The People of the State of New York, Plaintiff, v. Daniel Gayle, Defendant.
The defendant was originally charged with one count each of Menacing in the Second Degree (PL 120.14 ) and Harassment in the Second Degree (PL 240.26  ). On November 13, 2017, the Menacing in the Second Degree was dismissed, and one count of Menacing in the Third Degree (PL 120.15) was added on the People's motion without objection. The defendant, in an omnibus motion dated November 13, 2017, seeks: (1) to dismiss the information as facially insufficient pursuant to CPL 100.40 and CPL 170.30, (2) a Huntley/Dunaway hearing, (3) to preclude statement and identification evidence pursuant to CPL 710. 30, (4) an order to compel a Bill of Particulars and discovery, (5) Sandoval and Molineux hearings, (6) reservation of rights. The People filed their motion response on November 21, 2017, but have yet to file a Voluntary Disclosure Form (VDF).
The defendant's omnibus motion is decided as follows:
The defendant in his motion papers sought to dismiss only the already dismissed Menacing in the Second Degree (PL 120.14 ) charge (Defendant's Affirmation, p. 4, ¶ 12). The People's response pointed out that the motion is moot (People's Affirmation, p. 1-2, ¶ 4). The court will address the existing Menacing in the Third Degree charge's facial sufficiency in the interest of judicial economy.
Criminal Procedure Law (CPL) 100.40(1) states that an information is sufficient on its face when it substantially conforms with CPL 100.15; the allegations provide reasonable cause 1 to believe that the defendant committed the offense charged; and the non-hearsay allegations in conjunction with any supporting deposition establish, if true, every element of the offenses charged and the defendant's commission thereof. ‘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 Casey, 95 NY2d 354, 360 ).
Penal Law 120.15 provides that, ‘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.‘
In the misdemeanor complaint, the detective stated:
I am informed by Ivan Rodriguez, of an address known to the District Attorney's Office, that he observed the defendant standing inside of a moving train car at the above described location (in the subway car between Canal Street and Chambers Street). I am further informed by Mr. Rodriguez that he observed the defendant put this hand inside of his book bag and yell in substance: ‘I HAVE A GUN. IF I DON'T GET MY PHONE BACK I'M GOING TO SHOOT UP THE TRAIN.‘ I am further informed by Mr. Rodriguez that numerous passengers were inside the same train car and that he observed these passengers running out of the car when the train stopped at a station.
I am further informed by Mr. Rodriguez that the defendant's above described actions caused Mr. Rodriguez to fear serious physical injury.
Mr. Rodriguez confirmed the accuracy of the complaint in his supporting deposition, removing all hearsay from the accusatory instrument.
Physical menace need not involve the use of a weapon (e.g., People v Woods, 54 Misc 3d 453, 456 [Crim Ct, Bronx Co 2016] [allegation that the defendant parked his car in front of the complainant's, pulled on the front driver's side door handle of her vehicle, and slammed his hands against the windows while shouting at her to open the door established both a physical act and a threat of imminent harm sufficient to support third-degree menacing charge] ).
The sworn complaint here does not allege that any weapon was recovered when the defendant was arrested. There was no physical contact between the defendant and the complainant or anyone else on the train. This defendant did not approach the complainant or anyone else on the train. The question here is, does the defendant reaching into his bag, together with his statement, ‘I have a gun. If I don't get my phone back I'm going to shoot up the train,‘ alone sufficient to satisfy the physical menace element of the statute? It is the court's opinion that this is sufficient.
It is hornbook law that an admission by a defendant of any material fact is always competent evidence against him, ‘wherever, whenever, or to whomsoever made.‘ Reed v. McCord, 160 NY 330, 341 (cited as authoritative in criminal cases by the Court of Appeals in People v. Caban, 5 NY3d 143 ).2 The weight and probative value of an admission is for a jury to determine in two phases: if they were made, and their effect. Gangi v. Fradus, 227 NY 456 (1919); People v. Marrero, 67 AD2d 951 (3d Dep't 1979). Verbal admissions have been found sufficient to prove the elements of first degree murder, People v. Bretagna, 298 NY 323, 326 (1949) (‘goes toward establishing not facts from which guilt may be inferred, but guilt itself ‘), first degree manslaughter, People v. Kingston, 8 NY2d 384 (1960) (declaration by father that he struck his foster son), and second degree manslaughter, People v. Eisenman, 39 NY2d 810 (1976) (admissions against interest in purely circumstantial case sufficient to prove case). In New York, the only exception to this rule is an illogical, judicially-carved rule for first degree robbery cases pled under Penal Law 160.15(3) (People v Grant,17 NY3d 613 ).3
This defendant stated that he had a gun, and threatened to shoot people with that gun, and put his hand inside his book bag in conjunction with the threat, which caused at least one person on the train to fear that they were in imminent danger of being shot. For pleading purposes, that is sufficient to withstand the defendant's motion to dismiss (Casey, supra). The defendant's motion to dismiss is denied.
The People gave CPL 710.30(1)(a) notice that they will use a statement against the defendant at trial. The Court of Appeals has held that, ‘there must be a hearing whenever a defendant claims his statement was involuntary, no matter what facts he puts forth in support of such claim‘ (People v Weaver, 49 NY2d 1012 ). Therefore, the defendant's motion for a Huntley/Dunaway hearing is granted.
The People did not give CPL 710.30(1)(b) identification notice at arraignment nor, to the court's knowledge, at any other time. The People are precluded from using any unnoticed statement or identification evidence except for good cause shown (CPL 710.30).
BILL OF PARTICULARS
The People have not provided the defendant a Voluntary Disclosure Form. The People are ordered to comply with CPL 200.95(2) on or before December 20, 2017.
The People are ordered to comply with CPL 240.20 on or before December 20, 2017.
SANDOVAL AND VENTIMIGLIA MOTIONS
The defendant's motion for a Sandoval hearing is granted and referred to the trial court (CPL 240.43). Likewise, the defendant's motion for a Molineux hearing to preclude evidence of the defendant's prior uncharged criminal, vicious, or immoral conduct is also granted and referred to the trial court.The People are ordered to give notice to the defendant and the trial court of their proposed Molineux evidence at least three days prior to the scheduled trial date, excluding Saturdays, Sundays, and holidays (CPL 240.43).
The defendant's motion to file further pre-trial motions is granted to the extent they are based on new facts or law that the ‘defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised‘ within 45 days after the defendant's arraignment and before trial (CPL 255.20).
CONTINUING DISCLOSURE DUTY
The People must comply with their continuing duty to disclose, including potentially exculpatory evidence, to the defendant (CPL 240.20 and 240.60; Brady v Maryland, 373 US 83 ).
Dated: December 4, 2017
New York, New York
DAVID FREY, J.C.C.
1. ‘Reasonable cause‘ is defined by CPL 70.10(2).
2. Additionally, rules of evidence applicable to civil cases are also applicable to criminal cases. C.P.L. § 60.10.
3. The Federal courts have long followed the rule that an admission against interest in a robbery case is sufficient to prove that the defendant actually possessed a loaded gun. See, U.S. v. Marshall, 427 F.2d 434, 437 (2d Cir. 1970) (‘it is so unlikely that a bank robber who purports to be armed would undertake this risk that an inference that the gun was loaded is justified‘).
David Frey, J.