People v Peterson

[*1] People v Peterson 2017 NY Slip Op 50694(U) Decided on May 8, 2017 City Court Of Poughkeepsie, Dutchess County Mora, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 8, 2017
City Court of Poughkeepsie, Dutchess County

The People of the State of New York,

against

Chynna Peterson, Defendant.



CR-5400-16



For Defendant:

Jason N. Richland, Esq., Assistant Public Defender

Dutchess County Public Defender

22 Market Street, 4th Floor

Poughkeepsie, NY 12601

For the People:

Ryan J. LeGrady, Esq., Assistant District Attorney

Dutchess County District Attorney

236 Main Street

Poughkeepsie, NY 12601
Frank M. Mora, J.

Defendant has moved by way of a Notice of Motion, dated February 17, 2017, seeking various forms of relief. Defendant's motion is supported by the affirmation of Jason N. Richland, Esq., Assistant Public Defender, dated February 17, 2017. The People have filed an "Affirmation in Answer to Defendant's Notice of Motion" of Ryan J. LeGrady, Esq., Assistant District Attorney, dated February 28, 2017, in opposition to the motion. Defendant is charged under docket number CR-5400-16 with aggravated unlicensed operation of a motor vehicle in the third degree in violation of Vehicle and Traffic Law § 511(1)(a), an unclassified misdemeanor, and speeding in violation of Vehicle and Traffic Law § 1180(D), a traffic infraction. Defendant is charged under docket number CR-6533-16 with aggravated unlicensed operation of a motor vehicle in the third degree in violation of Vehicle and Traffic Law § 511(1)(a), an unclassified misdemeanor, and disobeying a traffic control device in violation of Vehicle and Traffic Law § 1110(A), a traffic infraction. Defendant is charged under docket number CR-242-17 with aggravated unlicensed operation of a motor vehicle in the third degree in violation of Vehicle and Traffic Law § 511(1)(a), an unclassified misdemeanor, and unlicensed operation of a motor vehicle in violation of Vehicle and Traffic Law § 509(1), a violation. Now having duly deliberated on the motion and the People's opposition, the Court hereby finds and determines the matter as follows:

1. That branch of defendant's motion seeking dismissal of the accusatory instrument charging him with aggravated unlicensed operation of a motor vehicle in the third degree in violation of Vehicle and Traffic Law § 511(1)(a) on grounds that the complaint is facially insufficient, is denied as to docket numbers CR-5400-16 and CR-242-17, but granted as to docket number CR-6533-16.[FN1]

The rule is that an accusatory instrument will be dismissed as facially insufficient if it fails to allege non-hearsay facts of an evidentiary nature that support or tend to support each and every element of the offense charged and the defendant's commission thereof. C.P.L.§§ 100.15 (3); 100.40 (1)(c); People v. Alejandro, 70 NY2d 133 (1987).An information is sufficient on its face only if it contains non-hearsay factual allegations which, if true, establish every element of the offense and provide reasonable cause to believe the defendant committed the offense charged. C.P.L. §§ 100.15(3); 100.40 (1)(b),(c); People v. Casey, 95 NY2d 354 (2000). To be facially sufficient, an accusatory instrument need only establish a prima facie case and it need not establish guilt beyond a reasonable doubt. People v. Henderson, 92 NY2d 677 (1999); People v. Moncayo, N.Y.L.J., April 10, 1997, at 29, Col 4 [App Term, 2d & 11th Jud. Distr.]. The prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Henderson, supra at 680.

A. Docket No. CR-6533-16 - Long Form charging defendant with AUO 3rd is dismissed.

The long form complaint charging defendant with aggravated unlicensed operation of a motor vehicle in the third degree is dismissed as facially insufficient. The People filed a copy of the defendant's driver's abstract record together with a supporting affidavit. It is not a certified driver's abstract and the affidavit relies upon hearsay. As such, since the complaint relies upon hearsay and fails to include a certified copy of the defendant's abstract from the New York State Department of Motor Vehicles to support the non-hearsay allegations, it is facially insufficient and subject to dismissal. People v. Hansen Frias-Acevedo, 27 Misc 3d 889 (New York County 2010); People v. Clinkscales, 3 Misc 3d 333 (1st Dist. 2004)(a police officer's direct attestations of a defendant's driving record based upon an electronic review of DMV records must be supported by a certified record); People v. Rodriguez, 165 Misc 2d 684 (Queens County 1995)(Court found the information, along with the supporting deposition, namely a certified copy of the defendant's "Abstract of Driving Record," to meet the requirements for facial sufficiency); People v. Blake, 154 Misc 2d 660 (Kings County 1992); People v. Fontanez, 48 Misc 3d 1220(A) (Poughkeepsie City Court 2015).

Failure by the People to file a certified copy of the defendant's Department of Motor Vehicles driver abstract with the misdemeanor complaint providing non-hearsay allegations of the defendant's suspensions to support Officer Dinonno's reading of defendant's driving record is fatal. People v. Pierre, 157 Misc 2d 812 (New York County 1993). In People v. Fontanez, the material holding was that the accusatory instrument relied upon hearsay in setting forth suspension dates and scoffs, thereby making it facially insufficient. Fatal to the People's case there was the failure to file a certified copy of the defendant's Department of Motor Vehicles [*2]driver's abstract to support with non-hearsay allegations the officer's reading of that driver's abstract setting forth the elements of the V.T.L. § 511(1)(a) charge - not that the "defendant knew or should have known." People v. Fontanez, supra; People v. Pierre, 157 Misc 2d 812 (New York County 1993).

It is undisputed that Officer DiNonno is not the source providing the details of the suspension information. Therefore, since the misdemeanor complaint relies upon hearsay to make out the elements, docket number CR-6533-16 charging the defendant with aggravated unlicensed operation of a motor vehicle in the third degree [V.T.L. § 511(1)(a)] must be dismissed. C.P.L. §§ 100.15; 100.40. People v. Fontanez, supra [FN2] ; People v. Blake, 154 Misc 2d 660, 663 (Kings County 1992); see, People v. Mayes, 19 Misc 3d 48, 49 (App. Term 2d Dept. 2008)[where two informations and supporting documents charging defendant with aggravated unlicensed operation of a motor vehicle in the second degree had included certified copies of the DMV driver abstract, the People satisfied the statutory standards for facial sufficiency under C.P.L. §§ 100.15, 100.40(1). The Court also found that the People proved the element of "knowledge" at trial in that a certified driving abstract was entered into evidence]; People v. Clinkscales, supra; see, People v. Hansen Frias-Acevedo, supra; People v. Rodriguez, supra. In short, a certified abstract or other non-hearsay affidavit from the Department of Motor Vehicles attesting to the suspensions on defendant's license must accompany the misdemeanor complaint charging Vehicle and Traffic Law §511 in order to survive a motion to dismiss for facial insufficiency, and same was never filed by the People in this case.

Defendant's argument that the charge should be dismissed because, "[T]he prosecution is relying on hearsay to establish that the defendant knew or should have known that his license was suspended," [Richland affirmation, dated February 16, 2017, ¶ 15 (emphasis added)], is specious. Proof of defendant's scienter is a question for the trier of fact (at a trial) in this particular case. People v. Gabriel, 164 Misc 2d 473 (Queens County 1995); People v. Etienne, 192 Misc 2d 90 (Dist. Ct. Nassau County 2002); compare, People v. Branch, 44 Misc 3d 1224(A)(Kings County 2014). The burden of proof the People have to meet for an accusatory instrument to be facially sufficient is not the same as the burden of proof that the People must establish at trial. See, People v. Rivera, 32 Misc 3d 1209(A)(City of New York 2011); People v. Rodriguez, supra 687-88; People v. Howell, 158 Misc 2d 653, 655.

In addition to being dismissed for facial insufficiency, the complaint is also dismissed as duplicitous. "There can only be one criminal action for each set of criminal charges brought against a particular defendant." People v. Lomax, 50 NY2d 351(1980). This Court's records reveal that on January 20, 2017, defendant was arraigned on the simplified traffic information ("STI") filed on December 12, 2016, charging him with aggravated unlicensed operation of a motor vehicle in the third degree [V.T.L.§ 511(1)(a)] - not the long form information - which [*3]was filed with the Court four days after the STI was filed, on December 16, 2016.Since the People can only prosecute based upon one accusatory instrument, and the one filed first governs, the long form must be dismissed. C.P.L. § 1.20(17). The Court of Appeals in Lomax reasoned that, "obviously, if there can be only one criminal action for any given set of charges, there also can be only one date which marks the commencement of the action, the date which the first accusatory paper is filed." People v. Lomax, supra at 356.

B. Docket No. CR-6533-16 - Simplified traffic information charging defendant with AUO 3rd survives.

Here, defendant had been arraigned on the simplified traffic information, because the filing of the long form several days later did not supersede the filing of the simplified traffic information charging the defendant with aggravated unlicensed operation of a motor vehicle. C.P.L. §100.50; People v. Greco, 12 Misc 3d 83 (App. Term 2d Dept. 2006)(C.P.L. does not provide for the filing of a "superseding" simplified traffic information. Only informations, prosecutor's informations and misdemeanor complaints may be superseded by another information or prosecutor's information); People v. Baron, 197 Misc 2d 59 (App. Term 2d Dept. 1980)(a simplified traffic information is not an information and can only be amended to cure amendable defects, but cannot be superseded by an information). Therefore, the long form must be dismissed as duplicitous, while the simplified traffic information survives. See, People v. Lomax, supra; People v. Connors, 49 Misc 3d 1213(A)(Suffolk County Dist. Ct. 2015).

Turning to the relief set forth in the defendant's motion as it pertains to the remaining charges that are before this Court [aggravated unlicensed operation of a motor vehicle in the third degree in violation of Vehicle and Traffic Law § 511(1)(a) and speeding in violation of Vehicle and Traffic Law § 1180(D) under docket number CR-5400-16; disobeying a traffic control device in violation of Vehicle and Traffic Law § 1110(A) under docket number CR-6533-16; aggravated unlicensed operation of a motor vehicle in the third degree in violation of Vehicle and Traffic Law § 511(1)(a), and unlicensed operation of a motor vehicle in violation of Vehicle and Traffic Law § 509(1) under docket number CR-242-17], the Court finds as follows:

2. That branch of defendant's motion that seeks discovery and inspection is granted to the extent that there exists unanswered discovery demands. The People are reminded of their continuing obligation to comply with Criminal Procedure Law § 240.60.

3. That branch of the defendant's motion that seeks compliance by the People pursuant to Brady v. Maryland, 373 U.S. 83 (1963) is granted, and the People are reminded of their duty to provide the defense with all material required pursuant to Brady and its progeny, including material impeachment evidence. Brady v. Maryland, 373 U.S. 83 (1963).

4. That branch of defendant's motion which seeks to preclude the People from cross-examining the defendant at trial relative to any prior criminal history or bad acts is denied. However, a hearing shall be held immediately prior to trial to determine the admissibility of such evidence in advance of trial [People v. Sandoval, 34 NY2d 271, 378 (1974)] with the consent of the People. LeGrady affirmation, dated February 28, 2017, ¶19. As well, the People are directed to notify the defendant prior to said hearing of all specific instances of prior uncharged criminal, vicious, or immoral conduct which the prosecutor intends to offer at trial, and to comply with the statutory notice requirements pursuant to C.P.L. § 240.43; People v. Ventimiglia, 52 NY2d 350 (1981).

5. The defendant's request that the People be prohibited from introducing evidence that the defendant committed any other crime on its direct or rebuttal case is denied at this time. The People are directed to provide notice of uncharged Molineux crimes which the People intend to use at trial disclosing this information to the defendant and seek a ruling from the Court prior to presenting evidence in their case in chief of other crimes committed by the defendant in accordance with People v. Molineux, and the cases descending therefrom. People v. Molineux, 168 NY 264 (1901).

6. That branch of defendant's motion that seeks leave to file additional motions is granted, to the extent that they are filed in accordance with C.P.L. § 255.20.

SO ORDERED.

Dated: May 8, 2017

Poughkeepsie, New York

FRANK M. MORA

CITY COURT JUDGE Footnotes

Footnote 1:Defendant's motion fails to specify which of the three separate counts charging him with aggravated unlicensed operation of a motor vehicle in the third degree that he seeks to have dismissed. However, the only long form filed was for docket number CR-6533-16.

Footnote 2:holding that if the People fail to provide a certified abstract of the defendant's driving record, or other supporting deposition from the New York State Department of Motor Vehicles providing non-hearsay allegations to support the charge, and the defendant moves to dismiss the misdemeanor complaint charging him with aggravated unlicensed operation of a motor vehicle on the grounds that the accusatory instrument is defective, the motion must be granted. Id.; Also see decision and order of People v. Colleen Clarke, dated January 8, 2016 (Docket No. 11-59677) (Poughkeepsie City Court).