Opinion
No. 2016NY072208.
04-17-2017
The PEOPLE of the State of New York v. Roger WECKWORTH, Defendant.
Cyrus R. Vance, Jr., District Attorney, New York County, By Assistant District Attorney Carolina Holderness, New York, for the People. Armienti, DeBellis, Guglielmo & Rhoden, LLP, By Harriet Wong and Thomas J. Reape, Jr., New York, for the Defendant. Zachary W. Carter, Corporation Counsel of the City of New York, By Nicholas R. Ciappetta, New York, for the City of New York.
Cyrus R. Vance, Jr., District Attorney, New York County, By Assistant District Attorney Carolina Holderness, New York, for the People.
Armienti, DeBellis, Guglielmo & Rhoden, LLP, By Harriet Wong and Thomas J. Reape, Jr., New York, for the Defendant.
Zachary W. Carter, Corporation Counsel of the City of New York, By Nicholas R. Ciappetta, New York, for the City of New York.
KATE PAEK, J.
The defendant, Roger Weckworth, is charged in a misdemeanor information with violating the right of way of pedestrians and bicyclists, causing physical injury (Administrative Code of the City of New York ("A.C.") § 19–190(b)) and failing to exercise due care while driving, causing serious physical injury (Vehicle and Traffic Law ("V.T.L.") § 1146(c)(1) ). By motion dated January 26, 2017, the defendant seeks an order dismissing the information on the following grounds: (1) that the statutes are unconstitutional; (2) that A.C. § 19–190(b) is preempted by state law; and (3) that the accusatory instrument is facially insufficient. The People and the Corporation Counsel, appearing on behalf of the City of New York, submitted Affirmations opposing the motion. The defendant served and filed a reply Affirmation on March 9, 2017. For the reasons set forth below, defendant's motion is denied in all respects.
The accusatory instrument alleges that on October 21, 2016, at about 5:30 p.m., the defendant was driving an MTA (Metropolitan Transit Authority) bus southbound on Whitehall Street at the intersection of Water Street when the bus struck a pedestrian who was in the crosswalk with the right of way. The pedestrian was pronounced dead at the scene. After police officers reviewed video surveillance footage of the incident, the defendant was issued a Desk Appearance Ticket and he appeared for arraignment on December 19, 2016.
A.C. § 19–190 was passed in 2014 as part of a broad initiative to eliminate or reduce traffic injuries and deaths, especially those involving pedestrians. The law provides, in part, as follows:
a. Except as provided in subdivision b of this section, any driver of a motor vehicle who fails to yield to a pedestrian ... when such pedestrian ... has the right of way shall be guilty of a traffic infraction, which shall be punishable by a fine of not more than fifty dollars or imprisonment for not more than fifteen days or both such fine and imprisonment ...
b. Except as provided in subdivision c of this section, any driver of a motor vehicle who violates subdivision a of this section and whose motor vehicle causes contact with a pedestrian ... and thereby causes physical injury, shall be guilty of a misdemeanor, which shall be punishable by a fine of not more than two hundred fifty dollars, or imprisonment for not more than thirty days or both such fine and imprisonment ...
c. It shall not be a violation of this section if the failure to yield and/or physical injury was not caused by the driver's failure to exercise due care ...
Therefore, a violation of § 19–190(a) results in civil penalties only, but if a pedestrian or bicyclist is injured as a result of the driver's failure to yield, the driver is also subject to the criminal penalties set forth in § 19–190(b).
A.C. § 19–190 and Mens Rea
The defendant's primary contention is that A.C. § 19–190 is unconstitutional because it uses a mens rea standard of ordinary civil negligence to establish criminal liability, in violation of the defendant's right to due process under the United States and New York Constitutions. The People and the Corporation Counsel maintain that a civil negligence standard is constitutionally permissible and not unprecedented.
The defendant also appears to argue that the mens rea standard in V.T.L. § 1146 is problematic, but he is not charged with § 1146(d) —the criminal portion of the statute. He is only charged with the traffic infraction. As such, the constitutionality of V.T.L. § 1146(d) is not an issue before this Court and we make no ruling on it.
At the outset, there is a strong presumption that legislative enactments are constitutional. See People v. Knox, 12 NY3d 60, 69 (2009) ; In re Travis S., 96 N.Y.2d 818, 820 (2001). In order to overcome the presumption, a party "must demonstrate ‘beyond a reasonable doubt’ that the statute suffers from wholesale constitutional impairment." People v. Davis, 13 NY3d 17, 23 (2009) (quoting Matter of Moran Towing Corp. v. Urbach, 99 N.Y.2d 443, 448 (2003) (internal quotations omitted)). This Court finds that the defendant has not met this heavy burden.
As an initial matter, the parties agree, and this Court finds, that § 19–190 is not a strict liability statute. "A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability. This subdivision applies to offenses defined both in and outside this chapter." NY Penal Law ("P.L.") § 15.15(2). The plain language of § 19–190, which provides that a driver is only liable for his or her "failure to exercise due care," indicates that the legislature did not intend to create a strict liability crime. § 19–190(c). Rather, the legislature clearly contemplated some degree of mental culpability. Indeed, in connection with a settlement of litigation involving the Transport Workers Union and the City of New York, the parties acknowledged as much. In that case, the parties entered into a stipulation that A.C. §§ 19–190(a) and (b) did not create strict liability because the "failure to exercise due care" element in § 19–190(c) applied to both subsections (a) and (b). See Stipulated Order of Settlement, Transport Workers Union of Greater New York, et al. v. Bill De Blasio, et al., No. 15cv2225–BMC, at 3 (E.D.NY August 28, 2015).
The term "due care" is not defined in A.C. § 19–190. The parties seem to agree that "due care" implies a civil tort definition of negligence. The defendant argues that it is improper to use a civil negligence standard of mens rea to establish criminal liability. He urges this Court to adopt the reasoning of People v. Sanson, 52 Misc.3d 980 (Crim. Ct. Queens Co. June 24, 2016), and People v. Salamon, 54 Misc.3d 960 (Crim. Ct. Kings Co. November 2, 2016), which held that the use of a civil negligence standard renders § 19–190(b) unconstitutional. The People and the Corporation Counsel respond that there is some precedent for imposing criminal liability based on ordinary negligence and that to do so does not violate the United States or New York State Constitutions. They point to several decisions from courts of concurrent jurisdiction holding that A.C. § 19–190(b) passes constitutional muster. See, e.g., People v. Gallagher, 50 Misc.3d 317 (Crim. Ct. Bronx Co. Sept. 28, 2015) ; People v. Hossain, 50 Misc.3d 610 (Crim. Ct. N.Y. Co. Nov. 9, 2015) ; People v. Green, 52 Misc.3d 1214(A)(Crim. Ct. Queens Co. July 27, 2016) ; People v. Urena, 41 N.Y.S.3d 864 (Crim. Ct. Queens Co. Nov. 16, 2016) ; People v. Kazi, Docket No. 2016NY048243 (Crim. Ct. N.Y. Co. Dec. 12, 2016); People v. Gurung, Docket No. 2016NY017472 (Crim. Ct. N.Y. Co. Jan. 13, 2017).
To determine the proper meaning of "due care," this Court is first guided by P.L. § 15.15, which is titled "Construction of statutes with respect to culpability requirements." As noted above, P.L. § 15.15(2) provides that: "[a] statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability. This subdivision applies to offenses defined both in and outside this chapter (emphasis added)." Therefore, because A .C. § 19–190 was not clearly intended as a strict liability statute, and even though A.C. § 19–190(b) is an offense defined outside the Penal Law, P.L. § 15.15(2) requires that A.C. § 19–190(b) be construed as a crime of "mental culpability." Mental culpability, in turn, is defined by P.L. § 15.00(6) as follows: " ‘culpable mental state’ means ‘intentionally’ or ‘knowingly’ or ‘recklessly’ or with ‘criminal negligence,’ as these terms are defined in section 15.05." In other words, for any criminal offense requiring mental culpability, the applicable mental state is one of the four states listed in § 15.05. See discussion in People v. Salamon, 54 Misc.3d 960, 972–975 (finding that ordinary negligence is constitutionally impermissible as a basis for criminal liability).
The People and the Corporation Counsel contend that P.L. § 15.05, and its list of mental states, is irrelevant to the analysis here because § 19–190(b) is defined outside the Penal Law. See People's Affirmation at p. 8, Corporation Counsel's Affirmation at p. 11–12. However, P.L. § 15.15(2) expressly makes § 15.00 (and, by reference, § 15.05) applicable to all criminal offenses-those defined both in and outside the Penal Law. Notably, ordinary negligence is not among the mens rea standards listed in § 15.05. Criminal negligence, however, is defined as follows: "A person acts with criminal negligence with respect to a result or a circumstance ... when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." § 15.05(4).
Contrary to the defendant's argument, this does not necessitate finding the statute unconstitutional. A statute should be construed, if possible, to uphold its constitutionality. McKinney's Cons.Laws of NY, Book 1, Statutes § 150[a], [b] & [c]. As the Court of Appeals instructed, in a case involving a statute with no express scienter element, "[n]o statute should be declared unconstitutional if by any reasonable construction it can be given a meaning in harmony with fundamental law." People v. Finkelstein, 9 N.Y.2d 342, 345 (1961) ; accord Elonis v. United States, 135 S.Ct. 2001, 2010–2012 (2015) (reading in a scienter requirement when none was expressly included in the statute); Morissette v. United States, 342 U.S. 246 (1952) (stating that "mere omission from a criminal enactment of any mention of criminal intent" should not be read "as dispensing with it"). Given the parameters of Penal Law Section 15, the only reasonable interpretation of "due care" as it is used in A.C. § 19–190(b) is that it constitutes "criminal negligence," as defined in P.L. § 15.05(4).
This Court is persuaded by the court's analysis in People v. Washington, as well as its conclusion that, "[t]here is no basis to conclude, based solely upon the use of the words "due care" in [A.C. § 19–190], that the Legislature meant to bring about such a drastic change in the historical distinction between criminal liability and civil liability." 42 N.Y.S.3d 604, 613 (Crim. Ct. Kings Co. Dec. 2, 2016) (concluding A.C. § 19–190(b) is a hybrid statute which can be enforced either civilly or criminally and the phrase "due care" in A.C. § 19–190(b), when enforced in criminal court, is construed to mean "criminal negligence").
This approach is also consistent with precedent. Although the Court of Appeals has not directly addressed the meaning of "due care" in A.C. § 19–190(b), it has had several occasions to consider the scope of criminal liability for deaths caused by negligent operation of motor vehicles. Appellate courts have carefully distinguished criminal negligence from ordinary negligence—squarely rejecting the applicability of ordinary negligence in criminal cases. See, e.g., People v. Haney, 30 N.Y.2d 328, 333 (1972) ("[criminal negligence] is, however, appreciably greater than that required for ordinary civil negligence by virtue of the ‘substantial and unjustifiable’ character of the risk involved and the factor of ‘gross deviation’ from the ordinary standard of care"). For example, the Court of Appeals considered the distinction between civil and criminal liability for negligent conduct in People v. Ricardo B., which involved a death caused by the defendant, who was engaged in drag racing. In that case, the Court recognized that "criminal liability cannot be predicated upon every careless act merely because its carelessness results in another's death." 73 N.Y.2d 228, 235–36 (1989). See also People v. Cabrera, 10 NY3d 370 (2008) (distinguishing civil and criminal negligence); People v.. Boutin, 75 N.Y.2d 692, 697–98 (1990) (same); People v. Angelo, 246 N.Y. 451, 455 (1927) (same). Indeed, the 2nd Department, in People v. Paris, noted that "[f]or centuries, the common-law courts have distinguished between ordinary negligence which should not form the basis of a criminal charge, and negligence so egregious as to be deserving of criminal punishment." 138 A.D.2d 534, 535–36 (2nd Dept.1988). Thus, it is fair to say that in analogous factual contexts—where people were killed by negligent operation of motor vehicles—appellate courts have concluded that ordinary negligence cannot form the basis for criminal liability.
Moreover, the United States Supreme Court considered a related issue in Elonis v. United States. 135 S.Ct. 2001. There, the defendant was charged with violating 18 U.S.C. § 875(c), which makes it a crime to transmit in interstate commerce "any communication containing any threat to kidnap any person or any threat to injure the person of another." At issue was the trial court's instruction to the jury defining a "threat" as an intentional statement by the defendant "in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual." Id. at 2007. The instruction thus employed a "reasonable person," or civil negligence, standard in defining the required mens rea. The Court held that "[s]uch a "reasonable person" standard is a familiar feature of civil liability in tort law, but is inconsistent with "the conventional requirement for criminal conduct-awareness of some wrongdoing." " Id. at 2011 (quoting Staples v. United States, 511 U.S. 600, 606–607 (1994) ). Admittedly, the Court's holding in Elonis was a matter of statutory construction concerning the propriety of the trial court's jury instructions-it was not a ruling on constitutional issues. Nonetheless, the Court pointedly observed: "we "have long been reluctant to infer that a negligence standard was intended in criminal statutes." " Id. (quoting Rogers v.. United States, 422 U.S. 35, 47 (1975) (Marshall, J., concurring) (citing Morissette )).
Therefore, based on a reading of the Penal Law, consideration of New York appellate court rulings in analogous contexts, and review of United States Supreme Court precedent, this Court finds that it is improper to apply a civil negligence standard to the criminal offense defined in A.C. § 19–190(b). For the reasons set forth above, this Court reads the "due care" element of A.C. § 19–190 as it applies to subsection (b) when it is enforced in criminal court as incorporating the standard of criminal negligence as is required and set forth in P.L. § 15.05(4). The defendant's constitutional challenge to the mens rea standard in the statute is denied.
In light of this ruling, the Court need not reach the defendant's argument that the civil negligence standard of "due care" is unconstitutionally vague. That civil standard does not apply—criminal negligence does. And criminal negligence is well-defined in established statutes and caselaw. See infra. To the extent the defendant claims that the "due care" standard in the V.T.L. § 1146 traffic infraction is unconstitutionally vague, this court relies on the court's analysis in People v. Gallagher, 50 Misc.3d 317, 329–330 (Crim. Ct. Bronx Cty. Sept. 28, 2015). V.T.L. § 1146 provides sufficient notice of the conduct forbidden by the statute and it does not invite arbitrary or discriminatory enforcement. See id.
Preemption
The defendant further argues that A.C. § 19–190 and V.T.L. § 1146 are unconstitutional because they are preempted by and inconsistent with New York State Public Authorities Law ("P.A.L."). In general, preemption of a local ordinance by state law can occur in one of two ways—conflict preemption or field preemption. Conflict preemption exists when a local government enacts a law that directly clashes with a state statute. See Patrolmen's Benev. Ass'n of City of New York, Inc. v. City of New York, 142 AD3d 53, 61–62 (1st Dept.2016) (quoting Zakrzewska v. New School, 14 NY3d 469, 480 (2010) ). Field preemption occurs when a locality passes legislation concerning a subject matter that the state has shown intent to regulate pervasively. See DJL Rest. Corp. v. City of New York, 96 N.Y.2d 91, 95 (2001). Here, the defendant advances two distinct arguments concerning field preemption. Specifically, the defendant submits that: (1) the state has occupied the field of regulation concerning allegations of negligent operation of MTA vehicles (See Defendant's Affirmation at ¶ 107) and (2) the state has occupied the field concerning the operations and activities of the MTA generally (Def. Aff. at ¶ 121). Both arguments are unavailing.
First, the defendant points to P.A.L. § 1212, which is titled "Actions Against the Authority." That provision requires the MTA to "assume the liability to the extent that it shall save harmless any duly appointed officer or employee of the authority, for the negligence of such officer or employee, in the operation of a vehicle." P.A.L. § 1212(3). The defendant argues that P.A.L. § 1212(3) is the sole basis by which individual MTA drivers can be held liable for negligent operation of vehicles. The People and the Corporation Counsel respond that this provision only governs civil liability for negligence. They assert that the Public Authorities Law does not preempt individual bus drivers from being prosecuted under the Vehicle and Traffic Law or any other statute—including A.C. § 19–190—for criminal acts.
In this regard, the People and the Corporation Counsel are correct. P.A.L. § 1212 pertains to civil negligence suits. See § 1212(1) (referring to "action[s] against the authority for damages, for injuries to real or personal property, or for the destruction thereof, or for personal injuries and death ... ) Nothing in the language of the statute suggests that it applies to criminal prosecutions. Indeed, while the MTA may indemnify employees civilly of any wrongdoing while acting in the scope of their employment, that indemnity is not without limits. When an employee acts criminally, the employee will not be indemnified by the MTA. See, e.g., People v. Ray, 216 A.D.2d 102 (1995) (holding an MTA subway driver criminally liable on manslaughter charges). As courts of concurrent jurisdiction have held, there is nothing in § 1212 that prevents or preempts enforcement of A.C. § 19–190 against MTA bus drivers. See Green, 52 Misc.3d at *3–4; Gallagher, 50 Misc.3d at 327.
Second, the defendant points to P.A.L. § 1266(8) and asserts that state law expressly prohibits any interference from municipality or county localities with the activities and operations of the MTA. That subsection provides that:
[t]he authority may do all things it deems necessary, convenient or desirable to manage, control and direct the maintenance and operation of transportation facilities, equipment or real property ... Except as hereinafter specifically provided, no municipality or political subdivision, including but not limited to a county, city, village, town or school or other district shall have jurisdiction over any facilities of the authority and its subsidiaries, and New York city transit authority and its subsidiaries, or any of their activities or operations. The local laws, resolutions, ordinances, rules and regulations of a municipality or political subdivision, heretofore or hereafter adopted, conflicting with this title or any rule or regulation of the authority of its subsidiaries, or New York city transit authority or its subsidiaries, shall not be applicable to the activities or operations of the authority and its subsidiaries, and New York city transit authority, or the facilities of the authority and its subsidiaries, and New York city transit authority and its subsidiaries, except such facilities that are devoted to purposes other than transportation or transit purposes.
The defendant reads the statute very broadly, suggesting, in essence, that the MTA is exempt from all local laws affecting the Authority's operation. This Court agrees with the People and the Corporation Counsel that the defendant overstates the preemptive reach of § 1266(8).
As discussed by the court in People v. Gallagher, the grant of power by § 1266(8) to the MTA is "limited to the upkeep of tangible physical or real property used to transport passengers." 50 Misc.3d at 324–25. For example, a subsidiary of the MTA was found exempt, based on § 1266(8), from laws concerning the transportation of diesel fuel. See People v. Metro–North Commuter R.R. Co., 132 Misc.2d 1072 (Crim.Ct.Bx.Co. July 23, 1986). And another subsidiary of the MTA, the Long Island Railroad, was found exempt, based on § 1266(8), from laws concerning diesel emissions. See People v. Long Island R.R., 90 Misc.2d 269 (App.Term. 2nd Dept.1976), aff'd 41 N.Y.2d 1039 (1977). Those situations are quite different from A.C. § 19–190, which says nothing about the tangible physical or real property of the MTA.
A.C. § 19–190 only requires MTA drivers, and all drivers, to exercise due care or refrain from criminally negligent conduct while driving. P.A.L. § 1266(8) only invalidates laws that interfere "with the accomplishment of [the MTA's] transportation purposes." Tang v. New York City Tr. Auth., 55 AD3d 720 (2nd Dept.2008) (quoting Bogdan v. New York City Tr. Auth., 2005WL1161812 (May 17, 2005)). "Requiring an NYCTA bus operator to exercise due care to avoid hitting pedestrians, crossing the road with the right-of-way, does not conflict with the accomplishment of the NYCTA's transportation purposes." Gallagher, 50 Misc.3d at 326. As such, this Court finds that A.C. § 19–190 is not preempted by P.A.L. § 1266(8).
Finally, the defendant seeks dismissal of the V.T.L. § 1146 charge on the basis that § 1146 is superseded by local law—A.C. § 19–190. New York State's Vehicle and Traffic Law does grant legislative authority to local governments in some instances. Specifically, V.T.L. § 1642(a) permits cities with a population of more than one million to promulgate traffic regulations on several enumerated subjects. One such enumerated subject is "[r]ight of way of vehicles and pedestrians." V.T.L. § 1642(a)(10). Accordingly, A.C. § 19–190, governing the right of way of pedestrians and bicyclists, is expressly authorized by § 1642(a).
V.T.L. § 1642(a) states that "[i]n addition to the other powers granted by this article, the legislative body of any city having a population in excess of one million, may by local law, ordinance, order, rule, regulation or health code provision prohibit, restrict or regulate traffic on or pedestrian use of any highway ... in such city. The provisions of section sixteen hundred shall be applicable to such local laws, ordinances, orders, rules, regulations, and health code provisions, provided, however, that such local laws, ordinances, orders, rules, regulations, and health code provisions shall supersede the provisions of this chapter where inconsistent or in conflict with respect to the following enumerated subjects:"
A.C. § 19–190 does not, however, supersede § 1146. A local law promulgated pursuant to the authority granted in § 1642(a)"shall supersede the provisions of this chapter where inconsistent or in conflict with respect to the following enumerated subjects (emphasis added)." While the defendant states that A.C. § 19–190 supersedes § 1146, he has not pointed to an inconsistency or conflict that justifies the conclusion that local law supersedes the state law. Rather, the laws are generally consistent in language and intent. They both impose a duty to exercise due care and refrain from criminally negligent conduct, and both seek to protect anyone with the right of way. The two statutes differ in terms of when a misdemeanor charge is warranted, as opposed to a traffic infraction. And they impose different penalties. But they are not substantively inconsistent or in conflict with one another. As such, V.T.L. § 1146 is not superseded by A.C. § 19–190.
Facial Sufficiency
The defendant also submits that the accusatory instrument is facially insufficient and should be dismissed. He argues that the misdemeanor information fails to make adequate factual allegations to support the charges and that the information contains unconverted hearsay by referencing video surveillance reviewed by the police.
To be sure, an information, together with any supporting depositions, must contain non-hearsay allegations providing reasonable cause to believe that the People can prove every element of the crime charged. C.P.L. § 100.40(1)(b) & (c) ; People v. Alejandro, 70 N.Y.2d 133 (1988) ; People v. Dumas, 68 N.Y.2d 729 (1986). A court reviewing for facial sufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from the allegations in the light most favorable to the People. See People v. Jackson, 18 NY3d 738, 747–48 (2012) ; Alejandro, 70 N.Y.2d 133. "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v. Casey, 95 N.Y.2d 354, 360 (2000).
After careful review of the accusatory instrument, this Court finds that it contains non-hearsay allegations sufficient to establish every element of A.C. § 19–190 and V.T.L. § 1146. The information sets forth that the defendant operated a motor vehicle that made contact with a pedestrian who had the right of way, causing the death of the pedestrian. The information goes on to allege that the pedestrian entered the crosswalk while the "walk" sign was in her favor and that she was still in the crosswalk when she was struck by the defendant, who was driving an MTA bus. On these alleged facts and circumstances, the court may reasonably infer that defendant failed in his obligation to carefully look out for pedestrians and to use reasonable care to avoid hitting any pedestrian on the roadway, especially in the crosswalk. See People v. Gurung, Docket No. 2016NY017472 at p. 5 (finding similar allegations to be facially sufficient). Likewise, the allegations are sufficient to make out the elements of criminal negligence with respect to A.C. § 19–190.
Further, this Court rejects the defendant's arguments concerning the video surveillance footage, i.e., that the video footage constitutes hearsay and that the footage is not properly authenticated. All that is required at this stage is that the information allege facts sufficient to give the defendant notice of the crime charged and provide reasonable cause to believe that the People can prove each element of the crime charged. That requirement has been met. The information clearly states that the relevant facts were obtained through the officer's observations of the video surveillance tapes, the officer's observations of the pedestrian's body at the scene, and the defendant's own admissions. None of this constitutes hearsay. See, e.g., People v. Ham, 43 Misc.3d 1227(A) at *3 (Crim. Ct. Kings Co. May 8, 2014) (finding that the complainant's statement of what she viewed on videotape is not hearsay); People v. Lambert, 2002 N.Y. Slip Op. 50278(U), 2002WL 1769931 at *3 (Crim. Ct. Queens Co. June 18, 2002)(rejecting defendant's argument that the accusatory instrument was not properly converted, and holding that "one who personally observes the content of a videotape can give sworn testimony about his observations without violating the hearsay rule").
While authentication may be required if the People seek to introduce the video surveillance footage at trial, at this stage, it is sufficient that the officer's observation of the video surveillance footage does not constitute hearsay.
The accusatory instrument in this case does not contain hearsay and the factual allegations sufficiently establish violations of A.C. § 19–190(b) and V.T.L. § 1146. Defendant's motion to dismiss for facial insufficiency is therefore denied.
Accordingly, for the reasons set forth herein, the defendant's motion to dismiss is denied in all respects.
This opinion shall constitute the decision and order of the Court.