Opinion
2016KN039013
10-19-2017
The PEOPLE of the State of New York, Plaintiff, v. Luis TORREGROSA, Defendant.
For the Defendant: Andrew Chi, The Legal Aid Society, 111 Livingston Street, Brooklyn, NY 11201 For the People: Assistant District Attorney Monique Humbert, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, NY 11201
For the Defendant: Andrew Chi, The Legal Aid Society, 111 Livingston Street, Brooklyn, NY 11201
For the People: Assistant District Attorney Monique Humbert, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, NY 11201
Jane C. Tully, J.
The defendant is charged with driving while ability impaired ( Vehicle and Traffic Law § 1192 [1 ] ) and leaving scene of an incident without reporting ( Vehicle and Traffic Law § 600 [1 ][a] ). The defendant moves to dismiss the charges pursuant to CPL 100.10 (1), (4) ; 100.40 (1)(c); 30.20 and the New York State and Federal Constitutions on the grounds that the accusatory instrument contains uncured hearsay, and that he has been denied his right to a speedy trial. The People did not submit an opposition to the defendant's motion.
For the reasons set forth below, the defendant's motion to dismiss is granted.
ACCUSATORY INSTRUMENT
The factual portion of the accusatory instrument states that on or June 30, 2016, at approximately 12:40 a.m., at Miller Avenue and New Lots Avenue, County of Kings, State of New York,
The deponent [Police Officer Frank Ingrao, Shield No. 31014] is informed by Christopher Bailey that, at the above time and place, the informant observed the defendant driving a 2003 Cadillac Deville NY State License No. GZY1302.
The deponent is further informed by informant that informant observed defendant crash into the rear of a parked vehicle, and observed said parked vehicle hit into another parked vehicle in front of the first packed vehicle.
The deponent is further informed by informant that informant observed defendant exit defendant's vehicle and walk up the street, away from the scene without providing defendant's license, insurance, or name and that defendant failed to report said accident.
The deponent further states that at the approximate time and place, deponent observed the defendant exhibiting signs of intoxication: to wit, slurred speech, red watery eyes, odor of alcoholic beverage on breath, and an unsteady gait.
BACKGROUND
The defendant was arraigned on June 30, 2016, and charged with two counts of driving while intoxicated ( Vehicle and Traffic Law § 1192 [2 ]; [3] ), driving while ability impaired ( Vehicle and Traffic Law § 1192 [1 ] ), and leaving scene of an incident without reporting ( Vehicle and Traffic Law § 600 [1 ][a] ). On that date, the People were not ready as the case required the supporting deposition of Christopher Bailey for conversion. The case was adjourned to September 15, 2016, for conversion.
On September 15, 2016, the People did not have the supporting deposition of Christopher Bailey, and the case was adjourned to September 30, 2016. On September 30, 2016, the People still did not have the supporting deposition of Christopher Bailey. The People moved to dismiss the misdemeanor charges ( Vehicle and Traffic Law § 1192 [2 ]; [3] ) pursuant to CPL 30.30. The traffic infractions remained. The case was adjourned to November 16, 2016, for the People to serve and file a Superseding Information (SSI) for the traffic infractions.
On November 16, 2016, the People failed to file a SSI, and the case was adjourned to November 29, 2016. On November 29, 2016, the People again failed to file a SSI, and indicated that they would proceed on the present complaint. The case was adjourned to January 6, 2017, for Discovery by Stipulation (DBS) despite the fact that the charges still had not been converted.
On January 6, 2017, the People served and filed DBS. The case was adjourned to February 24, 2017, for hearings and trial.
On February 24, 2017, the People answered not ready because the arresting officer was unavailable. The People requested 7 days, and the case was adjourned to April 13, 2017. On April 13, 2017, the People answered not ready because the eye-witness was unavailable. The People requested 7 days and the case was adjourned to June 8, 2017. On June 8, 2017, the People answered not ready because the arresting officer was yet again unavailable. The People requested 7 days, and the case was adjourned to July 18, 2017. On July 18, 2017, the People were not ready because the assigned assistant district attorney was out of the office. The People requested 9 days, and the case was adjourned to September 7, 2017.
On September 7, 2017, the People for the fifth time answered not ready for hearings and trial. The case was adjourned to September 18, 2017. On September 18, 2017, the People were still not ready to proceed to trial, however, the defendant filed the instant motion, dated September 15, 2017. The Court ordered the People to submit opposition papers by October 2, 2017. The case was adjourned to October 19, 2017, for decision.
The People did not submit a response in opposition of the defendant's motion by the court-ordered deadline, nor did the People request additional time to submit a response before the deadline.
DISMISSAL FOR FACIAL INSUFFICIENCY
CPL 100.40 provides that to be legally sufficient, an accusatory instrument must set forth, among other things: (a) factual that provide reasonable cause to believe that defendant committed the crimes for which he is being charged ( CPL 100.40[1] [b] ), and (b) non-hearsay allegations which, if true, establish every element of the crimes charged ( CPL 100.40[1][c] ); see People v. Alejandro , 70 NY2d 133 [1987] ).
Vehicle and Traffic Law § 1192 (1) provides that, "No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol." Vehicle and Traffic Law § 600 (1)(a) states in relevant parts, "[a] person operating a motor vehicle who, knowing or having cause to know that damage has been caused to the real property or to the personal property due to an incident involving the motor vehicle operated by such person shall before leaving the place where the damage occurred, stop, exhibit his or her license and insurance identification card for such vehicle and give his or her name, residence, including street and number, insurance carrier and insurance identification information"
It is an essential element of both Vehicle and Traffic Law §§ 1192 (1) and 600 (1)(a) that the defendant operated a motor vehicle. To comply with Vehicle and Traffic Law §§ 1192 (1) and 600 (1)(a), the factual part of the accusatory instrument must contain "non-hearsay allegations" to establish that the defendant was operating a motor vehicle. Here, without the supporting deposition of Christopher Bailey that he "observed the defendant driving," the accusatory instrument does not comply with CPL 100.40 (1)(c). Moreover, without the supporting deposition of Christopher Bailey, there are no "non-hearsay allegations" that the defendant caused damage to a motor vehicle and left the scene without providing defendant's license, insurance, name and that defendant failed to report said accident" to further establish the leaving scene of an incident without reporting charge.
Despite numerous opportunities to do so, the People failed to file the supporting deposition of Christopher Bailey. The People failed to file a SSI to cure the hearsay allegations. Accordingly, the Vehicle and Traffic Law §§ 1192 (1) and 600 (1)(a) charges are dismissed as facially defective (see People v. Cordeiro , 24 Misc 3d 526 [Justice Ct, Monroe County 2006] [driving while intoxicated charges dismissed where no non-hearsay allegations existed to support the charges as required by CPL 100.40 [1 ][c] ).
DISMISSAL PURSUANT TO CPL 30.20
CPL 30.30(1)(b) does not apply to traffic infractions even where the information also charges a misdemeanor. However, a defendant's right to a speedy trial for traffic infractions is nonetheless guaranteed by the New York State Constitution, the United States Constitution, and CPL 30.20 ( People v. Taylor , 189 Misc 2d 313 [2d Dept 2001] ). When analyzing a constitutional speedy trial claim, the "term ‘speedy trial’ must be evaluated in the context of a sensitive balancing of several factors, with no one factor being dispositive of a violation, and with no formalistic precepts by which a deprivation of the right can be assessed" ( People v. Romeo , 12 NY3d 51,55 [2009] ; see also People v. Taranovich , 37 NY2d 442, 444–445 [1975] ).
In Taranovich , the Court of Appeals set forth the following five factors a court must consider in determining whether a defendant has been denied his constitutional right to a speedy trial: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay ( 37 NY2d at 445 ). "The balancing of these factors must be performed carefully in light of the particular facts in each case" People v. Romeo , 12 NY3d at 55 ; see People v. Vernace , 96 NY2d at 887 ). Although "there is no specific temporal period by which a delay may be evaluated or considered ‘presumptively prejudicial’ where the delay is lengthy, an examination of the other factors is triggered, and the length of delay becomes one factor in that inquiry" ( People v. Romeo , 12 NY3d at 56 ).
Here, 442 days have elapsed since the defendant's arraignment which the Court determines to be sufficiently significant to warrant examination of the other Taranovich factors. During all that time, a jurisdictional defective accusatory instrument has been pending against the defendant. Of the 442 days, 350 days have elapsed since the dismissal of the misdemeanor charges on the People's own motion. Since the accusatory instrument before the Court was never cured of the hearsay allegations, the People could not have been considered ready for trial (see People v. Kendzia , 64 NY2d 331[1980] ). Indeed, the People have never answered ready, and have been requesting time pre-readiness (see People v. Chavis , 91 NY2d 500, 504 [1998] ; People v. Smith , 82 NY2d 676, 678 [1993] ).
Time calculated from June 30, 2016, to September 15, 2017, date of the defendant's motion herein.
The reason for the delay in this case is attributable to the People. The People failed to file either the supporting deposition or a SSI in order to cure the hearsay allegations contained in the accusatory instrument. Therefore, the People have been proceeding for 442 days on a facially defective accusatory instrument. Moreover, the People have never declared ready to proceed to trial. The unjustified delay in this case demonstrates the complete lack of concern for the defendant's right to a speedy trial and warrants a dismissal.
The charges remaining against the defendant, driving while ability impaired ( Vehicle and Traffic Law § 1192 [1 ] ) and leaving scene of an incident without reporting ( Vehicle and Traffic Law § 600 [1 ][a] ) are both serious violations of the law. "Driving a motor vehicle while one's ability to do so is impaired by alcohol is not a trivial matter ... when such conduct has the obvious potential to cause property damage and/or personal injury to the impaired driver and bystanders" ( People v. Popat , 15 Misc 3d 1136[A] [Crim Ct, Kings County 2007] ). However, the People failed to file the supporting deposition of Christopher Bailey. The People failed to file a SSI. The People failed to cure the hearsay allegations that the defendant operated a motor vehicle. The People failed to cure the hearsay allegations that the defendant left the scene without reporting an accident. Moreover, the People have not offered any explanation for the delay as they failed to file any opposition papers. The People have shown no intention of prosecuting the traffic infractions.
In balancing the Taranovich factors, the Court concludes that the defendant was deprived of his constitutional right to a speedy trial. Accordingly, the defendant's motion to dismiss the traffic infractions pursuant to CPL 30.20 is granted.
The foregoing constitutes the Decision and Order of the Court.