Opinion
CR- 002244-19QN
09-06-2019
The PEOPLE of the State of New York v. Jean AUGUSTE, Defendant.
The defendant is charged with Leaving the Scene of an Incident Without Reporting /Personal Injury ( VTL § 600 [2[a] ). He moves for dismissal of the complaint on the ground that his statutory right to a speedy trial pursuant to CPL § 30.30 has been denied since more than 60 chargeable days have elapsed, as he is charged with a class ‘B’ misdemeanor. The People oppose the motion on the ground the proper chargeable speedy trial time is 90 days, since the charge is a class "A" misdemeanor.
The Court has read the defendant's motion papers, the People's response, has reviewed the Court file and finds as follows:
VTL§ 600 (2) provides,
Personal injury.
a. Any person operating a motor vehicle who, knowing or having cause to know that personal injury has been caused to another person, due to an incident involving the motor vehicle operated by such person shall, before leaving the place where the said personal injury occurred, stop, exhibit his or her license and insurance identification card for such vehicle, when such card is required pursuant to articles six and eight of this chapter, and give his or her name, residence, including street and street number, insurance carrier and insurance identification information including but not limited to the number and effective dates of said individual's insurance policy and license number, to the injured party, if practical, and also to a police officer, or in the event that no police officer is in the vicinity of the place of said injury, then, he or she shall report said incident as soon as physically able to the nearest police station or judicial officer. In addition to the foregoing, any such person shall also: (i) produce the proof of insurance coverage required pursuant to article forty-four-B of this chapter if such person is a TNC driver operating a TNC vehicle at the time of the incident who was (A) logged on to the TNC's digital network but not engaged in a TNC prearranged trip or (B) was engaged in a TNC prearranged trip; and (ii) disclose whether he or she, at the time such incident occurred, was (A) logged on to the TNC's digital network but not engaged in a TNC prearranged trip or (B) was engaged in a TNC prearranged trip.
b. It shall be the duty of any member of a law enforcement agency who is at the scene of the accident to request the said operator or operators of the motor vehicles, when physically capable of doing so, to exchange the information required hereinabove and such member of a law enforcement agency shall assist such operator or operators in making such exchange of information in a reasonable and harmonious manner.
c. A violation of the provisions of paragraph a of this subdivision resulting solely from the failure of an operator to exhibit his or her license and insurance identification card for the vehicle or exchange the information required in such paragraph shall constitute a class B misdemeanor punishable by a fine of not less than two hundred fifty nor more than five hundred dollars in addition to any other penalties provided by law. Any subsequent such violation shall constitute a class A misdemeanor punishable by a fine of not less than five hundred nor more than one thousand dollars in addition to any other penalties provided by law. Any violation of the provisions of paragraph a of this subdivision, other than for the mere failure of an operator to exhibit his or her license and insurance identification card for such vehicle or exchange the information required in such paragraph, shall constitute a class A misdemeanor, punishable by a fine of not less than five hundred dollars nor more than one thousand dollars in addition to any other penalties provided by law. Any such violation committed by a person after such person has previously been convicted of such a violation shall constitute a class E felony, punishable by a fine of not less than one thousand nor more than two thousand five hundred dollars in addition to any other penalties provided by law. Any violation of the provisions of paragraph a of this subdivision, other than for the mere failure of an operator to exhibit his or her license and insurance identification card for such vehicle or exchange the information required in such paragraph, where the personal injury involved (i) results in serious physical injury, as defined in section 10.00 of the penal law, shall constitute a class E felony, punishable by a fine of not less than one thousand nor more than five thousand dollars in addition to any other penalties provided by law, or (ii) results in death shall constitute a class D felony punishable by a fine of not less than two thousand nor more than five thousand dollars in addition to any other penalties provided by law.
Where the accusatory instrument charges a defendant with a class "A" misdemeanor punishable by a sentence of imprisonment of more than three months (See, Penal Law § 70.15[1] ), the People are required to be ready for trial within ninety (90) days of the commencement of the action ( CPL § 30.30[1][b] ). Where the accusatory instrument charges a defendant with a class ‘B’ misdemeanor punishable by a sentence of imprisonment of not more than three months (See, Penal Law § 70.15[2] ), the People are required to be ready for trial within ninety (60) days of the commencement of the action ( CPL § 30.30[1][c] ).
A defendant has the initial burden of asserting that the People's "30.30 time" has expired. Thereupon, the burden switches to the People to demonstrate that certain periods within that time should be excluded pursuant to statutorily enumerated exemptions. See , CPL § 30.30(4) ; People v. Santos , 68 NY2d 859, 861, 509 NYS2d 411 (1986).
The instant accusatory instrument alleges in sum and substance, in pertinent part, that on or about December 24, 2018 between 6:00 p.m. and 6:05 p.m., at the intersection of 104 Avenue and 223 street, Queens County, the deponent, Detective Ryan Hoffmann, is informed by the complainant, Akira Chin-Prophete that she was walking southbound on 223 street at 104 avenue when she was struck by a 2016 Black Toyota (NY Reg 542065) which was travelling westbound on 104 avenue to southbound 223 Street. Deponent further states that he is informed by the complainant that the actions of the operator of the 2016 Black Toyota caused her pain to her body. Deponent further states that the operator of the vehicle left the scene without exchanging license, registration and insurance information nor did he wait for the Police to arrive. Deponent further states that he is informed by the complainant that she was able to get the license plate number from said 2016 Black Toyota before said vehicle fled the scene. Deponent further states that the complainant conducted a blind photo array procedure with Detective Parpan and positively identified the defendant as the operator who struck her.
A superseding information was annexed to People's response to defendant's motion to dismiss for facial insufficiency dated May 10, 2019. There is no indication if defendant was arraigned on this instrument as required by CPL § 100.50. Accordingly, this document will not be considered by the Court.
In People v. Ghorab , 51 Misc 3d 1225(A), 41 NYS3d 451 ( Crim Ct, Queens Cty, 2016) the Court issue was whether the defendant was charged with a class "A" or "B" misdemeanor under) (c) of Vehicle and Traffic Law § 600 (2) (c). The Ghorab Court explained that when the driver just fails to exhibit the necessary documents, he or she can be charged with the class B misdemeanor because that violation of those requirements is "solely from the failure of an operator to exhibit his or her license and insurance identification card for the vehicle or exchange the information required" However, when the driver fails to stop , he or she can be charged with leaving scene of an incident without reporting as a class A misdemeanor because that is more that the failure to exhibit the necessary documents
Here, the factual allegation in the accusatory instrument is that the defendant, while driving a vehicle, struck the complainant while she was walking, causing her pain and failed to exchange his license, registration and insurance information Since there is no allegation the defendant failed to stop, the defendant is charged with a class "B" misdemeanor, which has an applicable statutory speedy trial time of sixty (60)days.
On the date set for arraignment, February 5, 2019, the defendant failed to appear, and a bench warrant was ordered. On February 7, 2019, the defendant was arraigned, and the People were not ready for trial as they still required the supporting deposition of Akira Chin-Prophete to convert the complaint into an information. The case was adjourned to April 12, 2019 for conversion. On April 9, 2019, the supporting deposition was served and filed, as well as an announcement of readiness for trial. Accordingly, the time period from February 7, 2019 until April 9, 2019, a total of sixty-one (61) days, is chargeable to the People.
On April 12, 2019, and the subsequent adjourn date of May 28, 2019, and July 29, 2019, with a return date on the instant motion of September 6, 2019, motion schedules were established. These time periods are excludable pursuant to CPL § 30.30(4)(a).
Accordingly, the Court finds that a total of (61) days are chargeable to the People, which exceeds the statutory requirement. The defendant's motion to dismiss pursuant to CPL § 30.30 is granted.
This constitutes the decision and order of the Court.