summons); see AB.23-25. Since the accusatory instrument la~ked such allegations, however, it needed to allege something more to establish reasonable cause of intent to prevent the officer from patrolling. For example, it could have alleged that the officers gave some visible cue that they were trying to move from that stop, such as moving the car slightly or at least putting on the motors, lights or sirens. What Respondent tries to do, however, is tum the facial sufficiency standard of reasonable cause as to the mens rea element into guess work on the part of appellant as to the meaning of conclusory terms. This denied him one of the constitutional purposes underlying the facial sufficiency requirements for misdemeanor accusatory instruments - to give him notice sufficient to prepare a defense or decide that he has no defense and should plead guilty. See~ People v. Dreyden, 15 N.Y.3d 100, 103 (2010). Similarly unavailing is Respondent's claim, notwithstanding the absence of statutory or caselaw support, that the reasonable cause requirement is satisfied if the factual allegations support a rational inference 6 that the defendant committed the offense charged, even if the factual allegations also support innocent inferences (RB.28-29). Respondent attempts to analogize the reasonable cause facial sufficiency standard to the standard for assessing the legal sufficiency of the evidence before a Grand Jury (RB.27-29). Respondent blithely overlooks that the accusatory instruments have serve different purposes and hence have different standards. Respondent's cavalier attitude -- essentially arguing that lax review and only "bare boned" allegations are needed for the reasonable cause requirement -- ignores the underlying purpose that the Legislature had for establishing these statutory mandates in non-felony cases. As this Court repeatedly has explained, the strict requirements of C.P.L. §100AO playa vital role similar to the Grand Jury's function in felony cases - they are the main safeguard and assurance against baseless prosecutions. The heightened pleading requirements for an information result from the "unique function" in "criminal procedure law" of an information as the "sole instrument upon which [a] defendant could be prosecuted" for misdemeanors and petty offenses. People v. Alejandro, 70 N.Y.2d 135, 137-38 (1987). Unlike a felony where an indictment has been issued, no grand jury has passed upon the sufficiency of the evidence and determined it is sufficient to warrant a 7 prosecution. Id. Thus, the People need not, at any time prior to trial, present actual evidence demonstrating a prima facie case, as with an indictment following a felony complaint. Id.; accord People v. Casey, 95 N.Y.2d 354, 363 (2000)(also stating that the jurisdictional threshold for non-felony accusatory instruments functions as a vital safeguard against "groundless criminal proceedings by providing reasonable guarantees against baseless prosecutions not predicated on probable cause"); Matter of Neftali D., 85 N.Y.2d 631, 636 (1995)("we have applied a stringent test when construing challenges to the facial sufficiency of a juvenile delinquency petition to assure that there is a valid and documented basis for subjecting the juvenile to prosecution"). The fallacy of Respondent's claim is further demonstrated by People v. Dreyden, 15 N.Y.3d 100 (2010), where this Court applied an extremely strict analysis of the facial sufficiency rules when reviewing a police officer's allegations - which were made in a misdemeanor complaint -- that the knife at issue was a "gravity knife." Even though the term "gravity knife" has a detailed statutory definition in P.L. §265.00(5), the Court held that the officer was required, nonetheless, to include in the accusatory instrument "support or explanation" for his belief that the particular knife at issue actually did qualify as that type of contraband. See People v. Dreyden, 8 15 N.Y.3d at 102-04. As this Court put it: "An arresting officer should, at the very least, explain briefly, with reference to his training and experience, how he or she formed the belief that the object observed in the defendant's possession was a gravity knife." See id. at 103-04 (emphasis added). Moreover, Respondent's offhand dismissal of appellant's facial insufficiency challenge flouts this Court's teaching that such defects have constitutional implications. This Court has held that a jurisdictionally defective accusatory instrument deprives a defendant of sufficient notice to satisfy the demands of due process and double jeopardy.~ People v. Jackson, 18 N.Y.3d 738, 746 (2012); People v. Dreyden, 15 N.Y.3d at 103 (also stressing that such defects are "fundamental" and "implicat[e) the integrity of the process" and are not merely ''technical matters"); People v. Casey, 95 N.Y.2d at 360, 366; People v. Alejandro, 70 N.Y.2d at 140 (Bellacosa, J., concurring)(the statutory framework of C.P.L. §100040 "supplies elemental fairness to defendants prosecuted for less serious crimes, hut crimes nevertheless, which affect ordinary people and produce lifelong criminal records"). As the foregoing demonstrates, the accusatory instrument III appellant's case, failed to give evidentiary allegations supporting its conclusory allegation that appellant intentionally prevented the police car 9 from patrolling by standing behind it and slamming it with his open hand. For the same reasons, it failed to establish reasonable cause as to the essential elements of intent and attempted physical interference. Similarly incorrect is Respondent's claim that defense counsel waived appellant's right to the prima facie standard used for informations and that the facial sufficiency standard used here should be that for misdemeanor complaints (RB. 12-17). As explained in full detail in Defendant-Appellant's Main Brief, the accusatory instrument met the statutory definition of an information since the factual part did not contain non-hearsay allegations. It was a verified accusation of appellant by Officer Deats, based on his personal knowledge, and was signed by Deats (AB. 27-28); C.P.L. §§IOO.IO(1),IOOAO(I)(c). Nor do the minutes of arraignment in Respondent's Supplemental Appendix support Respondent's position. At arraignment, the court asks, "Any objection to the complaint being deemed an information? It appears to be a first party complaint" (SAA). Thus, the court clearly recognized that the instrument was an information and, in fact, deemed it an information. Moreover, while counsel started off saying "Well, no objection in terms of hearsay" (SAA), his subsequent comments make clear that he was contending that the accusatory instrument was an information, albeit a 10 defective one because reasonable cause had not been established. Counsel contended, "but in terms of whether there is reasonable cause to believe that each and every element of the offense has been made out and that this, especially, as I said, the arrest, if there is a predicate for the arrest, and that they have not alleged a crime for which they were attempting to arrest him for, so, I object, you known, essentially on Alejandro grounds, that the complaint is not an information." (SA.5). Indeed, the court fully understood counsel's argument because it ruled, "The complaint is deemed an information, Your Motion to dismiss for facially insufficiency is preserved" (SA.5).2 Indeed, prior to taking a guilty plea, courts typically ask defense attorneys whether they waive their right to prosecution by information. Courts do so because an information is a jurisdictional prerequisite and a defendant cannot be tried on a complaint unless it is converted or deemed an information or he waives the right to be tried on an information. See C.P.L. §§170.65, 170.70. Misdemeanor pleas occur in hectic Criminal Court settings, where massive number of cases are heard in a courtroom each day. 2 Defense counsel's statement, "so waive," at appellant's plea proceeding, in reply to the court's question, "Do you waive prosecution by information?" (A.8; PS.2) can best be understood by the fact that the arraignment judge and plea judges were different and a different Legal Aid defense attorney represented appellant at the respective proceedings. 11 3 A court would have to slow down the proceedings if it scrutinized each accusatory instrument in order to determine whether it contains hearsay that must be corroborated and if so, adjourned the case, notwithstanding the willingness of the defendant to plead thereon. Prior to the next court date, at the complainant would have to come to the District Attorney's office to sign a corroborating affidavit. By asking this cautionary question, the court does not have to slow down the proceedings and the complainant is spared the ' hassle of coming in to the District Attorney's office or court. Here, counsel's statement, "so waive," must be understood in the context described above. Indeed, because hearsay never was an issue here, counsel's argument had to be addressed to the failure to allege reasonable cause - thereby rendering it a defective information.' Finally, Respondent cites People v. Allen, 39 N.Y.2d 916 (1976), regarding its claim on remedy. Since Allen, however, there have been a myriad of cases dismissing an accusatory instrument where the defendant already has served his sentence and the conviction is for a relatively minor crime. E.g. People v. Hightower, 18 N.Y.3d 249, 255 (2011); People v. Dreyden, 15 N.Y.3d at 104; People v. Jones, 9 N.Y.3d 259 (2007); People v. Moreover, in its waiver argument, Respondent cites to a portion of People v. Connor, 63 N.Y.2d 11 (1984), that this Court subsequently overruled in People v. Casey, 95 N.Y.2d 354, 359 (2000). (RB. 12-14, citing Connor, 63 N.Y.2d at 14); see generally People v. Fernandez, 20 N.Y.3d 44, 49 (2012). 12 Flynn, 79 N.Y.2d 879, 882 (1992); People v. West, 56 NY2d 637 (1982); People v. Burwell, 53 N.Y.2d 849, 440 N.Y.S.2d 177,422 N.E.2d 822 (1981); see AB.30-31; but see People v. Wells, _ N.Y.3d _,2013 N.Y. Slip. Op. 07511 (November 14, 2013), 2013 WL 6008906; People v. Roopchand, 65 N.Y.2d 837, 838 (1985), affg for the reasons stated below, 107 A.D.2d 35, 38 (2d Dept.). Here, appellant has already served his sentence and no useful purpose would be served by further proceedings. Accordingly, this Court is respectfully urged to dismiss the information against appellant. U.S. Const., Amend. XIV; N.Y. Const., Art. I, §6; see Dreyden, supra. 13 CONCLUSION FOR THE REASONS STATED HEREIN AND IN APPELLANT'S MAIN BRIEF, THE ORDER OF THE APPELLATE TERM SHOULD BE REVERSED, APPELLANT'S GUILTY PLEA VACATED AND THE ACCUSATORY INSTRUMENT DISMISSED. Respectfully submitted, STEVEN BANKS Attorney for Defendant- Appellant AMY DONNER Of Counsel November, 2013 ~~