PEOPLE v. JONES (2022)

ORDERED that the judgment of conviction is affirmed.

Defendant was charged with assault in the third degree (Penal Law § 120.00 [1]) in a superseding information with corroborating affidavits from an eyewitness and Dr. Anne Laib, which alleged, among other things, that the deponent, a New York Police Department detective, was informed by the above-mentioned eyewitness that he had observed a man strike the victim in the face causing the victim to fall backward to the ground. The superseding information further alleged that the eyewitness observed the victim, who appeared to be unconscious or semi-conscious, bleeding from his head, ears, mouth and nose. Further, the deponent stated that he recovered video surveillance footage from cameras at a business located near the location of the incident described above and that, upon viewing the video, which depicted the incident described by the eyewitness, he recognized defendant as the assailant. The deponent also stated that he was informed by Dr. Anne Laib, from the Chief Medical Examiner's Office, that the victim was treated for physical injuries, including a skull fracture and “other traumatic brain injuries,” from which the assaulted individual ultimately died.

Defendant moved to, among other things, dismiss the accusatory instrument as facially insufficient, contending that, since the deponent detective did not have the requisite knowledge of defendant to identify him, deponent's statement that he recognized defendant was conclusory and was based upon impermissible hearsay. The People opposed the motion and, in a decision and order dated April 3, 2019, the Criminal Court (Jeffrey A. Gershuny, J.) denied it.

Prior to the commencement of trial, a prosecutor's information was filed with the court and defendant was arraigned thereon. Defendant moved to dismiss the prosecutor's information (see CPL 170.30 [1] [a]; 170.35 [3] [b]) and the underlying accusatory instrument based upon the same grounds raised in his prior motion, as well as the fact that the trial court had, in the interim, ruled that it would not permit the deponent detective to testify that he recognized defendant from the video. The People opposed the motion and, in a decision and order dated January 30, 2020, the court (Joanne B. Watters, J.) denied defendant's motion, finding that the basis for denying the first motion was still applicable and adhering to that decision.

The case proceeded to a jury trial during which the prosecutor informed the court that there was a witness the People would like to call to testify as to the identity of defendant. Specifically, the People informed the trial court that, during the course of their continuing investigation, indeed during the luncheon recess, they discovered an additional witness, a police officer, who is also a relative of defendant's fiancée. This witness, the People stated, had viewed the video surveillance footage and recognized defendant as the assailant. A hearing pursuant to (People v. Rodriguez, 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268 (1992) was conducted and, by order issued February 4, 2020, the court (Joanne B. Watters, J.) found that the witness and defendant were well known to each other, and determined that the witness would be permitted to testify pertaining to his identification of defendant on the surveillance video, which video had already been entered into evidence and published to the jury. Following the trial, defendant was convicted of assault in the third degree and sentenced.

On appeal, defendant first contends that the prosecutor's information and the underlying superseding information were facially insufficient, and that the superseding information was never properly converted because it impermissibly relied upon hearsay and conclusory factual allegations to establish defendant's identity as the assailant.

To be legally sufficient, an information must allege facts of an “evidentiary character supporting or tending to support the charges” (CPL 100.15 [3]; see CPL 100.40 [1] [a]), and must contain “[n]on-hearsay allegations” which “establish, if true, every element of the offense charged and the defendant's commission thereof” (CPL 100.40 [1] [c]; see People v. Slade, 37 N.Y.3d 127, 136, 148 N.Y.S.3d 413, 170 N.E.3d 1189 [2021]). However, “not every deficiency [in an accusatory instrument] implicates the jurisdiction of the court. ‘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’ ” (People v. Konieczny, 2 N.Y.3d 569, 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004], quoting People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000]).

The complainant police officer stated in the superseding information that he “viewed” the surveillance “video depicting the ․ occurrence ․ and observed a male whom he recognizes to be defendant Jamill Jones ․ strike” the victim. Merely stating what one sees on a video, which has no audio (see People v. Ogando, 64 Misc.3d 310, 313, 102 N.Y.S.3d 400 [Crim. Ct., N.Y. County 2019]; People v. Ham, 43 Misc.3d 1227[A], 2014 N.Y. Slip Op. 50826[U], *2-3, 2014 WL 2438434 [Crim. Ct., Kings County 2014]; People v. Patten, 32 Misc.3d 440, 444 n. 1, 927 N.Y.S.2d 542 [Long Beach City Ct. 2011]; see generally People v. Caviness, 38 N.Y.2d 227, 230, 379 N.Y.S.2d 695, 342 N.E.2d 496 [1975]) and includes no nonverbal assertions (see Ogando, 64 Misc.3d at 313, 102 N.Y.S.3d 400, 102 N.Y.S.3d; Patten, 32 Misc.3d at 444 n. 1, 927 N.Y.S.2d 542; see generally People v. Nieves, 67 N.Y.2d 125, 131 n. 1, 501 N.Y.S.2d 1, 492 N.E.2d 109 [1986]; Caviness, 38 N.Y.2d at 230, 379 N.Y.S.2d 695, 342 N.E.2d 496) does not constitute hearsay (see Ogando, 64 Misc.3d at 313, 102 N.Y.S.3d 400, 102 N.Y.S.3d; People v. Clyburn, 56 Misc.3d 1204[(A]), 2017 N.Y. Slip Op. 50866[(U]), 2017 WL 2803222 [Crim. Ct., N.Y. County 2017]; People v. Green, 52 Misc.3d 1214[(A]), 2016 N.Y. Slip Op. 51155[(U]), 2016 WL 4098310 [Crim. Ct., Queens County 2016]; People v. Hossain, 50 Misc.3d 610, 23 N.Y.S.3d 802 [Crim. Ct., N.Y. County 2015]; People v. Miller, 49 Misc.3d 1204[A], 2015 N.Y. Slip Op. 51391[U], *2 and n. 1, 2015 WL 5736947 [Crim. Ct., Kings County 2015]; Ham, 2014 N.Y. Slip Op. 50826[(U]); People v. West, 41 Misc.3d 542, 970 N.Y.S.2d 867 [Crim. Ct., Bronx County 2013]; People v. Giarraputo, 37 Misc.3d 486, 949 N.Y.S.2d 852 [Crim. Ct., Richmond County 2012]; Patten, 32 Misc.3d 440, 927 N.Y.S.2d 542; People v. Lambert, 2002 N.Y. Slip Op. 50278[(U]), 2002 WL 1769931 [Crim. Ct., Queens County 2002]; see generally People v. Dunham, 70 Misc.3d 132[A], 2020 N.Y. Slip Op. 51554[U], *1, 2020 WL 7759492 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2020] [“admission of the silent surveillance video into evidence did not violate the rule against hearsay as it is not assertive in nature”]; but see People v. Kelly, 35 Misc.3d 1233[(A]), 2012 N.Y. Slip Op. 50983[(U]), 2012 WL 1958994 [Crim. Ct., Kings County 2012]; People v. Allison, 21 Misc.3d 1108[A], 2008 N.Y. Slip Op. 52008(U), 2008 WL 4491495 [Dist. Ct., Nassau County 2008]; People v. Schell, 18 Misc.3d 972, 849 N.Y.S.2d 882 [Crim. Ct., Richmond County 2008]).¹

“The requirement that an accusatory instrument contain nonconclusory allegations is part of the prima facie case requirement” (People v. Jackson, 18 N.Y.3d 738, 746, 944 N.Y.S.2d 715, 967 N.E.2d 1160 [2012]). A statement in an accusatory instrument that the deponent recognized the defendant is not conclusory and any questions as to the source of the deponent's knowledge is a matter to be raised at trial (see People v. Singleton, 73 Misc.3d 149[(A]), 2022 N.Y. Slip Op. 50011[(U]), 2022 WL 98156 [App. Term, 1st Dept. 2022]; People v. Roldan, 71 Misc.3d 135[(A]), 2021 N.Y. Slip Op. 50426[(U]), 2021 WL 1974354 [App. Term, 1st Dept. 2021]; People v. Banaszek, 71 Misc.3d 132[A], 2021 N.Y. Slip Op. 50324[U], 2021 WL 1521933 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2021]; People v. Bennett, 70 Misc.3d 134[(A]), 2021 N.Y. Slip Op. 50016[(U]), 2021 WL 192653 [App. Term, 1st Dept. 2021]; see also People v. Jackson, 61 Misc.3d 136[A], 2018 N.Y. Slip Op. 51548[U], *2, 2018 WL 5850170 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2018]; see generally Konieczny, 2 N.Y.3d at 575, 780 N.Y.S.2d 546, 813 N.E.2d 626; Casey, 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233; cf. People v. Jackson, 75 Misc.3d 203, 163 N.Y.S.3d 913 [Crim. Ct., Bronx County 2022]; People v. Garcia, 48 Misc.3d 1204[(A]), 2015 N.Y. Slip Op. 50955[(U]), 2015 WL 3915768 [Crim. Ct., NY County 2015]). Moreover, the allegation here is not “a conclusion drawn by a police officer that involves the exercise of professional skill or experience, [in which case] some explanation concerning the basis for that conclusion must be evident from the accusatory instrument” (Jackson, 18 N.Y.3d at 746, 944 N.Y.S.2d 715, 967 N.E.2d 1160).

Additionally, the superseding information, together with the supporting depositions, sufficiently alleged that defendant intended to cause physical injury to the assaulted individual and, in fact, caused physical injury by striking the victim in the face and causing him to fall backward and to sustain, among other things, a laceration to his chin (see People v. Mercado, 94 A.D.3d 502, 941 N.Y.S.2d 501 [2012]; People v. Cintron, 69 Misc.3d 148[(A]), 2020 N.Y. Slip Op. 51436[(U]), 2020 WL 7038990 [App. Term, 1st Dept. 2020]), thereby alleging every element of assault in the third degree (see Penal Law § 120.00 [1]). Thus, the facts alleged within the four corners of the superseding information and the supporting depositions (see Slade, 37 N.Y.3d at 136-137, 148 N.Y.S.3d 413) were sufficient to provide reasonable cause to believe that defendant committed the charged offense (see CPL 100.40 [1] [b]), and to establish, if true, defendant's commission of that offense (see CPL 100.40 [1] [c]). Consequently, the underlying superseding information was facially sufficient (see CPL 100.15, 100.40 [1]; People v. Dalrymple, 70 Misc.3d 140[A], 2021 N.Y. Slip Op. 50124[U], 2021 WL 712400 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2021]; People v. Cordova, 62 Misc.3d 148[A], 2019 N.Y. Slip Op. 50227[U], 2019 WL 963117 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2019]). Likewise, the prosecutor's information was facially sufficient as it was based upon the factual allegations contained in the superseding information (cf. CPL 170.35 [3] [b]) and, in accordance with CPL 100.35, it contained the name of the court and the title of the action, included a plain and concise statement of the conduct constituting the offense, and was signed by the district attorney. As the instruments provided “ ‘notice sufficient to prepare a defense and [were] adequately detailed’ ” to prevent defendant “ ‘from being tried twice for the same offense’ ” (Konieczny, 2 N.Y.3d at 575, 780 N.Y.S.2d 546, 813 N.E.2d 626, quoting Casey, 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233), the Criminal Court properly denied defendant's pretrial motions to dismiss the superseding information and the prosecutor's information.

Defendant further contends on appeal that the witness who identified him at trial was not sufficiently familiar with defendant to make a confirmatory identification of him. Moreover, defendant argues, the late disclosure of the witness unduly prejudiced defendant such that the testimony should have been precluded. These claims lack merit.

The testimony at the Rodriguez hearing established that the witness who identified defendant at trial knew him well enough to make his identification of defendant confirmatory. Indeed, the testimony established that the witness and defendant were to be future family members and had met on three occasions—once when the witness attended defendant's engagement party at which defendant gave a speech, another when defendant was a guest in the witness's own home and one other occasion—and that on each occasion they spoke to one another and were in close proximity to one another (see People v. Walker, 289 A.D.2d 53, 733 N.Y.S.2d 423 [2001]; People v. Lainfiesta, 257 A.D.2d 412, 684 N.Y.S.2d 508 [1999]). Moreover, defendant himself testified that he spoke to the witness the morning after the incident, when defendant saw a police vehicle and yellow crime scene tape at the location of the incident and sought the witness's advice as a police officer. Thus, defendant's claim that the witness was not sufficiently familiar with defendant to identify him at trial is without merit (see People v. Johnson, 197 A.D.3d 725, 727, 153 N.Y.S.3d 156 [2021]).

We also reject defendant's contention that the identification witness should have been precluded for late disclosure. Here, the People could not have complied with the 15-day notice requirement pursuant to CPL 710.30 (2), as the witness identified defendant during the course of the trial and, upon learning of the identification, the People immediately provided notice of their intention to call that identifying witness (see People v. Rashid, 166 A.D.3d 1382, 1384, 88 N.Y.S.3d 699 [2018]).

Finally, defendant contends that it was error for the trial court to have allowed the People to elicit that the assaulted individual died as a result of the injuries sustained from the assault, as this fact was not a necessary element to prove the charge of assault in the third degree and the prejudice resulting from this evidence outweighed its probative value. We disagree and find that the court properly allowed the admission of testimony and documentary evidence demonstrating this fact because the full extent of the assaulted individual's injuries proved the element of intent (see generally People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094 [1977]; People v. Casey, 65 Misc.3d 145[A], 2019 N.Y. Slip Op. 51790[U], 2019 WL 5995733 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2019]; People v. Mason, 62 Misc.3d 75, 92 N.Y.S.3d 531 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2019]). This evidence also completed the narrative of events and explained, without permitting the jury to impermissibly speculate, why the victim did not testify at trial. In any event, any possible error was harmless given the overwhelming evidence demonstrating defendant's guilt and disproving his justification defense, and there is no significant probability that the outcome of the trial would have been different in the absence of this error (see People v. Sparks, 29 N.Y.3d 932, 51 N.Y.S.3d 14, 73 N.E.3d 354 [2017]; People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]; People v. Bezghoud, 171 A.D.3d 650, 97 N.Y.S.3d 475 [2019]; see generally People v. Lelaj, 72 Misc.3d 140[A], 2021 N.Y. Slip Op. 50786[U], 2021 WL 3521083 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2021]; Casey, 2019 N.Y. Slip Op. 51790[U]; People v. Jackson, 54 Misc.3d 137[A], 2017 N.Y. Slip Op. 50133[U], 2017 WL 487639 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2017]).

Accordingly, the judgment of conviction is affirmed.

The threshold issue on this appeal is whether the accusatory instrument was facially sufficient where the basis for the officer's identification of defendant was his observation of a surveillance video. While I do not dispute that the detective's visual observation of the surveillance video is not hearsay, I conclude that his identification of defendant was too conclusory to establish a prima facie case because it required a basis of knowledge beyond the mere viewing of the video (see People v. Jackson, 18 N.Y.3d 738, 746, 944 N.Y.S.2d 715, 967 N.E.2d 1160 [2012]; People v. Patten, 32 Misc.3d 440, 444-446, 927 N.Y.S.2d 542 [Long Beach City Ct. 2011]). Accordingly, I respectfully dissent and vote to dismiss both the superseding information and the prosecutor's information as facially insufficient.

An information is facially sufficient where the factual allegations, along with the supporting depositions, “provide reasonable cause to believe that the defendant committed the crime charged” (CPL 100.40 [1] [b]), and the information contains nonconclusory, “non-hearsay allegations ․ [which] establish, if true, every element of the offense charged and defendant's commission thereof” (CPL 100.40 [1] [c] [emphasis added]; People v. Smalls, 26 N.Y.3d 1064, 1066, 23 N.Y.S.3d 134, 44 N.E.3d 209 [2015]; People v. Jackson, 18 N.Y.3d at 741, 944 N.Y.S.2d 715, 967 N.E.2d 1160). “The requirement that an accusatory instrument contain nonconclusory allegations is part of the prima facie case requirement” (People v. Jackson, 18 N.Y.3d at 746, 944 N.Y.S.2d 715, 967 N.E.2d 1160). Thus, where an allegation involves a conclusion, there must be some explanation for the basis of that conclusion that is evident from the accusatory instrument (see id.; People v. Kalin, 12 N.Y.3d at 229, 878 N.Y.S.2d 653, 906 N.E.2d 381; People v. Patten, 32 Misc.3d at 444-446, 927 N.Y.S.2d 542).

Here, there was no such explanation. The only allegation in support of defendant's commission of the crime is the detective's statement that he observed a male on a video surveillance whom he recognized to be defendant. Absent from this allegation is any basis for the detective's belief that the individual in the video was defendant (see People v. Dreyden, 15 N.Y.3d 100, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010] [misdemeanor complaint charging defendant with fourth-degree criminal possession of a weapon was jurisdictionally defective where there was no basis for the officer's belief that the knife in defendant's possession was a gravity knife]; People v. Kalin, 12 N.Y.3d 225, 229, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009] [“a conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement”]). There is no allegation that defendant was personally known to the detective, nor is there an allegation of a prior encounter with the detective that would support a confirmatory identification. Without personal knowledge that the individual on the video was defendant, the detective's averment is conclusory (see People v. Thiam, 59 Misc.3d 126[A], 2018 N.Y. Slip Op. 50339[U], 2018 WL 1371548 [App. Term, 1st Dept. 2018], affd 34 N.Y.3d 1040, 115 N.Y.S.3d 745, 139 N.E.3d 366 [2019]). Since there is no other allegation in either the superseding information or the prosecutor's information that would point to defendant as the perpetrator of the crime charged, both informations should have been dismissed as facially insufficient.

Moreover, it was patently unfair to allow the prosecutor to elicit testimony that a homicide occurred. Defendant was 35 years old and had no prior criminal history, and this testimony was unnecessary and to no purpose to prove the crime charged—misdemeanor assault. Any probative value was outweighed by its prejudicial effect, as the jury was guided to think that this was not merely an assault, but a homicide, because there was a dead body.

Accordingly, I vote to reverse the judgment of conviction and dismiss the accusatory instrument.

FOOTNOTES

1.   We have not been called upon to determine whether it was necessary for the superseding information to lay an evidentiary foundation for the surveillance video viewed and, thus, we do not reach that issue. However, we note in passing that an information need merely allege facts of an “evidentiary character” (CPL 100.15 [3]; see CPL 100.40 [1] [a]) which support or tend to support the charges. This is a less stringent standard than the “legally sufficient evidence” standard required at trial (see CPL 70.20; People v. Suber, 19 N.Y.3d 247, 252, 946 N.Y.S.2d 552, 969 N.E.2d 770 [2012] [“The prima facie case for an information ․ excludes only a particular type of incompetent evidence—hearsay—without restricting the People from utilizing other types of proof in order to commence a criminal proceeding (see CPL 100.40 [1] [c]) ․ [T]he prima facie case requirement for an information does [not] rise to the level of legally sufficient evidence that is necessary to ․ survive a motion to dismiss based on the proof presented at trial (People v. Kalin, 12 N.Y.3d 225, 230 [878 N.Y.S.2d 653, 906 N.E.2d 381][2009])”] [internal quotation marks omitted]).

ALIOTTA, P.J., and GOLIA, J., concur.