The People, Respondent,v.Steven Repanti, Appellant.BriefN.Y.January 8, 2015Court of Appeals Docket No. APL-2014-00005 To be argued by: WILLIAM A. GERARD Time Requested: 15 mins. Ramapo Justice Court Case No. 09110715 Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellee, -against- STEVEN REPANTI, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT WILLIAM A. GERARD Attorney for Defendant-Appellant Steven Repanti 71 woods Rd., P.O. Box 717 Palisades, New York 10964 Phone (845) 365-3121 Fax (845) 365-4036 April 1, 2014 COURT OF APPEALS: STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Court of Appeals Docket No. APL-2014-00005 Respondent-Appellee, - against - STEVEN REPANTI, STATEMENT PURSUANT TO TO CPLR 5531 Defendant-Appellant. 1. The Case No. in the Ramapo Justice Court was 09110715, and The Appellate Term Docket No. was 2011-01746 RO CR. 2. The full names of the original parties are set forth above. There have been no changes. 3. The action was commenced in the Justice Court, Town of Ramapo, State of N.Y., County of Rockland. 4. The action was commenced by filing of an Information on November 21, 2009, which was replaced by a Prosecutors Information on November 18, 2010. 5. This is an action wherein the Appellant was charged and tried for Attempted Assault in the 3rd degree (P.L. §§110/ 120.00[1]) and Harassment in the 2nd degree (P.L. §240.26[1]). 6. This appeal is from a Judgment of conviction and sentence imposed on the 5th day of May 2011, convicting appellant of Attempted Assault in the 3rd degree and Harassment in the 2nd degree after bench trial before the Hon. Arnold P. Etelson. The Appellate Term of the Supreme Court, 9th and 10th Judicial Districts affirmed the conviction on July 8, 2013. 7. This appeal is on the original record pursuant to statute and the appendix method is being used. Dated: Palisades, N.Y. April 1, 2014 J~ce.~ William A. Gerard Attorney for Defendant-Appellant Steven Repanti 71 Woods Rd., PO Box 717 Palisades, N.Y. 10964 Phone (845) 365-3121 Fax (845) 365-4036 TABLE OF CONTENTS Statement Pursuant to C.P.L.R. 5531 Table of Contents Table of Authorities Statement of Issue Jurisdiction to Entertain the Appeal Statement of Facts (A) The Charges (B) Non-Jury Trial (C) Sentence and Appeal i ii iii iv 1 1 2 2 3 Argument Point I THE VERDICT IS DEFECTIVE AS A RESULT OF APPELLANT'S CONVICTION FOR BOTH A GREATER AND A LESSER INCLUDED OFFENSE 4 Conclusion 9 Signing Requirement Certification Pursuant to 22NYCRR 130-1.1-A 10 CERTIFICATE OF COMPLIANCE PURSUANT TO 22 NYCRR § 670.10.3 (f) 11 Affirmation of Service 12 11 TABLE OF AUTHORITIES Cases People v. Glover, 57 N.Y.2d 61 (1982) 453 N.Y.S.2d 660 7 People v. Green, 56 N.Y.2d 427 (1982), 452 N.Y.S.2d 389 5,7 People v. Moyer, 27 N.Y.2d 252 (1970), 317 N.Y.S.2d 9 6 People v. Stanfield,36 N.Y.2d 467 (1975), 369 N.Y.S.2d 118 1,5,6 People v. Strong, 37 N.Y.2d 568 (1975), 376 N.Y.S.2d 87 5 Statutes Penal law: P.L. §§ 110/120.00[1]) 2 P.L. § 240.26[1] 2,5 Criminal Procedure Law: C.P.L. s 460.50 C.P.L. § 100.50(2) C.P.L. § 1.20(37) C.P.L. § 300.30 C.P.L. § 300.40(3)(b) C.P.L. § 300.50[4]) 1 5 6,7 8 8 8 III STATEMENT OF ISSUE PRESENTED 1. Was the verdict of guilt for attempted assault in the third degree and harassment in the second degree defective as a result of appellant's conviction for both a greater and a lesser included offense? Answer of the Courts below: no. lV JURISDICTION TO ENTERTAIN THE APPEAL Appellant received a Certificate granting Leave to appeal the affirmance by an intermediate court of his Town of Ramapo Justice Court criminal conviction for both attempted assault in the third degree and harassment in the second degree, based on the same conduct (See A-5 and A-6). This Court has jurisdiction to review the question of law presented in that the intermediate court failed to consider controlling precedent of this Court, which holds that when two charges are based on the same conduct, with the only difference being the actor's intent, the lesser charge is considered a "lesser included" offense of the greater, and is to be treated as such under the C.P.L. People v. Stanfield, 36 N.Y.2d 467 (1975), 369 N.Y.S.2d 118. After non-jury trial, appellant preserved the issue of the defective verdict by raising it with the Trial Court prior to sentence (A-29). STATEMENT OF FACTS There is no C.P.L. §460.50 order and no co-defendants. 1 A. The Charges This proceeding was commenced on 11/21/09 by the filing of a misdemeanor information charging attempted assault in the third degree (P.L. §§ 110/120.00[1]) (A-13). The information was accompanied by a supporting deposition of the complainant's husband (A-14[Trial Exhibit liB"]). In due course, the matter was scheduled for non-jury trial to be held on 11/18/10, at which time the People served and filed a prosecutor's information, dated 11/16/10, charging both attempted assault in the third degree and harassment in the second degree (P.L. § 240.26[1]). (A-16). B. Non-Jury Trial At trial, the People produced evidence that on 11/21/09 at about 2:45 pm, CAROL and MARTIN GOLDMAN were returning home to their apartment when they saw appellant in a neighbors adjoining apartment. As they neared the three steps to their front door, appellant came out onto the shared landing and after waiting for a moment, he walked quickly down the stairs as the GOLDMANS ascended. As they passed on the steps, appellant bumped Mrs. GOLDMAN with his arm or shoulder and she was almost knocked over (A-19--A-26). 2 At the conclusion of trial proceedings, the Court found appellant guilty of both attempted assault in the third degree and harassment in the second degree (A-6). C. Sentence and Appeal On 5/5/11 appellant was sentenced to a one year term of probation supervision, a fine of $250.00 and a surcharge of $125.00 (id.). At the present time, the fine and surcharge have been fully paid, and appellant's probation has been successfully completed. A Notice of Appeal was duly served and filed, and the appeal ensued (A-2). On July 8, 2013, the Appellate Term for the 9th and 10th Judicial Districts affirmed appellant's convictions (A-7, A-8), and this Court granted leave to further appeal (A-5). 3 POINT I THE VERDICT IS DEFECTIVE AS A RESULT OF APPELLANT'S CONVICTION FOR BOTH A GREATER AND A LESSER INCLUDED OFFENSE The original information charged only attempted assault, based on factual allegations that while the complainant was "walking up the stairs to her apartment," the appellant, "purposely with force used his shoulder to bump into deponent in an attempt to knock the deponent down the stairs." (A-13). The information further alleges that in doing so, appellant acted "with intent to cause physical injury to deponent II and therefore, "did attempt to cause such injury to deponent." (Id.). The accusatory instrument contains no allegation that any physical injury was caused to the victim. At the start of trial, a prosecutor's information was filed adding the charge of 2nd degree harassment, with identical factual allegations supporting both charges to wit: on November 21, 2009, ~ the defendant, did purposefully, with force, use his shoulder to bump into Ms. Carol Goldman in an attempt to knock Ms. Goldman down the stairs. Further, the defendant committed these acts with the intent to cause physical injury to Ms. Carol 4 Goldman and did, in fact, attempt to cause physical injury. (Compare A-16 and A-17). Pursuant to C.P.L. § 100.50(2), the prosecutor's information could only be properly filed if the factual allegations in the original information supported the additional charge of harassment in the second degree under P.L. § 240.26(1). Therefore, considering the identical allegations concerning appellant's conduct in the original information and the prosecutor's information, the only difference between the two charges is the intent of the actor. While harassment requires the intent to harass, annoy or alarm, attempted assault requires the intent to cause physical injury. In the circumstances presented here, harassment is considered a lesser included offense of attempted assault (People v. Stanfield, 36 N.Y.2d 467 (1975), 369 N.Y.S.2d 118; People v. Strong, 37 N.Y.2d 568 (1975), 376 N.Y.S.2d 87; People v. Green, 56 N.Y.2d 427 (1982), 452 N.Y.S.2d 389. The question of whether an offense is a lesser included offense of another, is generally resolved by a 5 literal reading of C.P.L. § 1.20(37), which states in relevant part: When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a "lesser included offense. II While the application of this "impossibility rule" might serve to prevent 2nd degree harassment from being considered a lesser included offense of 3rd degree assault in some circumstances (People v. Moyer, 27 N.Y.2d 252 at 254 (1970), 317 N.Y.S.2d 9), there is no injury alleged here, therefore the comparison is between an attempted 3rd degree assault and 2nd degree harassment, based on identical factual allegations concerning appellant's conduct. In such a case, the Court of Appeals articulated a clarification of the rule stated in C.P.L. § 1.20(37), to provide that when two charges are based upon the very same conduct, the only difference being the intent of the actor, the lesser charge is considered a "lesser included" offense of the greater, and is to be treated as such under the C.P.L. People v. Stanfield, supra. 6 When the Court of Appeals re-visited the issue later, it was made clear that the "Stanfield rule" applies in such circumstances. On that occasion, the Court reiterated the general "impossibility rule" stated in C.P.L. § 1.20[37] (see People v. Glover, 57 N.Y.2d 61 (1982) 453 N.Y.S.2d 660), while on the same day explaining: If, however, both the lesser and the greater offenses require demonstration of a culpable mental state, the fact that the degree of culpability specified for each differs from the other does not foreclose giving a lesser included charge on impossibility grounds. People v. Green, 56 N.Y.2d 427 at 432 (1982), 452 N.Y.S.2d 389. Applied here, the "Stanfield rule" requires that the charge of harassment in the second degree be treated as a lesser included offense of attempted assault in the third degree, because both rely on evidence of the very same conduct, the only difference being whether appellant acted with intent to harass, annoy or alarm, or to cause physical injury. In such a case, the two charges contained in a single instrument must be considered in the alternative, and a guilty verdict on either one must necessarily depend on which of the two competing intentions was found by the 7 Court or jury. Quite obviously, in such a case, a defendant could not be found guilty of both charges, because one cannot commit a single physical act while having two inconsistent intentions. Therefore, pursuant to C.P.L. § 300.30 the two charges in this case are considered inconsistent concurrent counts (one greater than the other) making them "inclusory concurrent counts," which can only be submitted in the alternative pursuant to C.P.L. § 300.40(3)(b). Consequently, as here, a verdict of guilty on the lesser count is statutorily deemed an acquittal upon the greater count submitted (C.P.L. §300.40(3)(b); see also C.P.L. § 300.50[4]). While appellant made no written post-verdict motion addressing the Court's erroneous verdict, defense counsel objected to the duel convictions prior to sentence saying, "I don't really think he could be convicted of both and sentenced for both." (A-29). Here, as a consequence of the lower Court's consideration of both charges, resulting in appellant's conviction for harassment in the second degree, he was necessarily acquitted of attempted assault in the third degree pursuant to C.P.L. § 300.40(3)(b). Therefore, as a 8 result of the application of the statute, the defendant now stands acquitted of attempted assault in the third degree as a matter of law. CONCLUSION For the reasons stated above, it is respectfully submitted that the appellant's convictions for attempted assault in the third degree and harassment in the second degree should be reversed, the prosecutor's information should be dismissed, with prejudice, and the fine and surcharge should be remitted, together with such other relief as to this Court may seem just and proper. Dated: Palisades, N.Y. April 1, 2014 Respectfully submitted, n'a/4£ William A. Gerard Attorney for Defendant/Appellant Steven Repanti 71 Woods Rd., P.O. Box 717 palisades, New York 10964 Phone (845) 365 3121 Fax (845) 365 4036 9 COURT OF APPEALS: STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Court of Appeals Docket No. APL-2014-00005 Respondent-Appellee, - against - STEVEN REPANTI, SIGNING REQUIREMENT CERTIFICATION PURSUANT 22NYCRR 130-1.1-A Defendant-Appellant. I hereby certify pursuant to 22NYCRR 130-1.1-a that, to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of the papers listed below or the contentions therein, are not frivolous as defined in 22NYCRR 130-1.1-c. APPELLANT'S BRIEF APPELLANT'S APPENDIX RELATED REQUIRED APPELLATE FORMS Dated: Palisades, N.Y. April 1, 2014 #ef4..:1:r~ Attorney for Defendant-Appellant Steven Repanti 71 Woods Rd., PO Box 717 Palisades, N.Y. 10964 Phone (845) 365-3121 Fax (845) 365-4036 10 CERTIFICATE OF COMPLIANCE PURSUANT TO 22 NYCRR § 670.10.3 (f) The foregoing brief was prepared on a computer. A monospaced typeface was used, as follows: Name of typeface: Courier Point size: 12 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is 1,480. Dated: Palisades, N.Y. April 1, 2014 ttI~a./kuP William A. Gerard Attorney for Defendant-Appellant Steven Repanti 71 Woods Rd., PO Box 717 Palisades, N.Y. 10964 Phone (845) 365-3121 Fax (845) 365-4036 11 AFFIRMATION OF MAILING STATE OFNEW YORK: COUNTY OF ROCKLAND: The undersigned, duly affirms, and says: I am not a party to the action, I am over 18 years of age and am the attorney for STEVEN REPANTI, the Defendant-Appellant in this action. On April 1, 2014, your affirmant served three copies of the within Brief on Appeal upon: Appeals Bureau Office of the Rockland County District Attorney 1 South Main Street, Suite 500 New City, N.Y. 10956 the address designated by said Respondent-Appellee for that purpose by depositing a true copy of same enclosed in a post-paid, properly addressed wrapper, in a post office, official depository under the exclusive care and custody ofthe United States Postal Service within the State of New York. Affirmed under perjury penalties on April 1, 2014. #dk'tZ.~- William A. Gerard Attorney for Defendant-Appellant Steven Repanti 71Woods Rd., P.O. Box 717 Palisades, New York 10964 Phone (845) 365 3121 Fax (845) 365 4036 12 AFFIRMATION OF MAILING STATE OFNEW YORK: COUNTY OF ROCKLAND: The undersigned, duly affirms, and says: I am not a party to the action, I am over 18 years of age and am the attorney for STEVEN REPANTI, the Defendant-Appellant in this action. On April 1, 2014, your affirmant served three copies of the within Brief on Appeal upon: Appeals Bureau Office of the Rockland County District Attorney 1South Main Street, Suite 500 New City, N.Y. 10956 the address designated by said Respondent-Appellee for that purpose by depositing a true copy of same enclosed in a post-paid, properly addressed wrapper, in a post office, official depository under the exclusive care and custody ofthe United States Postal Service within the State of New York. Affirmed under perjury penalties on April 1, 2014. e. ti/~'Cf..~ William A. Gerard Attorney for Defendant-Appellant Steven Repanti 71Woods Rd., P.O. Box 717 Palisades, New York 10964 Phone (845) 365 3121 Fax (845) 365 4036 12