Monday, July 23, 2018

New York Charges Dismissed: Facial Insufficiency

Insufficient facts can get cases (and their charges) dismissed. This is Law 101. First thing, review the allegations they are making out against YOU. Look at all these facts carefully. They should be non-hearsay, not conclusory, and if true would make out the elements of the crimes charged.

Police need to allege facts that support their charges against you. 

If not, if they are facially insufficient your attorney can then move to have them dismissed. Motions to dismiss are granted by judges when there are not enough, poor, bad, or unclear facts.

What is Facial Insufficiency? 

Every crime has elements that must be met for you to be proven guilty. Some crimes require INTENT. That you intended to destroy property or that you knew that your driver's license was suspended. Some violations require a PUBLIC element. That your behavior caused a public disturbance.

The prosecutor and the police must set out these elements in their complaint or information against you. If the allegations do not support the crime, if they do not meet the prima facie burden, then you can move to dismiss the charges against you.

Charges that require INTENT can't stand up against you without INTENT.
Charges that require serious damages must have them alleged in the complaint against you.
Charges that require a public highway or road must allege the road or highway.

Quite simply a Prima Facie case needs prima facie evidence, evidence on it's face (at face value) without further interpretation or inference that you in fact did something and as if everything alleged were TRUE.

A recent July 2018 New York case of harassment and criminal mischief faced just such a challenge.

In People v. Toro, a guy hit his girlfriend, her phone went flying and broke. Police charged harassment and criminal mischief.

Toro plead guilty to the crime of criminal mischief in full satisfaction and went to jail. While in jail his 2nd attorney filed an appeal based upon the information's facial insufficiency to support the crime of criminal mischief. Toro had not intent to damage the phone, none was made out in the information against him. The first attorney may have missed this on reviewing the evidence against Toro.

  1. There were no allegations that Toro intentionally damaged the phone.
  2. There were no allegations that Toro had a mindset to damage the phone.
  3. There were no allegations that Toro had conduct that showed he wanted to damage the phone.

Toro only wanted to hit his girlfriend, so maybe harassment charges (a violation) were supported by the facts but NOT the crime of criminal mischief.

The second judge dismissed the criminal mischief charges and Toro was released from jail after serving two weeks of his sentence.

Always read any complaint or information against you and see if it makes out the elements of the offense charged. Always have your attorney make sure that all the facts (non-hearsay) if true would in fact make out the charges.

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