DECISION AND ORDER The defendant is charged with assault in the third degree (PL §120.00[1]), criminal obstruction of breathing and blood circulation (PL §121.11[a]), and harassment in the second degree (PL §240.26[1]). He moves this court to dismiss the accusatory instrument as facially insufficient pursuant to CPL §§100.40 and 170.30. The defendant also moves for suppression of evidence and other relief. For the reasons that follow, the motion to dismiss the information is denied as to the charge of harassment in the second degree and granted as to the charges of assault in the third degree and criminal obstruction of breathing or blood circulation.The defendant’s motion to suppress is granted to the extent that a combined Huntley/Dunaway hearing is ordered. Sandoval/Ventimglia issues are referred to the trial court.THE MOTION TO DISMISS FOR FACIAL INSUFFICIENCYThe Factual AllegationsThe accusatory instrument in this case alleges, in relevant part, that on or about December 20, 2018, at approximately 12:50 AM inside of 285 East 156th St #7G, Bronx County:Deponent [Police Officer Armanda Delarosa] states that at the above time and place, she responded to a radio run of a family dispute in progress, arriving within twenty-five (25) minutes of receiving said radio run. Deponent further states that upon arriving at said location, she attempted to gain entry to said location for approximately twenty (20) minutes by knocking on said door and communicating her presence, and heard a male voice state in sum and substance, DON’T OPEN THE DOOR. Deponent further states she then heard a female voice yelling for help at a high pitch, at which point she continued to demand entry into said location. Deponent further states that a female opened the door, with defendant standing directly behind said female, and deponent observed ALLISON PINCAY BORJA standing near a bedroom door, crying with her hands on her face.Deponent further states that she approached Ms. Pincay Borja who stated in sum and substance: WE WERE ARGUING, I JUST WANTED TO GET OUT, HE WOULDN’T LET ME OPEN THE DOOR, HE THREW ME TO THE GROUND, HE CHOKED ME.Deponent further states that she observed Ms. Pincay Borja to have red marks about her neck and face, and a bruise to her right thigh.Deponent further states that she observed the above location to be a two (2) bedroom apartment and she observed defendant, Ms. Pincay Borja, a third female occupant, and a small child to be the sole occupants of said location.AnalysisFacial sufficiency is a non-waivable, jurisdictional prerequisite to a misdemeanor prosecution (see People v. Alejandro, 70 NY2d 133, 139 [1987]; People v. Hall, 48 NY2d 927 [1979]). In order to be facially sufficient, an information, together with any supporting depositions, must: (1) allege facts of an evidentiary character supporting or tending to support the charges, pursuant to CPL §100.15(3); (2) provide reasonable cause to believe that the defendant committed the offenses charged in the information; and (3) include non-hearsay factual allegations, which, if true, establish every element of the offense charged (see CPL §100.40[1][a]-[c]). Conclusory allegations are insufficient (see People v. Dumas, 68 NY2d 729 [1986]).A court reviewing an accusatory instrument for facial insufficiency must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from them (CPL §§100.40 and 100.15; People v. Jackson, 18 NY3d 738, 747 [2012]; see also People v. Casey, 95 NY2d 354, 360 [2000]). However, “[f]acial sufficiency, by definition, limits the Court’s analysis to the four corners of the accusatory instrument” (People v. Williams, 21 Misc 3d 678, 684 [City Ct. Albany City 2008] citing People v. Thomas, 4 NY3d 143, 146 [2005]).While the burden is on the People to provide a prima facie case for the offenses charged in the accusatory instrument, this requirement “is not the same as the burden of proof beyond a reasonable doubt required at trial” (People v. Kalin, 12 NY3d 225, 230 [2009]). Rather, the accusatory instrument must “give an accused notice sufficient to prepare a defense” and be “adequately detailed to prevent a defendant from being tried twice for the same offense” (see id. at 230, internal citations and quotations omitted). When the factual portion of the information, together with any accompanying supporting deposition and viewed in the light most favorable to the People, fails to establish every element of the offense charged, the information is jurisdictionally defective and must be dismissed (see People v. Casey, 95 NY2d 354 [2000]; People v. Alejandro, 70 NY2d 133 [1987]).An out-of-court statement suffices for the prima facie requirement so long as it falls within a hearsay exception (see CPL §100.40[1]). When such a statement is made under the stress of excitement caused by an external event and is not the product of studied reflection and possible fabrication, that statement falls under the excited utterance exception to the hearsay rule (see People v. Johnson, 1 NY3d 302, 306 [2003]). In People v. Edwards, the Court of Appeals addressed the factors a court should consider when determining whether an out-of-court statement is an excited utterance, including “not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth” (47 NY2d 493, 497 [1979]).Here, because the complaint relies on the complainant’s statement to the deponent officer to establish the defendant’s conduct, this court must decide whether that statement falls within the excited utterance exception. According to the complaint, the deponent officer responded to a radio run of a family dispute in progress, arriving within twenty-five minutes of the radio run. When she arrived, the officer sought entry to the apartment for an additional twenty minutes, during which period she heard a female voice calling from help from within and a male voice stating “Don’t open the door.” Once the deponent officer gained entry, she observed the complainant crying with her hands over her face. These allegations are enough to establish that the complainant’s statement was an excited utterance. Despite the forty-five minutes between the deponent officer’s receipt of the initial radio run and her observations of the complainant, the deponent officer’s observations during that time period indicate that the dispute was of a continuing nature and only ended upon her entry into the apartment. Further, the allegation that the complainant was crying supports the rational conclusion that her statement was made while still under the stress of excitement caused by the dispute, and not as the product of studied reflection (see People v. Edwards, 47 NY2d 493, 497 [1979]). Therefore, the complainant’s statement falls under the excited utterance exception to the hearsay rule, satisfying the requirements of CPL §100.40.Assault in the Third DegreeA person is guilty of assault in the third degree when “[w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person…” (PL §120.00[1]). “Physical injury,” in turn, is defined in PL §10.00(9) as “impairment of physical condition or substantial pain.” To fulfill the prima facie requirement, therefore, an information must contain factual allegations sufficient to establish that a complainant suffered “impairment of physical condition or substantial pain” (People v. Henderson, 92 NY2d 677, 680 [1999]).The inclusion of the word “substantial” makes clear that the Legislature intended to exclude from the assault statute “petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives” (Matter of Philip A., 49 NY2d 198, 200 [1980], quoting Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed Penal Law, p. 330). But while substantial pain is more than slight or trivial pain, it “need not, however, be severe or intense…” (People v. Chiddick, 8 NY3d 445 [2007]). In Chiddick, the Court of Appeals acknowledged that while substantial pain cannot be precisely defined, there are nonetheless several factors a court can examine when evaluating whether a complaint contains sufficient allegations (id. at 447). For example, a court can consider the type of injury sustained by the complainant, the complainant’s subjective description of what he or she felt, whether the complainant sought medical treatment, and the defendant’s motive to the extent that it may be fairly inferred from the alleged conduct in the complaint (id. at 447-8).The allegations in the instant complaint fail to establish that the complainant suffered impairment of physical condition or substantial pain. First, the complaint is completely devoid of any description of the complainant’s subjective experience of pain, nor does it allege that she suffered any physical impairment as a result of the defendant’s conduct. There is no indication that the complainant sought or received medical treatment, which is another factor from which courts have been able to infer that a complainant suffered substantial pain (see People v. Chiddick, 8 NY3d 445 [2007]). Further, the deponent officer’s observation of one bruise on the complainant’s thigh and “red marks” on her face and neck are not such severe injuries that the court can infer substantial pain without further additional information, as the nature of these red marks is unclear from the face of the complaint. Finally, the allegations regarding the defendant’s conduct, viewed in the light most favorable to the People, do not rise to the level at which substantial pain can be assumed. Other than the conclusory declaration that the defendant “choked” the complainant (addressed further below), the only other conduct attributed to the defendant is that he “threw” the complainant to the ground. This conduct, without more, is not specific enough to support an inference that the complainant suffered substantial pain and therefore the complaint fails to make out the physical injury element.Because the complaint does not contain factual allegations establishing that the complainant suffered physical injury, the charge of assault in the third degree is facially insufficient and the defendant’s motion to dismiss is granted as to that count.Criminal Obstruction of Breathing or Blood CirculationA person is guilty of criminal obstruction of breathing or blood circulation under the charged subsection when, with intent to “impede the normal breathing or circulation of the blood of another person,” he “applies pressure on the throat or neck of such person…” (PL §121.11[a]). While a complaint need not show that the complainant actually suffered pain or injury (People v. Bonney, 69 AD3d 1116 [3d Dept 2010]), it still must establish first, that the defendant applied pressure to the neck or throat of another person and second, that he did so with the specific intent to impede the complainant’s normal breathing or blood circulation (see People v. Figueroa, 40 Misc 3d 1010, 1018 [Rye City C 2013]).Here, the sole reference to the defendant’s conduct is the complainant’s statement that he “choked” her. Absent any factual allegations about the defendant’s specific conduct (i.e., placing his hands or arms around her throat and squeezing, or some other specific conduct aimed at impeding her breathing or blood circulation), this statement is conclusory. Further, the deponent officer states that she observed “red marks” on the complainant’s face and neck, with no elaboration on the nature of those marks, including whether they were lacerations, bruises, welts, or some other kind of mark. Again, without more information about the defendant’s conduct or the circumstances surrounding that conduct, these allegations are insufficient to support an inference that the defendant had the specific intent required by the statute. Accordingly, the complaint fails to establish the essential elements of the charge (see People v. Dumas, 68 NY2d 729 [1986]).Based on the foregoing, the complaint does not establish a prima facie case for criminal obstruction of breathing or blood circulation and the defendant’s motion to dismiss this count is granted.Harassment in the Second DegreePL §240.26(1) provides that a person is guilty of harassment in the second degree when, “with intent to harass, annoy or alarm another person…he or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same.” Here again, we may rely on the complainant’s statement to the deponent officer regarding the defendant’s alleged conduct. Unlike assault in the third degree, harassment in the second degree does not require that a victim suffer physical injury, but is satisfied by factual allegations that a defendant made physical contact with a complainant with the intent to harass, annoy, or alarm that person (PL §240.26[1]).Here, the complainant’s statement to the deponent officer that the defendant “threw” her down to the ground clearly suffices to establish that he subjected her to physical contact. Further, this alleged conduct supports the rational inference that the defendant had the intent to harass, annoy, or alarm the complainant. Accordingly, the factual allegations are sufficient to make out a prima facie case for this offense and the defendant’s motion to dismiss this count is denied.THE DEFENDANT’S OMNIBUS MOTIONThe defendant’s motion to suppress statements is granted to the extent that a pre-trial Huntley/Dunaway hearing is ordered.The People are directed to notify the defendant of any and all specific instances of any prior uncharged criminal, vicious, or immoral conduct of which the People have knowledge and that they intend to use as impeachment evidence at trial within a period of three days, excluding Saturdays, Sundays, and holidays, prior to the commencement of jury selection (CPL §240.43). All issues concerning the extent of cross-examination of the defendant on any prior criminal convictions or bad acts, should he choose to testify at trial, are referred to the trial court (CPL §240.43; People v. Sandoval, 34 NY2d 371 [1974]). All issues concerning the People’s use in their direct case of any prior criminal convictions or bad acts are also referred to the trial court (People v. Ventimiglia, 2 NY2d 30 [1981]; People v. Molineux, 168 NY 264 [1901]).The People are reminded of their continuing obligation pursuant to Brady v. Maryland, (373 US 83 [1963]), and are directed to disclose such material to the defendant (see also People v. Vilardi, 76 NY2d 67 [1990]).The People are also reminded of their affirmative duty to preserve Rosario and discoverable material and to disclose such materials within the time period required by statute and by decisional law (see CPL §240.44 and CPL §240.45; see also People v. Handy, 20 NY3d 663 [2013]); People v. Rosario, 9 NY2d 286 [1961]).The People are directed to preserve all physical and electronic evidence and all radio and other police communications pertaining to this case and to provide such to the defendant at least ten days prior to trial.The defendant’s application for leave to file additional motions is denied subject to the provisions of CPL §25.20(3) regarding due diligence and good cause.This opinion constitutes the decision and order of this court.Dated: May 16, 2019Bronx, New York
