People v. McCracken

THOMAS J. DiSALVO, J.

Roman Misula, Esq., Assistant District Attorney, Anthony R. Franco, Jr., for the Defendant.

THOMAS J. DiSALVO, J.

The defendant was charged with assault in the third degree, pursuant to Penal Law § 120.00[2].That statute states that “A person is guilty of assault in the third degree when: He recklessly causes physical injury to another person.” The information charges the defendant with recklessly causing physical injury to the complainant in the accusatory part of the complaint. However, the facts alleged in the factual part of the complaint imply an intent to cause said physical injury by the defendant. Intentionally causing assault in the third degree is prohibited by Penal Law § 120 .00[1]. The complaint signed by the arresting officer states in factual part that “The defendant did strike Anthony W. Viviani about the face with a glass cup, causing pain and a laceration to the right cheek and nose.” The supporting deposition alleges in pertinent part by the complainant that “Before I could hit him [a third individual involved] in the chin Tammy hit me in the face with a glass. She hit the right side of my face causing a cut to my upper check bone”.

Defense counsel in his Omnibus Motions moved to dismiss the charge of intentional assault in the third degree, P.L. 120.00[1] in the Notice of Motion, rather than reckless assault in the third degree, Penal Law § 120.00 [2 ] as charged in the information. However, defense counsel's affirmation correctly refers to reckless assault third degree, to wit: Penal Law § 120.00[2]. Defense counsel indicates in his moving papers that the basis of the motion to dismiss for insufficiency is the failure of the People to specifically allege physical impairment or substantial pain in the information.

Is an information accusing the defendant of recklessly causing physical injury in the accusatory part of the information but alleging that the defendant intentionally caused said physical injury to another person in the factual part of the information sufficient on its face?

Criminal Procedure Law § 100.40[1][b] sets out the second prong of the requirements for an information to be considered sufficient on its face. That sub-section requires that “The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information.” Penal Law Section 15.05[3] defines what is meant by “recklessly” as follows: “A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstances exist. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.” On the other hand the term “intentionally” is defined by Penal Law § 15.05[1] as follows:

“A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.” Certainly, intentionally causing physical injury is not consistent with recklessly causing

physical injury to another person. Acting recklessly supposes that the underlying activity complained of would be legal and proper in the normal course of events, but in the case at hand the activity in question was conducted in a dangerous manner. For example, driving a motor vehicle is normally a legal and safe activity. However, driving that same vehicle at an illegally high rate speed in proximity to pedestrians or other vehicles could reasonably be considered reckless.

In the instant case the defendant is accused of striking the complainant with a glass cup causing a laceration to the face of that person. There is nothing in that action that can be considered a legal activity when conducted in a proper way that does not cause injury to another person. The actions of the defendant in the context presented can only be described as intentional not reckless.

As previously stated, Criminal Procedure Law § 100.40[1][b] requires that “The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information.” That is clearly not the case herein as the allegations in the factual part of the information describe an intentional act. However the offense charged in the accusatory part of the information alleges reckless behavior. Nor is the dichotomy between the accusatory and factual portions of the information herein one that results in a “... defect or irregularity [which] is of a kind that may be cured by amendment....” (C.P.L. § 170.35 [1 ] [a] ) The difference in meaning between the concepts of recklessness and intent is too divergent to permit an amendment to the pleadings.

The information herein is dismissed as being insufficient on its face pursuant to Criminal Procedure Law § 100.40[1][b]. The remaining issues raised by defense counsel need not be addressed at this time. This constitutes the decision and order of this court.