People v Costa

[*1] People v Costa 2013 NY Slip Op 51402(U) Decided on August 26, 2013 Criminal Court, Bronx County Wilson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 26, 2013
Criminal Court, Bronx County

The People of the State of New York,

against

Anthony Costa, Defendant.



2012BX069478



For the People, Robert T. Johnson, District Attorney, Bronx County, by Michelle Villaronga, Esq., Assistant District Attorney.

For the Defendant, Steven Banks, Esq., Legal Aid Society, by Bridget McDevitt, Esq.

John H. Wilson, J.

By a superceding information dated March 15, 2013, Defendant is charged with one count each of Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (VTL Sec. 511(2)(A)(iv)), and one count of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (VTL Sec. 511(1)(a)). Each is an unclassified misdemeanor.

By motion dated February 25, 2013, Defendant seeks dismissal of all charges on the docket, asserting that the People's complaint is facially insufficient. Defendant also seeks suppression of all statements made to law enforcement personnel, as well as evidence of any prior bad acts or immoral conduct.

By a supplemental motion dated April 25, 2013, Defendant also seeks dismissal of the Criminal Court Complaint pursuant to CPL Sec. 30.30, asserting that the People have failed to comply with the time limitations imposed upon the prosecution of misdemeanors.

The Court has reviewed the Court file, the superceding complaint dated March 15, 2013, Defendant's motions, and the People's Responses dated March 15, 2013, and June 6, 2013. [*2]

For the reasons stated below, both motions to dismiss are denied. The People are charged with a total of 27 days to date in this matter.

The motion for a pre-trial hearing is granted, to the extent of ordering a hearing to determine if there was probable cause for Defendant's arrest and whether or not statements were taken in violation of Defendant's rights under the United States and New York Constitutions.

Whether or not the People can use any prior bad acts or immoral conduct against the Defendant is referred to the trial court.

FACTUAL STATEMENT

Pursuant to the superceding information, on or about December 7, 2013,[FN1] at approximately 2:46 AM, at the intersection of Bruckner Boulevard and Rawlins Avenue, Bronx, New York, which is alleged to be "a public roadway," Police Officer Dean Cassells observed the Defendant "seated behind the steering wheel and operating a 2002 Nissan." See, superceding information dated March 15, 2013, p 1.

The officer further asserts that "he obtained and read a teletype printout of the New York State Department of Motor Vehicles...which records were made and obtained in the regular course of business...and said records show that the defendant's license to operate a motor vehicle was suspended or revoked in that the defendant had in effect at least three or more suspensions on at least three or more dates for failure to answer, appear, or pay a fine." See, superceding information dated March 15, 2012, p 1.

The officer also states that "his basis for believing that the defendant knew or had reason to know that his license was suspended or revoked is...defendant's license was suspended for failure to answer a traffic summons, and all such summons have printed on them, if you do not answer this ticket by mail within fifteen (15) days, your license will be suspended." See, superceding information dated March 15, 2012, p 1 - 2.

On March 15, 2013, the People filed with the Court and served on the defense a Statement of Readiness, with a superceding information and a certified abstract of the Defendant's driving record. The abstract indicates that as of December 17, 2012, Defendant's license has been suspended a total of 9 times on 7 dates, with a total of $1,090.00 in judgment.

Several letters from the New York State Department of Motor Vehicles addressed to the Defendant, all dated prior to the date of Defendant's arrest, are also appended to the Statement of Readiness.

[*3]LEGAL ANALYSIS

(A) The People's superceding complaint is facially sufficient.

CPL Sec. 100.15 provides that every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986).

Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987).

On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court information are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 NY2d 103, 115, 512 NYS2d 652 (1986).

Applying these principles to the instant matter, the factual allegations contained in the superceding information before this Court are facially sufficient.

Defendant asserts that "the DMV mailing record cannot convert the hearsay in an accusatory instrument relevant to the required element of knowledge." See, Defendant's Memorandum of Law attached to his Motion dated February 25, 2013, p 9. In support of his position, Defendant cites People v. Brown, 31 Misc 3d 794 (Cty Ct, Rochester, 2011).

Defendant's reliance upon the 2011 Brown decision is misplaced. In fact, the case most analogous to the present application is People v. Brown, 15 Misc 3d 1143(A) (Crim Ct, NY Cty 2007), p 1. There, a "certified abstract, which sets forth each of the foundational requirements of the business records exception to the hearsay rule, properly serves to establish the fact of defendant's suspension by nonhearsay allegations."

Further, where, as here, the suspensions are predicated upon the Defendant's failure to pay summonses, "the officer's factual basis for alleging that defendant had reason to know of her suspension is within the personal knowledge of the officer...such officer does have direct knowledge of the warning printed on every form summons, inasmuch as it is among the routine duties of the (NYPD) to issue such summonses...the issuance of such a summons provides reasonable cause to believe that its recipient had reason to know of the license consequences of noncompliance." 15 Misc 3d 1143(A), p 3. [*4]

Based upon the reasoning of the 2007 Brown decision, this Court declines to follow the 2011 Brown case, for the reason stated in People v. Patten, 32 Misc 3d 440, 444, 927 NYS2d 542 (City Court, Long Beach, 2011); "while ... allegations of fact cannot be conclusory in nature...they need not necessarily be admissible at trial and thus, an evidentiary foundation need not be laid for the purposes of the supporting deposition." (Citations omitted.) See, also, People v. Casey, 95 NY2d 354, 360, 717 NYS2d 88 (2000) (allegations that give a defendant sufficient notice to prepare a defense and are detailed enough to prevent a defendant from being tried twice for the same offense should be given a fair and not overly restrictive or technical reading).

The superceding information states that the officer's "basis for believing that the defendant knew or had reason to know that his license was suspended or revoked is...defendant's license was suspended for failure to answer a traffic summons, and all such summons have printed on them, if you do not answer this ticket by mail within fifteen (15) days, your license will be suspended." See, superceding Criminal Court complaint dated March 15, 2012, p 1 - 2. When coupled with the certified copy of the DMV abstract of Defendant's driving record, a business record of the Department of Motor Vehicles, the superceding information is facially sufficient in all respects.

The People provided several letters from the New York State Department of Motor Vehicles, all addressed to the Defendant, and all dated prior to the date of Defendant's arrest, with their Statement of Readiness dated March 15, 2013. These letters may be necessary evidence to establish Defendant's knowledge of his suspensions at trial. For the purpose of conversion, however, where a certified copy of the DMV abstract has been provided, these letters are superfluous.

Therefore, Defendant's motion to dismiss for facial insufficiency is denied.

(B) The People's time to prosecute this matter under CPL Sec. 30.30 has not yet expired.

The top count of the superceding information dated March 15, 2013, as well as the initial complaint dated December 7, 2012, is Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree in violation of VTL Sec. 511(2)(A)(iv), an unclassified misdemeanor. Thus, the 90 day time limitation of CPL Sec. 30.30(1)(b) in applicable. See, People v. Strafer, 10 Misc 2d 1072(a), 814 NYS2d 564 (Crim. Ct., Kings Cty 2006) and cases cited therein.

As discussed above, Defendant's motion to dismiss the superceding information as facially insufficient has been denied. Thus, his motion to dismiss pursuant to CPL 30.30 on the ground of facial insufficiency is rendered moot.

In any event, "replacement of one accusatory instrument which is defective by another involving the same crime does not affect time computations...the fact that a superceding instrument is filed does not automatically render the entire period prior thereto as includable." See, People v. Odoms, 143 Misc 2d 503, 504, 541 NYS2d 720 (Crim Ct, Kings Cty, 1989). [*5]

Given that the complaint is facially sufficient, this Court will review whether any time is charged to the People pursuant to CPL Sec. 30.30 for any other reasons.

Defendant was arrested in the instant matter on December 7, 2012, and arraigned on the same day. Defendant was released in his own recognizance, and the matter was adjourned for conversion to January 31, 2013.

Prior to January 31, 2013, the People filed a Statement of Readiness, which was served on the defense and filed with the Court on January 4, 2013. That Statement of Readiness included a certified copy of Defendant's DMV abstract.

Thus, excluding the day of arraignment from our calculations (See, People v. Stiles, 70 NY2d 765, 520 NYS2d 745 (1987); People v. Eckert, 117 Misc 2d 504, 458 NYS2d 494 (City Ct., Syracuse, 1983)), the People are only charged with 27 days for the time between December 7, 2012 and January 31, 2013. See, People v. Kendzia, 64 NY2d 331, 337, 486 NYS2d 888 (1985) ("there must be a communication of readiness by the People which appears on the trial court's record. This requires either a statement of readiness by the prosecutor in open court...or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record..." (Emphasis added). See, also People v. Perre , 172 Misc 2d 976, 979, 660 NYS2d 632 (S Ct., NY Cty, 1997) ("Statements (of readiness) were effective when made and filed with the court").

On January 31, 2013, Defendant requested a schedule for the filing of his omnibus motion. Since all subsequent adjournments have been for the purpose of the consideration of Defendant's omnibus motion, and his subsequent motion to dismiss, all further time is excluded under CPL Sec. 30.30(4)(a).

Since the People are charged with a total of 27 days to date in this matter, their time to prosecute this matter has not yet expired. Therefore, Defendant's motion to dismiss pursuant to CPL Sec. 30.30 is denied.

OTHER RELIEF REQUESTED

Defendant has moved for suppression of any statements made at the time of his arrest.

This motion is granted to the extent of ordering a pre-trial hearing at which the issue of whether or not said statements were taken in violation of Defendant's rights under the United States and New York State Constitutions will be considered. See, People v. Huntley, 15 NY2d 72, 255 NYS2d 838 (1965).

Defendant is also granted a pre-trial hearing at which the issue of whether or not there was probable cause for his arrest will be considered. See, People v. Dunaway, 442 US 200, 99 S Ct 2248, 60 L Ed2d 824 (1979) [*6]

Defendant seeks suppression of any prior bad acts or immoral conduct. A hearing to determine whether or not any evidence of prior bad acts or immoral conduct by the Defendant may be used against Defendant will be conducted by the trial judge, prior to any trial of this matter.

All other arguments and requests for any additional hearings and relief that have been advanced by Defendant have been reviewed and rejected by this Court as being not applicable, or without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Bronx, New YorkAugust 26, 2013

_______________________________Hon. John H. Wilson, JCC Footnotes

Footnote 1: This appears to be a typographical error in the superceding information, since the original complaint reports the date of occurrence as December 7, 2012.