Defendant's Motion to Dismiss the complaint as unconverted.

Defendant is charged with Assault in the Third Degree, PL 120.00(1), Attempted Assault in the Third Degree, 110/120.00(1), Menacing in the Third Degree, PL 120.15, and Harassment in the Second Degree, PL 240.26(1). Defendant's argument is based solely on the assertion that the Domestic Incident Report (DIR) is insufficient to convert the complaint to an information. The court notes that this motion was made well before the People are required to be ready for trial pursuant to CPL 30.30, and no argument is proffered that the time for "speedy trial" has elapsed.

The instant complaint states that on February 15, 2007, at about 1:20 AM:

...the defendant did grab the informant by the neck, punch the informant repeatedly

in the face, and scratch the informant on the neck.

...the above described actions caused informant to suffer swelling and redness to

the face and scratches to the neck, to suffer substantial pain, to fear further

physical injury and to become alarmed and annoyed.

The DIR filed in this case states that on February 15, 2007, at 1:30 AM, Defendant

...assaulted me and snatched the chain off my neck. Then he kept verbally

abusing me & kept punching me in my face. I called my mother....

The DIR is signed by the complaining witness and dated in her hand 2/14/07. The police officer who signed right under her signature dated the document 2/15/07. [*2]

Defendant rests his argument on People v. Stridiron, 175 Misc 2d 16, 667 NYS2d 621 (Queens County 1997), a case also concerned with corroborating a complaint with a DIR, which states that:

...if a document offered as a supporting deposition does not refer to the

accusatory instrument, it must contain the same facts as the factual portion

of the accusatory instrument. Such documents must clearly: identify the

defendant; state the date, time and place of the occurrence; and contain

every element of each crime charged in the complaint....If all of these

components are contained in the document and the document is verified

...then the document may serve as a supporting deposition to the

accusatory instrument.

Defendant has alleged that because the time indicates a ten minutes difference between the two documents and the complaining witness dated the DIR one day before the date of the alleged occurrence, the entire DIR is suspect. The court disagrees with this argument.

The complaint states that the incident occurred at "approximately 1:20 AM." The court holds that 1:30 AM is approximately 1:20 AM for the purpose of corroborating an accusatory instrument. Also, even though the date of the signing is incorrect, the date was obviously an oversight, evidenced by the police officer's dating immediately below that of the complaining witness. Courts have held that some "type-0s" [sic] do not necessarily cause accusatory instruments to be fatally defective. People v. Worrell, 10 Misc 3d 1063A, 814 NYS2d 654 (Nassau County 2005). Defendant's reliance on Stridiron, supra , on this point is not determinative. In that case the DIR indicated a date for the date of the occurrence that differed from the date of the occurrence appearing in the complaint. In the instant matter the date of the occurrence in the DIR matches the date on the complaint. The alleged discrepancy is only the date on which the complaining witness signed the DIR, which the court deems harmless, inadvertent error which does not affect Defendant's rights.

However, the court does agree with Defendant that not all of the facts appearing in the complaint are fully reiterated in the DIR, specifically with respect to Defendant grabbing the complaining witness' neck and scratching her neck. The DIR only indicates that Defendant snatched the chain off the complaining witness' neck. For this element of the crime, the complaint is not fully converted. However, the People still have time to file a superseding affidavit to cure this defect. Since the time limits imposed under CPL 30.30 have not expired, the court is unwilling to dismiss the charges at this time.

Defendant also asserts that the charge of Assault in the Third Degree must be dismissed as facially insufficient because neither the complaint nor the DIR specifies the element of intent, nor do the injuries rise to the level of physical injury required under PL 120.00. The court disagrees.

In People v. Stevens, 26 AD3d 396, 811 NYS2d 84 (2d Dept. 2006) the appellate court [*3]held that the intent to commit a crime may be established by a defendant's conduct and the surrounding circumstances. The accusatory instrument supports a prima facie showing that by punching the complaining witness Defendant's intent may be inferred. See generally, People v. Wong, 3 Misc 3d 274, 776 NYS2d 194 (New York County 2004). An accusatory instrument must only provide a prima facie case that a defendant committed a crime it is not the same burden that must be met to find a defendant guilty at trial. People v. Henderson, 92 NY2d 677, 685 NYS2d 409 (1999).

Similarly, the question as to whether the injuries suffered by the complaining witness rise to the level of the physical injury under PL 120.00 is also a question of fact to be determined by the trier of fact. Matter of Phillip A., 49 NY2d 198, 424 NYS2d 418 (1980). Since the complaint states that the complaining witness suffered "substantial pain," the People's burden of presenting a prima facie case has been met.

This constitutes the decision of the court.

Dated: April 11, 2007

__________________________

EILEEN N. NADELSON, J.C.C.