People v Kelly

[*1] People v Kelly 2020 NY Slip Op 50859(U) Decided on July 27, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2020
District Court of Nassau County, First District

The People of the State of New York, Plaintiff,

against

Robert Kelly, Defendant.



CR-029068-19NA



Madeline Singas, Nassau County District Attorney

Attorney for Defendant: Susan Carman, Esq.
Andrew M. Engel, J.

Papers Submitted:

Notice of Motion 1

Affirmation in Support 2

Affirmation in Opposition. 3

Memorandum of Law in Opposition 4

Reply Affirmation 5

The Defendant is charged with leaving the scene of an incident involving personal injury without reporting, driving while intoxicated, reckless driving, reckless endangerment in the second degree and assault in the third degree, in violation of VTL § 600(2), 1192(3), and 1212, and PL § 120.20 and 120.00(2), respectively.

The Defendant now moves for an order dismissing all charges, pursuant to CPL § 100.50, 170.30, and 170.35; suppressing the Defendant's alleged refusal to submit to a chemical test, statements allegedly made by the Defendant, the identification of the Defendant and all other evidence in this case, or, in the alternative, directing that a Dunaway/Mapp/Huntely/Wade/Payton [FN1] hearing be held; and precluding the People from asking questions or presenting evidence concerning the Defendant's arrest and conviction record, or any immoral, vicious, or other bad acts, or, in the alternative directing that a Sandoval/Molineaux [FN2] hearing be held.

[*2]DISMISSAL

Defendant's Argument

The Defendant avers that he was arraigned in this matter, on November 18, 2019, on a misdemeanor Information filed by the People, charging leaving the scene of an incident involving personal injury [VTL § 600(2)], driving while intoxicated [VTL § 1192(3)] and reckless driving [VTL § 1212]. The accusatory instrument was accompanied by four (4) supporting depositions of Police Officer A. Buonadonna dated November 18, 2019, two (2) supporting depositions of Cesar Armando dated November 17, 2019 and one (1) supporting deposition of Jefferson Monzon dated November 17, 2019.

On February 25, 2020, the Defendant was arraigned in this matter on an accusatory instrument bearing the heading "PROSECUTOR'S INFORMATION," charging reckless endangerment in the second degree [PL § 120.20] and assault in the third degree [PL § 120.20(2)].This instrument was accompanied by a supporting deposition of Jefferson Monzon dated January 21, 2020.

The Defendant acknowledges the fact that the court's file contains a Felony Complaint filed by the People originally charging the Defendant with vehicular assault in the second degree, along with leaving the scene of an incident involving personal injury without reporting, driving while intoxicated and reckless driving, accompanied by three Simplified Traffic Informations also charging the latter three offenses. The court notes that the charge of vehicular assault in the second degree appears to have been stricken from the Felony Complaint with the use of a pen, leaving the other three charges intact. The Defendant, nevertheless, alleges that he was never arraigned upon any of these instruments.

With this predicate, the Defendant argues that the instrument entitled "PROSECUTOR'S INFORMATION" was filed "at the district attorney's own instance," as set forth in CPL § 100.10(3)(c), pursuant to the provisions of CPL § 100.50(2) According to the Defendant, the arraignment of the instrument entitled "PROSECUTOR'S INFORMATION" "results in the dismissal of the original information, by operation of law." (Carman Affirmation 4/14/20, ¶ 9)

In the alternative, the Defendant argues that the original accusatory instrument upon which he says he was arraigned must be dismissed because it is facially insufficient. Specifically, the Defendant alleges that the instrument is not supported by non-hearsay allegations. The Defendant avers that, with regard to the charge of leaving the scene of an incident involving personal injury without reporting, "the accusatory instrument does not contain any allegations from which it can be inferred that the Defendant knew or should have known that personal injury had occurred to another." (Carman Affirmation 4/14/20, ¶ 31) With regard to the charge of reckless driving, the Defendant claims that "such charges may not be premised upon "'a single violation of the rule of the road'—i.e., running a red light." (Carman Affirmation 4/14/20, ¶ 33) Similarly, with regard to the charge of driving while intoxicated, the Defendant argues that "there is no corroborating affidavit from the officer who observed the Defendant's alleged clues of intoxication or admission of operation." (Carman Affirmation 4/14/20, ¶ 38) It is the Defendant's position that Officer Buonadonna's supporting depositions fail to provide legally sufficient allegations of intoxication or operation.

The Defendant further argues that the instrument entitled "PROSECUTOR'S INFORMATION" must also be dismissed. According to the Defendant, the court may not consider the new supporting deposition accompanying the second accusatory instrument and that the factual allegations of the original accusatory instrument and its accompanying supporting [*3]depositions are not legally sufficient to support the charges in the instrument entitled "PROSECUTOR'S INFORMATION," citing to CPL § 170.35. In support thereof, the Defendant argues that running a single red light, plus intoxication, without more, does not establish recklessness sufficient to support the charges of reckless endangerment in the second degree and assault in the third degree. Additionally, the Defendant argues that allegations of bruising and substantial pain are insufficient to support the assault charge.

People's Argument

The People also aver that the Defendant was arraigned on November 18, 2019, on a misdemeanor Information charging him with leaving the scene of an incident involving personal injury without reporting, driving while intoxicated and reckless driving. In conflict with that statement, however, the People also aver that on December 3, 2019 the court "dismissed counts 2,3 and 4, on the 'Felony Complaint' and converted the Simplified Traffic Information's (sic) as Counts 5, 6 and 7." (Singh Affirmation 5/29/2020, ¶ 21)

The People further aver that on February 5, 2020 they filed a Prosecutor's Information charging the Defendant with reckless endangerment in the second degree and assault in the third degree, with a new supporting deposition of Jefferson Monzon. The Defendant was arraigned on that instrument on February 25, 2020.

With this predicate, the People argue that the Simplified Traffic Informations charging leaving the scene of an incident involving personal injury without reporting, driving while intoxicated and reckless driving can never be superseded by a Prosecutor's Information; that the Defendant incorrectly relies upon CPL § 100.50, which only applies to Informations and Prosecutor's Informations; and, therefore, the Simplified Traffic Informations are not dismissed as a matter of law. Relying on People v. Towey, 52 Misc 3d 471, 28 N.Y.S.3d 838 (Dist. Ct. Nassau Co. 2016), the People argue that it is permissible to have multiple types of accusatory instruments on the same docket and that Simplified Traffic Informations and Prosecutor's Informations may co-exist within the same docket.

The People further argue that the added charges of reckless endangerment in the second degree and assault in the third degree are supported by non-hearsay allegations providing reasonable cause to believe that the Defendant committed these crimes. In so doing, the People point to the allegations that the Defendant, while intoxicated, drove through a red light, while a pedestrian was crossing the street with the right of way. The People suggest that "[t]his clearly shows the Defendant acted recklessly as the Defendant's operation of the vehicle constituted a gross deviation from the standard of conduct any reasonable person would have, in that they would slow down and stop their vehicle at an approaching intersection, specifically one where their right of way indicated a red light." (Memorandum of Law 5/29/2020, p. 10) The People further argue that the allegations made by Mr. Monzon, of bruising, body soreness and substantial pain, sufficiently allege a physical injury supporting the charge of assault in the third degree.

Similarly, the People argue that the "court information upon which defendant was arraigned meets the requirements for facial sufficiency." (Memorandum of Law 5/29/2020, p. 11) In support thereof, the People then argue that the Simplified Traffic Informations charging driving while intoxicate, leaving the scene of an accident involving personal injury and reckless driving "substantially conform to the requirements set forth by the Commissioner of Motor Vehicles," (Memorandum of Law 5/29/2020, p. 13) and are accompanied by supporting depositions of an officer who recounts the police department's investigation and eyewitnesses.

[*4]Decision

Before addressing the legal issues raised by this motion, there needs to be a clarification of the procedural history which brings us here. It is important to know upon which accusatory instruments the Defendant is being prosecuted, for the court to be able to address the legal and facial sufficiency of same.

That both parties allege, at one point or another, that the Defendant was arraigned on a Misdemeanor Information, does not make it so. In fact, upon a review of the court's file in this matter, the filings with the Uniform Case Management System ("UCMS") and any other documentation the parties chose to submit to the court, it does not appear that the Defendant was arraigned on an Information.

The court notes that the Information which the Defendant annexes to his motion papers as Exhibit A is not stamped as filed with the court, does not bear a Docket Number, nor is it subscribed or witnessed. It is a document that the People provided in their voluntary disclosure packet. Additionally, neither the Defendant nor the People have provided the court with the minutes from the time of the Defendant's arraignment stating that the Defendant was being arraigned on an Information. Moreover, there is neither an original nor a copy of any Information in the court's file; and, no such Information was filed and logged into the court system in UCMS.

What was filed with the court, prior to the Defendant's arraignment, and contained in the court's file and in UCMS, is a Felony Complaint, stamped "ORIGINAL," charging vehicular assault in the second degree, along with leaving the scene of an incident involving personal injury without reporting, driving while intoxicated and reckless driving. Additionally, affixed to this Felony Complaint are three Simplified Traffic Informations also charging the latter three offenses, along with the supporting depositions of Officer Buonadonna, Mr. Monzon and Mr. Armando. The charge of vehicular assault in the second degree is stricken out by hand.

On December 3, 2019, the first appearance following the Defendant's arraignment, Defendant told the court that he was never arraigned on the felony or the Felony Complaint and made specific reference to the fact that the felony had been crossed out by hand. No one mentioned, or provided the court with, an Information at that time. As a consequence, the People made an oral application to dismiss the Vehicle and Traffic Law offenses as set forth in the Felony Complaint, pursuant to CPL § 170.30(1)(f), and indicated their intention to prosecute these offenses on the Simplified Traffic Informations which had been filed prior to arraignment. The Defendant did not object to this application; and, in fact, the Defendant's response to the court granting same was, "Thank you." (Transcript, 12/3/19, p. 3 l. 1)

At the next conference, held January 2, 2020, the People confirmed that it was never their intention to charge the Defendant with a felony and that the felony charge stated in the filed Felony Complaint was stricken prior to any arraignment. With that representation, the court stated on the record:

So, I'm going to remove the felony complaint from the file docket, I have just done that, that—in fact, hand it back to me please. I am putting a big X through it and I am initialing each page. So we're left with just the three simplified traffic informations, okay. (Transcript 1/2/2020, p. 3 l. 16-21)

In response, once again, the Defendant made no mention of an Information and, instead, stated, "Yes, your Honor, thank you." (Transcript 1/2/2020, p. 3 l. 22)

On February 5, 2020 the People filed the accusatory instrument titled "PROSECUTORS' [*5]INFORMATION" which has been discussed at length hereinabove. The Defendant was arraigned on those charges on February 25, 2020.

As the Defendant correctly points out, in People v. Serrano, 53 Misc 3d 67, 72, 40 N.Y.S.3d 706, 709, under circumstances strikingly similar to those presented herein, the court recognized that " 'there can be only one criminal action for any given set of charges brought against a particular defendant' (People v. Lomax, 50 NY2d 351, 356, 428 N.Y.S.2d 937, 406 N.E.2d 793 [1980]. '[I]f more than one accusatory instrument is filed in the course of the action, it commences when the first such instruments is (sic) filed.' (CPL 1.20[17])."

In Serrano, supra., "the simplified traffic information charging defendant with driving while intoxicated per se was stapled to a misdemeanor information charging him with the same offense. Similarly, the simplified traffic information charging defendant with common-law driving while intoxicated was stapled to a misdemeanor information charging that offense." Serrano, id. at 68, 40 N.Y.S.3d 706, 707. The Informations were signed on September 28, 2013 and alleged that the date of incident was September 27, 2013 at 10:22 p.m. The Simplified Traffic Informations alleged that the date of incident was September 28, 2013 at 12:54 a.m. All of these instruments appeared to have been filed contemporaneously.

The question before the court was, on which accusatory instruments was the Defendant arraigned and being prosecuted. Noting that the chemical breath test in that case was conducted approximately one hour before the date and time of incident listed in the Simplified Traffic Informations, that the misdemeanor Informations contained the correct date and time of incident, and that the arraignment judge had made reference to the defendant's speed, which was only alleged in the misdemeanor Informations, the court held:

Consequently, defendant was arraigned, and had to have been prosecuted on, the misdemeanor informations (see People v. Connors, 49 Misc 3d 1213[A], 2015 NY Slip Op. 51608[U], 2015 WL 6875482 [Suffolk Dist. Ct. 2015] [the court determined that the defendant was being prosecuted via misdemeanor informations, where the arraignment court specifically noted that the defendant's blood alcohol content was .14, an allegation that appeared only in the misdemeanor informations, and not in the contemporaneously filed simplified traffic informations]). id. at 73, 40 N.Y.S.3d 706, 710.

In the matter sub judice, as detailed hereinabove, at the time of the Defendant's arraignment, the only accusatory instruments filed with the court, and, therefore before the court, were the Felony Complaint, containing the felony charge of vehicular assault in the second degree, which was stricken out by hand and which the People acknowledge they did not intend to prosecute, and the charges of leaving the scene of an incident involving personal injury without reporting, driving while intoxicated and reckless driving, plus the Simplified Traffic Informations charging the latter three offenses. Under these circumstances, given the fact that a Felony Complaint "is a verified written accusation by a person, filed with a local criminal court charging one or more other persons with the commission of one or more felonies[,]" See: CPL § 100.10(5), the Defendant could not be arraigned or prosecuted on the Felony Complaint filed by the People, which only contained misdemeanors. As a consequence, it is clear that, as to the charges of leaving the scene of an incident involving personal injury without reporting, driving while intoxicated and reckless driving the Defendant was arraigned and is being prosecuted on the Simplified Traffic Informations.

Turning to the accusatory instrument with the heading "PROSECUTORS' INFORMATION," the Defendant is correct in asserting that where a proper Prosecutor's [*6]Information is filed, in circumstances such as these, the Prosecutor's Information would have to be dismissed. See: CPL §§ 100.10(3), 100.50(2), People v. Williams, 32 Misc 3d 135(A), 936 N.Y.S.2d 61 (App. Term 9th & 10th Jud. Dists. 2011); People v. Baron, 107 Misc 2d 59, 438 N.Y.S.2d 425 (App. Term 9th & 10th Jud. Dists. 1980); People v. Lights, 63 Misc 3d 430, 93 N.Y.S.3d 829 (City Ct. Monroe County 2019) As noted in the Lights, id. at 432-433, 93 N.Y.S.3d 829-830, "by their terms [CPL §§ 100.50(1) and 100.50(2)] apply only to informations or superseding prosecutor's informations, and do not apply to misdemeanor complaints or simplified traffic informations." (italics in original)] That the People, in the matter before this court, erroneously titled their accusatory instrument charging reckless endangerment in the second degree and assault in the third degree a "PROSECUTORS' INFORMATION," however, neither controls nor determines the issues before the court.

As the court in People v. Towey, 52 Misc 3d 471, 476, 28 N.Y.S.3d 838, 842 (Dist. Ct. Nassau Co. 2016, which the People themselves cite, pointed out, the label at the top of the document does not control, "it is the form and substance of the accusatory instrument that determine how, and whether, it can be used (see People v. Kalin, 12 NY3d 225, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009]; People v. Casey, 95 NY2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2006])." In similar fashion, the Court of Appeals recognized that, "Title [of an accusatory instrument] then cannot be dispositive when it is the legislature's intention that no single part of the form be dispositive. It would be illogical, then, to find that the title of the form governs over its substance (citations omitted)." People v. Fernandez, 20 NY3d 44, 50, 956 N.Y.S.2d 443,447 (2012) See also: People v. Ferro, 22 Misc 3d 7, 871 N.Y.S.2d 814 (App. Term 9th & 10th Jud. Dists. 2008)

Looking at the substance of the document the People have labeled a Prosecutor's Information, CPL § 100.10(3), in pertinent part, defines a Prosecutor's Information as:

a written accusation by a district attorney, filed with a local criminal court, either (a) at the direction of a grand jury pursuant to section 190.70, or (b) at the direction of a local criminal court pursuant to section 180.50 or 180.70, or (c) at the district attorney's own instance pursuant to subdivision two of section 100.50, or (d) at the direction of a superior court pursuant to subdivision one-a of section 210.20, charging one or more persons with the commission of one or more offenses, none of which is a felon.

CPL § 100.35 further mandates, in pertinent part, that: A prosecutor's information must contain the name of the local criminal court with which it is filed and the title of the action, and must be subscribed by the district attorney by whom it is filed. Otherwise it should be in the form prescribed for an indictment, pursuant to section 200.50, and must, in one or more counts, allege the offense or offenses charged and a plain and concise statement of the conduct constituting each such offense.

In contrast, CPL § 100.10(1), in pertinent part, defines an Information as "a verified written accusation by a person, filed with a local criminal court, charging one or more other persons with the commission of one or more offenses, none of which is a felony." CPL § 100.15, in pertinent part, then mandates:

1. An information, must each specify the name of the court with which it is filed and the title of the action, and must be subscribed and verified by a person known as the 'complainant.' The complainant may be any person having knowledge, whether personal or upon information and belief, of the commission of the offense or offenses charged. [*7]Each instrument must contain an accusatory part and a factual part. The complainant's verification of the instrument is deemed to apply only to the factual part thereof and not to the accusatory part.2. The accusatory part of each such instrument must designate the offense or offenses charged. As in the case of an indictment, and subject to the rules of joinder applicable to indictments, two or more offenses may be charged in separate counts. Also as in the case of an indictment, such instrument may charge two or more defendants provided that all such defendants are jointly charged with every offense alleged therein.3. The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges. Where more than one offense is charged, the factual part should consist of a single factual account applicable to all the counts of the accusatory part. The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief. Nothing contained in this section, however, limits or affects the requirement, prescribed in subdivision one of section 100.40, that in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions.

In further compliance with CPL § 100.40, an Information will be facially sufficient when: (b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof.

Finally, addressing the verification requirement of CPL § 100.15(1), CPL § 100.30 provides: 1. An information, a misdemeanor complaint, a felony complaint, a supporting deposition, and proof of service of a supporting deposition may be verified in any of 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.2. An instrument specified in subdivision one may be verified in any manner prescribed therein unless in a particular case the court expressly directs verification in a particular manner prescribed in said subdivision one.

Based upon that foregoing review, it is clear that the document in question was intended to be an Information, notwithstanding its title. As the court noted in People v. Towey, supra. at 476, 28 N.Y.S.2d 838, 843 (Dist. Ct. Nassau Co. 2016) "because the factual parts of counts 2 and 3 are verified (see CPL 100.30[1][d]), neither document is intended to be a prosecutor's information." "That the instrument would have qualified as a [prosecutor's information] did not make it one." People v. Casey, 95 NY2d 354, 359, 717 N.Y.S.2d 88, 90 (2000)

We turn then to the facial sufficiency of this Information, which charges reckless endangerment in the second degree, in violation of Penal Law § 120.20 and assault in the third degree, in violation of Penal Law § 120.00(2).

Penal Law § 120.20 provides: "A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious injury to another person." Similarly, Penal Law § 120.00(2) provides, "A person is guilty of assault in the third degree when: He recklessly causes physical injury to another person[.]" Obviously, the common element between these two charges, which is critical to the issues before this court is the element of recklessness.

As applied to these sections:

A person acts recklessly ... 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. See: PL § 15.05(3)

See also: People v. Davis, 72 NY2d 32, 530 N.Y.S.2d 529 (1988); People v. Godfrey, 140 Misc 2d 24; 530 N.Y.S.2d 456 (Crim. Ct. Bronx Co. 1988)

"In order to establish that defendant engaged in reckless endangerment, the risk created by a defendant's conduct must be foreseeable (citation omitted) and the conduct must actually create a risk of serious physical injury. (citation omitted)." People v. Beam, 22 Misc 3d 306, 866 N.Y.S.2d 564 (Crim. Ct. NY Co. 2008); See also: Matter of Kysean D.S., 285 AD2d 994; 728 N.Y.S 323 (4th Dept. 2001). Additionally, there must be demonstrated a "gross deviation from the standard of conduct [of a] reasonable person." PL § 15.05(3)

"[A]t least as early as 1664 the distinction is made between negligence so great as to be blameworthy and, therefore, deserving of punishment, and the slight degree of negligence that would not justify a criminal charge." People v. Angelo, 246 NY 451 159 N.E. 394 (1927) The former has been recognized to "mean[ ] disregard of the consequences which may ensue from the act, and indifference to the rights of others." People v. Angelo, id. The latter has been defined as "negligent conduct arising from carelessness, inadvertence, lack of skill, competence or foresight[.]" People v. Eckert, 2 NY2d 126, 157 N.Y.S.2d 551 (1956); See also: People v. Paris, 138 AD2d 534 N.Y.S.2d 913 (2nd Dept. 1988)

While "recklessness involves the presence of additional aggravating acts or circumstances beyond a single violation of a rule of the road (citations omitted)," People v. Goldblatt, 98 AD3d 817, 819, 950 N.Y.S.2d 210, 213 (2012), lv. den. 20 NY3d 932, 957 N.Y.S.2d 692 (2012), "'[e]vidence of an individual's intoxication and how that condition may have affected his ability to perceive and react to risks commonly encountered while operating a motor vehicle on a public highway may be relevant to prove reckless driving when that evidence is coupled with evidence of the manner I which the motor vehicle was being operated' (CJI2D [*8][NY] Vehicle and Traffic Law § 1212; see Goldblatt, 98 AD3d at 819; Bohacek, 95 AD3d 1592; People v. Brown, 44 Misc 3d 129[A], 2014 NY Slip Op 50984[U] [App Term, 2nd, 11th & 13th Jud Dists 2014])." People v. Payne, 54 Misc 3d 138(A), 54 N.Y.S.3d 612 (App. Term 2nd, 11th & 13th Jud. Dists. 2017); See also: People v. Fountain, 44 AD2d 685, 353 N.Y.S.2d 813 (2nd Dept. 1974) [driving through intersection in violation of traffic signal, while intoxicated, reckless conduct]; People v. Gordon, 34 AD3d 316, 824 N.Y.S.2d 94 (1st Dept. 2006) [driving toward individual while intoxicated reckless conduct]; People v. Greiner, 250 AD2d 874, 672 N.Y.S.2d 499 (1998) lv. den. 92 NY2d 898, 680 N.Y.S.2d (1998)

The question then becomes, was this necessary element of reckless endangerment in the second degree and assault in the third degree properly set forth in the Information charging same, in accordance with the requirements of CPL §§ 100.15 and 100.40. More specifically, are there non-hearsay allegations in the factual part of the Information and/or of any supporting depositions which establish, if true, every element of the offense charged and the defendant's commission thereof? See: CPL § 100.40(c)

The allegations contained in the factual part of the Information herein are that:

the Defendant, Robert Kelly, did operate a motor vehicle on a public roadway in the vicinity of the intersection of Mott Avenue and Lawrence Avenue, in the Town of Inwood, NY 11559, County of Nassau, State of New York. That while operating that motor vehicle, the defendant did pass through a red light resulting in him hitting a pedestrian causing the pedestrian to feel a large push, and temporarily losing the function of one arm. The pedestrian also felt sore through out, (sic) especially in their (sic) thigh and back, and could barely stand.

The supporting deposition of Jefferson Monzon, dated January 21, 2020, and annexed to the Information alleges, in pertinent part:

I was waiting for the traffic on Mott Ave to have a red light so that I could safely cross the street. Once there was a red light signal for the traffic, I proceeded to enter the intersection and cross Mott Ave, when I was struck by the driver of what I believe was a Black (sic) Jeep. The Black (sic) Jeep did not slow down or stop, and continued through it's (sic) red light. When the driver hit me I felt a large push, and after wards could not use my arm. I was sore through my body, especially my thigh and back, and could barely stand. The driver, now known to me as Robert Kelly (DOB 12/29/1958) then proceeded to exit his car and check on me, before getting back into his car and leaving the scene without exchanging any information. Police officers then came and took me to the Hospital.

The court notes that the only conduct Mr. Monzon attributes to the driver of what he believed to be a black Jeep was the lone traffic infraction of failing to stop for a red traffic signal upon entering the intersection at Mott Avenue. He makes no allegation regarding the operator's alleged intoxication. Moreover, Mr. Monzon fails to identify the Defendant as the operator of the vehicle which allegedly struck him. The only thing that connects the Defendant to Mr. Monzon is Mr. Monzon's statement that, the driver is "now known to me as Robert Kelly (DOB 12/29/1958).

While it is true that "[i]n most situations in life there is no way to obtain any personal knowledge' of another person's name [,]" People v. Russo, 24 Misc 3d 655, 877 N.Y.S.2d 676 (Dist. Ct. Nassau Co.2009) in the matter sub judice we are dealing with more than just the second hand identification of the Defendant's name, as was the case in Russo, id. Herein we are [*9]also dealing with the apparent second-hand identification of the Defendant as the driver who allegedly struck Mr. Monzon. Clearly distinguishing Russo, id. is that fact that herein the supporting deposition fails to provide any description of the Defendant, which might then be associated with the person he claims to have been the driver and later identified to him as Robert Kelly.

Even if the People were to rely on the supporting depositions annexed to the Simplified Traffic Informations, they do little to cure the defects found in the Information. The supporting deposition of Mr. Monzon dated November 17, 2019 alleges, in pertinent part:

I was walking northbound across Mott Ave at the intersection of Lawrence Ave in Inwood, NY when I was struck by a black Jeep. The Jeep was traveling eastbound on Mott Ave when it ran a red light a (sic) struck me. The front of the Jeep struck me on my left arm, causing me to fall to the ground. The driver who was an older white man with short gray hair exited the vehicle. He told someone that he was going to move his car, but fled east bound on Mott Ave. I have bruising to my left upper arm, elbow, and forearm which is causing substantial pain. At this time I am unaware if my arm is broken, but will be getting an X-ray soon and am willing to provide those X-rays to the police if needed.

The first supporting deposition of Cesar Armando, dated November 17, 2019, alleges, in pertinent part:

I WAS DRIVING MY 2005 KIA SPECTRA BEARING MD REG, 7DS3720, NORTH BOUND ON LAWRENCE AVE INWOOD NY, 11096. WHILE I WAS APPROACHING THE INTERSECTION OF LAWRENCE AVE AND MOTT AVE THE LIGHT WAS GREEN. HOWEVER I HAD TO STOP QUICKLY. I STOPPED QUICKLY BECAUSE A BLACK TRUCK WITH NY REG, BNF 3395, WAS TRAVELING EAST BOUND ON MOTT AVE. THE BLACK TRUCK DID NOT SHOW SIGNS OF STOPPING AT HIS RED LIGHT AND CONTINUED RIGHT PAST IT. WHILE THIS TRUCK PAST (sic) THE RED LIGHT I THEN SAW THE TRUCK STRIKE AN INDIVIDUAL CROSSING THE STREET. THE DRIVER OF THE VEHICLE GOT OUT OF THE CAR AND THEN GOT BACK IN AND LEFT WITH NO ATTEMPT TO HELP THIS INDIVIDUAL. I THEN CALLED 911 TO PROVIDE MY DASH CAMERA FOOTAGE OF THE ACCIDENT TO THE POICE AND GET THE INDIVIDUAL MEDICAL ATTENTION.

A second supporting deposition of Cesar Armando, dated November 17, 2019, alleges, in pertinent part:

I was transported by PO Buonadonna shield No.1702 to 349 Madison Ave in Cedarhurst, NY and from 20 feet away I was shown a male wearing blue jeans, a dark jacket, light color hair, white about 5'6". This person matches the description of the male I saw in my dashboard cam that struck the pedestrian. After carfully (sic) viewing this person, I have positively identified the subject now known to me as Robert J. Kelly DOB 12-29-1958 as the person who struck the pedestrian in his Dodge Durango, and left the scene.

The DUI/DWI Supporting Deposition and Bill of Particulars of Police Officer A. Buonadonna subscribed on November 18, 2019 alleges, in pertinent part: At the time and place of occurrence the following did occur: I, PO Boudana, (sic) while on patrol in RMP 409 responded to a 911 call for a vehicle which left the scene of an auto accident which occurred near the intersection of Mott Ave/Lawrence ave. . (sic) Upon running the registration via my MDT in RMP 409, I found the vehicle to be [*10]registered to 349 Madison Ave in Cedarhurst. PO Urgiles then responded to 349 Madison Ave in Cedarhurst. PO Urgile's arrival he observed a 2016 Dodge Durango bearing the New York registration of BNF3395 that had damage to the front driver's side. PO Urgiles knocked on the door of the home and the defendant answered the door. PO Urgiles asked defendant if he was driving the vehicle, the 2016 Dodge Durango bearing the New York registration of BNF3395 which was now parked in drive way with damage to the front driver's side. Defendant stated to PO Urgiles "I was driving, I messed up, I had 10 beers at 1 pm, I stopped the kid was okay and I left". (sic) PO Urgiles then asked for additional units to respond to defendant home. PO Urgiles observed the defendant to have the following clues of intoxication: bloodshot glassy eyes, droopy eyelids, slurred speech and a strong odor of an alcoholic beverage emanating from his breath. PO Urgiles attempted to administer the Standardized Field Sobriety Testing at approximately 1820 hours but the defendant refused all SFST's. PO Urgilies also attempted to administer the Preliminary Breath Test which the defendant refused at approximately 1825 hours. I at approximately 1835 conducted a show up with the witness which yielded positive results. The defendant was placed under arrest at 1835 hours.

The three additional short form supporting depositions of Officer Buonadonna contain no factual allegations. They merely parrot the title or the language of the section allegedly.

Even these additional supporting depositions fail to present legally sufficient allegations setting forth all of the necessary elements of reckless endangerment in the second degree and assault in the third degree. Viewing the information and all of the supporting depositions 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) without giving them 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 only facts alleged, by non-hearsay allegations, are that Mr. Monzon was struck by a black vehicle which failed to stop for a red light at the intersection of Mott Avenue and Lawrence Avenue; that Mr. Monzon sustained physical injury [see: People v. Henderson, 92 NY2d 677, 685 N.Y.S.2d 409 (1999)]; and, that the operator of the black vehicle, after checking on Mr. Monzon, left the scene. Conspicuously absent from these non-hearsay allegations is that the Defendant was the operator of the black vehicle and that the operator of the vehicle was reckless.

As indicated hereinabove, Mr. Monzon never identified the Defendant as the operator of the vehicle which allegedly struck him. Mr. Monzon either indicates that someone told him the operator's name was Michael Kelly or provides a description of the person who allegedly struck him, while neither he, nor anyone else indicates that the Defendant matches that description.

Similarly, Mr. Armando's first supporting deposition avers that he saw the incident, but fails to identify, or even describe the operator of the black vehicle. While Mr. Armando's second supporting deposition appears to allege that he identified the Defendant as the person he saw operating the black vehicle, what he actually alleges is that the person he identified "matches the description of the male I saw in my dashboard cam that struck the pedestrian." This is virtually identical to the situation presented in People v. Schell, 18 Misc 3d 972, 975, 849 N.Y.S.2d 882, 885 (2008), wherein the court found the recitation of what was observed on video to be hearsay. See also: People v. Allison, 21 Misc 3d 1108(A), 873 N.Y.S.2d 236 (Dist. Ct. Nassau Co. 2008); [*11]Corsi v. City of Bedford, 58 AD3d 225, 868 N.Y.S.2d 258 (2nd Dept. 2008); People v. Facciarossa, 66 Misc 3d 133(A), 120 N.Y.S.3d 562 (App. Term 9th & 10th Jud. Dists. 2019) Clearly, Mr. Armando's recitation of what he saw on video is hearsay; and, neither an evidentiary foundation, nor a hearsay exception has been established to overcome that pleading defect. Moreover, even if Mr. Armando's statements were to be deemed non-hearsay, he provides nothing that would establish the Defendant's alleged recklessness.

Officer Buonadonna's DUI/DWI Supporting Deposition and Bill of Particulars suffers from the same hearsay defects when it comes to the issue of identification of the operator and the Defendant's intoxication. The only things Officer Buonadonna relates, with personal knowledge is that he responded to a 911 call at the intersection of Mott Avenue and Lawrence Avenue; that he ran a registration number given to him by someone else; that he received information from someone else regarding the address of the vehicle; that he observed damage to a Dodge Durango at the registered address; that he conducted a show-up at the registered address; and, that he heard the Defendant refuse to submit to a chemical test post arrest. Everything else alleged in his supporting deposition is alleged to have been observed or obtained by an Officer Urgiles and an Officer Soto. Without question, there is nothing in this supporting deposition to even suggest that Officer Buonadonna observed or was even aware of the Defendant's alleged intoxicated state or the Defendant's alleged admissions to having consumed alcohol, operated a vehicle and struck an individual with a vehicle.

In light of all of the foregoing, the charges of reckless endangerment in the second degree and assault in the third degree, set forth in the information, must be dismissed.

The foregoing analysis does not, however, determine the facial sufficiency of the Simplified Traffic Informations charging driving while intoxicated, leaving the scene of an incident involving personal injury and reckless driving. It is axiomatic that the facial sufficiency requirements for Simplified Traffic Informations are different than those for Informations.

"The simplified information is a statutory creation designed to provide an uncomplicated form for handling the large volume of traffic infractions and petty offenses for which it is principally used." People v. Nuccio, 78 NY2d 102, 571 N.Y.S.2d 693 (1991) As such, the pleading requirements of CPL § 100.15 and 100.40(1) do not apply. See: People v. DeRojas, 180 Misc 2d 690, 693 N.Y.S.2d 404 (App. Term, 2nd Dept.1999) A simplified traffic information "need not provide on its face reasonable cause to believe defendant committed the offense charged (CPL 100.25, 100.40, subd. 2)." People v. Key, 45 NY2d 111, 408 N.Y.S.2d 16 (1978)

Where, as here, however, the simplified traffic information is accompanied by supporting depositions, they must "contain 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) As provided in CPL § 70.10(2):

'Reasonable cause to believe that a person committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgement and experience that it is reasonably likely that such offense was committed and that such person committed it.

As the People point out, "'the deposition supporting a simplified traffic information, to [*12]the extent it is based upon information and belief, must contain a statement of the source of that information and belief if it is to be sufficient on its face.'" citing: People v. Lesnak, 165 Misc 2d 706 (Dist. Ct. Suffolk Co. 1995) (Memorandum of Law 5/29/2020, p. 12) See also: People v. Dumas, 42 Misc 3d 265, 974 N.Y.S.2d 921 (Buffalo City Ct. 2013); People v. Colburn, 48 Misc 3d 971, 8 N.Y.S.3d 898 (Webster Justice Ct. 2015); People v. Malta, 19 Misc 3d 1142(A), 867 N.Y.S.2d 19 (Webster Justice Ct. 2008); People v. Stanley, 48 Misc 3d 1229(A), 20 N.Y.S.3d 294 (Dist. Ct. Suffolk Co. 2015); cf.: People v. James, 4 NY2d 482, 176 N.Y.S.2d 323 (1958); People v. Wright, 27 NY3d 516, 3 N.Y.S.3d 286 (2016); People v. Jones, 95 NY2d 721, 723 N.Y.S.2d 761 (2001)

As previously indicated, Officer Buonadonna's DUI/DWI Supporting Deposition and Bill of Particulars provides very little that is alleged to be within his personal knowledge. The balance of this supporting deposition describes the alleged conduct and observations of others, without ever indicating the source of this information.

Officer Buonadonna indicates that he ran a registration number of the vehicle presumed to be involved in this incident, without ever indicating how or from whom learned the registration number run. Moreover, while he relates the alleged conduct and observations of Officer Urgiles, nowhere does Officer Buonadonna indicate how or from whom he learned of this conduct or of these observations. In fact, nowhere does Officer Buonadonna reveal the source or sources of any of this information. As a result, the alleged observations of Officer Urgiles, related only by Officer Buonadonna, cannot support the facial sufficiency of these Simplified Traffic Informations.

Without legally sufficient factual allegations of intoxication, the charge of driving while intoxicated cannot be sustained. Likewise, as was true for the charges of reckless endangerment in the second degree and assault in the third degree, without legally sufficient allegations of intoxication, there is also an absence of legally sufficient allegations of recklessness which would support the charge of reckless driving. As such, the supporting depositions fail to provide the requisite reasonable cause that these crimes were committed (see CPL 100.25(2)) and the Simplified Traffic Informations charging same are rendered insufficient on their face. Accordingly, the charges of driving while intoxicated and reckless driving must be dismissed.

In contrast, the charge of leaving the scene of an incident involving personal injury without reporting is properly supported by the supporting depositions of Mr. Monzon and Mr. Armando. Mr. Monzon's supporting deposition dated November 17, 2019 clearly indicates that as a result of being struck by a vehicle which failed to stop at a red light, he sustained bruising to his left upper arm, elbow and forearm, with a possible fracture, causing him substantial pain. He further indicates that the operator of the vehicle which struck him left the scene after indicating he was going to move his vehicle. Mr. Armando's supporting depositions also indicate that he observed the vehicle strike the pedestrian and then leave the scene. Most importantly, Mr. Armando identifies the Defendant as the person who struck the pedestrian based upon his personal observations at a show-up combined with by providing the source of his information and belief, to wit: his dashboard camera.

SUPPRESSION

The People consent to the court ordering a hearing, as requested by the Defendant, addressing the issues of probable cause for the search and arrest of the Defendant, whether the rule enunciated in Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371 (1980) was violated, whether the Defendant's alleged statements were voluntary and whether the identification [*13]procedure used herein was unduly suggestive. The court shall order such a hearing.

While the People also consent to a hearing addressing the Defendant's alleged refusal to submit to a chemical test, given the court's decision herein, the Defendant's request for such a hearing is moot.

SANDOVAL/MOLINEAUX

That branch of the Defendant's motion which seeks to prohibit the People from cross-examining the Defendant, or presenting evidence on their direct case or on rebuttal, regarding the Defendant's arrest and conviction record, or any immoral, vicious, or other bad acts, is granted to the extent of directing that a Sandoval/Molineaux hearing on this issue shall be held immediately before the commencement of trial.

CONCLUSION

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

(1) that branch of the Defendant's motion seeking an order dismissing the charge of leaving the scene of an incident involving personal injury without reporting is denied;

(2) that branch of the Defendant's motion seeking an order dismissing the charges of driving while intoxicated, reckless driving, reckless endangerment in the second degree and assault in the third degree is granted; and, it is hereby

ORDERED, that the charges of driving while intoxicated, reckless driving, reckless endangerment in the second degree and assault in the third degree are hereby dismissed.

(3) those branches of the Defendant's motion seeking an order suppressing the Defendant's alleged refusal to submit to a chemical test, statements allegedly made by the Defendant, the identification of the Defendant and all other evidence in this case, or, in the alternative, directing that a Dunaway/Mapp/Huntely/Wade/Payton hearing be held are granted to the limited extent of directing that a hearing be held addressing the issues of probable cause for the search and arrest of the Defendant, whether the rule enunciated in Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371 (1980) was violated, whether the Defendant's alleged statements were voluntary and whether the identification procedure used herein was unduly suggestive, and is denied in all other respects; and,

(4) that branch of the Defendant's motion seeking an order precluding the People from asking questions or presenting evidence concerning the Defendant's arrest and conviction record, or any immoral, vicious, or other bad acts, or, in the alternative directing that a Sandoval/Molineaux hearing be held, is granted to the extent of directing the requested hearing be held immediately before trial.

This constitutes the decision and order of this court.

Dated: July 27, 2020

Hempstead, New York

ANDREW M. ENGEL

J.D.C. Footnotes

Footnote 1:Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979); Mapp v. Ohio, 367 U.S. 643; 81 S. Ct. 1684 (1961); People v. Huntley, 15 NY2d 22, 255 N.Y.S.2d 838 (1965); U.S. v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967); ); Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371 (1980);

Footnote 2:People v. Sandoval, 34 NY2d 371, 357 N.Y.S.2d 849 (1994); People v. Molineaux, 168 NY 264, 61 N.E. 286 (1901)