Opinion
18-050021
10-02-2018
The People of the State of New York, Plaintiff, v. Christopher Graham, Defendant.
Procedural History
By Notice of Omnibus Motion dated August 6, 2018, defendant, through his attorney Michael Pollok, Esq., requests the relief which is detailed below.
The People, through their attorney Senior Assistant District Attorney Scott Johnson, Esq., responded on September 4, 2018, as detailed below. Defendant had the opportunity to file a reply, but declined to do so. Neither side requested oral argument and the motion was marked fully submitted on September 12, 2018. This decision will address each of defendant's contentions in the order that they are presented in Mr. Pollok's motion papers.
Lack of Facial Insufficiency
Defendant seeks to dismiss the misdemeanor information herein as being facially insufficient pursuant to sections 170.30, 170.35, 100.15, 100.40 and 100.45 of the Criminal Procedure Law of the State of New York (CPL). The People deny that the information was facially insufficient.
Both sides agree that an information is sufficient on its face when the allegations of the factual part of the information provide reasonable cause to believe that defendant committed the offense charged in the accusatory part of the information; and non-hearsay allegations of the factual part of the information establish, if true, every element of the offense charged and defendant's commission thereof. [CPL 100.40(1)]
The information herein, when combined with the supporting deposition, although admittedly barebones, satisfies this requirement. Defendant was served with a Simplified Information charging violation of VTL 1192(2), 1192(3) (Driving While Intoxicated) alleging that he drove a white 2012 Toyota, Massachusetts License plate 7SD928, in an intoxicated condition, on May 6, 2018 on North Broadway in the Village of Red Hook, County of Dutchess. The simplified information was accompanied by a supporting deposition which had various items checked that completed the picture of what is alleged to have happened on the morning in question, although not in as much detail as one would like. However, the fact that it barely meets the test does not render it insufficient on its face. The supporting deposition alleges, through check marks, that defendant was urinating on the shoulder of the road, was near the vehicle, with the keys in the ignition, and with the engine running and warm. It further alleges that the arresting officer smelled the odor of alcohol emanating from defendant, that defendant's eyes were glassy, that his speech was impaired and that he showed impaired motor coordination. Further, the deputy notes that field sobriety tests were administered and that a note card, which was attached to the supporting deposition and, thereby, made part thereof, records that defendant allegedly failed the walk and turn test, and could not complete the one-legged stand test.
Defendant has been put on fair notice of what he is charged. Would it have been better if there was more detail in a written narrative? Yes. However, the standard of sufficiency is not one of perfection, merely one of adequacy and this information is adequate. For these reasons, defendant's motion to dismiss is denied.
Lack of Probable Cause to Stop Defendant
Defendant claims that the deputy had no reason to stop him as the predicate for the stop, described in the deputy's supporting deposition ("Defendant outside of vehicle urinating on soft shoulders") was not an unlawful action and, therefore, the deputy's seizure of defendant by questioning him and performing field sobriety tests was unjustified. Based upon this, defendant asks that all evidence seized, statements made by defendant and any observations made by the deputy be suppressed.
Defendant claims that there is no Village of Red Hook ordinance that prohibits public urination. Yet, the Village does have section 140-5 which prohibits the deposit of obnoxious materials on public places or public lands. It would appear that we need to explore further whether or not the urine defendant placed in a public place would qualify as an obnoxious material. Therefore, the Court will conduct the requested DeBour/Mapp/Dunaway/ Probable Cause hearing at a time of mutual convenience.
Suppression of Statements/Huntley Hearing
Defendant requests, and the People consent, to a Huntley hearing to test if statements were obtained lawfully from defendant. The Court will conduct the requested Huntley hearing at a time of mutual convenience.
Sandoval Hearing
Defendant requests, and the People consent, to a Sandoval hearing to determine if defendant can be cross-examined on any prior criminal record, or prior bad acts. The Court will conduct the requested Sandoval hearing at the appropriate time before trial, once defendant informs the People on which prior acts he does not wish to be examined on by the prosecution.
Rosario Material
Defendant requests, and the People consent, to the ongoing disclosure of Rosario material. Ventimiglia Hearing, Molineux Preclusion
Defendant requests, and the People consent, to a Ventimiglia hearing prior to trial. The Court will conduct such a hearing if needed at the appropriate time before trial.
Brady Material
The Court has every confidence that Mr. Johnson will obey our Brady Order.
Pre-trail Hearing Minutes
Defendant requests, and the People consent, that all hearings be held at least 20 days before trial, so that transcripts may be ordered and produced in a timely fashion. The Court concurs.
Leave to File additional Motions
Defendant will be permitted to file additional motions, upon good cause shown.
Reciprocal Discovery
This Court considers open file discovery to be the norm in its jurisdiction. Therefore, the Court expects defendant will comply with the People's request for reciprocal discovery.
Counsel are directed to appear, calendars in hand, on Wednesday, October 24, 2018 at 3:00 p.m. to schedule the above noted hearings, where appropriate.
This decision also constitutes the Order of this Court. Dated: October 2, 2018 Red Hook, New York SO ORDERED. _________________________________________ JONAH TRIEBWASSER, Justice, Village of Red Hook