[*1]
| People v Maradiaga |
| 2012 NY Slip Op 51429(U) [36 Misc 3d 1222(A)] |
| Decided on August 1, 2012 |
| 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| This opinion is uncorrected and will not be
published in the printed Official Reports. |
District Court of Nassau County, First District
The People of the State
of New York,
against
Fidel Maradiaga, Defendant.
|
2011NA025858
Hon. Kathleen Rice, Nassau County District Attorney
Justin Feinman, Esq., Attorney for Defendant
Andrew M. Engel, J.
Papers Submitted:
Notice of Motion...........................................................1
Affirmation in Support..................................................2
Affirmation in Opposition.............................................3
Reply Affirmation.........................................................4
The Defendant is charged with driving while intoxicated, possessing an open
container of alcohol in a motor vehicle and assault in the third degree, in violation of VTL
§§ 1192(2) and 1227(1), and PL § 120.00(3), respectively.
The Defendant now moves for an order (1) dismissing the charges against him,
pursuant to CPL §§ 170.30, 170.35, 100.15 and 100.40; (2) directing that a hearing be
held pursuant to People v. Ingle, 36 NY2d 413, 369 N.Y.S.2d 67 (1975); (3) directing
that a hearing be held pursuant to Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248
(1979) and Mapp v. Ohio, 367 U.S. 643; 81 S.Ct. 1684 (1961); (4) directing that a
hearing be held pursuant to People v. Huntley, 15 NY2d 22, 255 N.Y.S.2d 838 (1965);
(5) suppressing the results of a chemical test of his breath pursuant to VTL § 1194, or
directing that a hearing be held on the related issues prior to trial; and, (6) directing the People to
disclose any uncharged acts that will be used at trial to impeach the Defendant, should he testify
at trial and that a hearing pursuant to People v. Sandoval, 34 NY2d 371, 357 N.Y.S.2d
849 (1974) and People v. Molineux, 168 NY 264, 61 N.E. 286 (1901) be held.
The People consent to the court directing that a hearing be held to determine the
voluntariness of any statements attributed to the Defendant. They also consent to a
Sandoval [*2]hearing being held immediately before the
commencement of trial. The People oppose the Defendant's motion in all other respects.
DISMISSAL
The Defendant is
charged with possessing an open container of alcohol in a motor vehicle, in violation of VTL
§ 1227(1), by way of a simplified traffic information. The Defendant is charged with
driving while intoxicated, in violation VTL § 1192(2), by way of a simplified traffic
information accompanied by a supporting deposition; and, he is charged with assault in the third
degree, in violation of PL § 120.00(3), by way of an information accompanied by two
supporting depositions.
Applying the provisions of CPL §§ 100.15(1) and (3) and 100.40(1)(c) to
all three accusatory instruments, the Defendant argues that all of the charges against him must be
dismissed due to the facial insufficiency of all three accusatory instruments. According to the
Defendant, each instrument is based upon conclusory allegations, hearsay statements, and/or
false allegations. The Defendant also alleges the instruments fail to allege essential elements of
the offenses charged.
In opposition, the People, relying on CPL §§ 100.15, 100.25 and
100.40(1)(a-c) and (2), argue that, viewing the allegations in a light most favorable to the People,
all necessary elements of the offenses charged have been set forth in a manner appropriate for
each accusatory instrument.
The Defendant fails to recognize the significant differences among the three
accusatory instruments herein. The Defendant is incorrect in arguing that all "accusatory
instrument[s are] insufficient if [they] fail[] to contain non-hearsay allegations establishing all
elements of the offense charged." (Feinman Affirmation 4/26/12, ¶ I1) It is equally
erroneous, as the Defendant suggests, that all accusatory instruments " must contain an
accusatory and a factual part.'" (Feinman Affirmation 4/26/12, ¶ I6) As will be
discussed hereinafter, the facial sufficiency requirements of all accusatory instruments cannot be
lumped together, as if they were all informations, which is what the Defendant has done herein.
The facial sufficiency requirements are different for each accusatory instrument; and, each must
be evaluated in accordance with its own particular requirements.
VTL § 1227(1)
As
indicated, the Defendant is charged with possessing an open container of alcohol in a motor
vehicle, in violation of VTL § 1227(1), by way of a simplified traffic information. "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) Where, as here,
no supporting deposition has been demanded, and none provided in support of the offense
charged, a simplified traffic information must be substantially in the form prescribed by the
Commissioner of Motor Vehicles, See: CPL §§ 100.10, 100.25 and 100.40(2),
and will be found facially sufficient if it so complies. See: People v. Nuccio,
supra.; People v. Bize, 30 Misc 3d 68, 918 N.Y.S.2d 696 (App. Term 9th & 10th
Dept. 2010); People v. Weinert, 178 Misc 2d 675, 683 N.Y.S.2d 690 (App. Term 2nd
Dept. 1998) 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)
Given these limited and specific requirements governing the facial sufficiency of
simplified traffic informations, the absence of "allegations that the alleged open container
actually [*3]contained alcohol" (Feinman Affirmation
4/26/12, ¶ I13) does not, as the Defendant suggests, mandate the dismissal of this charge.
The court finds that the simplified traffic information charging a violation of VTL
§ 1227(1) "on its face [is] legally sufficient since it conform[s] to the requirements
prescribed by the Commissioner of Motor Vehicles (citations omitted)." People v.
Sasson, 27 Misc 3d 134(A), 2010 NY Slip Op 50748(U) (App.Term 9th & 10th Jud. Dists.
2010); See also: People v. Elm, 25 Misc 3d 141(A), 2009 NY Slip Op 52459(U)
(App.Term 9th & 10th App. Term 2009)
VTL § 1192(2)
The
Defendant is also charged with driving while intoxicated, by way of simplified traffic
information; this one, however, is accompanied by the supporting deposition of Police Officer
Mat Murphy and two certified breath cards concerning chemical tests of the Defendant's breath.
This accusatory instrument will be found facially sufficient "when, as provided by
subdivision one of section 100.25, [the simplified traffic information] substantially conforms to
the requirements therefor prescribed by or pursuant to law;" See: CPL § 100.40(2),
and where the supporting depositions "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 the Defendant correctly points out:
Reasonable cause to believe that a person committed an offense' exists when
evidence of 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. CPL § 70.10(2). (Feinman Affirmation 4/26/12, ¶
I3)
The supporting deposition of Officer Murphy alleges that on November 19, 2011, at
approximately 5:53 p.m., at Jerusalem Avenue, in the Village of Hempstead, Officer Murphy
observed the Defendant sitting at the wheel of a 1997 Ford pick up vehicle bearing license plate
number EJW6735, with the keys in the ignition and the motor running. At that time, it was
observed, by Officer Murphy, that the vehicle in which the Defendant was sitting appeared to
have been involved in an accident. It is further alleged that Officer Murphy observed the
Defendant to have the odor of an alcoholic beverage, glassy eyes, slurred speech, impaired motor
coordination and to be staggering. Officer Murphy alleges that at 5:59 p.m. the Defendant stated
that he had been drinking, was coming from a party and was driving to a deli. The supporting
deposition further indicates that, based upon information provided by P. O. Nicholson, a breath
test operator, that the Defendant's blood alcohol concentration at 7:24 p.m., was .11%. The two
certified breath cards accompanying this simplified traffic information also report that the
Defendant's blood alcohol concentration was .11%
While the Defendant contests Officer Murphy's alleged observations of the
Defendant sitting behind the wheel of the Ford pick up with the keys in the ignition and motor
running, "information provided ... by the Defendant, independent investigation and the
paperwork filed by the District Attorney's office in connection with this matter," (Feinman
Affirmation 4/26/12, ¶ I14) allegedly to the contrary, is irrelevant when considering the
facial sufficiency of an accusatory instrument. The sufficiency of the instrument must be
determined from "within the four corners [*4]of the instrument
itself' or in annexed supporting depositions[,]" People v. Thomas, 4 NY3d 143, 791 N.Y.S.2d 68 (2005); See
also: People v. Casey, 95 NY2d 354, 717 N.Y.S.2d 88 (2000); People v. Bottari, 31 Misc 3d 90,
924 N.Y.S.2d 733 (9th & 10th Jud. Dists. 2011); People v. Milowski, 34 Misc 3d
137(A), 946 N.Y.S.2d 68 (App. Term 9th & 10th Jud. Dists. 2011) not from additional factual
representations made outside the pleadings themselves. The veracity and accuracy of Officer
Murphy's allegations are to be tested at trial, not upon a motion to dismiss for facial
insufficiency.
Defendant's argument that his alleged admissions of drinking and driving cannot be
believed, are hearsay and cannot support the charge of driving while intoxicated are equally
without merit. As indicated above, whether or not the Defendant spoke English or Spanish does
not affect the facial sufficiency of the accusatory instrument. This issue is for the trier of fact to
decide. Additionally, when assessing the facial sufficiency of a simplified traffic information
with an accompanying supporting deposition, it is not required that the pleading be supported by
non-hearsay allegations. As indicated, the instrument will be sufficient provided the supporting
deposition "contain[s] allegations of fact, based either upon personal knowledge or upon
information and belief[.]" CPL § 100.25(2). Moreover, the first hand statement allegedly
made by the Defendant to Officer Murphy is an admission, an exception to the hearsay rule. If
non-hearsay allegations were required to support this accusatory instrument, the Defendant's
alleged statements would suffice. See: Matter of Rodney J., 108 AD2d 307, 489
N.Y.S.2d 160 (1st Dept.1985); Matter of Rey R., 188 AD2d 473, 591 N.Y.S.2d 55 (2nd
Dept.1992); People v. Heller, 180 Misc 2d 160, 164, 689 N.Y.S.2d 327, 331 (Crim.Ct.
NY Co.1998); People v. Polito, 128 Misc 2d 71, 488 N.Y.S.2d 593 (City Ct. Rochester
1985) [defendant's admission of operation sufficient to sustain facial sufficiency of information
charging driving while intoxicated]
Based upon the foregoing, viewing Officer Murphy's allegations 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), the court
finds the accusatory instrument provides reasonable cause to believe that the Defendant was
driving while intoxicated in violation of VTL § 1192(2). See: People v.
Hohmeyer, 70 NY2d 41, 157 N.Y.S.2d 448 (1987)
Penal Law §
120.00(3)
Unlike the two prior counts, the Defendant is charged with
assault in the third degree by way of a District Court information. An information will be found
facially sufficient where, in conformity with CPL §§ 100.15 and 100.40, it contains an
accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every
element thereof, People v. Hall, 48 NY2d 927, 425 N.Y.S.2d 56 (1979), and a factual
part containing "a statement of the complainant alleging facts of an evidentiary character
supporting or tending to support the charges[,]" CPL § 100.15(3) based upon either the
complainant's personal knowledge or upon information and belief. CPL § 100.15(3) The
factual part, taken together with any supporting depositions, must contain non-hearsay allegations
which, if true, establish every element of the offence charged, People v. Moore, 5 NY3d 725, 800 N.Y.S.2d 49 (2005); People v. Thomas, 4 NY3d 143,
791 N.Y.S.2d 68 (2005) "provid[ing] reasonable cause to believe that the defendant committed
the offense[.]" People v. Alejandro, 70 NY2d 133, 517 N.Y.S.2d 927 (1987); CPL §
100.40(4)(b)
As applicable herein, "A person is guilty of assault in the third degree when: 3. With
criminal negligence, he causes physical injury to another person by means of a deadly weapon or
a dangerous instrument." Penal Law § 120.00(3) As is apparent, to be facially sufficient, the
[*5]allegations contained in the information must properly
establish (1) the Defendant was criminally negligent; (2) that such negligence caused physical
injury to another; and, (3) that the injury was caused by a deadly weapon or a dangerous
instrument.
The information is accompanied by Officer Murphy's aforementioned supporting
deposition and the supporting deposition of Jackie Martin. The information alleges that on
November 19, 2011, at about 5:53 p.m., in the vicinity of Jerusalem Avenue and Searing Street,
the Defendant operated a 1997 Ford pickup truck bearing registration EJW6735 while in an
intoxicated condition. The information further alleges that at that time the Defendant struck a
pedestrian, Jackie Martin, who was crossing Jerusalem Avenue while in a crosswalk. It is further
alleged that after being struck Ms. Martin suffered substantial pain in her left leg, right knee and
hands. The information alleges that Ms. Martin was taken to the hospital on the date in question
and returned the following day due to continued substantial pain in her left leg, left foot, left
shoulder, neck and back. The information also recites the allegations contained in Officer
Murphy's supporting deposition, as set forth hereinabove.
The supporting deposition of Ms. Martin alleges, in sum and substance, in pertinent
part, that on the date, time and place in question, after waiting for the traffic light at the
intersection of Jerusalem Avenue and Searing Street to turn green in her favor, she proceeded to
cross Jerusalem Avenue, within a marked crosswalk. Ms. Martin alleges that while in the cross
walk, she "suddenly saw a windshield and a bumper of an approaching vehicle. Then that vehicle
hit [her] on the left side of [her] body, and [her] hands pushed against the hood of the vehicle.
Ms. Martin further alleges that "[t]he vehicle that hit [her] was driven by a person later identified
as the Defendant Fidel Maradiaga." The balance of Ms. Martin's supporting deposition sets out
her alleged injuries, limitations and medical treatment resulting from the alleged incident.
In moving to dismiss this information, the Defendant argues that "[n]one of the
documents state, alludes (sic) to or otherwise intimates (sic) how the Defendant
acted in a criminally negligent manner." (Feinman Affirmation 4/26/12, ¶ I8)
According to the Defendant, "[t]here is no testimony to suggest that Defendant was driving in
any imprudent manner, criminal or otherwise." (Feinman Affirmation 4/26/12, ¶
I10) The Defendant further argues that there are no non-hearsay allegations identifying him as the
driver of the vehicle which struck Ms. Martin.
In opposition, the People take the position that "there is ample information contained
in both documents [Officer Murphy's and Ms. Martin's supporting depositions] from which a
reasonable person could conclude that the Defendant indeed acted in a criminally negligent
manner when he struck a pedestrian in a crosswalk after choosing to drive while intoxicated."
(Corrao Affirmation 6/18/12, ¶ 30) Other than pointing to the Defendant's alleged
intoxication and there being contact between Ms. Martin and the windshield and bumper of an
unidentified vehicle, the People fail to identify any of this "ampl[e] information."
Even when reading the supporting depositions in a light most favorable to the
People, there are no non-hearsay allegations which connect the Defendant to the "windshield and
a bumper of an approaching vehicle" which allegedly struck Ms. Martin. Nowhere in Ms.
Martin's supporting deposition does she provide a description of the vehicle which or the driver
who allegedly struck her. Officer Murphy was not present at the time of the alleged accident and
has no personal knowledge as to how the alleged accident happened or who was involved. While
his supporting deposition indicates that some kind of accident happened, it does not indicate how
he knows that, what the nature of the accident was, or who was involved. Significantly, it does
not indicate that Ms. Martin identified the Defendant as the driver of the vehicle which struck
her. In fact, Officer [*6]Murphy's supporting deposition does not
indicate that the Defendant was, necessarily, involved in an accident at all.
The only thing that connects the Defendant to Ms. Martin is her statement that, "The
vehicle that hit me was driven by a person later identified as the Defendant Fidel Maradiaga."
This is nothing more than an unsupported hearsay statement. 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 also dealing with the apparent second hand
identification of the Defendant as the driver who allegedly struck Ms. Martin.
In Russo, id., the complainant "identified his assailant by giving a physical
description of him as a male white with short black hair wearing a Cleveland Cavaliers Jersey
with the name James on the back." It was clear in that case that the complainant knew who his
assailant was, he just did not know the individual's name. Therein, the only information provided
to the complainant was the name of the individual he identified as his assailant. In the matter
sub judice, Ms. Martin does not provide a description of either the vehicle which
allegedly struck her or the driver of that vehicle. Nowhere in Ms. Martin's supporting deposition
is there any indication that she has any independent knowledge of who hit her, either by physical
description or by name. What is apparent from Ms. Martin's supporting deposition is that some
unidentified individual told Ms. Martin that it was the Defendant who was driving the vehicle
which struck her and that the Defendant's name was Fidel Maradiaga. This hearsay cannot
support the facial sufficiency of the information.
This defect notwithstanding, the information fails to set forth any allegations
demonstrating any criminal negligence on the part of the Defendant.
Penal Law § 15.05(4) provides:
A person acts with criminal negligence with respect to a result or to a circumstance
described by a statute defining an offense when he fails to perceive 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 the failure to perceive it constitutes a gross deviation from the standard of care
that a reasonable person would observe in the situation.
"Proof of intoxication alone is not enough to sustain a conviction of criminal
negligence. The People must also prove that the defendant's intoxication affected his physical
and mental capacity to the extent that it caused him to operate his vehicle in a culpably reckless
manner." People v. Bast, 19 NY2d 813, 280 N.Y.S.2d 149 (1967); See also:
Matter of Johnston, 75 NY2d 403, 554 N.Y.S.2d 88 (1990); People v. Mojica, 62 AD3d 100,
874 N.Y.S.2d 195 (2nd Dept. 2009) lv. den. 12 NY3d 856 (2009)
In the matter sub judice, as in People v. Figueroa, 164 Misc 2d 814,
625 N.Y.S.2d 839 (Crim. Ct. Kings Co. 1995): the defendant has not been apprised of what
conduct, on [his] part, constitutes ... criminally negligent assault. The allegation, if true, that
defendant was driving under the influence of alcohol when [he struck Ms. Martin] would not
make [him] culpable per se under ... PL § 120.00(3) without any allegations related
to how the accident occurred or whether the defendant was driving in an erratic, reckless or
negligent manner. Even if the act of defendant's driving [his] vehicle under the influence of
alcohol constitutes a gross deviation from the required standard of care, there are [*7]insufficient allegations in the information which would show that
the accident resulted from defendant's alleged ... criminal negligence' in violation of ... PL §
120.00(3).
Contrary to the argument of the People, the fact that it is alleged the Defendant
struck a pedestrian, as opposed to another vehicle, does not distinguish Figueroa, id. from
the case presently before this court. One's alleged criminal negligence does not depend upon the
item with which it is alleged the motorist collided. Moreover, the People seem to overlook the
Figueroa, id. court's citation of People v. Holt, 109 AD2d 174, 491 N.Y.S.2d 526
(4th Dept. 1985), wherein the Appellate Division found that proof of the intoxication of a
motorist who struck a pedestrian, without proof of the manner in which the accident occurred,
could not sustain a finding of criminal negligence.
While the People claim that there are sufficient allegations as to how this accident
happened and the conduct of the Defendant which led same, including that the Defendant "failed
to observe and properly yield to a pedestrian[,]" (Corrao Affirmation 6/18/12, ¶ 36)
there are no such allegations in the information or the supporting depositions. As previously
indicated, Ms. Martin only alleges that she was in the crosswalk and "suddenly saw a windshield
and a bumper of an approaching vehicle." She does not say the vehicle was being operated in any
improper manner whatsoever. Moreover, Officer Murphy's supporting deposition, although
having the ability to so state, fails to indicate that the Defendant committed any Vehicle and
Traffic Law violations or operated his vehicle in an erratic manner.
Based upon all of the foregoing, this charge cannot be sustained.
INGLE/DUNAWAY/HUNTLEY
HEARINGS
Generally, before this court will order an Ingle,
Dunaway or Mapp hearing the Defendant must set forth allegations sufficient to
raise factual disputes to be resolved at a hearing before the court can determine the legal issues
raised by the Defendant relative thereto.
While the Defendant seeks an Ingle hearing, challenging the stop of his
vehicle in the first instance, the Defendant does not dispute that Officer Murphy did not stop his
vehicle. Rather, the Defendant acknowledges that "Officer Murphy was called to the scene of the
alleged accident several minutes after the alleged incident occurred ...." (Feinman
Affirmation 4/26/12, ¶ I14) In fact, the Defendant further alleges that when Officer
Murphy "arrived the Defendant was not behind the wheel of a motor vehicle." (Feinman
Affirmation 4/26/12, ¶ I14) Given this acknowledgment by the Defendant, there is no
basis upon which this court should order an Ingle hearing.
The Defendant's allegations of his condition and of what transpired at the scene are
sufficient to raise factual disputes concerning the probable cause for the Defendant's arrest and
the voluntariness of his alleged statements, which can only be resolved at a hearing. See:
People v. Mendoza, 82 NY2d 415, 604 N.Y.S.2d 922 (1993) Specifically, contrary to
Officer Murphy's supporting deposition, the Defendant denies that he was behind the wheel of a
vehicle with the keys in the ignition and motor running at the time the officer arrived on the
scene. The Defendant further alleges that he speaks Spanish and that there was a strong language
barrier, calling into question the Defendant's alleged admissions of operation and alcohol
consumption. The Defendant also denies that he had the odor of alcohol on his breath, watery
eyes and slurred speech, or that he was intoxicated or impaired.
The People already having consented to a voluntariness statement, the is entitled to a
Dunaway/Mapp/Huntely hearing.
CHEMICAL TEST PURSUANT TO VTL §
1194
[*8]
While listed as a separate prayer
for relief in the Defendant's Notice of Motion, other than alleging that the results of the chemical
test are the "fruits of the illegal police conduct," (Feinman Affirmation 4/26/12, ¶
II17) the Defendant raises no other ground for the suppression of, or a hearing concerning, the
chemical test of the Defendant's breath. Accordingly, the Defendant's application to suppress the
results of the chemical test shall be heard in the context of the Dunaway/Mapp hearing
and the court shall not entertain any other issues relating to the chemical test of the Defendant's
breath at that hearing.
PRECLUDE
The Defendant
has not included a prayer for such relief in his Notice of Motion; nevertheless, his motion papers
seek an order precluding testimony concerning any statement or identification not timely noticed
by the people pursuant to CPL § 710.30. The Defendant, however, fails to identify what
those statements or identification might be. At this time, there is nothing for the court to
consider.
SANDOVAL
The Defendant
requests, and the People consent to, the disclosure of the Defendant's past criminal history and/or
prior bad or immoral acts which the People intend to use at trial and a pre-trial hearing pursuant
to People v. Sandoval, supra. and People v. Molineux, supra. This
hearing shall be held immediately before the commencement of trial.
FUTURE
MOTIONS
The Defendant's reservation of his right to make further
motions is unauthorized. See: CPL § 255.20(3) Any future motions will be
determined on an individual basis, based upon the timeliness and merits thereof.
CONCLUSIONS
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
driving while intoxicated, in violation of VTL § 1192(2), is denied;
(2) that branch of the Defendant's motion seeking an order dismissing the charge of
possessing an open container of alcohol in a motor vehicle, in violation of VTL § 1227(1),
is denied.
(3) that branch of the Defendant's motion seeking an order dismissing the charge of
assault in the third degree, in violation of PL § 120.00(3), is granted; and, it is hereby
ORDERED, that the charge of assault in the third degree is dismissed.
(4) that branch of the Defendant's motion seeking an order directing that an
Ingle hearing be held is denied;
(5) that branch of the Defendant's motion seeking an order directing that a
Dunaway/Mapp/Huntley hearing be held is granted; and, the date for such hearing shall
be selected at the next calendar conference of this matter;
(6) the Defendant's request that the People be precluded from offering testimony at
trial concerning unidentified statements or identifications not timely noticed by the People
pursuant to CPL § 710.30 is denied.
(7) that branch of the Defendant's motion seeking the disclosure of the Defendant's
past criminal history and/or prior bad or immoral acts which the People intend to use at trial
should the Defendant choose to testify and a pre-trial Sandoval/Molineaux hearing is
granted to the extent of ordering that such hearing shall be held immediately before the
commencement of trial;
[*9]
(8)that branch of the Defendant's motion seeking
to reserve the Defendant's right to file additional motions is denied.
This constitutes the decision and order of the court.
Dated: Hempstead, New York
August 1, 2012
___________________________
ANDREW M. ENGEL
J.D.C.