Opinion
No. 2015QN040276.
02-11-2016
The PEOPLE of the State of New York v. Ronny RODRIGUEZ, Defendant.
Thomas McCullough, Esq., Queens Law Associates, for Defendant. Ada Matthew Luongo, Queens County District Attorney's Office, for the People.
Thomas McCullough, Esq., Queens Law Associates, for Defendant.
Ada Matthew Luongo, Queens County District Attorney's Office, for the People.
MICHELLE A. ARMSTRONG, J.
Recitation, as required by CPLR 2219[a], of the papers considered in the review of this motion:
Papers Considered
Defendant's n/m (facial sufficiency), December 11, 2015, Thomas McCullough, Esq., Queens Law Associates, affirm
People's Affirmation in Opposition, filed December 30, 2015, ADA Matthew Luongo, Queens County District Attorney's Office, affirm
Supporting Depositions, subscribed and verified by Jeanette Giglio and Arash Heduat, September 17, 2015 and August 21, 2015, respectively
Defendant moves to dismiss the accusatory instrument as facially insufficient pursuant to CPL §§ 100.40 and 100.30. Specifically, defendant posits that “[u]ntil the legislature authorizes verification by email under CPL § 100.30, an electronic signature cannot validly convert a misdemeanor complaint into an information based solely on the opinion of members of the judiciary.” Defendant further moves to dismiss one count of Leaving the Scene of an Incident for lack of jurisdiction; and two counts of Criminal Mischief in the Fourth Degree, and Reckless Endangerment in the Second Degree as duplicitous, or alternatively, dismissing one of the two counts of Criminal Mischief in the Fourth Degree as facially insufficient. For the reasons set forth below, the defendant's motions are GRANTED, in part, and DENIED, in part.
Defendant stands charged with Reckless Endangerment in the Second Degree (Penal Law § 120.20 ); two counts of Criminal Mischief in the Fourth Degree ( Penal Law § 145.00[3] ); Reckless Driving (Vehicle and Traffic Law § 1212 ); and three counts of Leaving the Scene of an Incident Without Reporting/Property Damage ( Vehicle and Traffic Law § 600[1][A] ). The accusatory instrument alleges that on or about August 12, 2015, between 4:25 p.m. and 5:24 p.m., in front of 9–01 Plainview Avenue, County of Queens, State of New York and Elsewhere in the State of New York, the defendant committed the charged offenses as follows:
Deponent states that he is informed by the complainant, Jeanette Giglio, a New York City Police Officer, that at the above mentioned date and time, the defendant, Ronny Rodriguez, rear ended her Jeep Cherokee while she was stopped at a red light at the intersection of Broadway and Nassau Expressway, County of Nassau, State of New York, causing damage to the rear bumper of said vehicle.
Deponent further states that he is informed by the complainant that the defendant drove away without stopping to exhibit his license, registration or insurance information.
Deponent further states that he is informed by the complainant that the defendant turned right onto Empire Ave and she followed the defendant as he drove down Empire Avenue from Nassau County into the County of Queens, State of New York.
Deponent further states that he is further informed by the complainant that while the defendant drove down Empire Avenue, he swerved in and out of traffic, crossed the double yellow line and drove down the wrong way of the street, causing cars to swerve out of the way and almost striking a pedestrian.
Deponent further states that he is further informed by the complainant that the defendant then struck a parked 2015 Infiniti, causing damage to the left side front bumper, at the intersection of Beach 9th Street and Plainview Avenue, County of Queens, State of New York.
Deponent further states that he is further informed by the complainant that the defendant did not stop after striking said vehicle to exhibit his license, registration, or insurance information.
Deponent further states that he is further informed by the complainant that the defendant continued driving down Plainview Avenue, stopped his vehicle, put it in reverse and struck the complainant's vehicle, causing damage to the front bumper of her vehicle.
Deponent further states that he is further informed by the complainant that the defendant then drove away without stopping to exhibit his license, registration or insurance information.
Deponent further states that he is informed by the complainant that she is the legal custodian of said Jeep Cherokee and the defendant did not have permission or authority to strike, hit, damage, or otherwise exercise control over said vehicle.
Deponent further states that the total value of the above mentioned damages to P.O. Giglio's vehicle is more than two hundred and fifty dollars, United States currency ($250.00).
Deponent further states that the is further informed by the complainant, Heduat Arash, that he is the legal custodian of the above mentioned 2015 Infiniti and the defendant did not have permission or authority to strike, hit, damage or otherwise exercise control over said vehicle and the above mentioned damaged to said vehicle amounts to more than two hundred and fifty dollars, United States currency ($250.00).
Deponent further states that the defendant stated in sum and substance I didn't stop because I thought I was going to get arrested.
(Court File ).
To be sufficient on its face, a misdemeanor information must contain non-hearsay factual allegations providing reasonable cause to believe that the defendant committed the offense(s) charged; and which establish, if true, every element of the offense(s) charged ( CPL §§ 100.15[3] ; 100.40[1][b] and [c] ). The reasonable cause standard is met by allegations of an evidentiary nature that disclose facts or circumstances which, collectively, bear such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense(s) was committed and that defendant committed it ( CPL § 70.10[2] ). When conducting a sufficiency review, the court must consider the factual allegations in the accusatory instrument in tandem with those of any supporting depositions or other non-hearsay documents which may accompany it ( CPL § 100.40[1][b] ). An information which fails to satisfy this prima facie case requirement is jurisdictionally defective. ( CPL §§ 170.30 and 170.35 ; People v. Alejandro, 70 N.Y.2d 133 [1987] ; People v. Dumas, 68 NY3d 729 [1986] ).
This court recognizes that a prima facie case requirement is not the same as the burden of proof, beyond a reasonable doubt, required at trial (People v. Henderson, 92 N.Y.2d 677, 680 [1999] ). “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, [it] should be given a fair and not overly restrictive or technical reading” (People v. Casey, 95 N.Y.2d 354, 360 [2000] ; People v. Konieczny, 2 NY3d 569 [2004] ). Moreover, the Court of Appeals, in People v. Allen (99 N.Y.2d 378, 385 [1998] ), held that at the pleading stage, all that is required are factual allegations that are sufficiently evidentiary in character and which tend to support the charges. While the court must view the facts in the light most favorable to the People, it is not required to abandon common sense or the significance of the alleged conduct (People v. Gibble, 2 Misc.3d. 510, 512 [Crim Ct. N.Y. Co.2003] ).
VALIDITY OF ELECTRONICALLY SIGHNED SUPPORTING DEPOSITION
Defendant posits that “[u]ntil the legislature authorizes verification by email under CPL § 100.30, an electronically signed supporting deposition cannot validly convert a misdemeanor complaint into an information based solely on the opinion of members of the judiciary.”
On August 13, 2015, defendant was arraigned on the misdemeanor complaint; and the case was adjourned to October 8, 2015, for a supporting deposition. On October 8, 2015, the People did not have the requisite supporting depositions and announced not ready. The case was adjourned to November 23, 2015, for conversion. Off–Calendar, on October 9, 2015, the People served and filed two supporting depositions: only one of which bore a complainant's electronic signature; copies of email correspondence between that complainant and an Assistant District Attorney; and a sworn affidavit signed by said Assistant District Attorney.
A valid supporting deposition is a written instrument accompanying or filed in connection with an information, a simplified information, a misdemeanor complaint or a felony complaint; subscribed and verified by a person other than the deponent of such accusatory instrument; and containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein (see CPL § 100.20 ). Further, the requirement that the supporting deposition “support or tend to support” the charges in the accusatory instrument, is satisfied by factual assertions demonstrating that the deponent is aware of the allegations and charges in the accusatory instrument and adopts them as his/her own (see People v. Phillipe, 142 Misc.2d 574, 578, 538 N.Y.S.2d 400 [Crim Ct. Kings Co.1989] ).
To subscribe a document means merely to sign it (James v. Patten, 6 N.Y. 9 (1851) ; People v. Mercado, 123 Misc.2d 775, 474 N.Y.S.2d 950 (Crim Ct. N.Y. Co.1984. The most important feature of a signature is that it reflect the intent of the signatory (People v.. LoPinto, 27 A.D.2d 63 [3rd Dept.1966] ). To that end, courts have routinely upheld various forms of markings as a valid signature (see Matter of Mack, 21 A.D.2d 205 [3d Dept 1964] [it is immaterial how a person signs his name or adopts his signature); Mohawk Airlines v. Peach, 81 Misc.2d 211, 365 N.Y.S.2d 331 [Sup Ct. Oneida Co.1974] [typewritten initials qualify as a signature]; Brooklyn City R.R. Co. v. City of New York, 139 Misc. 691, 365 NYS 496 [App Term, 2d Dept 1930] [printed, typewritten or lithographed signature held valid so long as adopted as such).
Additionally, CPL § 100.30 prescribes, in relevant part, that a supporting deposition, may be verified by the instrument bearing a form notice that false statements made therein are punishable as a Class A misdemeanor pursuant to PL § 210.45, and such form notice together with the signature of the deponent constitute a verification of the instrument (see CPL § 100.30[d] ). The verification requirement is the written equivalent of a testimonial oath (see People v. Phillipe, at 579 [verification alerts the witness that his statement has jural effect on himself and others] ). As such, the essence of the statutory mandate that supporting depositions be “subscribed and verified” is accountability: to wit, placing a prospective witness/deponent on notice of the legal consequences of making false or misleading statements (Id.; see also People v. Holmes, 93 N.Y.2d 889, 891–91, 689 N.Y.S.2d 687 [1999] ).
Defendant avers that there is no direct evidence that the email address is actually that of the complainant or that it was the complainant who replied to the Assistant District Attorney's email. This Court disagrees. Attached to the electronically signed supporting deposition, is a sworn affidavit from the Assistant District Attorney (hereinafter ADA) who specifically states that [s]he personally spoke directly with the complainant prior to commencing the process of obtaining an electronic signature and the complainant agreed to sign utilizing this method. Thereafter, the ADA sent correspondence to the complainant, via email, wherein [s]he forwarded the accusatory instrument, the unsigned supporting deposition, and specific instructions. More particularly, the ADA advised the complainant to: (1) read the entire misdemeanor complaint and supporting deposition attached to the email; and (2) if the information is true and accurate and the complainant agrees to sign the supporting deposition electronically then reply to the ADA's email by typing “I agree” and her name. The ADA further advised the complainant that by clicking the reply button, and typing “I agree” followed by her name, she was (a) confirming the statements made by her in the misdemeanor complaint under penalty of perjury; and (b) said reply with her electronic signature will have the same force and effect as a handwritten signature. I find that this method for obtaining an electronically signed supporting deposition meets the legal and statutory requirements of CPL §§ 100.20 or 100.30. The complainant, by replying “I agree” with her typewritten name, evinced her intent to adopt the factual averments in the accusatory instrument as her own. The complainant was also duly apprised of the jural effect of clicking the reply button and typing her name; and by doing so, the verification prong of the statute was satisfied.
Contrary to defendant's contentions, there exists clear legislative support for the use of electronic signatures in New York Courts (see People v. Johnson, 31 Misc.3d 145[A], 930 N.Y.S.2d 176 [App. Term, 9th & 10th Jud Dists 2011] [In the context of a simplified traffic information, electronic traffic tickets and the use of electronic signatures to verify the supporting depositions do not violate CPL § 100.20 ]; People v. Bize (30 Misc.3d 68 [App. Term, 9th & 10th Jud Dists 2010] [an issuing officer's electronic signature on a supporting deposition may be deemed adopted by the officer with the intent to sign the record, and with the same validity and effect as the use of a signature affixed by hand]; People v. Gustalvo PerezSanchez, 47 Misc.3d 612, 3 NYS3d 886 [Crim Ct. Queens Co.2015] [email correspondence between ADA and complainant, and electronically signed supporting deposition meets statutory mandates of CPL § 100.20 ]; [see also NY State Tech § 304[2] [permissible to use electronic signatures in lieu of handwritten signatures, which shall have the same validity and effect as a signature affixed by hand] ). In fact, New York Courts have already implemented this legislative policy by its use, acceptance, and expansion of electronic filings throughout its institutions (see Perez–Sanchez, supra, citing NYLJ, November 14, 2014, p. 4, col. 3).
Accordingly, defendant's motion to dismiss the accusatory instrument or any counts thereof for failure to convert the misdemeanor complaint to an Information with an electronically signed supporting deposition is DENIED in its entirety.
JURISDICTION
Defendant posits that one count of Leaving the Scene of an Incident without Reporting/Property Damage should be dismissed for lack of jurisdiction. Relying on the New York Court of Appeals holdings in People v. Moore, (46 N.Y.2d 1 [1978] ) and People v. Cullen (50 N.Y.2d 168 [1980] ), defendant argues that only when the county in which the crime actually occurred is unknown, may an offense which was committed during the trip of a private vehicle passing through more than one county be prosecuted in any county said vehicle passed ( CPL § 20.40[4][g] ).
It is a fundamental principle of criminal jurisprudence in New York State that a defendant has the right to be tried in the county where the alleged offense occurred unless the legislature has provided otherwise (NY Const, Art I, § 2 ; People v. Greenberg, 89 N.Y.2d 553, 555 [1997] ; People v. Ribowski, 77 N.Y.2d 284, 291 [1991] ; People v. Moore, 46 N.Y.2d 1, 6 ). This common law right is codified in New York Criminal Procedure Law § 20.40 which provides, in pertinent part, that a person may be convicted in an appropriate criminal court of a particular county, ... when the conduct occurred within such county sufficient to establish an element of such offense ( CPL § 20.40[1][a] ); or even though none of the conduct constituting such offense may have occurred within such county ... such conduct had, or was likely to have a particular effect upon such county ... and was performed with intent that it would, or with knowledge that it was likely to have such particular effect therein ( CPL § 20.40[2][c] ); or jurisdiction of such offense is accorded to the courts of such county [in that] an offense committed within five hundred yards of the boundary of a particular county, and in an adjoining county of this state, may be prosecuted in either such county ( CPL § 20.40[4][c] ).
An information, superseding information, prosecutors information, misdemeanor complaint, or a count thereof is defective within the meaning of CPL § 170.30[1][a] when the allegations demonstrate that the court does not have jurisdiction of the offense charged ( CPL § 170.35[1][b] ; see also CPL § 1.20[4] ). Geographical jurisdiction, though not an element of a crime, is a necessary prerequisite to prosecution; and must be pled in a facially sufficient accusatory instrument (Id; see People v. McLaughlin, 80 N.Y.2d 466 [1992] ; People v. Tullo, 34 N.Y.2d 712 [1974] ; People v. Chaitin, 94 A.D.2d 705 [2d Dept.1983] ; People v. Young, 36 Misc.3d 1210[A], 954 N.Y.S.2d 761 [Sup Ct. Bronx Co.2012] ; cf., People v. Patterson, 185 Misc.2d 519, 708 N.Y.S.2d 815 [Crim Ct. Bronx Co.2000] ). The actual location of an alleged crime, is generally a question of fact for a judge/jury at trial (People v. Moore, at 6–7; People v. Tullo, at 714; People v. Cespedes, 9 Misc.3d 705, 712, 799 N.Y.S.2d 703 [Sup.Ct. N.Y. Co.2005] ); whereupon, the People bear the burden of establishing, by a preponderance of the evidence, that the county where the crime is prosecuted is the proper venue because either the crime was committed within such county or one of the statutory exceptions apply (McLaughlin, supra; People v. Ribowski, at 292; see also CPL § 20.40 ).
CPL § 170.30[1][a] states that after arraignment upon an information, a simplified information, a prosecutor's information or a misdemeanor complaint, the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that it is defective, within the meaning of [CPL] section 170.35.
CPL § 1.20[4] sets forth that a criminal court has “trial jurisdiction” of an offense when an indictment or an information charging such offense may properly be filed with such court, and when such court has authority to accept a plea to, try, or otherwise finally dispose of such accusatory instrument.
The Patterson Court held that since there is no express statutory requirement that pleadings establish a court's geographical jurisdiction over an offense, the misdemeanor complaint need not recite factual allegations establishing such jurisdiction to be facially sufficient. This Court rejects the holding in Patterson, a court of concurrent jurisdiction, to the extent that it contravenes the statutory requirements for a facially sufficient accusatory instrument as expressly set forth under CPL §§ 170.30[1][a] and 170.35[1][b] ).
It is well settled, however, that a defendant may properly challenge a court's geographical jurisdiction over an offense prior to trial (Matter of Steingut v. Gold, 42 N.Y.2d 311 [1977] ; see also CPL §§ 170.30[1][a] and 170.35 [1] [b] ). In the context of a felony charge, courts have consistently held that a legally sufficient indictment requires that the People present competent evidence before a grand jury from which jurisdiction may fairly and reasonably be inferred from all the facts and circumstances (Matter of Taub v. Altman, 3 NY3d 30 [2004] ; People v. Chaitin, supra; Matter of Steingut, at 316–317; People v. Kellerman, 102 A.D.2d 629, 630 (3d Dept.1984) ; People v. Cespedes, at 712). Likewise, this Court finds that so long as geographical jurisdiction may fairly and reasonably be inferred from the facts and circumstances alleged in a misdemeanor information, a motion to dismiss the accusatory instrument on this ground shall fail.
Against this backdrop, we now turn to the count(s) at issue. VTL § 600(1)(A) provides, in pertinent part, that a person commits the traffic infraction of Leaving the Scene of an Incident without Reporting/Property Damage when, while operating a motor vehicle [s]he: (1) knows or has cause to know that damage has been caused to the real or personal property ... of another; (2) such damage was due to an incident involving the motor vehicle operated by such person; (3) without stopping, such person leaves the place where the damage occurred before: (a) exhibiting his/her license and insurance identification card for such vehicle, when such card is required pursuant to Articles six and eight of this chapter; and (b) giving his/her name, residence, ... insurance carrier and insurance identification information ...; or (c) in case the person sustaining the damage is not present at the place where the damage occurred then [s]he shall report the same as soon as physically able to the nearest police station or judicial officer.
Even when viewed in the light most favorable to the People, there are simply no facts in the accusatory instrument from which this Court may fairly and reasonably infer that the defendant's conduct, before striking a parked car, occurred in Queens County. Notably absent from the pleadings are any allegations relative to the length of time or distance defendant travelled before entering Queens County; or spatial proximity between defendant's act of Leaving the Scene of an Incident in Nassau County to striking a parked Infiniti in Queens County. Moreover, the complaint also describes conduct supporting the charges of Reckless Endangerment in the Second Degree (PL § 120.20 ) and Reckless Driving (VTL § 1212 ) which occur on Empire Avenue in Nassau County. The pleadings state that defendant drove down Empire Avenue, from Nassau County; and while doing so, he swerved in and out of traffic, crossed the double yellow line and drove down the wrong way of the street causing cars to swerve out of the way and almost striking a pedestrian. The first purported criminal act in Queens County supports the second count of Leaving the Scene of an Incident without Reporting/Property Damage upon defendant's failure to stop after striking the parked car on Beach 9th Street.
A review of the statutory exceptions to the geographical jurisdiction requirement codified in CPL § 20.40 reveals that none specifically apply or are reasonably inferable from the complaint allegations. While the People posit that Queens County jurisdiction arises under CPL § 20.40(4)(c) ; to wit, that the initial offense occurred within 500 yards of the Nassau/Queens County boundary line, the complaint is devoid of any allegations from which this court may reasonably draw such an inference. Accordingly, I find that the pleadings fail to establish that Queens County has geographical jurisdiction over the first count of Leaving the Scene of an Incident without Reporting/Property Damage (VTL § 600[1][A] ); the sole count of Reckless Endangerment in the Second Degree (PL § 120.20 ); and Reckless Driving (VTL § 1212 ). As such, these counts are hereby dismissed as jurisdictionally defective.
DUPLICITY
Defendant contends that the charges of Reckless Endangerment in the Second Degree and two counts of Criminal Mischief in the Fourth Degree are duplicitous in that the accusatory instrument alleges multiple separate and distinct criminal acts for each individual count.
Criminal Procedure Law § 200.30(1) provides that each count of an indictment may charge one offense only. It is well settled that where a single count in an indictment encompasses multiple separate and distinct acts it is duplicitous and runs afoul of State and Federal Constitutional guarantees (People v. Baumann, 12 NY3d 152 [2009] ; People v. Askoy, 84 N.Y.2d 912 [1994] ; People v. Keindl, 68 N.Y.2d 912 [1986] ; People v. Klipfel, 160 N.Y. 371 [1899] ). This is the case so long as the conduct at issue does not constitute a continuous offense whereby the crime, by its very nature may be committed by a single act or multiple acts over a period of time (see Keindl, supra). Although, CPL § 200.30 specifically applies to indictments, the underlying purpose for the mandate against duplicitous pleadings is equally applicable to misdemeanor informations: that is, to ensure a defendant has adequate notice of the charges against him to prepare a defense; to protect defendant's right against double jeopardy; and to ensure the reliability of unanimous verdicts (Keindl at 418; People v. Evangelista, 1 Misc.3d 873, 771 N.Y.S.2d 791 [Crim Ct. Bronx Co.2003] ). Indeed, the language set forth in CPL § 100.15 , applicable to the form and content of an Information, appears to embrace these constitutional principles by stating, “[A]s in the case of an indictment,, two or more offenses may be charged in separate counts” (CPL § 100.15[2] ; People v.. Elliott, 41 Misc.3d 1228[A], 981 NYS2D 637 [Crim Ct. N.Y. Co.2013] ; People v. Todd, 119 Misc.2d 488 [Crim Ct. N.Y. Co.1983] ).
The test of duplicity rests on whether it is possible that a defendant could be convicted of a single count charged in the accusatory instrument based on two of more acts alleged to have been committed by him/her therein; such that if the district attorney elected not to prosecute one of the offenses alleged in the pleadings, a jury could nonetheless convict defendant of a single charge based on the other offenses alleged in the accusatory instrument. (People v. Klipfel, supra ). More succinctly, acts which separately and individually make out distinct crimes must be charged in separate and distinct counts (Id. ).
RECKLESS ENDANGERMENT COUNT:
A person is guilty of Reckless Endangerment in the Second Degree when “he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person” (Penal Law § 120.20 ). A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation (Penal Law § 15.05 ).
Defendant avers that the pleadings contain multiple acts or offenses which together encompass the single charge of Reckless Endangerment. This Court agrees. The pleadings allege multiple actions which, if true, would support the charge of Reckless Endangerment. Specifically, the accusatory instrument alleges that the defendant swerved in and out of traffic, crossed double yellow lines, and drove the wrong way down a one-way street causing other cars to swerve out of the way and almost struck a pedestrian. A jury could find that these actions alone recklessly created a substantial risk of physical injury to an unnamed pedestrian. Concomitantly, the pleadings also allege that while fleeing from the complainant during a chase, defendant drove his vehicle in reverse and struck Officer Giglio's vehicle a second time at a different location. A jury could also independently conclude that the act of backing up into the complainant's vehicle following a chase recklessly created a substantial risk of physical injury to the complainant. Hence, the pleadings contain multiple offenses/theories any one of which may result in defendant's conviction for the single charge of Reckless Endangerment. Accordingly, defendant's motion to dismiss the count of Reckless Endangerment in the Second Degree is granted as duplicitous.
CRIMINAL MISCHIEF COUNTS:
A person is guilty of Criminal Mischief in the Fourth Degree when, having no right to do so nor any reasonable ground to believe that he has such right, he recklessly damages property of another person in an amount exceeding two hundred and fifty dollars ( Penal Law § 145.00[3] ). “Damage,” refers to injury or harm to property which reduces its value or usefulness (People v. Collins, 288 A.D.2d 756 [3d Dept.2001] ).
Defendant avers that the pleadings contain three separate acts or offenses which encompass the two counts of Criminal Mischief in the Fourth Degree: (1) that the defendant caused damage to the rear bumper of Officer Giglio's vehicle; (2) that defendant caused damage to a parked 2015 Infiniti; and (3) that defendant later caused damage to the front bumper of Officer Giglio's vehicle. This Court disagrees. The pleadings contain no allegations from which a jury could conclude that the damage resulting from defendant rear ending Officer Giglio's vehicle in the first instance was reckless rather than accidental. Hence, the first above offense would not support the requisite mens rea for the Criminal Mischief count. Conversely, the latter two allegations are facially sufficient to support one count of Criminal Mischief in the Fourth Degree as to each complainant. Accordingly, the pleadings are not duplicitous as to these charges.
For these reasons, defendant's motion to dismiss the accusatory instrument or any counts therein is GRANTED, in part, to the extent that one count of Leaving the Scene of an Incident without Reporting/Property Damage (VTL § 600[1] [A] ); and Reckless Driving (VTL § 1212 are dismissed for lack of geographical jurisdiction. The sole count of Reckless Endangerment in the Second Degree (PL § 120.20 ) is also dismissed on grounds of duplicity and lack of geographical jurisdiction. The remaining counts are facially sufficient as pled.
The foregoing constitutes the decision and order of the court.