In an accusatory instrument filed on May 4, 2012, the defendant, Roger Coleman, is charged with violating NY Penal Law §§120.00(1) and 240.26(1), Assault in the Third Degree and Harassment in the Second Degree, respectively. Defendant Roger Coleman now moves for dismissal of the instant matter on the grounds that the complaint filed against him is facially insufficient, and for other relief.

In determining the instant motion, this Court has considered the Defendant's moving papers dated July 23, 2012, the People's response dated August 8, 2012, and papers on file with the Court.

The following is the decision and order of the Court.

I.Statement of facts

A review of the Court's file indicates that defendant was arrested on May 3, 2012, by a

New York City Police Officer inside of 134-25 Franklin Avenue, County of Queens, New York after the complaining witness informed the Officer that the defendant grabbed "her by the arms causing bruising to her left arm," and shoved her "multiple times." As a result of such conduct, the complainant stated she also suffered "annoyance, alarm and substantial pain." See Complaint. The Officer further stated that he personally observed bruising to the complainant's arm. Id. Defendant Roger Coleman was arraigned on May 4, 2012, in Part AR-3 of Queens County Criminal Court, and charged with violating NY Penal Law §§120.00(1) and 240.26(1), Assault in the Third Degree and Harassment in the Second Degree, respectively. The People were not ready at the defendant's arraignment, and the case was adjourned for the filing of a supporting deposition. On June 26, 2012 the People announced ready and the case was adjourned for the filing of motions. The case is calendared for AP5 on September 14, 2012 for decision on the instant motion.

[*2]II.Motion to Dismiss the Accusatory Instrument for Facial Insufficiency

The defendant moves for dismissal of the accusatory instrument for facial insufficiency pursuant to NY C.P.L. §§100.40, 170.30, and 170.35.

The Complaint, in relevant part, reads:

Deponent states that he is informed by the complainant, Michelle Coleman, that on the above mentioned date, time and place of occurrence she got into a verbal dispute with the defendant, Roger Coleman . . . [and] that the defendant did grab her by the arms causing bruising to her left arm and did shove her multiple times.

Deponent further states that he observed bruising to the complainant's upper left arm.

Deponent is further informed by the complainant that the above mentioned actions of the defendant did cause her annoyance, alarm and substantial pain.

It is well-settled law that, in order to be facially sufficient, an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged, as well as contain non-hearsay allegations that establish, if true, every element of the crime/s charged. NY C.P.L. §§100.15(3) and 100.40(1)(b)(c); People v Dumas, 68 NY2d 729, 497 N.E.2d 686 (1986). Further, an accusatory instrument must establish reasonable cause to believe that the defendant committed the crimes charged. Id. Moreover, in reviewing an accusatory instrument at the pleading stage, the Court of Appeals has held that as long as the factual allegations are sufficiently evidentiary in character and tend to support the charges, the complaint is facially sufficient. People v. Allen, 92 NY2d 378, 385, 681 N.Y.S.2d 216, 220-22 (1998); see also People v. Casey, 95 NY2d 354, 360, 717 N.Y.S.2d 88, 91 (2000)(courts should review accusatory instruments in a "fair and not overly restrictive or technical reading"); People v. Kalin, 12 NY3d 225, 230, 878 N.Y.S.2d 653, 656 (2009) (citations omitted)("a prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial.") Thus, in determining whether an accusatory instrument is facially sufficient, a court must "consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged." People v. Barona, 19 Misc 3d 1122(A), 862 N.Y.S.2d 816, 2008 NY Slip Op. 50814 (U) (Crim Ct NY Co 2008).

The defense does not dispute these well-settled principles. Instead, the defendant argues that the complaint, as written, is facially insufficient because it does not establish that the defendant intended to cause, and did cause, physical injury to the complainant, or that his conduct was intended to "harass, annoy or alarm" the complainant. See Defendant's Notice of Motion dated July 23, 2012 at page 5, ¶16 and at page 8, ¶28. [*3]

A.Assault in the Third Degree

With respect to the first count on the complaint, 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 to a third person." See NY Penal Law § 120.00(1). "Physical injury," is defined in the Penal Law as "impairment of physical condition or substantial pain." See NY Penal Law § 10.00(9). In examining the definition of substantial pain, the Court of Appeals has held that while "substantial pain" must be "more than slight or trivial pain", the "pain need not, however, be severe or intense to be substantial." People v. Chiddick, 8 NY3d 445, 447, 834 N.Y.S.2d 710, 711-712 (2007)(finding a broken fingernail that resulted in the victim bleeding and seeking medical treatment was sufficient for a finding that the defendant committed the offense of Assault in the third degree beyond a reasonable doubt); People v. Biamonte, 19 Misc 3d 139(A), 866 N.Y.S.2d 93 (App Term, 2nd Dept 2008)(finding that the defendant's two punches, which were forceful "enough to cause deep red coloration and subsequent bruising and swelling, established, if true, that the victim suffered substantial pain, and hence, physical injury"); People v. Brown, 33 Misc 3d 1232A, 943 N.Y.S.2d 793 (NY Co 2011)(lacerations, bruising, redness, swelling and substantial pain found facially sufficient for pleading purposes). While acknowledging that an objective level of pain must be met, the Court of Appeals has also held that the issue of whether pain is "substantial" is generally an issue for the trier of fact. People v. Rojas, 61 NY2d 726, 727, 472 N.Y.S.2d 615, 616 (1984); Matter of Philip A, 49 NY2d 198, 200, 424 N.Y.S.2d 418, 420 (1980).

Applying these principles to the instant matter, this court holds that the People have filed a facially sufficient complaint to sustain the charge of Assault in the Third Degree. Here, the complaint alleges that the defendant grabbed the complainant's arm with such force that bruising was already visible at the time the officer arrived on the scene. It is also alleged that the complainant sustained substantial pain as a result of the defendant's conduct. See Complaint. When viewed in the light most favorable to People, the Complaint establishes, if true, each of the elements of the crime charged. See Allen, 92 NY2d at 385, 681 N.Y.S.2d at 220-22; Casey, 95 NY2d at 360, 717 N.Y.S.2d at 91; Barona, 19 Misc 3d 1122(A), 862 N.Y.S.2d 816.

Accordingly, the defendant's motion to dismiss count one of the accusatory instrument is denied.

B.Harassment in the Second Degree

With respect to the second count of the complaint, a person is guilty of Harassment in the Second Degree when "with intent to harass, annoy or alarm another person, he or she strikes, shoves, kicks or otherwise subjects such other person to physical contact or attempts or threatens to do the same." NY Penal Law §240.26(1). Defendant contends that the complaint is facially insufficient because it is "conclusory as it does not specify any facts, whatsoever, which would establish that Mr. Coleman had the specific intent to harass, annoy or alarm' the complainant." See Defendant's Notice of Motion dated July 23, 2012, at page 8, ¶28.

Applying the same principles set forth above, it is clear that the defendant's alleged conduct of grabbing the complainant with such force that he left bruises on her arm, along with her statement that she felt "annoyed and alarmed", when viewed in the light most favorable to the People, establishes, if true, the charge of Harassment in the Second Degree. See Allen, 92 NY2d at 385, 681 N.Y.S.2d at 220-22; Casey, 95 NY2d at 360, 717 N.Y.S.2d at 91; Barona, 19 Misc [*4]3d 1122(A), 862 N.Y.S.2d 816.

Accordingly, the defendant's motion to dismiss count two of the accusatory instrument is denied.

III.Motion to Preclude Statements and Identification Testimony

The defendant moves to preclude any statements allegedly made by the defendant and identification testimony because the defendant has not received notice of intent to offer such evidence within fifteen (15) days of arraignment as required by NY C.P.L.§§ 710.30(1)(a) and (b). In its response, the People admit that they did not serve any statement or identification notice because they are not aware of any statements or identification procedures that they intend to use at trial.

As such, the defendant's motion is granted to the extent that the People are prohibited from introducing any statements or identification testimony for which NY C.P.L.§§ 710.30(1)(a) and (b) notice should have been provided.

IV.Motion Seeking Discovery

The defendant's motion seeking a Bill of Particulars and Demand to Produce is granted to the extent authorized by NY C.P.L. §§200.95, 240.20, and 240.40 and not previously provided by the People.

The People's motion for reciprocal discovery pursuant to NY C.P.L. §240.30(1) is granted. Additionally, the People have acknowledged their continuing obligation to provide defendant with Brady and Rosario material as required by law.

V.Sandoval Motion

The defendant moves to preclude the People from introducing at trial any evidence of defendant's prior convictions or bad acts. That portion of defendant's request is denied, as premature, with leave to renew.

It is ordered, however, pursuant to NY C.P.L. §240.43, immediately prior to jury selection, or if a trial by jury is waived, prior to the commencement of the trial in this matter, the prosecutor shall notify the defendant of all specific instances of a defendant's prior uncharged criminal, vicious or immoral conduct of which the prosecutor has knowledge and which the prosecutor intends to use at trial either on its direct case or for purposes of impeaching the credibility of the defendant. Thereafter, defendant may renew its motion to preclude such evidence at trial, as appropriate.

VI.Reservation of Rights

Defendant's motion to make any and all further motions as may be necessary based upon information and disclosures that may result from this court's decision is granted to the extent that if the People fail to disclose information or if information disclosed does not satisfy defendant's request for information required by law to be disclosed, then the defendant may make the appropriate motion to compel disclosure. In that motion, the defendant must specify (1) the item(s) of information which the District Attorney has not disclosed, (2) why such information is relevant and applicable to this case, and (3) the provision of law or authority requiring disclosure of such information.

VII.Notice of Demand for Preservation and Production of all Recorded Police Communications

Defendant's motion requesting the preservation and production of all recorded police communications related to this case, including, but not limited to, any 911 tapes, radio runs, Sprint reports, and any radio communications between police officers is granted.

VIII.People's Demand for Alibi Notice

The People's demand for notice of alibi pursuant to NY C.P.L. §250.20 is granted.

This constitutes the Decision and Order of the Court.

Dated: September 5, 2012

SO ORDERED:

_________________________

HON. GIA L. MORRIS

Judge of the Criminal Court