New York Criminal Lawyer Blog
Defendant is charged with assault in the third degree and resisting arrest, in violation of Penal Laws.
Defendant moves for an order dismissing the two information, or, in the alternative, granting a hearing, pursuant to People v. Huntley (a Huntley hearing), regarding statements disclosed by the People in a notice that has been served.
The People oppose the motions.
On facial sufficiency of the information:
A New York DWI Lawyer said that under the law, the information must contain an accusatory part and a factual part. Together with any supporting depositions, the information must allege facts of an evidentiary character supporting or tending to support the charges. The factual allegations must provide reasonable cause to believe that the defendant committed the offense; 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.
Moreover, the information must also establish a prima facie case by including non-hearsay factual allegations, which, if true, establish every element of the offense charged.
A New York DWI Lawyer said the prima facie case requires legally sufficient evidence, meaning competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof. However, this is not the same thing as proof beyond a reasonable doubt.
As long as the factual allegations of the 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 factual allegations in the accusatory instrument and supporting depositions should be viewed in a light most favorable to the People.
On the charge of Assault in the Third Degree:
The defendant argues that the information is facially insufficient because it fails to contain any allegations from which the defendant’s intent may be inferred, fails to describe any assaultive conduct committed by the defendant and fails to properly allege that one of the arresting police officers sustained a physical injury.
Penal law provides that a person is guilty of assault in the third degree when: with intent to cause physical injury to another person, he causes such injury to such person or a third person.
Physical injury is defined as impairment of physical condition or substantial pain.
To survive this challenge to its facial sufficiency, the information herein must establish that the defendant intentionally engaged in conduct which caused a physical injury to a third person.
A Nassau County DWI Lawyer said the facial sufficiency of the information must be determined from within the four corners of the instrument itself’ or in annexed supporting depositions. Standing alone, a conclusory statement does not meet the reasonable cause requirement. Rather, the factual allegations must establish the basis of the arresting officer’s belief.
Here, the information, based upon the personal observations of the police officer, states that defendant, while being placed under arrest for striking the victim with a vase, did resist attempts to handcuff him. During the struggle with the defendant, the officer who was in full uniform with his shield displayed together with county patches suffered a severe knee sprain which required an immediate medical attention.
While it is true that the officer’s sworn statement contains the first hand allegation that the defendant struggled with him, which is further supported by the officer’s sworn statement in the second count, that the defendant did flail his arms, it is bereft of any allegations in evidentiary form to support the officer’s conclusory statement that he sustained a severe knee sprain. Although the officer concludes that he required immediate medical attention, there is no indication that he actually received same. Additionally, there is no indication that the officer has any medical training which would permit him to diagnose a severe knee sprain; there is not any competent medical evidence annexed to the information verifying such an injury.
Moreover, there is no indication that the officer sustained any impairment of a physical condition or pain of any kind as a result of the knee injury allegedly sustained.
Accordingly, in the absence of nonhearsay evidentiary allegations establishing that the officer sustained either an impairment of physical condition or substantial pain, the charge of assault cannot be sustained. The information charging assault in the third degree must be dismissed.
On Resisting Arrest:
Annexed to the information is the supporting deposition of a female individual which alleges, in pertinent part, that the defendant took a vase filled with water, came back outside of the house and ran after her. He then poured the water on her and struck her in the head with the vase, shattering the vase. It caused a laceration to her forehead and behind her ear, both of which required medical attention as well as a swelling to her head.
The defendant argues that the information charging resisting arrest is facially insufficient because it fails to set forth allegations in evidentiary form establishing that the police were attempting to effectuate an authorized arrest. Specifically, the defendant alleges that with the anticipated dismissal of the charges of assault in the third degree and attempted assault in the third degree, there can be no authorized arrest.
Penal Law provides that a person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.
It is an essential element of the crime of resisting arrest that the arrest be authorized. Thus, to comply with the statute, the factual part of the information for resisting arrest must contain non-hearsay allegations which would establish, if true that the underlying arrest was authorized. An arrest will be authorized when it is based upon a warrant or probable cause.
Probable cause exists where the facts and circumstances known to the arresting officer would warrant a reasonable person, who possessed the same expertise as the officer, to conclude that a crime was being or had been committed by the defendant.
The information charging resisting arrest need not actually charge the underlying offense, so long as the accusatory instrument contains nonhearsay allegations establishing that the arresting officer had probable cause to believe that some offense was committed.
Here, the information and supporting depositions sufficiently allege that the police officer was attempting to arrest the defendant for striking a female individual over the head with a vase, causing her to sustain lacerations. While the information and supporting depositions charging the defendant with the alleged assault of the said female have been found to be facially insufficient, the allegations in the information and supporting deposition charging the defendant with resisting arrest provided the police officer with probable cause to arrest the defendant for, at the very least, attempted assault in the third degree, menacing in the second degree, menacing in the third degree and harassment in the second degree.
Accordingly, the information charging the defendant with resisting arrest shall not be dismissed.
On the Huntley Hearing:
The court notes that no notice was ever served by the People. Consequently, there are no statements which would be the subject of a Huntley hearing.
For legal advice on similar situations, contact Stephen Bilkis & Associates. Have a free consultation with our Nassau County Arrest Lawyers if you have issues with the legality of your arrest. You may also confer with our Nassau County Criminal Lawyers if you have been formally charged of a crime. Rest assured, our defense lawyers are the best in the field.