People v Huhn

[*1] People v Huhn 2012 NY Slip Op 50128(U) Decided on January 30, 2012 District Court Of Nassau County, First District Engel, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 30, 2012
District Court of Nassau County, First District

The People of the State of New York,

against

Kevin Huhn, Defendant.



2011NA004618



Hon. Kathleen Rice, Nassau County District Attorney

Attorney for Defendant: Brian Griffin, Esq.

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 a Motor Vehicle While Ability Impaired by the Combined Influence of Drugs or of Alcohol and any Drug or Drugs, Failing to Stay in a Single Lane, Failing to Signal a Turn and Operating a Vehicle with a Modified Muffler, all in violation of Penal Law § 220.03 and Vehicle and Traffic Law §§ 1192(4), 1194(4a), 1128(a), 1163(a) and 375(31), respectively.

The District Court Information charging the Defendant with Criminal Possession of a Controlled Substance in the Seventh Degree, attested to by P.O. Karen C. O'Brien, alleges that on February 28, 2011, at about 2:45 a.m., the Defendant "did possess a white powdered substance believed to be heroin in a small plastic bag. Plastic bag was found in defendants (sic) front right small pocket during a search incidental to a lawful arrest for VTL 1192-2 driving while impaired drugs." Officer O'Brien concludes that the substance in question was determined to be heroin "based on [her] four years experience as a Police Officer with Nassau County Police Department, [her] previous narcotic related arrests [and her] ... experience and training[.]" The People have also filed and have had annexed to the District Court Information a laboratory report from NMS Labs which states, inter alia, that the substance examined was heroin.

Accompanying the Informations is a supporting deposition, attested to by Officer O'Brien, which provides that on February 28, 2011, at about 2:45 a.m., she observed the Defendant operating a 2007 Ford vehicle, on Hempstead Turnpike "moving from the right hand lane over to the far left lane failing to signal." Officer O'Brien alleges that she then observed the Defendant "cross[] over the solid yellow line riding up on the middle highway divider, then swerve[] back over into the left lane." Following a turn onto Front Street, Officer O'Brien alleges, that she turned on her emergency lights and the Defendant stopped his vehicle. Officer O'Brien further alleges that when she approached the driver's side of the Defendant's vehicle she "observed the defendant's eyes were glassy-bloodshot and the defendants (sic) pupils were constricted. The defendants (sic) speech was slowed and slurred when speaking. [She] also detected the odor of [*2]an alcoholic beverage coming from inside of the vehicle." According to Officer O'Brien, at that time, the Defendant stated to her, " I had a 40 oz about two hours ago, but I got food and I'm good to go home now' (sic) I live around that block, I'm not that wasted'." Officer O'Brien alleges that she then had the Defendant step out of his vehicle to perform Standardized Field Sobriety Tests ("SFSTs") and, at that time, detected the odor of alcohol coming from the Defendant's breath. According to the officer, upon performing the SFSTs the Defendant "was very unsteady on his feet ... unable to touch heel to toe or walk a straight line ... unable to count correctly ... and did place his foot down several times [while performing the one leg stand]." At this point, according to Officer O'Brien, the Defendant stated to her "that he had taken xanax as well as suboxone earlier in the night which would explain why he might have had a hard time performing SFST." The Defendant is further alleged to have stated to Officer O'Brien, "that he has a drug problem and that he did snort heroin around 8am." Following his arrest and the recovery of a plastic bag from the Defendant's pocket, the Defendant allegedly told Officer O'Brien, " I forgot that I put that in my pocket, it is heroin."

The Defendant now moves for an order dismissing Counts One, Two and Three as being facially insufficient and pursuant to CPL § 30.30, granting the Defendant a Mapp/Dunaway/Huntley[FN1] hearing, and granting the Defendant a Sandoval[FN2] hearing.

The People consent to a Sandoval hearing and to a hearing concerning the voluntariness of the Defendant's statements. They oppose the Defendant's motion in all other respects. The court further notes that for some inexplicable reason the People incorporate their Demand for Discovery into their Affidavit in Opposition to Defendant's Motion. This incorporation of discovery demands into their opposition paper to the instant motion is inappropriate, contrary to the procedure contemplated by the Criminal Procedure Law and shall not be addressed by the court.

FACIAL SUFFICIENCY

Count One - Criminal Possession of a Controlled Substance in the Seventh Degree

The District Court Information charging the Defendant with Criminal Possession of a Controlled Substance in the Seventh Degree will be found facially sufficient where it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereof, People v. Hall, 48 NY2d 927, 425 N.Y.S.2d 56 (1979), and a factual part containing "a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]" CPL § 100.15(3) based upon either the complainant's personal knowledge or upon information and belief. CPL § 100.15(3) The factual part, taken together with any supporting depositions [CPL § 100.20], must "provide reasonable cause to believe that the defendant committed the offense," People v. Alejandro, 70 NY2d 133, 517 N.Y.S.2d 927 (1987); CPL § 100.40(1)(b) and contain non-hearsay allegations which, if true, establish every element of the offense charged, CPL § 100.15(3); CPL § 100.40(1)(c) People v. Moore, 5 NY3d 725, 800 N.Y.S.2d 49 (2005); People v. Thomas, 4 NY3d 143, 791 N.Y.S.2d 68 (2005); People v. Bottari, 31 Misc 3d 90, 924 N.Y.S.2d [*3]733 (9th & 10th Jud. Dists. 2011) The allegations set forth in the Information and the supporting depositions must be viewed in a light most favorable to the People, People v. Martinez, 16 Misc 3d 1111(A), 847 N.Y.S.2d 898 (Table), (Dist.Ct. Nassau Co. 2007); People v. Delmonaco, 16 Misc 3d 526, 837 N.Y.S.2d 869 (Dist.Ct. Nassau Co. 2007); People v. Mendelson, 15 Misc 3d 925, 834 N.Y.S.2d 445 (Dist.Ct. Nassau Co. 2007), and are not to be given an overly restrictive or technical reading. People v. Casey, 95 NY2d 354, 717 N.Y.S.2d 88 (2000); People v. Baumann & Sons Buses, Inc., 6 NY3d 404, 813 N.Y.S.2d 27 (2006)

The Defendant argues that the lab report which the People have annexed to the Information in support of Count One is unsworn and cannot serve as a proper supporting deposition. The Defendant further argues that without such a supporting deposition the Information consists of nothing more than Officer O'Brien's conslusory statement that the substance seized from the defendant was a particular type of controlled substance and must be dismissed as facially insufficient.

The People's opposition fails to address these arguments or any portion of the Defendant's motion to dismiss Count One.

CPL § 100.20 unequivocally mandates that a supporting deposition be "subscribed and verified[.]" CPL § 100.30 provides that a supporting deposition may be verified in the following manners:

(a) Such instrument may be sworn to before the court with which it is filed.

(b) Such instrument may be sworn to before a desk officer in charge at a police station or police headquarters or any of his superior officers.

(c) Where such instrument is filed by any public servant following the issuance and service of an appearance ticket, and where by express provision of law another designated public servant is authorized to administer the oath with respect to such instrument, it may be sworn to before such public servant.

(d) Such instrument may bear a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law, and such form notice together with the subscription of the deponent constitute a verification of the instrument.

(e) Such instrument may be sworn to before a notary public.

The lab report the People have annexed has not been verified by any of these methods. The fact that the lab report contains the sentence, "I certify that NMS Labs, Inc., has taken custody of the evidentiary material on 4/22/11 and that all Chain of Custody documents and specimen integrity seals were in order[,]" or that the report was signed by both the analyst and her supervisor cannot serve as a substitute for a proper verification. In the absence of such proper verification the lab report "[is] not [a] valid supporting deposition[], and the allegations contained therein cannot be relied upon when determining whether the information[] [is] legally sufficient (Matter of Shirley v. Schulman, 78 NY2d at 916, 573 N.Y.S.2d 456, 577 N.E.2d 1048 People v. Azuka T., N.Y.L.J., Jan. 26, 1998 [App. Term, 9th & 10th Jud. Dists.]; see also People v. Kessman Bros., 2002 NY Slip Op. [*4]50653(U), 2002 WL 32083834 App. Term 9th & 10th Jud. Dists.] [accusatory instrument was jurisdictionally defective because it was not verified] )." People v. Roslyn Sephardic Center, 17 Misc 3d 74, 76, 847 N.Y.S.2d 332, 674 (App.Term 9th & 10th Jud. Dists. 2007)

This, however, neither ends our discussion nor our analysis of the Information charging Criminal Possession of a Controlled Substance in the Seventh Degree.

In People v. Kalin, 12 NY3d 225, 231, 878 N.Y.S.2d 653,656 (2009) the Court of Appeals "rejected the notion that a laboratory report is necessary to set forth a prima facie case ...." The Court held that a pleading which "states the officer's familiarity with and training regarding the identification of the drug, provides some information as to why the officer concluded that the substance was a particular type of illegal drug, and supplies sufficient notice of the charged crime" is facially sufficient. Kalin, id. at 232, 878 N.Y.S.2d 653,657 (2009)

The District Court Information herein contains Officer O'Brien's representation that she personally determined the substance recovered from the Defendant to be heroin based upon her "previous narcotic arrests" and her unspecified "experience and training." This exposition of Officer O'Brien's experience and training, however, does not meet the rather low threshold set forth by the Court of Appeals in People v. Kalin, id., wherein the court sustained the facial sufficiency of an Information in a heroin and marijuana possession case based, in part, upon the arresting officer's " training and experience as a police officer assigned to a special narcotics unit with respect to the appearance, handling and packaging of narcotics and other controlled substances[.]'" People v. Kalin, at 230, 878 N.Y.S.2d 653, 656 (2009)

While the court in Kalin, id. at 231, 878 N.Y.S.2d 653, 657 (2009) eschewed "the recitation of a mandatory catechism[,]"surely the court could not have meant that it would accept Officer O'Brien's uninformative, bare bones recitation of her "experience and training," "patently tailored to nullify constitutional objections"People v. Garafolo, 44 AD2d 86, 353 N.Y.S.2d 500 (2nd Dept. 1974) as a demonstration of the officer's expertise in drug recognition. This court will not recognize it as such.

Once again, however, this does not end our analysis and discussion of the sufficiency of the Information herein.

As the court further recognized in Kalin, id. at 229, 878 N.Y.S.2d 653, 655 (2009), "Standing alone, a conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement (citation omitted). Rather, the factual allegations must establish the basis of the arresting officer's belief that the substance seized was an illegal drug ...." This may be accomplished through "allegations of the factual part of the information, together with those of any supporting depositions which may accompany it[.]" CPL § 100.40(1)(b)

While "[e]ach count of an accusatory instrument is deemed as a matter of law to be a separate and distinct accusatory instrument," People v. Ortiz, 253 AD2d 688, 689, 678 N.Y.S.2d 91, 92 (1st Dept. 1998) aff'd 93 NY2d 959, 694 N.Y.S.2d 340 (1999); See also: People v. Brooks, 190 Misc 2d 247, 736 N.Y.S.2d 823 (App. Term First Dept. 2001), there is no requirement that each Information have its own separate supporting deposition. To the contrary, as noted earlier, CPL § 100.20 identifies a supporting deposition as a subscribed and verified "written instrument accompanying or filed in connection with an information ...." As has been recognized, "[a]ny document which support[s] or tends to support' the accusatory instrument may qualify as a supporting deposition." [*5][emphasis added] People v. Modica, 187 Misc 2d 635, 638, 724 N.Y.S.2d 825, 828 (Crim. Ct. Richmond Co. 2001) "Thus, in evaluating the sufficiency of an information, the court must also consider the factual allegations contained in any supporting depositions." [emphasis added] People v. Modica, id. at 363, 724 N.Y.S.2d 825, 826 (Crim. Ct. Richmond Co. 2001); See also: People v. Olmo, 2 Misc 3d 1012(A), 784 N.Y.S.2d 923 (Crim.Ct. Bronx Co. 2003) ["it may be that a differently drafted Complaint, supplemented by a differently drafted Supporting Deposition/Clean Halls Affidavit may be permissible."]

Accompanying the District Court Information, along with the other accusatory instruments herein, is the supporting deposition of P.O. O'Brien, wherein she alleges that the Defendant stated that "he had a drug problem[;] that he did snort heroin around 8am[;]" that he "forgot that [he] put [a clear zip lock bag with wax envelopes containing a white powder] in [his] pocket" and that "it is heroin." As the Court of Appeal recognized, among the factual allegations which may support an officer's conclusion that the recovered substance is a controlled substance are "alleg[ations] that the accused made a statement identifying the drug." People v. Kalin, supra. at 229, 878 N.Y.S.2d 653, 655 (2009); See also: People v. Gordon, 31 Misc 3d 1231(A), 932 N.Y.S.2d 762 (Sup.Ct. Bronx Co. 2011); People v. Lucarelli, 190 Misc 2d 137, 142, 737 N.Y.S.2d 247, 250 (Sup. Ct. Erie Co. 2002) mod. on other grounds 300 AD2d 1013, 753 N.Y.S.2d 638 (4th Dept. 2002)["the purchasers and users of drugs may testify, under certain circumstances, that they are familiar with the drug in question and that the substance they purchased was, indeed, the illegal drug."]; People v. Pasquarello, 282 A.D. 405, 123 N.Y.S.2d 98 (4th Dept. 1953) aff'd 306 NY 759, "118 N.E.2d 361 (1954)[conviction affirmed with testimony of alleged buyers of the drug in question]; People v. Lynch, 85 AD2d 126, 447 N.Y.S.2d 549 (4th Dept. 1982); People v. Jewsbury, 115 AD2d 341, 496 N.Y.S.2d 164 (4th Dept. 1985) [testimony that witness ingested white powder and "determined [it] to be cocaine because of prior experience he had with the drug" sufficient to support indictment.]

While Officer O'Brien's recitation of what the Defendant told her is hearsay, non-hearsay will include statements admissible by virtue of a hearsay exception. See: Matter of Rodney J., 108 AD2d 307, 489 N.Y.S.2d 160 (1st Dept.1985); Matter of Rey R., 188 AD2d 473, 591 N.Y.S.2d 55 (2nd Dept.1992) "Defendant's admission [that he used and possessed heroin], admissible as an exception to the rule against hearsay, thus may provide prima facie evidence establishing an element of an offense." People v. Heller, 180 Misc 2d 160, 164, 689 N.Y.S.2d 327, 331 (Crim.Ct. NY Co.1998); See also: People v. Dolan, 1 Misc 3d 32, 770 N.Y.S.2d 558 (App.Term 1st Dept. 2003) Additionally, while the statements allegedly made by the Defendant to Officer O'Brien may not be sufficient to prove him guilty beyond a reasonable doubt, pleading sufficiency is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Swamp, 84 NY2d 725, 622 N.Y.S.2d 472 (1995); People v. Porter, 75 AD2d 901, 428 N.Y.S.2d 63 (2nd Dept. 1980) Moreover, the allegations are sufficient to serve the purpose of providing the Defendant with notice enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from again being tried for the same offense. People v. Dreyden, 15 NY3d 100, 905 N.Y.S.2d 542 (2010); People v. McDermott, 69 NY2d 889, 515 N.Y.S.2d 225 (1987); People v. McGuire, 5 NY2d 523, 186 N.Y.S.2d 250 (1959)

[*6]Counts Two and Three - Operating a Motor Vehicle While Ability Impaired by Drugs, Operating a Motor Vehicle While Ability Impaired by the Combined Influence of Drugs or of Alcohol and any Drug or Drugs

Counts Two and Three are charged by way of Simplified Traffic Information, with an accompanying supporting deposition. As such, they will only be facially sufficient where the supporting deposition "contain[s] 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, 45 NY2d 111, 408 N.Y.S.2d 16 (1978); 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)

The Defendant argues that the laboratory report relevant to these charges was never annexed or affixed to the Simplified Traffic Informations and cannot be considered when assessing the facial sufficiency of these instruments. The Defendant further argues that the laboratory report upon which the People rely was not properly verified and cannot serve as a proper supporting deposition even if annexed.

In opposition to the Defendant's motion to dismiss these charges, the People argue that "a laboratory report showing that the Defendant was under the influence of these drugs [heroin, suboxone and xanax] at the time that the Defendant was operating a motor vehicle is not required for the purpose of facial sufficiency when the Defendant makes statements of admission as to what drugs he or she ingested, the officer made observations of the Defendant's impairment and the Defendant recovered wax envelopes containing a white powdery substance determined to be Heroin." (Weitz Affirmation 11/2/11, ¶ 17) For the reasons detailed above, the court agrees.

While the Defendant is correct, that the lab report affecting this charge was never affixed to the accusatory instrument and that, in any event, it was not properly verified, the admissions allegedly made by the Defendant to Officer O'Brien establish a prima facie case of Operating a Motor Vehicle While Ability Impaired by Drugs and/or Operating a Motor Vehicle While Ability Impaired by the Combined Influence of Drugs or of Alcohol and any Drug or Drugs.

Specifically, the Defendant's admission that he " had a 40oz about two hours ago ... I'm not that wasted[;]'" that "he had taken xanax as well as suboxone earlier in the night which would explain why he might have a hard time performing SFST[;]" and that he had "snorted heroin around 8am[,]" coupled with the officer's observations of the Defendant's manner of driving and the odor of an alcoholic beverage coming from the Defendant's breath, sufficiently allege that the Defendant operated a motor vehicle, that he ingested controlled substances and alcohol and that his ability to operate the vehicle was impaired by his ingestion of the drugs or combination of drugs and/or alcohol.

SPEEDY TRIAL

The Defendant argues that between March 23, 2011 through October 5, 2011 the People are to be charged with a total of one hundred sixty five (165) days of delay in prosecuting this action. Such an allegation satisfies the Defendant's initial burden under CPL § 30.30. People v. Goode, 87 NY2d 1045, 643 N.Y.S.2d 477 (1996); People v. Luperon, 85 NY2d 71, 623 N.Y.S.2d 735 (1995) "Because of this, ..., the burden of proving that certain periods within that time should be excluded [*7]falls upon the People (citations omitted)." People v. Berkowitz, 50 NY2d 333, 349, 428 N.Y.S.2d 927, 936 (1980); See also: People v. Drummond, 215 AD2d 579, 627 N.Y.S.2d 55 (2nd Dept.1995)

March 23, 2011 to May 12, 2011

The People allege that the Defendant served a discovery demand and request for a bill of particulars upon them on March 8, 2012 and that they responded thereto on May 12, 2011. Consequently, the People argue, this period of time is excludable from speedy trial calculation pursuant to CPL § 30.30(4)(a), which provides, in pertinent part, "In computing the time within which the people must be ready for trial pursuant to subdivisions one and two, the following periods must be excluded: (a) a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: ... demand to produce; request for bill of particulars ...."

The Defendant argues that his discovery demand and request for a bill of particulars was timely served, in accordance with CPL § 240.80, and that in accordance with those statutory requirements the People should have served their response within fifteen (15) days, or no later than March 23, 2011. Consequently, the Defendant argues, the additional time taken by the People to respond to the Defendant's demand and request must be charged to the People.

The Defendant overlooks that CPL § 30.30(4)(a) provides an excludable period of time for "a reasonable period of delay." The statute does not provide that the People will be charged for all time resulting from their failure to strictly adhere to the discovery schedule set forth in the Criminal Procedure Law. See: People v. Corriette, 25 Misc 3d 141(A), 906 N.Y.S.2d 774 (App.Term 9th & 10th Jud. Dists. 2009) [defendant's discovery demand served September 7, 2007; People complied April 29, 2008; the court found only the one month delay, from April 1, 2008 to April 29, 2008 to be unreasonable and includable in the speedy trial calculation] In the matter sub judice, the Defendant clearly understood the People's delay to be reasonable, as the Defendant never objected to the delay, never moved to compel compliance, never indicated that he intended to forgo discovery, actually accepted the People's response on May 12, 2011 without comment, and never moved against the People's response. cf. People v. Dorilas, 19 Misc 3d 75, 860 N.Y.S.2d 797 (App.Term 9th & 10th Jud. Dists. 2008); See also: People v. Gordon, 24 Misc 3d 462, 875 N.Y.S.2d 872 (Crim.Ct. Kings Co. 2009)

Accordingly, the People shall be charged with zero (0) days for the adjournment.

May 12 to June 13, 2011

On May 12, 2011 the People declared their readiness on Count One. The People did indicate that they were not ready to proceed on the remaining counts and would file a Certificate of Readiness when they were ready. The matter was then adjourned to June 13, 2011. The People filed a Certificate of Readiness on Counts Two and Three on May 13, 2011.

As discussed at length therein, contrary to the Defendant's argument, the absence of a verified laboratory report notwithstanding, the People's declaration of readiness was not illusory. Having declared ready on Count One, "the People bear the burden of ensuring that the record explains the cause of adjournments sufficiently for the court to determine which party should properly be charged with any delay (People v. Liotta, 79 NY2d 841, 580 N.Y.S.2d 184, 588 N.E.2d 82; accord, People v. Collins, 82 NY2d 177, 604 N.Y.S.2d 11, 624 N.E.2d 139; People v. Cortes, 80 NY2d 201, 215-216, 590 N.Y.S.2d 9, 604 N.E.2d 71)." People v. Stirrup, 91 NY2d 434, 440, 671 N.Y.S.2d 433, 437 (1998); See also: People v. Elm, 25 Misc 3d 141(A), 906 N.Y.S.2d 774 (App.Term 9th & 10th Jud. [*8]Dists. 2009) Where, as here, the People fail[ ] to satisfy this primary obligation, they must assume responsibility for the ... delay[.]" People v. Cortes, supra. at 215-216, 590 N.Y.S.2d 9 (1992); See also: People v. Corriette, 25 Misc 3d 141(A), 906 N.Y.S.2d 774 (App.Term 9th & 10th Jud. Dists. 2009)

It appears from the record that the Defendant neither requested nor consented to this adjournment. "In the absence of any request by defense counsel for an adjournment or consent to the People's request for an adjournment, the defense counsel's failure to object actively to the People's request will not constitute consent (citations omitted)." People v. Liotta, 176 AD2d 110, 573 N.Y.S.2d 286 (1st Dept.1991) aff'd 79 NY2d 841, 580 N.Y.S.2d 184 (1992) See also: People v. Hall, 213 AD2d 558, 624 N.Y.S.2d 58 (2nd Dept.1995); People v. Williams, 32 AD3d 403, 821 N.Y.S.2d 604 (2nd Dept. 2006)

Accordingly, the People shall be charged with the entire thirty-one (31) days as to Count One.

As to Counts Two and Three however, the People having failed to declare their readiness on May 12th will be charged with the entire time of the adjournment, unless they declared their readiness on these counts in the interim, which they did on May 13th. Consequently, the People shall be charged with one (1) day on Counts Two and Three.

June 13, 2011 to July 5, 2011

On June 13th the People again announced ready on all charges and the Defendant again asserted his position that the declaration of readiness was illusory. The matter was then adjourned, without explanation or comment, to July 5, 2011.

The People having failed to meet their burden of establishing the reason for the adjournment or that the adjournment was made or consented to by the Defendant, the entire twenty-two (22) days shall be charged to the People on Counts One, Two and Three.

July 5, 2011 to August 22, 2011 and August 22, 2011 to October 5, 2011

The record clearly reveals that these adjournments were with the consent of the Defendant.

Accordingly, the People shall be charged with zero (0) days for these adjournments. CPL § 30.30(4)(b); People v. Delacruz, 241 AD2d 328, 660 N.Y.S.2d 7 (1st Dept.1997) lv. den. 90 NY2d 939, 664 N.Y.S.2d 757 (1997); People v. Cambridge, 230 AD2d 649, 646 N.Y.S.2d 673 (1st Dept.1996)

Based upon all of the foregoing, on Count One the People shall be charged with fifty-three (53) days. On Counts Two and Three the People shall be charged with twenty-three (23) days.

Mapp/Huntley/Dunaway Hearings

Defendant's motion seeking a Mapp/Huntley/Dunaway hearing is granted to the extent of ordering that a hearing be held regarding the reasonable basis for the stop of the Defendant's vehicle, probable cause for the Defendant's arrest and the search and seizure conducted at that time, the voluntariness of the Defendant's statements, including whether or not he was apprised of and made a knowing and voluntary waiver of his Miranda[FN3] rights.

SANDOVAL[*9]

That branch of the Defendant's motion which seeks the disclosure of the Defendant's past criminal history and/or prior bad or immoral acts which the People intend to use at trial should the Defendant choose to testify and a pre-trial hearing pursuant to People v. Sandoval, 34 NY2d 371, 357 N.Y.S.2d 849 (1974) is granted to the extent of ordering that such hearing shall be held immediately before the commencement of trial.

CONCLUSIONS

Based upon all of the foregoing, the Defendant's motion is decided as follows:

1.That branch of the Defendant's motion seeking dismissal of Counts One, Two and Three, as being facially insufficient, is denied.

2.That branch of the Defendant's motion seeking dismissal of Counts One, Two and Three, pursuant to CPL § 30.30, is denied.

3.That branch of the Defendant's motion seeking a Mapp/Dunaway/Huntley hearing is granted.

4.That branch of the Defendant's motion seeking a Sandoval hearing is granted. This constitutes the decision and order of the court.

Dated: Hempstead, New York

January 30, 2012

___________________________

ANDREW M. ENGEL

J.D.C Footnotes

Footnote 1: Mapp v. Ohio, 367 U.S. 643; 81 S. Ct. 1684 (1961); People v. Huntely, 15 NY2d 72, 255 N.Y.S.2d 838 (1965) and Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979)

Footnote 2: People v. Sandoval, 34 NY2d 371, 357 N.Y.S.2d 849 (1974)

Footnote 3: Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966)