MEMORANDUM Motion to Dismiss for Facial Insufficiency: DENIED Motion for a Huntley/Dunaway hearing: GRANTED Motion for a Mapp/Dunaway hearing: DENIED Defendant is charged in the accusatory instrument with one count of Assault in the Third Degree [PL §120.00(1)], one count of Endangering the Welfare of a Child [PL §260.10(1)] and one count of Harassment in the Second Degree [PL §240.26(1)]. The accusatory information sets forth, in pertinent part, that: “P.O. Denise Enmanuel…states that on or about and between May 27, 2021 at approximately 12:01 A.M. and June 1, 2021 at approximately 11:59 P.M. inside of [redacted], county of the Bronx, [she was] informed by Ashley Rosario that [Ms. Rosario] is the mother of [a minor child with the initials "N.P."] and that [N.P's] date of birth is [xx/xx, 2018] and she is three (3) years old. [Ashley Rosario informed P.O. Enmanuel] that on or about May 27, 2021 she left [N.P.] in the care of [N.P.'s] biological father, the defendant…[and] on or about June 1, 2021 [Ashley Rosario] picked [N.P.] up from defendant’s home. [Ashley Rosario informed P.O. Enmanuel] that while bathing [N.P.] she observed [N.P.] to have bruising, abrasions, redness and swelling to her legs. [P.O. Enmauel] states that the defendant stated in sum and substance: I HIT [N.P.] A LITTLE TOO HARD. I HIT HER BECAUSE SHE DEFICATED[sic] ON THE BED.” Defendant now moves pursuant to CPL §100.40 to dismiss the accusatory instrument for facial insufficiency. Defendant claims that the accusatory instrument fails to establish the elements of the alleged offenses with non-hearsay allegations. The People, in opposition to defendant’s motion to dismiss, contend that with respect to the Assault in the Third Degree charge, the description of N.P.’s injuries paired with defendant’s admission that he hit her “a little too hard” are sufficient to establish the “physical injury” element of the charge and thus, that count is facially sufficient. Regarding the count of Endangering the Welfare of a Child, the People argue that inasmuch as the accusatory instrument indicates that defendant was in a “custodial position” of N.P. (three years of age) and it adequately describes the injuries to N.P. as a result of defendant’s admitted conduct, the charge is facially sufficient. As to the Harassment in the Second Degree charge, the People assert that although N.P.’s mother “cannot truly attest to feelings or sensations [the minor] complainant experienced, it can be inferred via the common sense of the reader that beating a three-year-old hard enough to leave bruises that last for days would surely cause that three-year — old annoyance, alarm and fear for safety…,” Conway Response p. 9 and as such, the charge is facially sufficient. Defendant’s motion to dismiss the accusatory instrument for facial insufficiency is decided as follows: In order for a misdemeanor information to be sufficient on its face it must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe that defendant committed the offenses charged (CPL §100.15(3); CPL§100.40(1)[b]; CPL §70.10). These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses charged (see CPL §100.40(1)(c); People v. Henderson, 92 NY2d 677). Reasonable cause exists when “evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it” [CPL §70.10 (2)]. An information which fails to satisfy these requirements is jurisdictionally defective (see CPL §170.35); People v. Alejandro, 70 NY2d 133; People v. Dumas, 68 NY2d 729). The People bear the burden of satisfying the facial sufficiency requirements by doing so within the “four corners” of the accusatory instrument [see People v. Jones, 9 NY3d 259; People v. Thomas, 4 NY3d 143; People v. Liranzo, 46 Misc3d 140(A)]. In evaluating whether the pleaded allegations establish reasonable cause to believe that a person has committed an offense, the court must do so in the light most favorable to the People and consider all favorable inferences drawn therein [see People v. Williams, 84 NY2d 925; People v. Contes, 60 NY2d 620; People v. Barona, 19 Misc 3d 1122[A]; People v. Mellish, 4 Misc3d 1013(A)]. Although, mere conclusory allegations are insufficient (see People v. Dumas, supra) an information sufficient on its face need not articulate every fact necessary to prove the charged allegations (see People v. Mills, 1 NY3d 268; People v. Bello, 92 NY2d 523; People v. Mayo, 36 NY2d 1002). So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (see People v. Kasse, 22 NY3d 1142; People v. Kalin, 12 NY3d 225; People v. Casey, 95 NY2d 354). Further, the facts alleged need only establish the existence of a prima facie case, even if it those facts would be insufficient to establish guilt beyond a reasonable doubt (see People v. Jennings, 69 NY2d 103). Moreover, in assessing the facial sufficiency of an information, the court “‘is not required to ignore common sense or the significance of the conduct alleged,’” People v. Gonzalez, 184 Misc2d 262, 264 quoting People v. Abdul, 157 Misc2d 5. Penal Law §120.00(1), Assault in the Third Degree, provides in pertinent part, that: “A person is guilty of Assault in the Third Degree when…with intent to cause physical injury to another person, he causes such injury to such person…” Intent to cause physical injury…may be inferred from an act alone or defendant’s conduct and surrounding circumstances (see Matter of Marcel F., 233 AD2d 422; see generally People v. Bracey, 41 NY2d 296). Further, a person intends “that which is the natural and necessary and probable consequences of the act done by him,” People v. Getch, 50 NY2d 456. Here, the misdemeanor information establishes reasonable cause to believe that defendant’s conscious desire was to cause physical injury to N.P. inasmuch as he admitted that he hit her “too hard” which caused N.P. to suffer bruising, abrasions, redness and swelling to her legs (see People v. Woodward, 50 Misc3d 1212(A); People v. Kersh, 41 Misc3d 1217(A); People v. Dreyden, 28 Misc3d 5). Further, although defendant characterized the level of force that he used on N.P. as “a little” too hard, based upon the nature of the physical injuries sustained by the child, it can reasonably be inferred that it was excessive. Further, since defendant stated that he struck the child because she “deficated (sic) on the bed,” it can also be reasonably inferred that he did so when he was in a state of anger thereby demonstrating his intent to inflict physical injury. With respect to the element of physical injury, it is defined under PL §10.00(9) as “impairment of physical condition or substantial pain.” The Court of Appeals has held that “…’substantial pain’ cannot be defined precisely, but it can be said that it is more than slight or trivial pain. Pain need not, however, be severe or intense to be substantial,” People v. Chiddick, 8 NY3d 445; People v. Henderson, 92 NY2d 677; [see also People v. Wayne B., 124 AD3d 492; People v. Lang, 81 AD3d 538; People v. Bermudez, 59 Misc3d 127(A); People v. Fernandez, 57 Misc3d 136(A); People v. Perez, 46 Misc3d 133(A); People v. Coleman, 36 Misc3d 1242(A)]. “This element can be sufficiently pled even in cases where the accusatory instrument describes only an act of violence and an injury, or even violence alone, but does not specifically allege that the violence caused the complainant substantial pain. In these cases, the instrument is sufficient as long as it alleges an act of violence that is sufficiently extreme to permit a reasonable inference that the violence was ‘an experience that would normally be expected to bring with it more than a little pain,’” People v. Ouza, 54 Misc3d 1205(A) citing People v. Chiddick, supra. Further, in evaluating an accusatory instrument that does not specifically allege substantial pain, a court should take into account “…all of the surrounding circumstances alleged in the accusatory instrument — including any injury described — [which] can lead a court to conclude that there is a reasonable inference that the violence likely caused ‘more than a little pain,’” Id at *2 citing People v. Chiddick, supra; (see also People v. Calixto, 29 Misc3d 798). In the instant case, based upon the totality of the circumstances alleged in the misdemeanor information, the Court concludes that the accusatory instrument sufficiently pleads physical injury, specifically “substantial pain.” First, the Court relies on the act of violence that is described in the accusatory instrument, specifically, that defendant admitted to hitting his three-year-old child “too hard,” because she defecated on the bed [see People v. Morris, 44 Misc3d 810 (the accusatory instrument made a prima facie case of physical injury because "[t]he experience of being slapped and bit during a fight by someone who is clearly very angry ‘would normally be expected to cause more than a little pain’”]. Moreover, the Court is cognizant of the huge disparity in size and physical strength between the defendant, an adult male and N.P., a three-year-old child. While this factor alone would not sufficiently make out a prima facie case of physical injury, applying common sense (see People v. Gonzalez, supra), it certainly contributes to the reasonable inference that defendant did cause physical injury to his much smaller daughter (see People v. Ozua, supra). Based upon the foregoing, when viewing the allegations contained in the accusatory instrument in the light most favorable to the People and considering all favorable inferences, (see People v. Williams, supra; People v. Contes, supra; People v. Barona, supra; People v. Mellish, supra), the Court concludes that the charge of Assault in the Third Degree is facially sufficient under count one. Penal Law §260.10(1), Endangering the Welfare of a Child, provides in pertinent part, that: “A person is guilty of Endangering the Welfare of a Child when [h]e or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old…” “It is not necessary that the People prove that the child’s mental or moral welfare actually be impaired…no injury or actual harm need result from the Defendant’s action or inaction…,” People v. Freeman, 34 Misc3d 1217(A). “…Penal Law §260.10(1) is ‘broadly written and imposes criminal sanctions for the mere likelihood [emphasis added] of harm,’” People v. Sanderson, 68 AD3d 1716 citing People v. Johnson, 95 NY2d 368. Here, inasmuch as it is alleged in the criminal court complaint that defendant admitted that he hit the child “a little too hard because she deficated (sic) on the bed,” which resulted in the child suffering bruising, swelling, abrasions and redness to her legs, there is ample basis for the Court to reasonably infer that defendant knowingly acted in a manner that was likely to be injurious to the welfare of a child. Based on the foregoing, the allegations in the accusatory instrument are facially sufficient to establish the charge of Endangering the Welfare of a Child under count two. Penal Law §240.26(1) Harassment in the Second Degree, provides in pertinent part, that: “A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person…he…strikes, shoves, kicks or otherwise subject another person to physical contact or attempts or threatens to do the same…” Here, as an initial matter, the accusatory instrument establishes the element of defendant subjecting the child to “physical contact” inasmuch as defendant admitted to hitting her. Further, defendant’s intent to “harass, annoy or alarm” can be reasonably inferred by his actions and the surrounding circumstances set forth in the criminal court complaint (see People v. Cruz, 53 Misc3d 95 citing People v. Bracey, 41 NY2d 296). Finally, although the accusatory instrument does not allege that the minor child, N.P., experienced “harassment, annoyance or alarm,” based upon the conduct alleged, this Court can reasonably infer that the three year old toddler suffered, at the very least, annoyance or alarm when she was struck “hard” by defendant (see generally People v. Gonzalez, 184 Misc2d 262). Based upon the foregoing, the allegations contained in the accusatory instrument are facially sufficient to establish the charge of Harassment in the Second Degree under count three. Accordingly, defendant’s motion to dismiss the accusatory instrument for facial insufficiency pursuant to CPL §100.40 is denied. DEFENDANT’S REMAINING MOTIONS The branch of the motion for suppression of statements or, in the alternative, for a Huntley/Dunaway hearing is granted to the extent that a Huntley/Dunaway hearing is to be held prior to trial. The branch of the motion for preclusion of unnoticed statement and identification evidence is granted pursuant to CPL §710.30(3). The branch of the motion for suppression of physical evidence or, in the alternative, for a Mapp/Dunaway hearing is denied inasmuch as there is no allegation that law enforcement officials recovered physical evidence from defendant. A Sandoval hearing is to be held immediately prior to trial, if applicable. At or prior to that hearing, the People are to discharge their duty under CPL §245.20(1)(p). Additionally, the People are directed to disclose to the defendant the nature of any prior criminal acts which they intend to introduce against him at trial pursuant to CPL §245.20(1)(p). The branch of defendant’s motion requesting leave to make further motions, if necessary, after the People provide discovery, is granted. All motions should be made within the time prescribed by the rules of the Court. Order entered accordingly. This constitutes the decision and order of the Court. The Clerk of the Court is directed to forward a copy of this order and memorandum to the attorney for the defendant and the District Attorney. Dated: November 1, 2021
