The People of the State of New York v. Maurice R. Mongeon, Defendant. (2024)

Hon. Jonathan S. Hickey:

The defendant is charged in two separate incidents, both of which are made part of the present motion. By way of introduction each of the dates and specific charges are set forth below:

April 17, 2024:

• Harassment in the Second Degree, Penal Law § 240.26(1)

April 18, 2024:

• Harassment in the First Degree, Penal Law § 240.25

Procedural Posture:

The defendant pleaded not guilty to all charges and on June 6, 2024 the defendant made an oral motion  ¹ to dismiss the charges based on the alleged facial insufficiency of the accusatory instruments. The People opposed the motion. Dominic Saraceno, Esq. argued on behalf of the motion for the defendant and Rachel Lewis Schepart, Esq. argued in opposition on behalf of the People.

Conclusions of Law:

Facial Insufficiency:

CPL § 100.15 Information, misdemeanor complaint and felony complaint; form and content provides that:

1. An information, a misdemeanor complaint and a felony complaint must each specify the name of the court with which it is filed and the title of the action, and must be subscribed and verified by a person known as the "complainant." The complainant may be any person having knowledge, whether personal or upon information and belief, of the commission of the offense or offenses charged. Each instrument must contain an accusatory part and a factual part. The complainant's verification of the instrument is deemed to apply only to the factual part thereof and not to the accusatory part.

2. The accusatory part of each such instrument must designate the offense or offenses charged. As in the case of an indictment, and subject to the rules of joinder applicable to indictments, two or more offenses may be charged in separate counts. Also as in the case of an indictment, such instrument may charge two or more defendants provided that all such defendants are jointly charged with every offense alleged therein.

3. The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges. Where more than one offense is charged, the factual part should consist of a single factual account applicable to all the counts of the accusatory part. The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief. Nothing contained in this section, however, limits or affects the requirement, prescribed in subdivision one of section 100.40, that in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions. (Emphasis added).

CPL § 100.40 Local criminal court and youth part of the superior court accusatory instruments; sufficiency on face, provides in relevant part that:

1. An information, or a count thereof, is sufficient on its face when:

(a) It substantially conforms to the requirements prescribed in section 100.15; and

(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and

(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof. (Emphasis added).

"A valid and sufficient accusatory instrument is a nonwaivable, jurisdictional prerequisite to a criminal prosecution. Every information must contain an accusatory part and a factual part (CPL § 100.15 [1]). The allegations of the factual part of the information, together with those of any supporting deposition which may accompany it, must provide the court with reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information (CPL § 100.40 [1] [b]). Moreover, non hearsay allegations of the factual part of the information and/or any supporting depositions must establish, if true, every element of the offense charged and the defendant's commission thereof. This standard does not require proof beyond a reasonable doubt or evidence sufficient to warrant a conviction, but merely information which would lead a reasonable person who possesses the same expertise as the officer to conclude that a crime is being or was committed" (People v Russo, 24 Misc 3d 655, 656 [Nassau Dist Ct, First District, 2009]) (internal citations omitted).

"Reasonable cause to believe that a person has committed an offense" 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 (see CPL § 70.10(2)).

People v Casey (95 NY2d 354 [2000]) sets forth the guidelines for analyzing the facial sufficiency of an accusatory including the principle that so 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. The prima facie requirement is not the same as the burden of proof beyond a reasonable doubt required at trial (see People v Henderson, 92 NY2d 677, 680 [1999]).

April 17, 2024:

It is alleged that on April 17, 2024 at approximately 4:19 p.m. the defendant entered the complainant's home office  ² and was going through her bag which contained several personal documents and items. The complainant attempted to grab the bag from the defendant which led to a scuffle, and then the defendant is alleged to have "shoved [the complainant] to the ground."

Harassment in the Second Degree, Penal Law § 240.26(1):

The defendant's primary argument with respect to April 17, 2024 is that the accusatory instrument does not allege physical contact and that there was a "tug-of-war" struggle with the complainant's bag that resulted in her falling backward.

The elements of Harassment in the Second Degree require that with intent to harass, annoy or alarm another person, the defendant strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same (Penal Law § 240.26(1)).

The accusatory instrument charging Harassment in the Second Degree here must meet all of the legal requirements of the charge, specifically a valid and sufficient accusatory must contain an accusatory part and a factual part and the allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, must provide the court with reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information (CPL § 100.40 [1] [b]) (emphasis added). Non hearsay allegations must establish if true every element of the offense charged (see People v Russo, 24 Misc 3d 655, 656 [Nassau Dist Ct, First District, 2009]) (internal citations omitted) (emphasis added).

So long as the factual allegations of an information give an accused sufficient notice 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 (see People v Casey (95 NY2d 354 [2000]). The accusatory here meets this minimum threshold in that complainant alleges under oath "Maurice shoved me to the ground." While clearly contested by the defendant and subject to later scrutiny, at this stage of the proceedings this is a facially sufficient accusatory instrument and therefore the motion to dismiss this charge must be denied.

April 18, 2024 Charge:

It is alleged that one day later on April 18, 2024 at approximately 9:00 a.m. the defendant and complainant had another dispute over a bag. While it is not clear if the bag is the same one as the day before, the complainant this time attests that her personal backpack containing among other things confidential medical and legal information was taken by the defendant. When she attempted to take it back the defendant "violently and forcefully pulled the backpack forward, causing me [the complainant] to fall forward over the arm of the couch, falling on my head."

Harassment in the First Degree, Penal Law § 240.25:

The required elements here are that the defendant repeatedly harassed the complainant by following her in or about a public place or places, or by engaging in a course of conduct, or by repeatedly committing acts which placed her in reasonable fear of physical injury and that this was done intentionally (Penal Law § 240.25).

On this charge the defendant argues that the accusatory instrument failed to set forth the necessary course of conduct and that it was the complainant that initiated a "tug-of-war" over the disputed backpack. The defendant argues that the allegations in the complainant's Deposition of Facts are "cut and paste" allegations from an acrimonious matrimonial proceeding and that the complainant is using the criminal justice system as a means of gaining an advantage in that proceeding. This allegation is very troubling to this court and is taken very seriously. This court has scrutinized the accusatory and the lengthy Deposition of Facts closely in light of this assertion.

Ultimately this court must take the direct, sworn proof before it and analyze the accusatory part and factual part of the information to ensure there is reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information (CPL § 100.40 [1] [b]) (emphasis added). The legal standard from above is adopted here, and the factual allegations of the information and supporting depositions are sufficient on their face (see People v Casey (95 NY2d 354 [2000]). While mindful of defendant's argument that the deposition reflects a "cut and paste" intended to gain matrimonial leverage, before this court nonetheless is a deposition with approximately 15 different incidents described. The defendant argues these are "every day disputes," and not the type of disputes that rise to the level of criminal, however the bare minimum threshold has been met to survive a facial sufficiency motion. As such this part of the motion is also denied for these reasons.

NOW, THEREFORE, upon reading and filing all of the motion papers as set forth above, and due deliberation having been had thereon, it is

ORDERED, that defendant's motion is hereby denied in its entirety per the above decision.

This memorandum decision and order shall constitute the order in this matter for appeal purposes and no other or further order shall be required.

DATED: June 26, 2024

Clarence, New York

JONATHAN S. HICKEY

Clarence Town Justice

FOOTNOTES

1.   The People did not oppose the procedural request of the defendant to file the motion orally only. The court approved this agreement. Oral argument proceeded and no papers, on consent, were submitted. The parties were both given a full and fair opportunity to orally argue their respective positions.

2.   The complainant attests that she and the defendant are married, living together, and going through a divorce.

Jonathan S. Hickey, J.