The defendant, Jonathan Romero, is charged with Assault in the Third Degree (P.L. §120.00(2)); Reckless Endangerment in the Second Degree (P.L. §120.20); Leaving the Scene of an Incident Without Reporting Personal Injury (V.T.L. §600(2)(a)); and Harassment in the Second Degree (P.L. §240.26(1)). He now moves this Court to dismiss the superseding accusatory instrument on facial insufficiency grounds. The People have elected to not respond to the defendant’s motion. After a review of the defendant’s motion and the court file and record, this Court makes the following findings.The Accusatory InstrumentIn analyzing the facial sufficiency of the accusatory instrument, this Court must presume true all non-hearsay, evidentiary allegations of the information and any supporting documentation. See C.P.L. §100.40(1)(c) (“[T]he non-hearsay allegations of the factual part of the information…[must] establish, if true, every element of the offense charged and the defendant’s commission thereof.”) (emphasis added); People v. Casey, 95 NY2d 354, 360 (2000) (quoting P.L. §100.40(1)(c)).On April 29, 2018, at approximately 1:56 p.m., deponent Police Officer Matthew Portoles received a radio run for an assault in front of 18-59 Madison Street, in Queens County. He arrived at approximately 2:01 p.m. There, he observed the complainant, Kayleen Otero, sitting in the street “hysterically crying, had tears running down her face, speaking in a loud and fast manner and gasping for air.”The complainant told the officer, “He left. He left. My arms, elbows and shoulders hurt. I was on the hood of his car, and he kept hitting the gas and brake.” Officer Portoles observed bruises and lacerations on the complainant’s arms, elbows and hands. The defendant, who was arrested at the scene, stated, “I repeatedly accelerated and braked the car to get her off the hood of my vehicle.”Facial Sufficiency Analysis“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution.” People v. Smalls, 26 NY3d 1064, 1066 (2016) (quoting People v. Dreyden, 15 NY3d 100, 103 (2010)); see also C.P.L. §§170.30; 170.35. Such a facially sufficient and valid misdemeanor information must contain non-hearsay, non-conclusory, factual allegations of an evidentiary character that establish every element of, and constitute reasonable cause to believe the defendant committed, the charged offenses. See C.P.L. §§70.10; 100.15(3); 100.40(1)(b) & (c); People v. Alejandro, 70 NY2d 133 (1987); People v. Dumas, 68 NY2d 729 (1986). Further, “[s]o 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. Ocasio, 28 NY3d 178, 180 (2016) (quoting People v. Casey, 95 NY2d 354, 360 (2000)).The Superseding Accusatory Instrument Is an InformationAs no supporting deposition of the complainant has been filed or served, the defendant moves this Court to deem the superseding accusatory instrument unconverted and hence a nullity. See C.P.L. §170.65(1); People v. Severino, 47 Misc 3d 1229(A), *3 (Crim. Ct., NY Co. 2015). However, hearsay statements can be used to convert an accusatory instrument if they qualify as an excited utterance, which requires that the statements “reasonably justify the conclusion that the complainant’s remarks were not made under the impetus of studied reflection, which the Court of Appeals has decreed is to be the decisive factor” in determining the applicability of the excited utterance exception. People v. Valentine, 40 Misc 3d 28, 31 (App. Term, 2d Dept. 2013) (citing People v. Edwards, 47 NY2d 493, 487 (1979)).In this case, this Court is satisfied that the statements attributed to the complainant constitute an excited utterance exception to the hearsay exclusion rule, given the radio run of an assault in progress, the deponent officer’s arrival minutes later, his description of the complainant at the time as hysterical, crying, gasping and speaking fast and loudly, and his observation of the complainant’s bruises and lacerations. Reading these factual allegations together and in the light most favorable to the People, this Court DEEMS THE SUPERSEDING ACCUSATORY INSTRUMENT AN INFORMATION.Counts 1 and 2: Assault in the Third Degree (P.L. §120.00(2)) and Reckless Endangerment in the Second Degree (P.L. §120.20)It is unlawful to “recklessly cause a physical injury to another person,” P.L. §120.00(2), or to “recklessly engage in conduct which creates a substantial risk of serious physical injury to another person.” P.L. §120.20. A person causes injury recklessly “when he is aware of and consciously disregards a substantial and unjustifiable risk” that conduct will result in a physical injury. P.L. §15.05(3). “Physical injury” is defined as an “impairment of physical condition or substantial pain.” P.L. §10.00(9). Physical injury is “serious” if it “creates a substantial risk of death….” P.L. §10.00(10).In this case, the defendant was, or should have been, aware that his repeated accelerating and braking, while the complainant was on top of his vehicle, for the express purpose of throwing her off and onto the ground, constituted a reckless act with an attendant substantial and unjustifiable risk of causing her injury or death. The defendant’s disregard for this risk “constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” P.L. §15.05(3). Moreover, the lacerations and abrasions on multiple parts of the complainant’s body satisfy the “physical injury” element of assault in the third degree.Accordingly, the defendant’s motion to dismiss counts 1 and 2 of the superseding information as facially insufficient is DENIED.Count 3: Leaving the Scene of an Incident Without Reporting Personal Injury (V.T.L. §600(2)(a))Any person operating a motor vehicle who, knowing or having cause to know that personal injury has been caused to another person, due to an incident involving the motor vehicle operated by such person shall, before leaving the place where the said personal injury occurred, stop, exhibit his or her license and insurance identification card for such vehicle…and give his or her name, residence, including street and street number, insurance carrier and insurance identification information…to the injured party, if practical, and also to a police officer, or in the event that no police officer is in the vicinity of the place of said injury, then, he or she shall report said incident as soon as physically able to the nearest police station or judicial officer.V.T.L. §600(2)(a).In this case, the defendant injured the complainant, see ante, and had cause to know that his intentional acceleration and braking of his car to throw the complainant onto the ground would so injure her. However, despite the complainant’s statement, “He left,” it is not alleged that the defendant left the scene without exhibiting his license and insurance card or identifying himself. Further, the allegation that the defendant left the scene is contrary to the defendant speaking with the officer and being arrested at the scene. As the “failure to exhibit license and insurance card” element is alleged insufficiently — and in fact not alleged at all — the defendant’s motion to dismiss count 3 of the superseding information, namely, V.T.L. §600(2)(a), as facially insufficient is GRANTED.Count 4: Harassment in the Second Degree (P.L. §240.26(1))“A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person[, h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same.” P.L. §240.26(1). The defendant argues that charging him with harassment in the second degree “is totally inconsistent with [counts 1 and 2] which involve the same acts. The People cannot allege that the act is at [the] same time ‘reckless’ [and] ‘intentional.’” Defendant’s Motion at 17. This argument is without merit.The defendant is alleged to have intentionally jolted his car repeatedly to force the complainant off the hood and, inevitably, subject her to physical contact with the ground below. See P.L. §240.26(1). However, he is not alleged to have specifically intended to injure the complainant, as required to charge an individual with intentional assault in the third degree. See P.L. §120.00(1). Rather, the defendant is alleged to have been aware, but dismissive, of the potentiality of injury to the complainant. In other words, while the defendant is accused of intending the complainant’s fall, in satisfaction of P.L. §240.26(1), he is not accused of intending that she be injured. Rather, he is alleged to have recklessly disregarded the risk, in satisfaction of P.L. §§120.00(2) and 120.20.In sum, one may be charged validly with both intentional and reckless offenses arising from the same actus reus. See People v. Alejo, 42 Misc 3d 1225(A), *4 (Crim. Ct., Bronx Co. 2014) (holding that the question “[c]an Defendant be charged with both intentional and reckless acts in the same complaint, for the same act[,]…must be answered in the affirmative”). In the matter sub judice, the defendant is charged validly with committing both the reckless crimes of assault in the third degree and reckless endangering in the second degree and the intentional offense of harassment in the second degree. Accordingly, the defendant’s motion to dismiss the count of P.L. §240.26(1) is DENIED.This constitutes the decision and order of this Court.Dated: July 26, 2018Kew Gardens, New York
