Summary
In Ghorab, the defendant was charged with VTL § 600(2)(a) after allegedly striking another vehicle, causing the driver of that vehicle to experience lower back pain, and fleeing the scene.
Summary of this case from People v. LopezOpinion
No. 2015QN057396.
05-23-2016
The PEOPLE of the State of New York v. Abdallah GHORAB, Defendant.
Richard A. Brown, District Attorney, Kew Gardens (Nicole Lam of counsel), for the People. Queens Law Associates, Forest Hills (Mildred Morillo and Kenneth Deane of counsel), for the defendant.
Richard A. Brown, District Attorney, Kew Gardens (Nicole Lam of counsel), for the People.
Queens Law Associates, Forest Hills (Mildred Morillo and Kenneth Deane of counsel), for the defendant.
ALTHEA E. DRYSDALE, J.
Introduction
This is an unusual speedy trial decision. The parties agree that there are 78 days chargeable. The issue is whether the offense charged is a class A or class B misdemeanor. If it is a B misdemeanor, then it must be dismissed since there are 78 chargeable days—more than the maximum 60 days allowed for a class B misdemeanor (CPL 30.30[1][c] ). On the other hand, if it is a class A misdemeanor, then the motion must be denied since there are less than 90 days, the maximum time for a class A misdemeanor (CPL 30.30[1][b] ).
Background
The defendant, charged with leaving the scene of an incident without reporting (personal injury) (Vehicle and Traffic Law § 600[2][a] ), moves to dismiss the criminal action on the ground that he has been denied his statutory right to a speedy trial (CPL 170.30[1][e] ; 30.30). The People must be ready for trial within “specific time periods prescribed by CPL 30.30 ” (People v. Berkowitz, 50 N.Y.2d 333, 348 [1980] ).
“Under CPL 30.30(1), the People have six months to announce readiness in a felony prosecution, 90 days when the most serious offense is a class A misdemeanor, 60 days for most other misdemeanors and 30 days when the most serious offense charged in the criminal action is a violation” (People v. Cooper, 98 N.Y.2d 541, 543–544 [2002] ).
The applicable time period depends on whether a violation of Vehicle and Traffic Law § 600(2)(a) is a class A or class B misdemeanor (Vehicle and Traffic Law § 600[2][c] ). The defendant argues that the defendant is charged with a class B misdemeanor while the People argue that the defendant is charged with a class A misdemeanor.
Leaving Scene of an Incident Without Reporting (Personal Injury) (Vehicle and Traffic Law § 600[2] ).
Subdivision two of Vehicle and Traffic Law § 600 states:
“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.”
When a driver of a vehicle is involved in an incident that causes physical injury to another person, that driver is required to do several things prior to leaving the scene:
(1) Stop;
(2) Exhibit his or her driver's license and insurance card;
(3) Provide his or her name and address; and
(4) Report the incident to the police (Vehicle and Traffic Law § 600[2] [a] ).
Under subdivision (2)(c) a first-time violation of this requirement is either a class A or class B misdemeanor. 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” [emphasis added] (id. ). 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 (id. ).
“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 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.”
The notes that in Matter of Clarey (55 AD3d 209 [2d Dept 2008] ), an attorney was served with a petition charging him with three charges of professional misconduct. Among the reasons for those charges was a conviction for the crime of leaving the scene of an accident involving personal injury (Vehicle and Traffic Law § 600[2] ), as a class A misdemeanor. The facts were that “he was involved in an accident with a motorcyclist and drove away from the scene even though it was apparent to him that someone might have been injured.”
Here, the factual allegation in the accusatory instrument is that the defendant, while driving a vehicle, struck the complainant causing lower back pain and the defendant fled the scene. Since the defendant is accused of fleeing the scene, he failed to stop and therefore is being charged with a class A misdemeanor under subdivision (2)(c) of Vehicle and Traffic Law § 600.
The superseding information now states that the defendant drove a vehicle that struck the deponent causing him to fall on the ground. The deponent yelled out loud “please stop.” The defendant failed to stop, failed to exhibit his license and insurance information, and failed to provide his name and address. Instead the defendant placed his car in reverse and drove away.
The court notes that both the initial misdemeanor complaint and the superseding information incorrectly labels this offense as an unclassified misdemeanor: “UM.”
Application to the Speedy Trial Motion
The People have 90 days from the commencement of the criminal action to announce their readiness for trial (CPL 30.30[1][b] ; 1.20[17]; 100.05).
The criminal action commenced with the filing of the first accusatory instrument on December 1, 2015 (see CPL 1.20[17] ; 100 .05). The People filed a superseding information and announced their readiness for trial on February 17, 2016—78 days later. There is no dispute that the entire 78 day period of delay is chargeable to the People.
Accordingly, there is less that the 90 days permitted under CPL 30.30(1)(b). The defendant has not met his burden of showing that there has been unexcused delay in excess of the statutory maximum (People v. Santos, 68 N.Y.2d 859 [1986] ; People v. Lomax, 50 N.Y.2d 351, 357 [1980] ; People v. Berkowitz, 50 N.Y.2d 333, 349 [1980] ) and therefore the motion to dismiss is summarily denied (CPL 170.45 ; 210.45[5] ).
The foregoing constitutes the opinion, decision and order of the court.
IT IS SO ORDERED.