PEOPLE v. NWOGU (2008)

Defendant Emmanuel Nwogu moves in an omnibus motion for the following relief:  (1) A Bill of Particulars;  (2) Discovery;  (3) Inspection and Dismissal of the Accusatory Instrument;  (4) Suppression of Physical Evidence;  and (5) A Reservation of Rights pursuant to CPL § 255.20(3).   The People have responded to the motion and demand Reciprocal Discovery.   Defendant's motion is decided as follows:

Defendant Emmanuel Nwogu is charged with Menacing in the Second Degree (PL § 120.14[1] );  Menacing in the Third Degree (PL § 120.15);  and Criminal Possession of A Weapon in the Fourth Degree (PL § 265.01[2].)

FACIAL SUFFICIENCY

Defendant moves for dismissal of all the charges, arguing that the accusatory instrument is facially insufficient as the facts alleged fail to establish every element of the offenses charged.   The People oppose the motion for dismissal.

To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged.  (CPL §§ 100.15[3];  100.40[1][b];  70.10;  People v. Jones, 9 N.Y.3d 259, 848 N.Y.S.2d 600, 878 N.E.2d 1016 [2007];  People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000];  People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986].)   These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses.  (CPL § 100.40[1] [c].) An information which fails to satisfy these requirements is jurisdictionally defective.  (CPL §§ 170.30 and 170.35;  People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987];  People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986].)

 In reviewing an accusatory instrument for facial sufficiency, “[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 ․,” the Court should give it “a fair and not overly restrictive or technical reading.”  (People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000].)   What is needed in the pleading is that the factual allegations are sufficiently evidentiary in character such that they tend to support the charges.   (People v. Allen, 92 N.Y.2d 378, 385, 681 N.Y.S.2d 216, 703 N.E.2d 1229 [1998].)

In deciding a motion to dismiss for facial insufficiency, a court must confine its analysis to the allegations contained solely in the complaint and any depositions filed in support of it.  (People v. Alejandro, supra at 138, 517 N.Y.S.2d 927, 511 N.E.2d 71;  People v. Konieczny, 2 N.Y.3d 569, 576, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004].)   New facts contained in the opposition are not part of the accusatory instrument and cannot serve to cure any of its alleged jurisdictional defects.  (Id.;  CPL §§ 100.40[1] and [4].)

The accusatory instrument charges defendant with the commission of the aforementioned crimes on June 17, 2008, between 3:00 and 3:30PM, inside of 165-08 88th Avenue 5th Floor, Queens, New York, under the following circumstances:

Deponent [Police Officer Jeffrey Smith] states that he is informed by complainant Gwen Wallace, that at the above mentioned date, time and place of occurrence, the defendant, Emmanuel N. Nwogu, stood up from his seat and stated “I am going to blow up.”

Deponent is further informed by the complainant that she observed the handle of a knife on the back of defendant's waistband.

Deponent is further informed by Sgt. Proherbs Shield No. 623 that he recovered a dagger with a blade in excess of four inches from the back of the defendant's waistband.

Deponent is further informed by the complainant that the above mentioned actions of the defendant placed her in fear of physical injury.

A person is guilty of Criminal Possession of a Weapon in the Fourth Degree when he possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another (PL § 265.01[2] ).  Penal Law § 265.15[4] provides a statutory presumption of intent for the possession of certain weapons as follows:

The possession by any person of any dagger, dirk, stiletto, dangerous knife or any other weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another.

 Here, the accusatory instrument asserts that defendant was in possession of a dagger, one of the enumerated weapons that falls within the scope of the statute's presumption.  (PL § 265.15[4].) Therefore, the accusatory instrument is facially sufficient as to the charge of Criminal Possession of A Weapon in the Fourth Degree.  (PL § 265.01[2].)

A person is guilty of Menacing in the Third Degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.  (PL § 120.15.) The statute requires more than verbal threats, it requires a “physical menace,” i.e. a physical act which places the victim in fear of imminent serious injury.  (Penal Law § 120.15;  Matter of Akheem B., 308 A.D.2d 402, 764 N.Y.S.2d 630 [2d Dept. 2003], lv. denied 1 N.Y.3d 506, 776 N.Y.S.2d 221, 808 N.E.2d 357 [2004];  People v. Sylla, 7 Misc.3d 8, 792 N.Y.S.2d 764 [App. Term 2d & 11th Jud. Dists. 2005];  People v. Stephens, 100 Misc.2d 267, 418 N.Y.S.2d 868 [Crim. Ct. Bx County 1979];  Donnino, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 39, Penal Law § 120.15, at 314-315).

 Here, factual allegations in the information relating to the charge of Menacing in the Third Degree consists of defendant's standing up from a seat stating “I am going to blow up” and the complaining witness' observation of a handle of a knife on the back of defendant's waistband.   There is no allegation that defendant's words were directed at the complaining witness or anyone else, and nor does the accusatory instrument allege the physical proximity of defendant to the complaining witness at any time during the incident. Defendant's words “I am going to blow up,” the physical act of standing up from a seat, together with the observation of a knife handle in the back of defendant's waistband, are insufficient to demonstrate defendant's intent to place another person in fear of death, imminent serious physical injury or physical injury.   Thus, the accusatory instrument lacks sufficient factual allegations to support the charge of Menacing in the Third Degree.

A person is guilty of Menacing in the Second Degree when he or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.  (PL § 120.14;  People v. Filauri, 10 Misc.3d 1064(A), 2005 WL 3507034 [Dist. Ct. Nassau County 2005].)   The crime of Menacing in the Second Degree requires an intent to place another person in “reasonable fear of physical injury” by “displaying” a weapon or dangerous instrument.  (People v. Bartkow, 96 N.Y.2d 770, 772, 725 N.Y.S.2d 589, 749 N.E.2d 158 [2001].)

 The word “displays” has been interpreted in an analogous context in Penal Law § 160.15(4) and § 160.10(2), which define robbery in the first and second degrees.   In that context, in order to establish the “display” element, the People must show that the defendant consciously displayed something that reasonably could be perceived as a firearm, with the intent of forcibly taking property, and that the victim actually perceived the display.   (People v. Lopez, 73 N.Y.2d 214, 538 N.Y.S.2d 788, 535 N.E.2d 1328 [1989];  People v. Baskerville, 60 N.Y.2d 374, 469 N.Y.S.2d 646, 457 N.E.2d 752 [1983].)   The “display” must actually be witnessed by the victim, i.e., it must appear to the victim by sight, touch or sound that he or she is threatened, in that context, by a firearm.  (People v. Lopez, supra;  People v. Silva, 178 Misc.2d 538, 680 N.Y.S.2d 43 [Crim. Ct. Bx County 1998];  People v. Jenkins, 118 Misc.2d 530, 461 N.Y.S.2d 699 [Sup. Ct. N.Y. County 1983].)   Thus, the object, whether or not an actual firearm, will suffice to establish the element of “display” if, under all the circumstances, defendant's conduct reasonably could lead the victim to believe that a firearm was being used.   (People v. Lopez, supra at 220, 538 N.Y.S.2d 788, 535 N.E.2d 1328.)

 Here, as above stated, the factual allegations in the complaint are insufficient to demonstrate that defendant's words, conjoined with his act of standing up, placed another in reasonable fear of physical injury, serious physical injury or death.   The additional factual allegation that a knife handle was observed by the complaining witness on the back of defendant's waistband does not necessitate a different result.   Again, as there is no factual allegation as to where defendant and complainant were positioned in relation to one another.

The accusatory instrument fails to establish the “display” element as there are no factual allegations that defendant consciously displayed the knife or used it in any way so as to intentionally put the complaining witness in reasonable fear of “physical injury, serious physical injury or death.”   (Penal Law § 120.14[1];  People v. Iftikhar, 185 Misc.2d 565, 569, 713 N.Y.S.2d 671 [Crim. Ct. Bx County 2000].)   The new facts contained in the People's opposition, including that the offense occurred in a workplace situation, and not contained in the information, can not be considered in deciding this motion and thus do not cure any of the information's jurisdictional defects.  (People v. Alejandro, supra at 138, 517 N.Y.S.2d 927, 511 N.E.2d 71;  People v. Konieczny, 2 N.Y.3d 569, 576, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004].)  (Id.;  CPL §§ 100.40[1] and [4].)

Based on the foregoing, the Court finds that the charges of Menacing in the Second Degree (PL § 120.14[1] ) and Menacing in the Third Degree (PL § 120.15) are facially insufficient and must be dismissed.   The People are granted leave to file a legally sufficient superseding information within thirty (30) days of the date of this decision.

SUPPRESSION OF PHYSICAL EVIDENCE

Defendant moves for the suppression of the knife which defendant avers was seized from his person.   The motion to suppress physical evidence is granted to the extent that a Mapp/Dunaway hearing is ordered.  (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 [1961];  Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 [1979].)

RESERVATION OF RIGHTS

Defendant's motion to reserve the right to make further motions is granted on the consent of the People to the extent permitted by CPL § 255.20(3).

DEMAND FOR RECIPROCAL DISCOVERY

The People's request for reciprocal discovery is granted to the extent required by CPL § 240.30.

This constitutes the decision and order of the court.

CHARLES S. LOPRESTO, J.