People v. Parker (Rhonda)

People v Parker (2022 NY Slip Op 50286(U)) [*1] People v Parker (Rhonda) 2022 NY Slip Op 50286(U) [74 Misc 3d 135(A)] Decided on March 17, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on March 17, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : JERRY GARGUILO, J.P., ELIZABETH H. EMERSON, HELEN VOUTSINAS, JJ 2019-1257 OR CR The People of the State of New York, Respondent, against Rhonda S. Parker, Appellant. Kelli M. O'Brien, for appellant. Orange County District Attorney (Andrew R. Kass of counsel), for respondent. Appeal from a judgment of the Justice Court of the Town of Newburgh, Orange County (Richard Clarino, J.), rendered June 25, 2019. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree, and imposed sentence. ORDERED that the judgment of conviction is reversed, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed, and the surcharge, if paid, is remitted. Insofar as is relevant to this appeal, on January 8, 2019, defendant was arraigned on a misdemeanor complaint charging her with harassment in the second degree (Penal Law § 240.26 [1]), and a supporting deposition by the 14-year-old complainant, defendant's son, was filed. The case was adjourned to March 19, 2019 for discovery and motion practice. In an omnibus motion, returnable the same date, defendant moved for, among other things, suppression of property and statements, and dismissal of the accusatory instrument on the grounds of facial insufficiency, that her statutory right to a speedy trial had been violated, and in the interest of justice. Thereafter, the Justice Court denied the branches of defendant's motion seeking dismissal of the accusatory instrument and ordered that a combined Huntley/Mapp hearing be held. By order dated April 22, 2019, following the hearing, the branches of defendant's motion seeking suppression were denied. A nonjury trial was held on June 25, 2019, after which defendant was convicted of harassment in the second degree. An affidavit of errors and the court's return were subsequently filed. Defendant argues first that the accusatory instrument was defective because the supporting deposition was not sworn to by a competent individual, and was therefore unsworn; it does not state that the complainant read the accusatory instrument and swore that its contents are true; and it does not identify defendant by name. In order for an information to be facially sufficient, the allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, must provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information (see CPL 100.40 [1] [b]), and the instrument must allege nonhearsay allegations of fact of an evidentiary character that establish, if true, every element of the offense charged (see CPL 100.15 [3]; 100.40 [1] [c]; People v Jones, 9 NY3d 259, 261-263 [2007]; People v Casey, 95 NY2d 354 [2000]; People v Alejandro, 70 NY2d 133 [1987]). The failure to meet these requirements is jurisdictional and can be asserted at any time (see Casey, 95 NY2d at 363; Alejandro, 70 NY2d at 135), with the exception of hearsay, which is waived if it is not timely raised by motion in the trial court (see People v Kalin, 12 NY3d 225 [2009]; Casey, 95 NY2d at 364-365). The law does not require that an information contain the most precise words or phrases which most clearly express the thought; rather " '[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, they should be given a fair and not overly restrictive or technical reading' " (People v Konieczny, 2 NY3d 569, 575 [2004], quoting Casey, 95 NY2d at 360; see also People v Sedlock, 8 NY3d 535, 538 [2007]). In addition, "reasonable inferences" should be drawn "from all the facts set forth in the accusatory instrument" (People v Drelich, 32 NY3d 1032, 1033 [2018] [internal quotation marks omitted]). CPL 60.20 (2) provides that there is a rebuttable presumption that a witness who is less than nine years old is not competent to testify under oath, which presumption can be overcome by a showing that the witness possesses sufficient intelligence and capacity to give testimony, understands the nature of an oath, and appreciates the difference between truth and falsehood, the necessity for telling the truth, and the fact that a witness who testifies falsely may be punished (see CPL 60.20 [2]; People v Morales, 80 NY2d 450 [1992]). This evidentiary rule, however, "applies only to a witness actually testifying under oath" (People v Hetrick, 80 NY2d 344, 350 [1992]; People v Delossantos, 62 Misc 3d 141[A], 2019 NY Slip Op 50071[U] [App Term, 1st Dept 2019], lv denied 33 NY3d 1030 [2019]), and does not apply to the verification of a supporting deposition by a 14-year-old child (see generally Matter of Gregory J., 209 AD2d 191 [1994]; Delossantos, 2019 NY Slip Op 50071[U]). Moreover, there is no merit to defendant's argument that, since a 14-year-old child cannot be held criminally liable (see Penal Law § 30.00 [1]), the statement that the complainant signed, to the effect that he could be subject to punishment for a class A misdemeanor in the event his statement is false (see Penal Law § 210.45), is inconsequential. We note that the form notice pursuant to Penal Law § 210.45 is made so that the person subscribing to the document knows that he or she must tell the truth and can be punished if he or she does not. Even though minors may not be held criminally responsible for violating Penal Law § 210.45, they can still be adjudicated juvenile delinquents pursuant to Family Court Act § 301.2 (1) if they violate that [*2]section (see People v Wiggans, 140 Misc 2d 1011 [Crim Ct, Kings County 1988]; People v Malone, 140 Misc 2d 602 [Crim Ct, Kings County 1988]). Thus, the absence of a criminal sanction does not diminish the efficacy of the statement pursuant to Penal Law § 210.45, as a sanction remains, albeit in the form of a Family Court proceeding, and notwithstanding that the forms of punishment for the violation may not be coextensive with those provided in the Penal Law. In view of the foregoing, the supporting deposition signed by the complainant satisfied the requirements of CPL 100.30 (1) (d) (see People v Turpin, 8 Misc 3d 128[A], 2005 NY Slip Op 50970[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2005]; see also Delossantos, 2019 NY Slip Op 50071[U]). The accusatory instrument provides defendant's name and her address, which is where the incident took place at about 11:42 p.m. on December 28, 2018. The factual allegations of the accusatory instrument alleged by the deponent police officer "on information and belief, the source being, A Supporting Deposition By The Victim," state that defendant "did with intent to harass, annoy and alarm another person did strike and subject the victim to physical contact. The defendant did strike her child . . . Parker aged 14 years of age with a towel across the face and did physically insert the towel into the victim's mouth." Although the complainant's supporting deposition does not provide defendant's name, the complainant refers to "my mom" and states "my Mother's house." He also provides his date of birth and describes an incident that took place on December 29, 2018 at about 12:10 a.m., during which his mother used a towel to "smack[]" him across the face and "shoved [it] into [his] mouth." It is clear from the accusatory instrument and supporting deposition that defendant and the complainant share the same last name, and the address the complainant provides for his mother is the same as defendant's address, permitting an inference that defendant is the individual referred to as "my mom" in the supporting deposition. Furthermore, the towel incident is described in both the accusatory instrument and the supporting deposition (see e.g. Drelich, 32 NY3d at 1032-1033; People v Jackson, 18 NY3d 738, 741 [2012]). Thus, we find that the factual allegations contained in the accusatory instrument and supporting deposition, given a fair and not overly restrictive or technical reading, provided defendant notice sufficient to prepare a defense and was adequately detailed to prevent defendant from being tried twice for the same offense (see Sedlock, 8 NY3d at 538; Konieczny, 2 NY3d at 575; Casey, 95 NY2d at 360). Consequently, the accusatory instrument is not jurisdictionally defective. Defendant argues, pursuant to CPL 30.30, that the People had to be ready for trial within 30 days, and that all of the time from the January 8, 2019 arraignment through the June 25, 2019 trial is chargeable to the People, as the accusatory instrument was not properly converted to an information due to the unverified supporting deposition. Since harassment in the second degree, a violation, was the only crime charged in the accusatory instrument, the People had 30 days within which to announce their readiness for trial (see CPL 30.30 [1] [d]; see also People v Lomax, 50 NY2d 351, 356 [1980]). In her omnibus motion, defendant's statutory speedy trial claim was limited to the time period of January 8, 2019 to March 19, 2019 and, therefore, her present argument concerning the additional time period of March 19, 2019 to June 25, 2019 is unpreserved for appellate review (see People v Beasley, 16 NY3d 289, 292-293 [2011]), and will not be considered by this court. At the arraignment on January 8th, the case was adjourned for discovery and motion practice to March 19th, which period is a reasonable period of delay and [*3]thus excludable pursuant to CPL 30.30 (4) (a). As no time is chargeable to the People for the time period of January 8th to March 19th, defendant's statutory speedy trial motion was properly denied. In any event, the People filed an off-calendar statement of readiness on January 14, 2019 and, therefore, the most the People could have been charged with would have been the six days from January 8th to January 14th. While defendant argued in her affidavit of errors that the verdict was against the weight of the evidence, she did not make this argument on appeal and we do not consider it as such (see e.g. People v Witkop, 114 AD3d 1242, 1243-1244 [2014]). Nevertheless, in the exercise of our "broad and discretionary power . . . to correct any situation which casts a doubt upon the proper functioning of the courts in the administration of justice" (People v Kidd, 76 AD2d 665, 668 [1980], quoting People v Ramos, 33 AD2d 344, 348 [1970]; see CPL 470.15 [3] [c]), we reverse the judgment of conviction and dismiss the accusatory instrument, in the interest of justice (see CPL 470.15 [3] [c]). This case, given its unique circumstances "is one of those rare cases where it would be inappropriate to sustain the conviction" (People v Mitchell, 99 AD2d 609, 610 [1984]), as "the evidence. . . leaves us with a very disturbing feeling that guilt has not been satisfactorily established; that there is a grave risk that an innocent [person] has been convicted" (People v Gioeli, 288 AD2d 488, 489 [2001] [internal quotation marks omitted]). In view of the foregoing, we pass on no other issue. Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed. GARGUILO, J.P., EMERSON and VOUTSINAS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: March 17, 2022