People v Mangano

[*1] People v Mangano 2007 NY Slip Op 51915(U) [17 Misc 3d 1110(A)] Decided on July 23, 2007 Justice Court Of Town Of Ossining, Westchester County Connolly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 23, 2007
Justice Court of Town of Ossining, Westchester County

People of the State of New York,

against

Linda A. Mangano, Defendant.



06120003



ANTHONY M. GIORDANO, ESQ.

Attorney for Defendant

100 Executive Boulevard, Suite 205

Ossining, New York 10562

Shameika M. Taylor, Esq.

Assistant District Attorney

Office of the Westchester County District Attorney

25 Moore Avenue

Mount Kisco, New York 10549

Francesca E. Connolly, J.

On November 30, 2006, defendant was charged by simplified traffic information with violations of V.T.L. §§1172(a)(disobey stop sign), 1102 (failure to comply with police); 1163(a)(turn without signal), 1128(c)(failure to stay in lane), 1194(1)(b)(refuse field test), and 1192(3)(driving while intoxicated). In addition to the traffic offenses, on December 1, 2006, defendant was charged by information with a violation of P.L. §§240.20(5), disorderly conduct.

Defendant now moves to dismiss the charges as follows:

(1)pursuant to C.P.L. §§ 170.30, 170.35, 100.25, and 100.40 upon grounds that the accusatory instrument and simplified traffic informations are defective,

(2)pursuant to C.P.L. §§30.30(1)(a) and 30.20(1), upon speedy trial grounds;

(3)pursuant to C.P.L. §170.40 in the interests of justice.

In addition, defendant seeks court-ordered discovery, suppression of statements and physical evidence, or alternatively pre-trial hearings to determine the admissibility of certain items of evidence.

For the reasons set forth herein, defendant's motion is decided as follows:

the motion to dismiss the charges under V.T.L. §§1172(a), 1163(a), 1102, and 1128(c) for facial [*2]insufficiency is granted without prejudice;

the motion to dismiss the charges under V.T.L. §§1192(3) and 1194(1)(b) and P.L. §240.20 for facial insufficiency is denied;

the motion to dismiss the charges on speedy trial grounds and in the interests of justice is denied;

the motion for discovery is granted to the extent that the People must provide defendant with copies of videotapes;

the motion to suppress statements and physical evidence is reserved pending the Mapp and Huntley hearings;

the motion to preclude cross-examination of defendant as to her prior criminal history or bad acts is reserved pending a Sandoval hearing;

the motion to preclude the People from introducing evidence of defendant's prior bad acts in their direct case is denied as being premature;

the motion to reserve rights to renew all motions is granted to the extent permissible under C.P.L. §255.20(3)

PROCEDURAL BACKGROUND

On November 30, 2006, defendant was charged by simplified traffic informations with violations of V.T.L. §§1172(a)(disobey stop sign), 1102 (failure to comply with police), 1163(a)(turn without signal), 1128(c)(failure to stay in lane), 1194(1)(b)(refuse field test), and 1192(3)(driving while intoxicated). A supporting deposition on the V.T.L §§1192(3) and 1194(1)(b) charges was prepared by the arresting office on December 1, 2006 and served upon the defendant. In addition to the traffic offenses, on December 1, 2006, defendant was charged by information with a violation of P.L. §§240.20(5), disorderly conduct.

On December 7, 2006, defendant was arraigned before this Court on all charges with her attorney present, and provided with copies of the simplified traffic informations, the supporting deposition related to the D.W.I. charges, and the information on the disorderly conduct charge. Defendant's attorney also made a request for supporting depositions on the traffic infractions. [*3]

Although the charges were originally filed in the Village of Ossining Justice Court, the Justices of that Court recused themselves, and the case was transferred to this Court by Order of the Hon. Francis Nicolai, A.J.S.C., dated January 2, 2007.

On January 22, 2007, the People announced their readiness for trial at the calendar call. Defendant's attorney served a demand for discovery and requested a motion schedule. Defendant's attorney also informed the Court that it never received the supporting depositions and accordingly, requested that the charges be dismissed. The Court reserved decision and requested that this relief be included in the motion papers, to which defendant's attorney agreed.

In the interim, the People filed an information with this Court dated January 24, 2007 charging the defendant with violations of V.T.L. §§1172(a), 1163(a), 1102, and 1128(c).

The defendant's motion was filed on March 12, 2007, but was not fully submitted until July 9, 2007.

DISCUSSION/ANALYSIS

Motion to Dismiss the Simplified Traffic Informations for Facial Insufficiency

A defendant who is charged with a traffic offense by simplified traffic information is entitled, as matter of right, to a supporting deposition provided that a timely request is made. Once a timely request is made, the police officer must serve and file the supporting deposition within thirty days. C.P.L. §100.25(2). The failure to timely serve and file the supporting deposition renders the simplified traffic information defective, which divests the Court of jurisdiction, and subjects it to dismissal upon motion. People v. Green, 192 Misc 2d 296,298, 745 NYS2d 656, 658 (Dist. Ct. Nassau Co. 2002); C.P.L. §§100.40(2), 170.35(1)(a), 170.30(1)(a); People v. Nuccio, 78 NY2d 102, 104, 571 NYS2d 693, 694 (1991).

This divestiture of jurisdiction cannot be cured by untimely serving the [*4]supporting deposition, or, as done here, by filing a superseding long form information charging the same traffic infractions. People v. Green, supra ; People v. Quarles, 168 Misc 2d 638, 639 NYS2d 661 (City Ct. Rochester 1996). Prosecution by simplified traffic information is an alternative to prosecution by information, and is governed by different standards. People v. Green, supra , 192 Misc 2d at 299, 745 NYS2d at 659. While the factual pleading requirements for prosecution by simplified traffic information are less stringent than those for prosecution by prosecutor's information, the time constraints are indeed more restrictive. Id. Since the standards are different, "the People cannot use the device of supersedure to continue a prosecution premised on an insufficient simplified information." Id.

The defendant here made a timely request for supporting depositions to support the traffic infractions, which were originally charged by simplified traffic informations. The only supporting deposition provided to the defendant was related to the D.W.I. charges. While this supporting deposition is sufficient to sustain the charges under V.T.L. §§1192(3) (driving while intoxicated) and 1194(1)(b) (refuse field test), it is insufficient to sustain the traffic infractions charged under V.T.L. §§1172(a), 1163(a), 1102, and 1128(c). Moreover, the superseding long form information cannot be used to cure the defective simplified traffic information. Accordingly, defendants' motion to dismiss the charges of V.T.L. §§1172(a), 1163(a), 1102, and 1128(c) is granted without prejudice. Since the dismissal for facial insufficiency is not on the merits, the People are free to refile the charges using a long form information. People v. Quarles, supra ; People v. Nuccio, supra .

Motion to Dismiss the Disorderly Conduct Charge for Facial Insufficiency

In order to be facially sufficient, an information, together with any supporting depositions, must: (1) allege facts of an evidentiary character supporting or tending to support the charges; (2) provide reasonable cause to believe that the defendant committed the offenses charges in the information; and (3) include non-hearsay factual allegations, which, if true, establish every element of the offense charged. C.P.L. §§100.15(3) and 100.40(1)(a-c).

The "prima facie" case requirement for pleading purposes is a lower threshold or standard than the burden of proof beyond a reasonable doubt standard required at trial. See People v. Henderson, 92 NY2d 677, 680, 685 NYS2d 409 (1999). An accusatory instrument simply must allege the elements of the offenses charged and acts or conduct which would reasonably indicate the defendant's commission of such offenses. Therefore, as long as these basic requirements are met, accusatory instruments containing a recitation of factual allegations that appear to be "awkwardly" drawn or "bare boned" may still suffice for pleading purposes. [*5]See People v. Allen, 92 NY2d 378, 385, 681 NYS2d 216 (1998); People v. Love, 306 NY 18 (1953).

Defendant is charged with disorderly conduct under P.L. §240.20(5), which states that a person is guilty of such charge when, "with intent to cause public inconvenience, annoyance or alarm or recklessly creating a risk thereof, he obstructs vehicular or pedestrian traffic." "In order to establish a prima facie case of this offense an accusatory instrument must establish (1) that a defendant was observed (2) obstructing either pedestrian or vehicular traffic and (3) that the defendant engaged in this conduct with intent to cause public inconvenience, alarm or annoyance or that he recklessly created a risk of doing so." People v. Cohen, 6 Misc 3d 1019(A), 800 NYS2d 352 (NY Crim. Ct. 2005).

Under this statute, the proscribed conduct must involve situations which are "carried beyond the concern of the individual disputants to a point where they had become a potential or immediate public problem." People v. Munafo, 50 NY2d 326, 331, 428 NYS2d 924, 926-927 (1980). In deciding whether a defendant's conduct "carries public ramifications, courts are constrained to assess the nature and number of those attracted, taking into account the surrounding circumstances, including, of course, the time and the place of the episode under scrutiny." Id. However, an information "is not jurisdictionally infirm due to the absence of specific allegations concerning the precise number of pedestrians affected by [defendant's] conduct or the degree of inconvenience or annoyance experienced by such pedestrians, matters which [are] best left for the trial." People v. Jones, 13 Misc 3d 94, 95, 827 NYS2d 403, 404 (App. Term 1st Dept. 2006).

Here, the factual allegations in the accusatory instrument set forth that the deponent/arresting officer observed that on December 1, 2006, from 4:15 a.m. through 4:50 a.m., after yelling and cursing at the police officer, the defendant lied down on the pavement, blocking the front door of the police headquarters, and hindering the officers from having access to the door. In addition, the accusatory instrument sets forth that the defendant's conduct was done with the intent to cause public inconvenience, annoyance and alarm and recklessly creating a risk thereof.

Since the factual allegations set forth that the deponent/arresting officer observed the defendant's conduct, they also establish reasonable cause to believe the defendant committed the offense. Moreover, since the defendant allegedly blocked the front of the police headquarters, a public place, by lying on the pavement over a thirty-five minute time period, which hindered officers from having access to the door, this conduct, if true, involves a public [*6]inconvenience sufficient for pleading purposes to satisfy the statute.

A person acts "intentionally" with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. P.L. §15.05(1); People v. Hawkins, 1 Misc 3d 905(A), 781 NYS2d 627 (N.Y.City Crim. Ct. 2003). "Intent cannot be the subject of a non-hearsay evidentiary allegation unless there are facts from which intent may be inferred." Id. Intent may be implied from the defendant's conduct and/or the surrounding circumstances. See Id.; People v. Collins, 178 AD2d 789, 578 NYS2d 273 (3d Dept. 1991). Whether in fact the defendant's conduct, as described in the accusatory instrument, rises to the level of an intentional causing of public inconvenience by virtue of having obstructed pedestrian traffic is an issue for trial and cannot be appropriately determined within the context of a facial sufficiency motion. See People v. Cohen, supra ; People v. James, 7 Misc 3d 363, 793 NYS2d 871 (N.Y.City Crim. Ct. 2005).

In deciding a motion to dismiss, the Court is mindful that the standard for pleading a prima facie case is lesser than the heavy burden of proof beyond a reasonable doubt required at trial. People v. Henderson, supra . In addition, in assessing the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorable to the People. People v. Gibble, 2 Misc 3d 510, 773 NYS2d 499 (NY Crim. Ct. 2003). Using these standards, the allegations in the information, "given a fair and not overly restrictive or technical reading" are sufficient for pleading purposes to make out a prima facie case of disorderly conduct under P.L. §240.20(5). People v. Jones, supra , 13 Misc 3d at 94, 827 NYS2d at 404, citing People v. Casey, 95 NY2d 354, 360, 717 NYS2d 88 (2000). Accordingly, defendant's motion to dismiss the information pursuant to C.P.L. §170.30(1)(a) is denied.

Motion to Dismiss the Charges on Speedy Trial Grounds

Although the defendant requests a dismissal of the charges on speedy trial grounds, the affirmations in support of the motion to dismiss are devoid of supporting facts or legal arguments on this issue.

The People announced their readiness for trial on January 22, 2007, well within the ninety-day requirement of C.P.L. §30.30(1)(b). In addition, defendant has failed to establish that her defense has been impaired as the result of any delay in the proceedings. Accordingly, the motion to dismiss on speedy grounds is denied.

Motion to Dismiss the Charges in the Interests of Justice

Defendant has failed to show "the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice." C.P.L. §170.40(1). Accordingly, defendant's motion to dismiss the charges in the interests of justice pursuant to C.P.L. §170.40 is denied.

Motion for Discovery

Defendant's motion for discovery is granted to the extent that the People are directed to provide defendant with copies of the videotapes of the arrest, including those that depict the defendant while she remained at the Ossining Village Police facility after the arrest. Copies of the videotapes are to be provided to defendant's counsel prior to the date of the suppression hearings, giving sufficient time for preparation.

The People have complied with defendant's discovery demands in all other respects. The People acknowledge their ongoing duty to disclose exculpatory material under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) and People v. Fein, 18 NY2d 162, 272 NYS2d 753 (1966).

Motion to Suppress Physical Evidence and Statements, or Alternatively for Mapp and Huntley, Hearings

Defendant's motion for Mapp and Huntley hearings is granted. Defendant's motion to suppress statements and physical evidence is reserved pending the hearings.

Motions to Preclude Cross-Examination of Defendant as to Prior Bad Acts, Arrests or Convictions, and to Preclude People from Introducing Such Evidence in their Direct Case

Defendant's motion to preclude cross-examination of defendant as to her prior criminal history or bad acts is reserved pending a Sandoval hearing.

Defendant's motion to preclude the People from introducing evidence of defendant's prior bad acts in their direct case is denied as being premature. In the event the People seek to introduce such evidence, they must inform the defendant and request a hearing before doing so.

Motion to Reserve Rights to Renew Motions

Defendant's motion to reserve her rights to renew all motions is granted to the extent permissible under C.P.L. §255.20(3).

This matter is adjourned to August 13, 2007 at 4:00 p.m. for the Mapp and Huntley hearings. The Sandoval hearing will be scheduled prior to trial.

The foregoing constitutes the Decision and Order of the Court.

Dated:July 23, 2007

________________________________

HON. FRANCESCA E. CONNOLLY

Town Justice

ANTHONY M. GIORDANO, ESQ. [*7]

Attorney for Defendant

100 Executive Boulevard, Suite 205

Ossining, New York 10562

Shameika M. Taylor, Esq.

Assistant District Attorney

Office of the Westchester County District Attorney

25 Moore Avenue

Mount Kisco, New York 10549