People v Rivas

[*1] People v Rivas 2022 NY Slip Op 50421(U) Decided on May 26, 2022 District Court, Suffolk County Andrews, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2022
District Court, Suffolk County

The People of the State of New York

against

Dasani Rivas, Defendant.



Docket Nos. CR-032736-21SU & CR-032915-21SU

HONORABLE RAYMOND A. TIERNEY
District Attorney of Suffolk County
Chan Kim, Esq., of counsel
District Court Bureau
Central Islip, New York 11722

KEVIN MAYO, ESQ.
Kevin Mayo, Esq., of counsel
320 Carleton Avenue, Suite 3300
Central Islip, New York 11722
John J. Andrews, J.

The defendant, charged in separate actions with one count of Assault in the Third Degree in violation of Penal Law § 120.00(2), a class A misdemeanor, and one count of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree in violation of New York's Vehicle & Traffic Law ("VTL") § 511(1)(a), an unclassified misdemeanor, now moves this Court: (1) to dismiss both accusatory instruments pursuant to Criminal Procedure Law ("CPL") § 30.30 and CPL § 245.50(1) on the grounds that (a) her statutory right to a speedy trial has been violated with respect to both charges and (b) the interests of justice warrant dismissal pursuant to CPL § 170.30(1)(g); (2) to suppress (a) evidence obtained as a result of the traffic stop on the ground that the initial stop was not supported by probable cause and (b) the defendant's verbal statement [*2]pursuant to CPL § 710.30; and (3) for discovery.[FN1] The People have filed an Affirmation in Opposition and the defendant has filed a Reply.

The defendant's motion to dismiss both accusatory instruments on the grounds that her right to a speedy trial has been violated, and in the interests of justice, is DENIED. The defendant's motion to suppress evidence and statements is DENIED, subject to renewal after Dunaway and Huntley hearings. The defendant's motion to compel prosecution of the victim is DENIED. The defendant's motion for discovery is GRANTED.

A. Motion to Dismiss

1. Violation of the Defendant's Speedy Trial Rights [Both Charges]

The defendant first moves to dismiss both accusatory instruments and to strike the People's Certificate of Compliance on the grounds that the People have violated her speedy trial rights with respect to both pending charges. (Affirmation of Kevin Mayo, Esq. in Support of Motion to Dismiss, dated March 28, 2022 (hereinafter "Mayo Aff.") at Point 1, pp. 8-11).

CPL § 30.30(1)(b) provides, in pertinent part, that a motion to dismiss an accusatory instrument must be granted where the People are not ready for trial within: "ninety days from the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony." Moreover, a criminal action is commenced by the filing of an accusatory instrument against a defendant in criminal court (see CPL § 1.20[17]). Courts have held that for purposes of CPL § 30.30, that the legislature intended for the speedy trial clock to begin running upon the defendant's "actual physical appearance in court." People v Mendoza, 72 Misc 3d 1223(A), 151 NYS3d 862 [Crim Ct, NY Cnty 2021], quoting People v Stirrup, 91 NY2d 434 [1998].

On January 1, 2020, new legislation affecting both CPL § 30.30 and CPL § 245.50 went into effect. The new law requires the People to file a Certificate of Compliance/Statement of Readiness ["CoC" and "SoR"] with the Court prior to announcing readiness under CPL § 30.30 (see CPL § 245.50[3]). In order for the People to be ready for trial, "the People must: (1) file a certificate of good faith discovery compliance; (2) file a valid statement of readiness; and (3) certify the facial sufficiency of the accusatory instrument." People v Ramirez-Correa, 71 Misc 3d 570, 572, 142 NYS3d 783, 785 [Crim Ct, Queens Cnty 2021]; see also People v Hall, CR-[*3]013437-20SU [Dist Ct, Suffolk Cnty 2021, Kerr, J.].

In the first case (assault charge), the defendant was arrested and charged by misdemeanor information on December 19, 2021, and thereafter arraigned on January 7, 2022. The People served their discovery on January 28, 2022 and filed their CoC/SoR on February 3, 2022.

The defendant contends that the CoC/SoR is invalid because the People failed to disclose statutorily-mandated discovery prior to filing their CoC, namely: (1) medical records; (2) photos of the alleged injury to the complainant; (3) social media posts by the complainant; (4) text messages by the complainant; (5) video footage of the incident; (6) fingerprint and DNA analysis of the glass that was purportedly used by the defendant to assault the complainant; (7) criminal background check for all witnesses to the incident; (8) phone records of the complainant; (9) toxicology report of complainant; and (10) the restaurant bill.

In their opposition, the People contend that they have disclosed all records in their possession. (People's Mem. of Law at p. 4). The Court notes that, with the exception of the criminal history records for all witnesses, it is unclear, in the first instance, whether any of these records even exist. In light of the People's representation that such records either do not exist (i.e., video from the restaurant)[FN2] and/or are not in the People's possession (People's Mem. of Law at p. 6), this Court denies the defendant's motion to dismiss and/or strike.

With respect to the criminal history records, pursuant to CPL § 245.20(1)(k)(iv), the People are required to disclose "all evidence...known to the police or other law enforcement...that tends to...impeach the credibility of the a testifying prosecution witness." Pursuant to this section, the People are required to turn over criminal history information once they have determined which witnesses will testify. As it is unclear at this stage whether the People intend to call any witnesses, the People's failure to turn over the criminal history reports does not render the CoC invalid. Moreover, the defendant has not demonstrated that she suffered any prejudice from the potential late disclosure. See People v Florez, 74 Misc 3d 1222(A), 2022 WL 792140, at *10, 2022 NY Slip Op 50202(U) [Sup Ct, Nassau Cnty March 10, 2022] [declining to strike CoC where defendant unable to demonstrate prejudice as a result of late disclosure].

In the second case (traffic charge), the defendant was pulled over and given a uniform traffic ticket on December 20, 2021. She was charged by simplified traffic information and thereafter arraigned on January 7, 2022. The defendant's motion to dismiss the traffic charge is based upon her contention that she did not receive the discovery to which she was entitled under [*4]CPL article 245, specifically, a legible copy of the traffic ticket at the scene or at arraignment. (See Mayo Aff. at Point 3(b), p. 20). However, as of the date of the defendant's motion, the People had not yet filed their CoC/SoR. (See People's Aff. at Point VI, p. 7). Moreover, the defendant's counsel has conceded that he has since received a copy of the traffic ticket on February 22, 2022 and a copy of the DMV abstract from the Assigned Counsel Defender's Office. (See Mayo Aff. at Point 3, p. 19 & n. 10). Insofar as the defendant has now received a legible copy of the accusatory instrument, the defendant's motion to dismiss and strike on the grounds of non-receipt of the same is denied. To the extent the defendant's counsel contends he has not received a copy of the supporting deposition, such contention is meritless, as the defendant's counsel failed to properly request a copy of the supporting deposition pursuant to CPL § 100.25(2), for the reasons discussed infra at Section A.3.

2. Motion to Dismiss in the Interests of Justice [Both Charges]

Next, the defendant contends that both charges should be dismissed in the interests of justice pursuant to CPL § 170.30(1)(g). (See Mayo Aff. at Point 2, pp. 12-17). In support of her motion to dismiss the assault charge, the defendant herself submitted an affidavit in which she described her version of the events of December 19, 2021. (See Affirmation of Dasani V. Rivas, dated April 18, 2022 (hereinafter, "Rivas Aff.") at pp. 1-2). The gravamen of the defendant's argument is that the defendant did not initiate the assault at issue; rather the complaining victim assaulted the defendant, causing greater physical harm to the defendant than the complaining victim herself received. (See Rivas Aff. at p. 1-2). Further, with respect to the traffic charge, the defendant contends that her license was in fact valid on the date she was pulled over. (See Mayo Aff. at Point 3(d), p. 21).

CPL § 170.30(1)(g) provides that "[a] court may, upon the motion of the defendant, dismiss [an accusatory] instrument...upon the ground that [] [d]ismissal is required in furtherance of justice, within the meaning of section 170.40." CPL § 170.30(1)(g). In turn, CPL § 170.40 provides, in pertinent part: "an information, a simplified information...or any count thereof, may be dismissed in the interest of justice...when...such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance...demonstrating that the...prosecution of the defendant...would constitute an injustice." CPL § 170.40. The burden is on the defendant to establish "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant would constitute or result in injustice." People v Morales, 35 Misc 3d 558, 563, 939 NYS2d 824, 828 [Crim Ct, Kings Cnty 2012]. It is well established that "[t]he power to dismiss on such ground is, as provided in the statutory text, committed to the trial court's discretion; it should be exercised sparingly and only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations." People v Harmon, 181 AD2d 34, 36, 586 NYS2d 922 [1st Dep't 1992] [internal quotation marks omitted].

CPL § 170.40(1) sets forth ten factors which the Court must consider in determining whether to grant a dismissal in the interest of justice. The factors include the seriousness and [*5]circumstances of the offense, the extent of the harm caused, and the evidence of guilt. CPL § 170.40(1)(a)-(c). This Court has considered each of the ten factors and will discuss the most relevant in turn, below. See People v Gragert, 1 Misc 3d 646, 765 NYS2d 471 [Crim Ct, NY Cnty 2003][a Court may consider relevant factors individually and collectively, and need not discuss each of the ten factors point-by-point].

Here, there is no basis under any factor enumerated in CPL § 170.40 that would justify the dismissal of this matter in the interest of justice. The defendant's main argument in favor of dismissal is that the complaining victim assaulted her, resulting in the defendant suffering injury to her eye. Insofar as the defendant's contention is that she is not guilty of the charged crime, courts have long held that "[a] motion to dismiss in the interest of justice is not the appropriate mechanism for a defendant's assertion of his innocence." People v Hold, 22 Misc 3d 297, 305, 866 NYS2d 552 [Crim Ct, Kings Cnty 2008] [internal citations omitted] [declining to dismiss, inter alia, assault charge in the interest of justice]. While the statute provides that the court may consider "the evidence of guilt whether admissible or inadmissible at trial," CPL § 170.40(1)(c), courts have held that "[i]t is the evidence that is available to the People that is contemplated" by that statutory provision, i.e., that the court may only consider in a CPL 170.40 motion the evidence that the People are likely to introduce." Id. (citing People v Figueroa, 164 Misc 2d 814, 625 NYS2d 839 [Crim Ct, Kings Cnty 1995]. Moreover, to the extent the defendant denies having assaulted the victim or is claiming self-defense, such defenses turn on credibility determinations. Courts have held that "[t]he credibility of witnesses is a matter to be weighed by the trier of facts, and not grounds for dismissal in the interests of justice." People v Curcio, 22 Misc 3d 907, 915, 874 NYS2d 723, 730-31 [Crim Ct, Kings Cnty 2008].

Similarly, the defendant moves to dismiss the traffic charge against her on the ground that she in fact had a valid license when pulled over on December 20, 2021. In support of her contention, she points to the DMV abstract, which contains a notation that the defendant's license was "suspended on 10/29/2021," "complied on: 10/29/2021" and "clear on: 12/29/2021." (Mayo Aff. at Point 3(d), p. 21 & Ex. 8a). This Court notes that the DMV abstract notations are less than clear, but they do not categorically support the defendant's contention that her license was valid on December 20, 2021, when she was given a ticket. To the contrary, a fair reading of the abstract supports the conclusion that the defendant's license remained suspended, despite compliance, on December 20, 2021.

In sum, with respect to both charges, "the community's trust in the justice system would be undermined by the court preventing the full airing of the proof available to both sides at trial." Hold, 22 Misc 3d at 305.

For these reasons, the defendant's motion to dismiss the assault and traffic charges is denied.

3. Motion to Dismiss/Suppress [Traffic Charge]

The defendant further argues that the VTL charge must be dismissed because (1) the defendant did not receive a copy of the supporting deposition within 30 days of arraignment after having requested such deposition, as required by CPL § 100.25(2); and (2) the traffic stop was illegal. (See Mayo Aff. at Point 3(a),(c), pp. 19-20).

As noted above, the defendant in this case was charged by simplified traffic information, which was accompanied by a supporting deposition. Pursuant to CPL § 100.25(2), a defendant is entitled, upon timely request, to a copy of the supporting deposition. The statutory procedure requires the defendant to make a request of the court, and the court must then order the police officer to serve defendant with a copy of the supporting deposition within 30 days of the demand, or at least five days before trial (whichever is earlier), and to file the deposition with the court. CPL § 100.25(2). Courts have held that "where the court receives a proper request, but fails to order the supporting deposition, the simplified information must still be dismissed, even though the People and arresting officer were not aware of the defendant's request." People v Utsett, 53 Misc 3d 337, 341, 36 NYS3d 566, 570 [City Ct, Warren Cnty 2016].

Here, however, the defendant's request was not properly made to this Court. Rather, the defendant's counsel request was buried in a footnote to his notice of appearance. (See Mayo Aff. at Ex. 9). There was nothing contained in the caption of the notice of appearance to notify this Court that the defendant was requesting an order for the arresting officer to provide a supporting deposition. Utsett, 53 Misc 3d at 341 [denying defendant's motion to dismiss for failure of People to provide defendant with a copy of the supporting deposition where such request was made in discovery demands to People filed with court]. "If this Court were to hold otherwise, then criminal courts would be required to review each and every [notice] made by a defendant to the People to determine if some part of the defendant's [filing] somehow contains a request for a court order directing the service and filing of a supporting deposition. This requirement would place an undue burden on our trial courts, and is not required under the Criminal Procedure Law." Id. Accordingly, the defendant's request was not properly made, and therefore this argument is rejected. However, this Court deems the defendant's present motion as an application seeking leave to request a supporting deposition pursuant to CPL § 100.25(2), and now grants such motion. The People are hereby ordered to provide a copy of the supporting deposition to the defendant within fifteen (15) days of this order.

Next, the defendant contends that the traffic charge must be dismissed because the initial traffic stop was "illegal," i.e., not supported by probable cause. (See Mayo Aff. at Point 3(a), pp. 19-20). According to the defendant, "absent a legal reason to [initiate a traffic stop], any evidentiary fruits of that stop [here, the unlicensed operation of a motor vehicle] must be suppressed." Id. at p. 19.

To the extent the defendant's motion can be deemed a motion to dismiss the accusatory instrument as facially insufficient insofar as there are no facts alleged in either the simplified traffic information or the supporting deposition that provide probable cause for the initial traffic stop, such motion is meritless. The defendant did not expressly move to dismiss based on the [*6]facial sufficiency of the supporting deposition pursuant to CPL § 100.25(2). See People v Hagans, 63 Misc 3d 139(A), 114 NYS3d 800 [App Term, NY Cnty 2019] [defendant who did not move to dismiss simplified traffic information on the ground that it was facially insufficient waived argument]. Moreover, the simplified information and supporting deposition need only together "contain factual allegations providing reasonable cause to believe that the defendant committed the offense or offenses charged." People v. Hohmeyer, 70 NY2d 41, 44, 517 NYS2d 448 [1987]. Here, the supporting deposition contains the officer's recitation that on a specific date at a specific time, the defendant was operating a motor vehicle on a public highway without a valid license, rendering the supporting deposition facially sufficient.

To the extent the defendant's motion can be deemed to be a motion to suppress evidence pursuant to CPL § 710.60, this Court grants the defendant a suppression hearing for the reasons discussed below. Pursuant to CPL § 710.60, a defendant may move to suppress evidence before trial. The motion papers must state the ground(s) for the motion, and must contain sworn allegations of fact supporting such grounds. See CPL § 710.60(1). A court must summarily grant such motion if the People concede the truth of the allegations or stipulate that the evidence should be suppressed. See CPL § 710.60(2). A court may summarily deny such motion if the motion papers do not allege a ground constituting a legal basis for the motion. See CPL § 710.60(3). If the court does not summarily grant or deny such motion, it must conduct a suppression hearing and make findings of fact with respect thereto. See CPL § 710.60(4).

As neither a summary grant or denial is warranted here, this Court grants a Dunaway hearing for the purpose of determining whether the initial traffic stop was supported by probable cause. See Dunaway v New York, 442 US 200 [1979]. Accordingly, the defendant's motion to dismiss on the grounds that the initial stop was illegal is denied, subject to renewal after a Dunaway hearing.

B. Motion to Suppress

The defendant next moves to dismiss the verbal statement allegedly made by the defendant to the police on the date of the assault. (See Mayo Aff. at Point 5, p. 22). On January 5, 2022, the People provided written notice pursuant to CPL § 710.30 that they intend to introduce evidence that the defendant made the following statement to a public servant on the date of incident: "I saw on snap chat that she [the victim] was with my ex-boyfriend, so I went there [to the restaurant] and I punched her." (Id.)

Pre-trial motions to suppress evidence are governed by Section 710.60 of the Criminal Procedure Law. People v Johnson, 134 Misc 2d 474, 477, 511 NYS2d 773, 775 [Crim Ct, Queens Cnty 1987]. As noted above, if the court does not summarily grant or deny such motion, it must conduct a suppression hearing and make findings of fact with respect thereto. See CPL § 710.60(4).

Here, as neither a summary grant or denial is warranted, this Court grants a Huntley [*7]hearing on the question of the admissibility of any statements. See People v Huntley, 15 NY2d 72, 255 NYS2d 838 [1965]. Therefore, the defendant's motion to suppress is DENIED, subject to renewal after a Huntley hearing.

C. Motion to Compel Prosecution

Finally, the defendant moves that this Court order the People to commence a prosecution against the complaining victim. (See Mayo Aff. at Point 6, p. 22).

It is blackletter law that "[u]nder the doctrine of separation of powers, courts lack the authority to compel the prosecution of criminal actions. Soares v Carter, 25 NY3d 1011, 1013, 10 NYS3d 175 [2015] [citing Matter of Cantwell v Ryan, 3 NY3d 626, 628, 782 NYS2d 394 [2004]). Rather, it "is solely within the broad authority and discretion of the district attorney's executive power to conduct all phases of criminal prosecution." Id. [citing People v Cajigas, 19 NY3d 697, 703, 955 NYS2d 296 [2012]).

Accordingly, the defendant's request is DENIED.

D. Motion for Discovery

The defendant further moves this Court for an order that the People comply with their obligations pursuant to People v Sandoval and/or People v Molineux/Ventimiglia. (See Mayo Aff. at Point 7, p. 23).

The defendant's motion seeking to obtain notice from the People of any proposed trial issues pursuant to Sandoval is GRANTED, to the extent that the People are directed to provide such notice to the defendant no later than fifteen (15) business days prior to the trial date of this action. In addition, the Court notes that in their papers, the People have represented that they do not intend to introduce any evidence of uncharged crimes, rendering a Molineux/Ventimiglia hearing unnecessary. (See People's Aff. in Opp. at p. 7).

The defendant's request to file additional motions is denied, subject to rights under CPL § 255.20(3) to move for further leave upon good cause shown. The defendant's remaining arguments, if any, are denied as meritless.

By reason of the foregoing, the defendant's motion seeking an order dismissing the accusatory instruments on the grounds that her right to a speedy trial has been violated, and in the interests of justice, is DENIED. The defendant's motion to suppress evidence and statements is DENIED, subject to renewal after Dunaway and Huntley hearings. The defendant's motion to compel prosecution of the victim is DENIED. The defendant's motion for discovery is [*8]GRANTED.

Furthermore, as noted herein, the People are hereby ordered to provide a copy of the supporting deposition to the defendant within fifteen (15) days of this order.

This shall constitute the decision and Order of the Court.

Dated: May 26, 2022
JOHN J. ANDREWS, D.C.J. Footnotes

Footnote 1:In their opposition papers, the People object that the defendant's motion [Defendant's Counsel's Affirmation in Support of Motion] contains an incorrect docket number and that the docket number referenced [Docket CR-032736-21SU] does not contain a traffic charge. (See People's Mem. of Law at Points 1 & 6). Nevertheless, because the defendant's notice of motion references docket numbers of both pending cases in the caption, and because the motion is addressed to both charges, this Court will deem the defendant's omnibus motion to dismiss as pertaining to both cases [Docket Nos. CR-032736-21SU and CR-032915-21SU].

Footnote 2:The defendant has suggested possible wrongdoing on the part of the People with respect to the unavailability of the videotape. (See Mayo Aff. at p. 6, n. 7)("the defense contends that this scenario presents a strong incentive for the tape to now be 'mysteriously unavailable.'") (emphasis added). However, the defendant's allegation is wholly speculative and unsupported by any facts from which this Court could infer misconduct or spoliation. Consequently, this argument is rejected.