Opinion
2014NA024166
04-20-2015
The People of the State of New York, v. Teodoro Matozzo, Defendant.
Hon Madeline Singas, Acting Nassau County District Attorney Michael Biniakewitz, Esq, Attorney for the Defendant
Hon Madeline Singas, Acting Nassau County District Attorney
Michael Biniakewitz, Esq, Attorney for the Defendant
Andrew M. Engel, J.
The Defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree, Operating a Motor Vehicle While Ability Impaired by Drugs, Operating an Uninsured Motor Vehicle and Unlicensed Operation of a Motor Vehicle, all in violation of Penal Law § 220.03 and Vehicle and Traffic Law §§ 1192(4), 319(1) and 509(1), respectively.
The Defendant now moves for an order (1) dismissing the charge of Operating a Motor Vehicle While Ability Impaired by Drugs; (2) suppressing any statements allegedly made by the Defendant to law enforcement personnel or, in the alternative, directing that a Huntley hearing be held; (3) suppressing all physical evidence, observations made by police officers and chemical test results or, in the alternative directing that an Ingle/Dunaway hearing be held; (4) precluding the introduction of evidence at that time of trial of any statements made by, or identification of, the Defendant which were not properly noticed pursuant to CPL § 710.30; (5) directing the People to provide the Defendant with all specific instances of prior uncharged conduct which the People will seek to offer against the Defendant on their direct case, during cross-examination of the Defendant or on their rebuttal case, and further directing that a pre-trial hearing he held to determine the admissibility of same; (6) directing the People to disclose all exculpatory material to the Defendant; (7) directing the People to preserve and maintain written notes, memos, drawings, summaries and/or other documents made or prepared in connection with this case; (8) directing that any hearing which may be conducted in this matter be held at least forty-five (45) days prior to trial; and, (9) granting the Defendant leave to make future motions.
People v. Huntley, 15 NY2d 22, 255 N.Y.S.2d 838 (1965)
People v. Ingle, 36 NY2d 413, 369 N.Y.S.2d 67 (1975); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248 (1979)
The People consent to the court conducting a hearing addressing the voluntariness of any statements made by the Defendant to law enforcement personnel. The People also consent to the court conducting a Sandoval/Ventimiglia hearing immediately before the commencement of trial. The People oppose the Defendant's motion in all other respects.
People v. Sandoval, 34 NY2d 371, 357 N.Y.S.2d 849 (1994); People v. Ventimiglia, 52 NY2d 350, 438 N.Y.S.2d 261 (1981)
DISMISS VTL § 1192(4)
In seeking dismissal of the charge of Driving While Ability Impaired by Drugs the Defendant argues that "the elements of the charged offenses (sic) are not supported by non-hearsay allegations, and the supporting deposition fails to cure the defect." (Biniakewitz Affirmation 1/12/15, ¶ 6) The Defendant further argues that the factual allegations asserted "are insufficient because they do not support every element of VTL § 1192(4), nor the defendant's commission thereof." (Biniakewitz Affirmation 1/12/15, ¶ 8) Specifically, the Defendant alleges that the supporting deposition accompanying the charging simplified traffic information fails to sufficiently support allegations concerning the Defendant's operation of a motor vehicle and that the Defendant was impaired by a drug listed in PHL § 3306.
In opposition to this branch of the Defendant's motion the People argue that the Defendant failed to timely demand a supporting deposition in accordance with CPL § 100.25 and, as a consequence, the simplified traffic information need only "include all pertinent information as required by the Department of Motor Vehicles, including the defendant's name, date of birth, address, driver's license identification, date of offense, time of offense, charge and location of the offense." (DePalo Affirmation 2/2/15, ¶ 12) Nevertheless, the People further argue that they have annexed a supporting deposition to the simplified traffic information and that, contrary to the Defendant's argument, "there is no requirement that a simplified traffic information be based upon non-hearsay allegations ." (DePalo Affirmation 2/2/15, ¶ 14) Addressing the specifics of the Defendant's arguments, the People allege that the Defendant's operation of a motor vehicle is demonstrated through allegations of a motor vehicle accident and the Defendant's admission to having driven the vehicle. The People do not directly address the Defendant's argument that the supporting deposition fails to allege sufficient facts demonstrating that the Defendant was impaired by a drug listed in PHL § 3306, and only argue that they "should be granted time to allow a Drug Recognition Expert to evaluate the facts of this case, the symptoms Officer Butts observed, and match them to a drug consistent with a violation of VTL §1192(4), making the complaint sufficient." ( DePalo Affirmation 2/2/15, ¶ 23)
As indicated, the Defendant is charged with Driving While Ability Impaired by Drugs by way of a simplified traffic information accompanied by a supporting deposition. Contrary to the Defendant's suggestion, the facial sufficiency of this accusatory instrument is not to be determined by the standards applicable to informations or misdemeanor complaints, as set forth in CPL §§ 100.15(1) and (3) and 100.40(1) and (4). Likewise, contrary to the People's suggestion, the facial sufficiency of this accusatory instrument is not to be determined by the standards of a bare simplified traffic information, as set forth in CPL §§ 100.25(1) and 100.40(2).
"The simplified information is a statutory creation designed to provide an uncomplicated form for handling the large volume of traffic infractions and petty offenses for which it is principally used." People v. Nuccio, 78 NY2d 102, 571 N.Y.S.2d 693 (1991) As such, the pleading requirements of CPL §§ 100.15 and 100.40(1) do not apply. See: People v. DeRojas, 180 Misc 2d 690, 693 N.Y.S.2d 404 (App. Term, 2nd Dept.1999) Where a supporting deposition in support of the offense charged has been neither demanded nor provided, a simplified traffic information must be substantially in the form prescribed by the Commissioner of Motor Vehicles, See: CPL §§ 100.10, 100.25 and 100.40(2), and will be found facially sufficient if it so complies. See: People v. Nuccio, supra.; People v. Bize, 30 Misc 3d 68, 918 N.Y.S.2d 696 (App. Term 9th & 10th Dept. 2010); People v. Weinert, 178 Misc 2d 675, 683 N.Y.S.2d 690 (App. Term 2nd Dept. 1998) Under such circumstances, a simplified traffic information "need not provide on its face reasonable cause to believe defendant committed the offense charged (CPL 100.25, 100.40, subd. 2)." People v. Key, 45 NY2d 111, 408 N.Y.S.2d 16 (1978)
Where, however, a supporting deposition is provided with a simplified traffic information, either in response to a timely demand by a defendant, pursuant to CPL ' 100.25(2), or voluntarily by the People in the absence of such a demand, the accusatory instrument will be found facially sufficient Awhen, as provided by subdivision one of section 100.25, [the simplified traffic information] substantially conforms to the requirements therefor prescribed by or pursuant to law;@ See: CPL ' 100.40(2), and when the supporting depositions Acontain allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged.@ CPL ' 100.25(2); See: People v. Key, supra; People v. Hohmeyer, 70 NY2d 41, 517 N.Y.S2d 448 (1987); People v. Titus, 178 Misc 2d 687, 682 N.Y.S.2d 521 (App. Term 2nd Dept. 1998); People v. Chittaranjans, 185 Misc 2d 871, 714 N.Y.S.2d 650 (Dist. Ct. Nassau Co. 2000) ">Reasonable cause to believe that a person committed an offense= exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. CPL ' 70.10(2).
Applying the foregoing to the matter sub judice, the accusatory instrument charging a violation of VTL § 1192(4) will be found facially sufficient if it sets forth facts providing reasonable cause to believe that the Defendant (1) ingested a drug; (2) that the drug ingested is one proscribed by PHL § 3306; (3) that the Defendant operated a motor vehicle after ingesting the drug; and, (4) that the Defendant's ability to operate the motor vehicle was impaired by the ingestion of the drug. See: People v. Kahn, 160 Misc 2d 594, 610 N.Y.S.2d 701 (Dist.Ct. Nassau Co.1994); Property Clerk v. Lizziano, 302 AD2d 235, 754 N.Y.S.2d 277 (1st Dept. 2003)
The supporting deposition of Police Officer Arline E. Butts alleges, in pertinent part, that on November 5, 2014 she received a radio assignment for a motor vehicle accident in the vicinity of Midway Court and Franklin Avenue, in Franklin Square. Upon arriving at that scene, after observing a red motor vehicle with rear end damage in the middle of Midway Court, and being told by its driver that the vehicle was struck in the rear while waiting at a red light, Officer Butts walked over to and spoke with the Defendant, who was standing to the passenger's side of a white motor vehicle, previously identified as the offending vehicle by the driver of the red vehicle. At that time, Officer Butts "observed subject Matozzo with glassy eyes, slurred speech, his body was shaking, the pupils of his eyes were small, and he was unsteady on his feet." Officer Butts then "asked subject Matozzo what happened and he stated I was looking down and hit the car in front of me.'" Thereafter, a Police Officer Hernon administered standardized field sobriety tests to the Defendant and appears to have advised Officer Butts that "[t]here were positive signs of impairment." Following the Defendant's arrest, a search of his left pant pocket resulted in the recovery of "a small glass envelope believed to be heroin[.]"
Contrary to the Defendant's contention, the allegation that the Defendant stated to Officer Butts, "I was looking down and hit the car in front of me," along with the allegations concerning a two vehicle, front to rear accident, provides reasonable cause to believe that the Defendant was operating a motor vehicle. See: People v. Booden, 69 NY2d 185, 513 N.Y.S.2d 87 (1987) [admission by defendant, who was standing beside a vehicle in a ditch, that he had driven into the ditch was sufficient to support operation]; People v. Blake, 5 NY2d 118 (1958) [admission of operation by defendant sufficient to sustain conviction]; People v. Polito, 128 Misc 2d 71, 488 N.Y.S.2d 593 (City Ct. Rochester 1985) [defendant's admission of operation sufficient to sustain facial sufficiency of information charging driving while intoxicated]
While Officer Butts' supporting deposition contains allegations concerning her observations of the Defendant's possible impairment, exactly as in People v. Jackson, 32 Misc 3d 139(A), 936 N.Y.S.2d 60 (App. Term 9th & 10th Jud. Dists. 2011), "[t]he supporting deposition in the instant case fails to provide reasonable cause to believe that defendant was impaired by the use of any of the substances set forth in Public Health Law § 3306 (see CPL 100.25[2]). Consequently, the accusatory instrument charging defendant with driving while ability impaired by drugs (Vehicle and Traffic Law § 1192[4]) is jurisdictionally defective and must be dismissed."
As in People v. Ortiz, 6 Misc 3d 1024(A), 800 N.Y.S.2d 353 (Crim. Ct. Bronx Co. 2004), this court finds unpersuasive "the People['s] argu[ment] that the officer's observations, standing alone, are sufficient to provide reasonable cause to believe that the Defendant was under the influence of a drug prohibited by VTL § 1192(4)." As that court correctly explained, "[u]nlike the symptoms of intoxication, which are universally recognizable (citation omitted), the effects of any particular drug or class of drugs listed in Public Health Law § 3306, are not necessarily uniform in the way they affect an individual's appearance."
The People's reliance on People v. Rose, 8 Misc 3d 184, 794 N.Y.S.2d 630 (Dist. Ct. Nassau Co. 2005) is misplaced. While it is true that Rose, id., unlike Ortiz, supra., found that "[t]he written record of an opinion of a DRE can, , provide reasonable cause' for believing that the defendant committed the offense charged[,]" there is no such written record of an opinion from a drug recognition expert in the matter before this court. As specifically noted in Rose, supra., "[t]he issue devolves here to whether the failure to have referred to, summarized, or annexed the drug influence evaluation to the supporting deposition renders the accusatory instrument dismissible. It would appear that it does." The court would point out that ultimately what saved the accusatory instrument from dismissal in Rose, supra., was the defendant's lack of diligence in moving for such dismissal, thereby waiving the alleged defect. The Defendant herein does not have that problem.
The court would further note that the accusatory instrument as presently constituted fails to satisfy that most fundamental pleading requirement that "the factual allegations 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 ." People v. Casey, 95 NY2d 354, 717 N.Y.S.2d 88 (2000); See also: People v. Kalin, 12 NY3d 225, 878 N.Y.S.2d 653 (2009); People v. Guaman, 22 NY3d 678, 985 N.Y.S.2d 209 (2014) There being no allegation concerning what drug, if any, was causing the signs of impairment allegedly observed by Officer Butts, the Defendant has no way of knowing against what drug he is to prepare a defense. The Defendant cannot be expected to assume that because the People allege they found a drug believed to be heroin in his pocked after his arrest that heroin is the drug the People will argue was causing the impairment. The People, so far, have made no such argument. Given the current state of the accusatory instrument, the People could conceivably prosecute the Defendant on the theory that he was impaired by heroin and, if unsuccessful, prosecute him on the theory that he was impaired by some other drug proscribed by PHL § 3306, and if again unsuccessful pick another proscribed drug, ad nauseum.
The court notes that there is no laboratory report accompanying the charge of criminal possession of a controlled substance in the seventh degree confirming that the recovered substance was indeed heroin.
The People's request to "be granted time to allow a Drug Recognition Expert to evaluate the facts of this case, the symptoms Officer Butts observed, and match them to a drug consistent with a violation of VTL § 1192(4), making the complaint sufficient[,]" (DePalo Affirmation 2/2/15, ¶ 23) is equally without merit. CPL § 170.35(1)(a), upon which the People rely, provides:
1. An information, a simplified information, a prosecutor's information or a misdemeanor complaint, or a count thereof, is defective within the meaning of paragraph (a) of subdivision one of section 170.30 when:
It is not sufficient on its face pursuant to the requirements of section 100.40; provided that such an instrument or count 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 so amend;
The People have not brought a proper motion to amend. The People should review Article 22 of the CPLR.
Moreover, although, as the People suggest, the court may not dismiss the defective instrument "where the defect or irregularity is of a kind that may be cured by amendment and where the people move to so amend[,]" CPL § 170.35(1); See: People v. Casey, supra.; People v. Penn Central Railroad Co. 95 Misc 2d 748, 417 N.Y.S.2d 822 (Crim.Ct. Kings Co.1978); People v. Pacifico, 105 Misc 2d 396, 432 N.Y.S.2d 588 (Crim.Ct. Queens Co. 1980), the People have failed to demonstrate their ability to so cure the defects herein. While the People have given voice to their desire to try and cure the defects herein, by having "a Drug Recognition Expert [] evaluate the facts of this case, the symptoms Officer Butts observed, and match them to a drug consistent with a violation of VTL § 1192(4)," (DePalo Affirmation 2/2/15, ¶ 23) they have not provided the court with any information which indicates that such a review will be fruitful; they only hope it will be. Unlike People v. Rose, supra., upon which the People rely, where " a full DRE was administered at CTS'" before the Defendant's arrest, no DRE has been conducted in the matter sub judice in the more than five (5) months since this prosecution was commenced; and, the People provide no information as to when such an evaluation will be conducted. Additionally, the People cannot assure that the DRE will yield the results they hope to obtain. The People merely assume that a DRE conducted at their request will yield the result they are looking for. There is no reason for the court to allow the People to continue this prosecution while the People wait to find out.
The above notwithstanding, although a simplified traffic information cannot be superseded by a long form information, CPL § 100.50(1); People v. Flood, 25 Misc 3d 843, 885 N.Y.S.2d 190 (Dist. Ct. Nassau Co. 2009); People v. Finch, 19 Misc 3d 840, 854 N.Y.S.2d 885 (Dist. Ct. Nassau Co. 2008), having commenced the charge of Criminal Possession of a Controlled Substance in the Seventh Degree by long form information, which the Defendant does not seek to have dismissed, the People may, prior to a plea of guilty or commencement of the trial, file a superseding information asserting charges not contained in the original instrument, but stemming from the same transaction, without leave of the court. CPL § 100.50(1); People v. Thomas, 4 NY3d 143, 791 N.Y.S.2d 68 (2005) This would include adding a charge of Driving While Ability Impaired Drugs by long form information.
Accordingly, this branch of the Defendant's motion seeking an order dismissing the charge of Driving While Ability Impaired by a Drug is granted, without prejudice to the People filing a long form information reinstating such charge.
SUPPRESSIONCPL § 710.60 provides, in pertinent part, upon the Defendant's having made a motion to suppress:
2. The court must summarily grant the motion if:
(a) The motion papers comply with the requirements of subdivision one and the people concede the truth of allegations of fact therein which support the motion; or
(b) The people stipulate that the evidence sought to be suppressed will not be offered in evidence in any criminal action or proceeding against the defendant.
3. The court may summarily deny the motion if:
(a) The motion papers do not allege a ground constituting legal basis for the motion; or
(b) The sworn allegations of fact do not as a matter of law support the ground alleged; except that this paragraph does not apply where the motion is based upon the ground specified in subdivision three or six of section 710.20.
4. If the court does not determine the motion pursuant to subdivisions two or three, it must conduct a hearing and make findings of fact essential to the determination thereof.
The Defendant seeks the suppression of any statements he allegedly made to law enforcement personnel, all physical evidence, observations made by police officers and the results of all chemical tests or, in the alternative, an order directing that an Ingle/Dunaway/Huntley hearing be held. In addition to attacking the voluntariness of any statements attributed to him, the Defendant argues that "the police lacked probable cause or reasonable suspicion to arrest this defendant[,]" (Biniakewitz Affirmation 1/12/15, ¶ 26) subjecting all evidence obtained thereafter to suppression as "fruit of the poisonous tree." The only factual allegations asserted by the Defendant in support of this argument are that the Defendant "was driving in an orderly manner but was involved in a minor traffic accident. Subsequent to the accident, the defendant remained on the scene and awaited the arrival of the police, which were summoned to the area of the accident." (Biniakewitz Affirmation 1/12/15, ¶ 31)
The People argue that the police had a legal right, if not a duty, to approach the Defendant at the scene of an accident for the purpose of investigating the accident. Based thereon, the People suggest that there is no legal basis for suppressing any police observations which preceded the Defendant's arrest. For this same reason, the People correctly argue that there is no reason for this court to conduct an Ingle hearing.
Accordingly, that branch of the Defendant's motion which seeks to suppress all observations made by the police prior to the Defendant's arrest is denied.
Relying on People v. Mendoza, 82 NY2d 415, 604 N.Y.S.2d 922 (1993), the People further argue, "[g]iven that the Defendant has failed to set forth any issues of fact that would warrant a pre-trial hearing to determine whether or not the police had reasonable grounds' to believe the Defendant to have been operating a motor vehicle in violation of V.T.L. § 1192, the Defendant's request for a Johnson/Ingle/Dunaway hearing is therefore insufficient as a matter of law." (DePalo Affirmation 2/2/15, ¶ 35) The People's reliance on Mendoza, id. is misplaced.
While it is clear that the Defendant has failed to set forth "sworn allegations of fact," See: CPL § 710.60(1), supporting his claim that the police lacked probable cause to arrest him, precluding the court from summarily granting his motion, it is equally clear that "[t]he CPL does not mandate summary denial of defendant's motion even if the factual allegations are deficient (see, CPL 710.60[3] [ the court may summarily deny the motion'] [emphasis added])." (italics in original) People v. Mendoza, supra. at 429, 604 N.Y.S.2d 922, 929 (1993)
As the court pointed out in Mendoza, id. at 428, 604 N.Y.S.2d 922, 927 (1993), "[w]hether a defendant has raised factual issues requiring a hearing can only be determined with reference to the People's contentions." As discussed at length hereinabove, the People's factual contentions concerning the legal basis for the Defendant's arrest for Driving While Ability Impaired by Drugs are facially insufficient. In opposing this motion, the People continue to ignore a gaping hole in their own recitation of the facts which they believe support a finding of probable cause for the Defendant's arrest. In pertinent part, the People set forth those alleged facts as follows:
While conducting an initial investigation, Officer Butts observed the Defendant to have glassy eyes, slurred speech, restrictive pupils, his body was shaking, and he was unsteady on his feet.
Police Officer Hernon was present at the scene assisting and administering Standard Field Sobriety Tests on the Defendant. The tests indicated positive clues of impairment. At 11:40 A.M., the Defendant was placed under arrest and transported to Central Testing Section for processing. (DePalo Affirmation 2/2/15, ¶ ¶ 5 & 6)
Once again, the People would have the court overlook that there are no allegations even suggesting what the police reasonably believed was impairing the Defendant or why they assumed it was a substance which would support a violation of Section 1192 of the Vehicle and Traffic Law. In the absence of same, it would appear there was no probable cause for the Defendant's arrest.
Based upon all of the foregoing, the Court may neither summarily grant the Defendant's motion to suppress, nor shall the court summarily deny the Defendant's motion to suppress. Accordingly, the court must conduct a hearing and make findings of fact essential to the determination thereof. See: CPL § 710.60(1)-(4) As indicated, given the fact that there is no legal basis herein for the court to conduct an Ingle hearing, at the time of the next conference in this matter the court shall select the date for a Dunaway/Huntley hearing to be held.
PRECLUDE STATEMENTS AND IDENTIFICATION
The Defendant seeks to preclude the admission into evidence at the time of trial all statements allegedly made by the Defendant and any identification of the Defendant, alleging that the "Defendant has received no notice of alleged statements/identifications (or the alleged notice defendant received is insufficient and/or untimely) and therefore these alleged statements/identifications must be precluded. (Biniakewitz Affirmation 1/12/15, ¶ 35) This branch of the Defendant's motion is disingenuous at best.
The Defendant admits that he "has received notice pursuant to CPL § 710.30 that the People intend to offer at trial evidence of statements made by the defendant to law enforcement personnel. (Biniakewitz Affirmation 1/12/15, ¶ 21) That notice was timely served upon the Defendant on the date of his arraignment and sufficiently provides the Defendant with notice of the statements the People intend to use at the time of trial. The Defendant does not identify any other statements for which notice was not provided.
The People's 710.30 notice does not identify any police arranged identification procedures in this matter, nor does the Defendant allege that there was any such procedure for which he was not provided with notice.
Accordingly, this branch of the Defendant's motion is denied.
MOLINEAUX/SANDOVAL/VENTIMIGLIA
Those branches of the Defendant's motion which seek an order directing the People to provide the Defendant with all specific instances of prior uncharged conduct which the People will seek to offer against the Defendant on their direct case, during cross-examination of the Defendant or on their rebuttal case, and further directing that a pre-trial hearing he held to determine the admissibility of same is granted to the extent of directing that a Molineaux /Sandoval/Ventimiglia hearing on these issues shall be held immediately before the commencement of trial.
People v. Molineaux, 168 NY 264, 61 N.E. 286 (1901)
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PRESERVATION OF DOCUMENTS
The People's affirmative duty to preserve and maintain written notes, memos, drawings, summaries and/or other documents made or prepared in connection with this case within their possession or control exists regardless of any order confirming it.
Accordingly, Defendant's application for an order directing the People to preserve and maintain same is denied as unnecessary.
BRADY MATERIAL
Inasmuch as the People's affirmative duty to disclose material pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) within their possession or control exists regardless of any order confirming it, regardless of the People's good or bad faith concerning the disclosure, Defendant's application for an order directing the People to turn over same is denied as unnecessary. (cf. People v. Morgan, 178 Misc 2d 595, 682 N.Y.S.2d 533 (Co. Ct. Fulton Co. 1998); People v. Jackson, 154 Misc 2d 718, 593 N.Y.S.2d 410 (S.C. Kings Co. 1992).
HEARING TRANSCRIPTS
Unlike People v. Sanders, 31 NY2d 463, 341 N.Y.S.2d 305 (1973), there are no "unusual circumstances here presented" which would require the court, at this time, to mandate that any hearing held in this matter be held no less than forty five (45) days before trial. In accordance with Sanders, id., the Defendant shall request a copy of the hearing transcript, if desired, prior to the conclusion of the hearing, and the Defendant shall be afforded a reasonable opportunity to obtain same.
FUTURE MOTIONS AND RESERVATION OF RIGHTS
Those branches of the Defendant=s motion which seek leave to serve and file additional motions, or to reserve the Defendant=s right to do so, based upon a blanket request, unsupported by the proper papers and grounds, is denied as unauthorized. See: CPL ' 255.20(3) Any future motions will be determined on an individual basis, based upon the timeliness and merits thereof.
This constitutes the decision and order of the court.
Dated: Hempstead, New York
April 20, 2015
___________________________
ANDREW M. ENGEL
J.D.C.