Opinion
Docket No. CR-000753-23RI
05-09-2023
The People of the State of New York v. Eric Gabriel, Defendant.
For the Defendant: The Legal Aid Society Samuel A. Gauthier, Esq. For the People: Michael E. McMahon District Attorney, Richmond County A.D.A. Rhys Johnson
Unpublished Opinion
For the Defendant:
The Legal Aid Society
Samuel A. Gauthier, Esq.
For the People:
Michael E. McMahon
District Attorney, Richmond County
A.D.A. Rhys Johnson
Biju Koshy, J.
The defendant is charged with one count each of Reckless Endangerment in the Second Degree (PL 120.20), Unlawful Fleeing a Police Officer in a Motor Vehicle in the Third Degree (PL 270.25), Obstructing Governmental Administration in the Second Degree (PL 195.05) (OGA), Reckless Driving (VTL 1212), Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (VTL 511.2[a][iv]), Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (VTL 511.1[a]), and Unlicensed Driving (VTL 509[1]). The defendant, in an omnibus motion dated April 6, 2023, seeks: (1) to dismiss count 3, PL 195.05 (OGA), as facially insufficient pursuant to CPL 100.40 and CPL 170.30, (2) suppression of tangible, non-tangible and testimonial evidence, or a Mapp/Dunaway hearing, (3) suppression of statements, or a Huntley/Dunaway hearing, (4) a "voluntariness" hearing, (5) to preclude statement and identification evidence pursuant to CPL 710.30, (6) an order to compel a Bill of Particulars and discovery, (7) Brady material, (8) Sandoval and Molineux hearings, and (9) reservation of rights. The People filed their motion response on April 24, 2023, as well as a cross-motion for reciprocal discovery.
The defendant's omnibus motion is decided as follows:
FACIAL SUFFICIENCY
CPL 100.40(1) states that an information is sufficient on its face when it substantially conforms with CPL 100.15; the allegations provide reasonable cause (CPL 70.10[2]) to believe that the defendant committed the offenses charged; and the non-hearsay allegations in conjunction with any supporting deposition establish, if true, that the defendant committed all the charged offenses' elements. "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]).
A person commits obstructing governmental administration in violation of Penal Law 195.05 when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act, or by means of interfering, whether or not physical force is involved, with radio, telephone, television or other telecommunications systems owned or operated by the state, or a county, city, town, village, fire district or emergency medical service or by means of releasing a dangerous animal under circumstances evincing the actor's intent that the animal obstruct governmental administration.
The police officer's factual allegations relevant to this charge are as follows:
Deponent further states that when he attempted to effectuate a lawful car stop of the defendant by initiating the deponent's lights and sirens on his police vehicle, the defendant pulled over his vehicle, but when the deponent approached the defendant's driver's side window, the defendant placed his vehicle in drive and sped away.
First, the defendant claims that the PL 195.05 count of the accusatory instrument is facially insufficient because it fails to establish that the police were engaged in authorized conduct when they initially attempted to perform a traffic stop of the defendant's vehicle. Second, the defendant claims that the PL 195.05 count of the accusatory instrument is facially insufficient because it fails to establish reasonable cause that the defendant committed this offense merely by fleeing from the police. The People contend that the prevailing caselaw in the Second Department does not require a description of the authorized conduct at the pleading stage and that the information is therefore facially sufficient.
"While the burden is on the People to make out a prima facia case for the offenses charged in the accusatory instrument, this requirement is not the same as the burden of proof beyond a reasonable doubt required at trial. Rather, the accusatory instrument must give the accused sufficient notice to prepare an adequate defense from being tried twice for the same offense" (People v Carter, 2022 NY Slip Op 50837[U], *6 [Crim Ct, Kings County 2022] citing People v Kalin, 12 N.Y.3d 225, 230 [2009]).
The controlling case applicable to the instant motion is People v Wheeler, 34 N.Y.3d 1134 (2020). In Wheeler, the Court of Appeals unanimously reversed the Second Department Appellate Term, holding that the lack of an authorized stop underlying a charge of PL 195.05 rendered the information jurisdictionally defective. The Court looked to the procedural moment akin to the instant case where, "prior to trial, defendant moved to dismiss the accusatory instrument, arguing that it was facially insufficient because it failed to put him on notice of the 'official function' with which he was alleged to have interfered." Id. at 1135.The accusatory instrument there alleged that, "upon police officers 'effecting a proper vehicle stop' on a public road, defendant 'did obstruct officers by shaking his head and operating [his] vehicle backwards at a high rate of speed... in an attempt to elude officers... [who] then, after a brief vehicle pursuit...place[d] the defendant into custody" (People v Wheeler, 61 Misc.3d 30, 32 [App Term, 2d Dept 2018], revd 34 N.Y.3d 1134 [2020]). At trial, the People established that the reason for the stop was to execute a search warrant for the defendant's vehicle. Id. The Court of Appeals reversed the defendant's conviction, finding that the information was jurisdictionally defective because the defendant lacked sufficient notice to prepare his defense. "With regard to the 'official function' element of the obstruction charge, the accusatory instrument lacked factual allegations providing defendant with notice of the official function with which he was charged with interfering - namely a police stop of defendant in his vehicle in order to execute a search warrant." Id. at 1135.
In the instant accusatory instrument, the first paragraph of the complaint states that the defendant was the operator of a motor vehicle on a public highway. In the second paragraph of the complaint, without any allegation of an improper action by the defendant or any authorized action, or "official function", being conducted by the police, the complaint merely states that the deponent "attempted to effectuate a lawful car stop of the defendant." The remainder of the accusatory instrument details the manner in which the defendant drove away from the deponent officer in order to evade apprehension. In applying the pleading standard for the information set forth in Wheeler, this Court finds that the accusatory instrument fails to provide factual allegations to provide the defendant with sufficient notice to prepare a defense for the charge of P.L. §195.05. Accordingly, the defendant's motion to dismiss the count of Obstructing Governmental Administration in the Second Degree for facial insufficiency is granted, with leave for the People to refile the charge consistent with CPL 30.30 and 170.30(1)(a) (People v Nuccio, 78 N.Y.2d 102, 104-105 [1991]). "Pursuant to CPL 170.35(1)(a), the accusatory instrument may not be dismissed as defective but must instead be amended where the defect or irregularity is of a kind that may be cured by amendment and where the People move to amend and file a superseding information within the time available to them under CPL 30.30" (Carter, 2022 NY Slip Op 50837[U], *6 citing People v Nuccio, 78 N.Y.2d 102 [1991]).
MOTION TO SUPPRESS
The defendant moves for a Mapp/Dunaway/Huntley/Ingle hearing. The People have consented to a Mapp/Dunaway/Huntley/Ingle hearing. Accordingly, the defendant's motion for a Mapp/Dunaway/Huntley/Ingle hearing is granted.
REQUEST FOR A "VOLUNTARINESS" HEARING
The defendant moves for a hearing to determine the "voluntariness" of any non-noticed statements defendant made (1) to police officers that the prosecution intends to use on cross examination and (2) to civilians that the prosecution intends to introduce at trial. To the extent that no such statements have been identified by either side, the defendant's request for a "voluntariness" hearing is reserved for the trial court.
MOTION TO PRECLUDE EVIDENCE
The defendant seeks to preclude the People from using any unnoticed statement or identification testimony against him at trial. The People did not give CPL 710.30[1][b] identification notice at arraignment nor, to the court's knowledge, at any other time. The People are precluded from using any unnoticed statement or identification evidence except for good cause shown (CPL 710.30[2]).
BILL OF PARTICULARS AND DISCOVERY
The defendant's motion for a court-ordered bill of particulars is denied. The defendant failed to demonstrate a timely service and that the People refused to comply with the demand and request (CPL 200.95 [2]-[6]).
The People previously served discovery electronically on February 15, 2023, March 1, 2023, and March 3, 2023. The People shall endeavor to ensure that a flow of information is maintained between the police and the Richmond County District Attorney's Office in accordance with CPL 245.55. The People are directed to comply with their continuing duty to disclose in accordance with CPL 245.60. The People are reminded of their continuing duty to turn over all evidence within the People's custody, control, or possession, that might pose as favorable and material to the defendant pursuant to Brady v Maryland, 373 U.S. 83 (1963).
SANDOVAL AND VENTIMIGLIA MOTIONS
The defendant's motion for a Sandoval hearing is granted and referred to the trial court. Likewise, the defendant's motion for a Ventimiglia (Molineux) hearing to preclude evidence of the defendant's prior uncharged criminal, vicious, or immoral conduct is also granted and referred to the trial court. The People are ordered to give notice to the defendant and the trial court of their proposed Molineux evidence as soon as practicable but no later than fifteen calendar days prior to the first scheduled trial date. (CPL 245.20 [3] and 245.10 [1][b]).
RESERVATION CLAUSE
The defendant's motion to file further pre-trial motions is denied unless they are based on new facts or law that the "defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised" within 45 days after the defendant's arraignment and before trial (CPL 255.20 [3]).
RECIPROCAL DISCOVERY
The People's request for reciprocal discovery under CPL 245.20 (4) and CPL 245.10 (2) is granted as follows:
(1) Eight days having passed from the People's demand for alibi notice, the defendant is precluded from offering evidence that he was at some place other than the locations listed in the complaint, at the time of the alleged incident, unless the defendant can show good cause for the delay (CPL 250.20 [1]).
(2) The defendant shall disclose and make available, subject to constitutional limitation, all CPL 245.20 (4) (a) and CPL 245.20 (4) (b) discovery materials within 30 days of receiving the People's Certificate of Compliance.
(3) As more than 30 days have passed since the defendant's arraignment, the defendant is precluded from offering psychiatric evidence, unless the defendant can show good cause for the delay (CPL 250.10 [2]).