Opinion
No. 2011KN002204.
2012-06-18
The PEOPLE of the State of New York v. Leon A. VAN DE CRUZE, Defendant.
Evan DeCresce, Assistant District Attorney, Kings County District Attorney's Office, Brooklyn, for The People of the State of New York. Douglas G. Rankin, Esq., Brooklyn, for Defendant.
Evan DeCresce, Assistant District Attorney, Kings County District Attorney's Office, Brooklyn, for The People of the State of New York. Douglas G. Rankin, Esq., Brooklyn, for Defendant.
DECISION AND ORDER
EVELYN J. LAPORTE, J.
The defendant, LEON A. VAN DE CRUZE, is charged with Operating a Motor Vehicle While Impaired (VTL § 1192[1] ); Operating a Motor Vehicle wile Intoxicated (VTL § 1192[3] ); Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles (VTL § 1227); Reckless Driving (VTL § 1212); Leaving the Scene of an Accident Without Reporting (VTL § 600[1] [a] ); Unlawfully Fleeing a Police Vehicle (PL § 270.25); Failure to Have Proof of Financial Security (VTL § 319[1] ); and Criminal Mischief in the Third Degree (PL § 145.00[3] ). He moves to dismiss the accusatory instrument on the ground that the complaint is facially insufficiency and alternatively, on the ground that his right to a speedy trial has been violated under CPL § 30.30 due to the fact that many charges in the complaint still contain hearsay and have not yet been converted pursuant to CPL § 170.30. For that reason, the defendant also moves to dismiss the complaint for facial insufficiency.
OVERVIEW
The instant action commenced with the defendant's arraignment on January 10, 2011.
The Criminal Court complaint was filed and the case was adjourned for conversion of the complaint with supporting documentation. Although a supporting deposition was eventually filed, there was some dispute regarding whether all of the charges had been converted with that document or whether more was necessary. The People moved to orally amend the complaint to correct an incorrect license plate number, but the court denied this request and directed the People to file a superseding information. This was never done and the complaint now stands with the Highway Patrol Intoxicated Driver paperwork and the supporting deposition from the involved civilian witness.
FACIAL SUFFICIENCY
The defendant moves for an order dismissing the complaint for facial insufficiency, inasmuch as the defendant asserts that the accusatory instrument was never properly converted.
An information is facially sufficient if the factual section contains allegations of an evidentiary nature demonstrating reasonable cause to believe that the defendant committed the offense charged (CPL §§ 100.15; 100.40[1] [b] ). The facts must be supported by non-hearsay allegations which establish, if true, every element of the charged offense (CPL § 100.40[1][c]; People v. Alejandro, 70 N.Y.2d 133 [1987] ). The standard for pleading a prima-facie case is lesser than the heavy burden of proof beyond a reasonable doubt required at trial ( see, People v. Henderson, 92 N.Y.2d 677, 680, 708 N.E.2d 165, 685 N.Y.S.2d 409 [1999] ) and the factual allegations should be given a fair and not overtly restrictive reading ( see, People v. Casey, 95 N.Y.2d 354, 360, 740 N.E.2d 233, 717 N.Y.S.2d 88 [2000] ).
When assessing the facial sufficiency of an accusatory instrument, a court must view the facts in the light most favorable to the People ( see, People v. Gonzalez, 184 Misc.2d 262, 708 N.Y .S.2d 564 [App Term, 1st Dept 2000], lv. denied95 N.Y.2d 835, 735 N.E.2d 422, 713 N.Y.S.2d 142 [2000] ). However, conclusory allegations are insufficient ( see, People v. Dumas, 68 N.Y.2d 729, 497 N.E.2d 686, 506 N.Y.S.2d 319 [1986] ) and a court need not ignore common sense or the significance of the alleged conduct in determining facial sufficiency ( Gonzalez, supra ).
THE COMPLAINT
The complaint reads in pertinent part as follows:
The deponent is informed by Mark Henry, that, [on or about January 9, 2011 at approximately 3:22 a.m. at the corner of McDonald Avenue and Broadway in Kings County, New York State], the informant observed the a[sic] black 2004 Acura TL New York State License No. FDE5095 cross a double yellow line and side swiped [sic] informant's vehicle, a 2001 Honda Accord N.Y. License No. ERN6834, from the opposite direction.
Deponent is further informed by informant that the defendant left the scene of the above-mentioned collision without exhibiting the defendant's license or insurance card to the informant.
Deponent further states that the defendant did not report the above-mentioned collision to any police officer.
Deponent further states that approximately five blocks away from the above location, the deponent observed the defendant driving the above-mentioned black 2004 Acura TL New York license No. DFE5095, that deponent instructed the defendant to pull over defendant's vehicle by using police sirens and by flashing deponent's police vehicle lights, and that the defendant refused to pull over defendant's vehicle and continued to drive for approximately four additional blocks.
Deponent further states that at the approximate above time and place, deponent observed the defendant exhibiting signs of intoxication: to wit, slurred speech, red watery eyes, odor of alcohol on breath, disheveled appearance and an unsteady gait.
Deponent is further informed by Mark Henry that informant is the custodian of the above-described Honda Accord and that the defendant neither had permission nor authority to damage said vehicle.
Deponent is further informed by the defendant's own statement that defendant was driving the above-mentioned Acura TL, that the defendant did collide with another vehicle and that the defendant was going to drive back to the above location to apologize.
The deponent further states that, at the above time and place, deponent recovered a glass bottle containing Ciroc vodka from the interior of defendant's vehicle.
The complaint is accompanied by a supporting deposition from the complainant, Mark Henry (dated January 13.2011), and an Intoxicated Driver Examination Report/IDTU completed by Police Officers Louis and Feinstein.
INTOXICATION CHARGES
The relevant sections of the New York Vehicle and Traffic Law § 1192 define Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs as follows:
1. Driving while ability impaired. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.
3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.
The complaint clearly states that the deponent, Police Officer Diery Louis observed the defendant to be operating a motor vehicle and that when the officer visually examined the defendant, he found him to be exhibiting such classic signs of intoxication as slurred speech, red and watery eyes, odor of alcohol on breath, disheveled appearance and an unsteady gait. That, coupled with the information that he received from Mark Henry that the defendant had just driven his car over a double yellow line, causing a collision is enough to make out a prima facie case as to both of these VTL charges. Prima facie evidence is evidence which, if uncontradicted, is sufficient to establish a fact. Prima facie evidence does not mean conclusive evidence, but rather evidence which creates a rebuttable presumption (see, People v. Gristina, 186 Misc.2d 877, [2001] ). Because the instant accusatory instrument contains factual allegations sufficient to establish reasonable cause that defendant violated VTL § 1192 .3, and 1192.1 the People are entitled to an opportunity to rebut the presumption, set forth in section 1195.2(b), at trial (People v. Blair, 98 N.Y.2d 722, [2002] ). Therefore, this branch of the defendant's motion to dismiss for facial insufficiency is denied.
OTHER DRIVING CHARGES
VTL § 1212 defines Reckless Driving as “driving or using any motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or any appliance or accessory thereof in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway.”
In the complaint Mark Henry affirms (via his supporting deposition) that he observed the defendant drive his vehicle across a double yellow line towards oncoming traffic and strike Mr. Henry's car. This clearly is not reasonable and acceptable behavior for someone operating a motor vehicle and obviously interfered with and endangered Mr. Henry, another user of the public roadways. Therefore the complaint meets the prima facie threshold on this count and the defendant's motion to dismiss this count is denied.
VTL § 319(1) requires that any owner of a motor vehicle in New York State, which will be operated within the state must have “in full force and effect the financial security” (appropriate insurance) and have proof of such financial security. In addition to the penalties herein set forth, such person, upon conviction, shall also become liable for payment to the department of the civil penalty provided in subdivision five of this section.”
Nowhere in the complaint does it state whether the defendant was carrying insurance on his vehicle. Therefore, the defendant's motion to dismiss the charge of Failure to Have Financial Security is granted.
VTL § 1227(1) defines Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles as follows:
The drinking of alcoholic beverages or the possession of an open [ emphasis added ] container containing an alcoholic beverage, in a motor vehicle located upon the public highways or right-of-way public highway is prohibited. Any operator or passenger violating this section shall be guilty of a traffic infraction.
Nothing in the complaint states that the bottle of vodka recovered from the defendant's car was open. It is not illegal in New York State to transport vodka in one's vehicle. Therefore, the defendant's motion to dismiss the charge of Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles is granted.
Unlawfully Fleeing a Police Vehicle is defined under (PL § 270.25) as follows:
A person is guilty of unlawful fleeing a police officer in a motor vehicle in the third degree when, knowing that he or she has been directed to stop his or her motor vehicle by a uniformed police officer or a marked police vehicle by the activation of either the lights or the lights and siren of such vehicle, he or she thereafter attempts to flee such officer or such vehicle by driving at speeds which equal or exceed twenty-five miles per hour above the speed limit or engaging in reckless driving as defined by section twelve hundred twelve of the vehicle and traffic law.
The complaint does not allege that the defendant drove in excess of the speed limit after the police officer turned on his flashing lights, nor does it state that the defendant engaged in any reckless conduct (as defined and discussed above) after the officer turned on his flashing lights. This court will not presume that the fact that the defendant continued to drive for four block indicates that he engaged in reckless conduct/during that particular time. Therefore, the defendant's motion to dismiss the charge of Unlawfully Fleeing a Police Vehicle is granted.
VTL § 600(1)(a) prescribes Leaving the Scene of an Accident Without Reporting as follows:
Any person operating a motor vehicle who, knowing or having cause to know that damage has been caused to the real property or to the personal property, not including animals, of another, due to an incident involving the motor vehicle operated by such person shall, before leaving the place where the damage 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 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 party sustaining the damage, or in case the person sustaining the damage is not present at the place where the damage occurred then he or she shall report the same as soon as physically able to the nearest police station, or judicial officer.
The complaint states that the defendant was involved in a car accident with one Mark Henry. There is a supporting deposition from Mark Henry attesting to that fact. And, according to the complaint, the defendant admitted to the arresting officer that he had been involved in an accident and had left the scene. The defense argues that the defendant's admission alone can not be used to corroborate any of the charges against him.
However, in People v. Suber, 2012 N.Y. LEXIS 985; 2012 N.Y. Slip Op 3573, the Court of Appeals ruled that the corroboration of a defendant's admission is not a component of the prima facie requirement for an information.
The court held:
First, we have been careful to note that the prima facie showing for an indictment refers to legally sufficient evidence that is competent-i.e., evidence that is not “inadmissible under any circumstances because [it is] subject to a per se exclusionary rule” (People v. Swamp, 84 N.Y.2d at 732; see People v. Gordon, 88 N.Y.2d at 96;People v. Oakley, 28 N.Y.2d 309, 312, 270 N.E.2d 318, 321 N.Y.S.2d 596 [1971]; see generally People v. Grant, 17 NY3d 613, 616, 959 N.E.2d 479, 935 N.Y.S.2d 542 [2011];People v. Mills, 1 NY3d 269, 274–275, 804 N.E.2d 392, 772 N.Y.S.2d 228 [2003];People v. Bello, 92 N.Y.2d 523, 525–526, 705 N.E.2d 1209, 683 N.Y.S.2d 168 [1998];People v. Hetrick, 80 N.Y.2d 344, 349, 604 N.E.2d 732, 590 N.Y.S.2d 183 [1992] ). The prima facie case for an information, in contrast, excludes only a particular type of incompetent evidence—hearsay—without restricting the People from utilizing other types of proof in order to commence a criminal proceeding (see CPL 100.40[1][c] ).
Second, and more relevant to this appeal, the precise language that the Legislature chose when the Criminal Procedure Law was adopted unmistakably establishes that corroboration was intended to be a component of the prima facie case for an indictment but not an information. Contrary to the specific reference to the corroboration rule in the statutes that pertain to indictments (see CPL 70.10[1]; 190.65[1] ), the text of the information provision references “[n]on-hearsay allegations ... establish[ing], if true, every element of the offense and the defendant's commission thereof” (CPL 100.40[1][c] ). This statute governing informations does not state, directly or inferentially, that this type of accusatory instrument must corroborate an accused's admission. Since clear and unequivocal statutory language is presumptively entitled to authoritative effect (see e.g. People v. Ballman, 15 NY3d 68, 72, 930 N.E.2d 282, 904 N.Y.S.2d 361 [2010];People v. Kisina, 14 NY3d 153, 158, 897 N.Y.S.2d 684 [2010];People v. Garson, 6 NY3d 604, 611, 848 N.E.2d 1264, 815 N.Y.S.2d 887 [2006] ),CPL 100.40(1) does not mandate corroboration of an admission in an information. Hence, the prima facie case requirement for an information “does not rise to the level of legally sufficient evidence that is necessary” to set forth a facially valid indictment or “survive a motion to dismiss based on the proof presented at trial” (People v. Kalin, 12 NY3d 225, 230, 906 N.E .2d 381, 878 N.Y.S.2d 653 [2009] ).
Therefore, it is clear that a defendant's admission need not be corroborated in order to convert a criminal court complaint into an information. See also, People v. Williams, 2012 N.Y. Misc. LEXIS 2499; 2012 N.Y. Slip Op 50959U, New York County. Hence, this court finds that the charge of Leaving the Scene of an Accident Without Reporting is facially sufficient. The defendant's motion to dismiss the charge of Leaving the Scene of an Accident Without Reporting is denied.
CRIMINAL MISCHIEF
Penal Law § 145.00(3) defines the crime of Criminal Mischief in the Fourth Degree as follows: “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, recklessly damages property of another person in an amount exceeding two hundred fifty dollars.”
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. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto. PL § 15.05(3).
The complaint states that Mark Henry observed the defendant's vehicle “side-wipe” Mr. Henry's vehicle, but does not state that any damage was caused as a result, much less that there was damage in excess of $250. Therefore, the defendant's motion to dismiss the charge of Criminal Mischief in the Fourth Degree is granted.
For all of the above-stated reasons, this court finds that there are no facts in the complaint or the supporting documents which are of such an evidentiary character as would support or tend to support the charges of Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles (VTL § 1227); Unlawfully Fleeing a Police Vehicle (PL § 270.25); Failure to Have Proof of Financial Security (VTL § 319[1] ); and Criminal Mischief in the Third Degree (PL § 145.00[3] ). Casey, supra; CPL § 100.15, 100.40). Because the complaint fails to allege facts of any evidentiary nature to support the conclusory allegation against defendant, these charges are subject to dismissal facial insufficiency.
Hence, it is this court's opinion that giving a fair and not overtly restrictive reading of the complaint and the law, the People have not met the standard for pleading a prima-facie case on the charges of Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles [Slip Op. 7](VTL § 1227); Unlawfully Fleeing a Police Vehicle (PL § 270.25); Failure to Have Proof of Financial Security (VTL § 319[1] ); and Criminal Mischief in the Third Degree (PL § 145.00[3] ). People v. Henderson, supra; People v. Casey, supra. Therefore the People did not succeed in converting the accusatory instrument with in the time allowed under CPL § 30.30(1)(c). People v. Sherman, 2009 N.Y. Slip Op 29115, 24 Misc.3d 344, 882 N.Y.S.2d 855 (Crim Ct, N.Y. County 2009); People v. Cordeiro, 2009 N.Y. Slip Op 29140 24 Misc.3d 526;876 N.Y.S.2d 636 (2009).In summary, based upon the foregoing, the defendant's motion to dismiss the charges of Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles (VTL § 1227); Unlawfully Fleeing a Police Vehicle (PL § 270.25); Failure to Have Proof of Financial Security (VTL § 319[1] ); and Criminal Mischief in the Third Degree (PL § 145.00[3] ) for facial insufficiency is granted. The court therefore will not address the defendant's motion to dismiss these particular charges on speedy trial grounds. The defendant's motion to dismiss the charges of Operating a Motor Vehicle While Impaired (VTL § 1192[1] ); Operating a Motor Vehicle wile Intoxicated (VTL § 1192[3] ); Reckless Driving (VTL § 1212); and Leaving the Scene of an Accident Without Reporting (VTL § 600[1][a] ) for facial insufficiency is denied.
CALCULATION OF TIME CHARGED
TO THE PEOPLE UNDER CPL § 30.30
Only the charges of Operating a Motor Vehicle While Impaired (VTL § 1192[1] ); Operating a Motor Vehicle wile Intoxicated (VTL § 1192[3] ); Reckless Driving (VTL § 1212); and Leaving the Scene of an Accident Without Reporting (VTL § 600[1][a] ) are under consideration for dismissal under CPL § 30.30.
Under CPL § 30.30(1)(b) the People must be ready for trial within ninety (90) days from the commencement of a criminal action when the defendant is charged with one or more offenses, at least one of which is an A Misdemeanor punishable by no more than one (1) year in jail. Once the defendant has alleged a delay of more than this allowable time, the People have the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss. People v. Fields, 214 A.D.2d 332 (1995); People v. Santos, 68 N.Y.2d 859 (1986); People v. Berkowitz, 50 N.Y.2d 333 (1980).
The instant action commenced with the defendant's arraignment on January 10, 2011.
For purposes of the computation of the applicable speedy trial time, the day on which the accusatory instrument is filed is excluded. People v. Stiles, 70 N.Y.2d 765 (1987). Accordingly, January 11, 2011 constitutes day one (1) of the ninety (90) day period applicable to the charges before the court.
On January 10, 2011 the case was adjourned to January 14, 2011 for the People to file a supporting deposition. Effective readiness requires that the People have a jurisdictionally sufficient accusatory instrument. (People v. Colon, 59 N.Y.2d 921 [1983] ).3 days charged to the People.
On January 14, 2011 the People filed and served a supporting deposition from Mark Henry. The case was adjourned to March 7, 2011 for a superseding information and/or conversion of the remaining charges (which are not under consideration for the purposes of this portion of the court's decision). 52 days included.
On March 7, 2011 the People answered ready on the charges of Operating a Motor Vehicle While Impaired (VTL § 1192[1] ); Operating a Motor Vehicle While Intoxicated (VTL § 1192[3] ); Reckless Driving (VTL § 1212); and Leaving the Scene of an Accident Without Reporting (VTL § 600[1][a] ). The case was adjourned to April 28, 2011 for a superseding information and/or conversion of the remaining charges (which are not under consideration for the purposes of this portion of the court's decision). The case was also adjourned for Discovery by Stipulation (“DBS”). Because DBS is regarded as a courtesy provided to the defendant in lieu of motion practice and discovery practice in Kings County, the adjournment is excludable under CPL § 30.30(4)(a) “irrespective of the People's readiness”. People v. Khachiyan, 194 Misc.2d 161 (Crim. Ct., Kings Co., 2002). See, also, People v. Wilson, 2010 N.Y. Slip Op 20136, Crim. Ct., Kings Co.; People v. Dorilas, 19 Misc.3d 75 (2008); People v. Sai, 223 A.D.2d 439 (1st Dep't, 1996); People v. Burton, 133 Misc.2d 701 (Crim Ct, N.Y. County 1986); CPL § 30.30(4)(a). 0 days included.
On April 28, 2011, the People filed and served their DBS and restated their readiness for trial on the charges of Operating a Motor Vehicle While Impaired (VTL § 1192[1] ); Operating a Motor Vehicle While Intoxicated (VTL § 1192[3] ); Reckless Driving (VTL § 1212); and Leaving the Scene of an Accident Without Reporting (VTL § 600[1][a] ). Such an announcement tolls the speedy trial clock on a converted accusatory instrument. People v. Curtis, 196 Misc.2d 1001 (Crim. Ct, New York County 2003); People v. Stirrup, 91 N.Y.2d 434 (1998); People v. Douglas, 264 A.D.2d 671 (1st Dept, 1999). The case was adjourned to June 30, 2011 for the defendant to file motions and for the People's response. This entire period is excludable. People v. Burton, supra (court found period during which a case was adjourned for defense motions was excludable in computation of statutory speedy trial time); People v. Sai, 223 A.D.2d 439 (1st Dept 1996) (court found that time requested by defense counsel to submit motions is excludable from speedy trial calculations). CPL § 30.30(4)(a). 0 days included.
On June 30, 2011 the case was adjourned for the People to respond to the defendant's motions and for decision. This entire period is excludable up to and including the current date. People v. Burton, supra; People v. Sai, supra ). CPL § 30.30(4)(a). 0 days included.
CONCLUSION AND ORDER
Based on the foregoing, in total, the People are charged with 55 days of includable delay as to the surviving charges of Operating a Motor Vehicle While Impaired (VTL § 1192[1] ); Operating a Motor Vehicle While Intoxicated (VTL § 1192[3] ); Reckless Driving (VTL § 1212); and Leaving the Scene of an Accident Without Reporting (VTL § 600[1][a] ) since the commencement of the action on January 10, 2011. Since less than 90 days of chargeable time has elapsed, the defendant's motion to dismiss, pursuant to CPL § 30.30, is denied.
The foregoing is the decision and the order of the court.