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New York State Department of Mental Hygiene

These cases arise out of an undercover operation conducted by a division of the New York State Department of Mental Hygiene into the operations of the Bronx Developmental Center, a school for mentally retarded and developmentally disabled persons (Mental Hygiene Law, ยง 13.17). It appears that an investigator was placed in the school as an aide in order to observe and report on the actions of the personnel vis-a-vis the residents. The foregoing is not yet part of the record but was revealed by counsel during a bench conference and is mentioned in order to set forth the background for what follows herein.

The defendants are charged in three separate dockets with various acts committed against various residents of the school. Each docket charges the defendant with attempted assault in the third degree (P.L. 110/120.00, subd. 1) harassment (P.L. 240.25, subd. 1) and endangering the welfare of an incompetent person (P.L. 260.25). Each complaint is by the investigator and is identical in form. Each varies only as to the date and time of the incident, the nature of the incident and the name of the resident. For example the first paragraph in docket 7X035246 alleges that the investigator observed the defendant with intent to cause physical injury to complaining witness, did attempt to cause personal injury, in that the deft did punch complaining witness in the face with closed fist, causing her to suffer substantial pain. The second paragraph alleges that the defendant, with the intent to harass, annoy or alarm did subject complaining witness, to physical contact, in that the defendant punched the complaining witness and cursed at her. The third paragraph alleges that the defendant did knowingly act in a manner likely to be injurious to the physical, mental or moral welfare of complaining witness, who is unable to care for herself because of mental disease or defect in that defendant punched her in the face. Finally, the last paragraph, on information and belief, is that the complaining witness have been adjudged to be mentally incompetent. The complaint was signed by the investigator.

The defendants were arraigned on these complaints and subsequently, in the All Purpose Part, the People filed a corroborating affidavit by LC, the Director of Mental Retardation at the Bronx Developmental Center. In it Mr. LC states that he has read the accusatory instrument, that he has reviewed the medical records pertaining to the complaining witness and that the assertion, upon information and belief, of mental incompetence is true. Upon the filing of the affidavit the People asked that the complaints be deemed informations. The accident defendants opposed this on two grounds. First, they argued, the suffering of substantial pain as it relates to the attempted assault is subjective on the part of the victim and, accordingly, requires the victim’s (complaining witness’) supporting deposition. In short, it is a fact as to which the investigator cannot state on her own knowledge. Second, the defendants argued, the purported corroborating affidavit by the Director of Mental Retardation is itself a hearsay affidavit for, as it states, the complaining witness’ mental incompetence is based upon information and belief.

The defendants are not charged with assault; they are charged with attempted assault. This distinction is critical because it relieves the People of the burden of proving each element of the completed crime. Here the People need not prove that the defendant actually caused pain to the complaining witness but only that the defendant intended to cause substantial pain and engaged in conduct which tended to effect that result. To state the point analogistically, the People need only prove a swing, not a swing and a hit. In other words, to answer the question of whether a person has made an attempt to commit a crime requires focusing on the mind and actions of that person and not upon the result of the acts, People v. Rosencrants, 89 Misc.2d 721, 392 N.Y.S.2d 808; People v. Bracey, 41 N.Y.2d 296, 392 N.Y.S.2d 412, 360 N.E.2d 1094. And the actor’s state of mind can be inferred from the actions he took. Thus, the investigator’s complaint herein is sufficient to constitute an information as to the attempted assault. It should be noted in passing that while the factual part of the complaint alleges a completed assault in that the defendant hit the complaining witness causing her to suffer substantial pain that does not preclude the defendant’s being charged with attempted assault, People v. Williams, 120 Misc.2d 68, 465 N.Y.S.2d 648.

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