DECISION AND ORDER Defendant Elijah Wilson, charged with one count of Forcible Touching, pursuant to Penal Law §130.52(1); one count of Stalking in the Third Degree, pursuant to Penal Law §120.50(3); one count of Aggravated Harassment in the Second Degree, pursuant to Penal Law §240.30(1)(a); one count of Aggravated Harassment in the Second Degree, pursuant to Penal Law §240.30(2); and one count of Sexual Abuse in the Third Degree, pursuant to Penal Law §130.55, argues that the July 6, 2022 conversion of the accusatory instrument to an information was improper. The Defendant also moves for discovery-related relief. For the reasons set forth below, the Defendant’s motions are granted in part and denied in part. I. Factual Allegations According to the accusatory instrument, the representations made by the parties in court on July 6, 2022, and the parties’ motion papers, on June 1, 2022, at approximately 5:35 p.m., the Defendant encountered the complaining witness on a subway train, where he told her that she “looked beautiful.” The complaining witness did not reciprocate or respond to the Defendant’s comment. The Defendant then followed the complaining witness when she exited the train and boarded a different train. On the second train, the Defendant made sexually suggestive comments to the complaining witness, including, “You have a fat ass,” “I want to cream inside of you,” and “I want to have your kid.” At some point, the Defendant gave the complaining witness his telephone number, which she typed into her cell phone. The Defendant then said, “Call me now.” Fearful of her safety, the complaining witness complied, thus giving the Defendant access to her own cell phone number. The complaining witness then called someone to meet her at the subway station, because she was afraid of the Defendant. When the complaining witness exited the train at the 125th Street subway station at Saint Nicholas Avenue, the Defendant again followed her. Surveillance video depicts the complaining witness attempting to walk in one direction, and the Defendant grabbing her by the hand and pulling her in another direction. The Defendant then allegedly placed his hand on the complaining witness’s outer left thigh, rubbed her thigh upwards towards her buttocks, hugged her, and kissed her on her forehead. The complaining witness did not consent to the Defendant touching her. That same evening, from approximately 6:00 p.m. to approximately 9:00 p.m., the complaining witness received multiple telephone calls from the Defendant. The Defendant identified himself as “Jay,” a name which he had previously told her was his; in addition, she recognized his voice and phone number. The Defendant stated that he wanted to go on a date with her. The complaining witness responded that she was afraid of the Defendant, and did not want him to call her again. The next evening, June 2, 2022, at approximately 8:00 p.m., the complaining witness received a telephone call from a blocked telephone number. The caller identified himself as “Jay,” and the complaining witness recognized the caller’s voice as the Defendant. The stated, in substance, “If I see you again, I’m going to rape you.” The Defendant’s actions have caused the complaining witness to fear for her safety. According to the People, in 2019, the Defendant pled guilty to Assault in the Third Degree, pursuant to Penal Law §120.00(1). The criminal complaint in that case states that the Defendant called his ex-girlfriend and threatened her with physical violence. One month later, the Defendant attacked his ex-girlfriend, pulling her hair and striking her about the neck and chest with an open hand. In addition, the People assert that in 2008, the Defendant pled guilty to Assault in the Third Degree, pursuant to Penal Law §120.00(1). The criminal complaint in that case alleges that the Defendant punched and kicked his girlfriend several times; smashed her phone against a wall and threw it out of a window; then took a kitchen knife and held it to her throat, while threatening to kill her and her son. II. Procedural History The Defendant was arraigned in the instant matter on June 16, 2022. The criminal court complaint, which was signed by NYPD Detective Avinash Surajbali, did not state the name of the complaining witness, but rather, referred to her as “Individual 1.” Following the Defendant’s arraignment, the case was adjourned to July 6, 2022, for the People to file and serve a supporting deposition for the complaining witness. On July 6, 2022, the People filed and served a redacted version of the complaining witness’s supporting deposition. Specifically, the signature of the complaining witness, as well as the complaining witness’s name, were redacted from the document. No other portions of the document were redacted. At the July 6, 2022 court appearance, the Court conducted an in camera review of the unredacted supporting deposition. The Assistant District Attorney and defense counsel were present during the Court’s in camera review. The Court offered defense counsel the opportunity to review the unredacted supporting deposition, including the portions containing the complaining witness’s name, on the condition that defense counsel not share the complaining witness’s name with his client. Defense counsel declined to review the unredacted supporting deposition. Following the Court’s in camera review of the document, the Court confirmed on the record that the redacted supporting deposition that had been filed and served was identical to the unredacted version, except that the unredacted supporting deposition contained the name and signature of the complaining witness. The unredacted supporting deposition was placed in a sealed envelope in the court file. After hearing argument from the parties regarding whether the complaint should be deemed an information, the Court deemed the accusatory instrument an information, but granted the Defendant leave to explore the issue further in a written motion. The instant motion followed. III. Analysis a. a. Conversion of the Accusatory Instrument The Defendant argues that conversion of the accusatory instrument to an information was improper, because the complaining witness’s name and signature were redacted from her supporting deposition. As explained in the Court’s July 6, 2022 oral decision, and discussed further below, the Court disagrees. According to the Defendant, conversion of the complaint based on a redacted supporting deposition violates his Sixth Amendment confrontation rights. But this Court has not held — and the People do not contend — that the Defendant is never entitled to learn the complaining witness’s name. Rather, at this early stage of the proceeding, the People need not disclose this information. This holding is consistent with both case law and statute. Courts have regularly upheld the conversion of accusatory instruments based on supporting depositions that do not identify undercover officers by name. (See, e.g., People v. Guillermo, 67 Misc 3d 133[A] [Sup Ct, App Term, 1st Dept 2020].) Indeed, these officers are permitted to print their badge numbers on supporting depositions, in lieu of signatures. (Id.) And in any event, Criminal Procedure Law §245.20(1)(c) expressly provides that information “relating to the identity of a…witness of an offense defined under article one hundred thirty” of the Penal Law may be withheld by the People without the need for a motion, provided that the People notify the defendant in writing that such information has not been disclosed. Here, the Defendant is charged with two separate Article 130 offenses, namely, Forcible Touching (PL §130.52[1]), and Sexual Abuse in the Third Degree (PL §130.55). The Defendant contends that CPL §245.20(1)(c) is irrelevant, because it governs the People’s disclosure obligations, not the sufficiency of accusatory instruments. But requiring this complaining witness to disclose her identity via supporting deposition at the outset of the case would vitiate the explicit protections the Legislature has afforded sexual assault victims: that their identities need not be disclosed within the initial disclosure period. (See Supplies v. GEICO Gen. Ins. Co., 192 AD3d 588, 590 [1st Dept 2021] ["[S]tatutes and regulations must be interpreted in a manner that does not render them meaningless, unreasonable, or absurd”].) These statutory protections are particularly compelling in this case, where the Defendant not only allegedly encountered the complaining witness for the first time on a train, followed her from one train to another, and then sexually assaulted her; but he also subsequently called her repeatedly, despite her requests to stop, and ultimately threatened to rape her. Moreover, the Defendant has two prior convictions for domestic violence assault. Accordingly, the conversion of the accusatory instrument to an information on July 6, 2022, was appropriate. The People have not sought an order of protection in this case, because the complaining witness and Defendant were strangers prior to the alleged incidents, and the Defendant does not currently possess any identifying information for the complaining witness other than her telephone number, which she is in the process of having changed. The Defendant argues that the Court should order disclosure of the complaining witness’s name to the Defendant, and then issue an order of protection directing him to stay away from the complaining witness. This would circumvent the protections set forth in CPL §245.20(1)(c), and the Court therefore declines to do so. Furthermore, to the extent that the Defendant also seeks an order invalidating the certificate of compliance based on the People’s failure to disclose the complaining witness’s name and contact information, that motion is denied. The Defendant is certainly entitled to know the identity of the complaining witness prior to trial. The Court has already given defense counsel the opportunity to ascertain the name of the complaining witness by reviewing the unredacted supporting deposition; Defense counsel has chosen not to receive this information. The determination of when the People must disclose the complaining witness’s identity to the Defendant is reserved for the trial court. b. Remaining Motions The motion for a bill of particulars is denied. The material contained in the information, together with the discovery the People must produce pursuant to CPL Article §245, provides the information to which the Defendant is entitled. The Defendant seeks a Huntley/Dunaway hearing. The People affirm that they do not intend to offer statements that the Defendant made to a law enforcement officer in their direct case at trial. The motion for a Huntley/Dunaway hearing is therefore denied, subject to renewal before the trial court. The Defendant’s motion for a Wade hearing is granted. This opinion constitutes the decision and order of the Court. Dated: August 15, 2022
