Defendant is charged with two counts of Assault in the Third Degree (PL Sec. 120.00(1) and (2)), and one count each of Reckless Endangerment in the Second Degree (PL Sec. 120.20), and Criminal Possession of a Weapon in the Fourth Degree (PL Sec. 265.01(2)), all Class A misdemeanors; and one count each of Harassment in the Second Degree (PL Sec. 240.26(1)), and Disorderly Conduct (PL Sec. 240.20(7)), both violations.^[FN1]

By omnibus motion dated July 1, 2013, Defendant seeks the following: dismissal of all charges, asserting that the People's complaint is facially insufficient; suppression of all physical evidence seized and statements made at the time of the Defendant's arrest, as well as identification testimony, and any evidence of any prior bad acts or immoral conduct. [*2]

By order dated October 15, 2013, this Court instructed the People to provide a Bill of Particulars, detailing which charges apply to which mental state alleged against Defendant. A Bill of Particulars dated November 27, 2013 was provided within the time frame specified by the Court.

The Court has reviewed the Court file, Defendant's motion, the People's Response dated July 23, 2013, and the Bill of Particulars dated November 27, 2013.

The motion to dismiss is denied. Defendant's assertion that a complaint cannot charge both intent and recklessness, based on the same underlying conduct, is not an accurate statement of the law. In fact, for the reasons discussed below, a criminal defendant can be charged with both intentional and reckless acts for the same conduct.

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

Since the People do not intend to use any identification procedures against Defendant, the motion for suppression of said evidence is denied.

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

Pursuant to the Criminal Court Complaint, on or about May 22, 2013, at approximately 10:00 PM, Police Officer Justin Gelband observed Defendant "seated on the driver's seat, holding the handle bars, with the keys in the ignition and engine turned on, of a motor bike while said bike was moving" at the intersection of Selwyn Avenue and East 172nd Street, Bronx, New York. The officer observed Defendant "weaving around pedestrians on the roadway of said location, not stopping at a stop sign, and driving the wrong way at the above location, a one-way street." The officer also observed "pedestrians cease walking on the street when defendant drove by them." See, Criminal Court complaint dated May 22, 2013, p 1-2.

When the officer directed the Defendant "to stop driving said motor bike, defendant drove into deponent running over deponent's foot.' See, Criminal Court complaint dated May 22, 2013, p 2.

As a result of the Defendant's actions, the officer "suffered a contusion to his toe on his right foot, as well as substantial pain to this area. " He also asserts that "as a result of defendant's actions, he experienced annoyance, alarm and fear for his physical safety." See, Criminal Court complaint dated May 22, 2013, p 2. [*3]

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

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

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

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

As noted in this Court's order of October 15, 2013, Defendant is alleged to have "weav(ed) around pedestrians on the roadway...not stopping at a stop sign, and driving the wrong way at the above location, a one-way street." These actions allegedly caused "pedestrians (to) cease walking on the street when defendant drove by them." See, Criminal Court complaint dated May 22, 2013, p 1-2.

There is no question that the People may accuse this Defendant of Reckless Endangerment, based upon these allegations. These allegations clearly support the charge of Reckless Endangerment in the Second Degree, which requires that a defendant "recklessly engage(s) in conduct which creates a substantial risk of serious physical injury to another person."

These allegations also support the charge of Disorderly Conduct under PL Sec. 240.20(7), which states that a defendant "recklesslycreating a risk thereof...(7)...creates a hazardous or physically offensive condition by any act which serves no legitimate purpose"

The question here arises regarding the allegation that Officer Gelband directed the Defendant "to stop driving said motor bike, (and) defendant drove into deponent running over [*4]deponent's foot." See, Criminal Court complaint dated May 22, 2013, p 2. Since this act is charged as both an intentional, as well as a reckless act, the Court required the People to provide a Bill of Particulars "detailing which charges apply to which mental state alleged against Defendant" See, Court Order of October 15, 2013, p 2.

This Court determined that these allegations constitute a separate and distinct act from those allegations made in support of the Reckless Endangerment charge. See, Order dated October 15, 2013, p 3.

As discussed in our prior order, the following charges were brought by the People based upon the allegation that Defendant drove over Officer Gelband's foot after being directed to stop:

Assault in the Third Degree in violation of PL Sec. 120.00(1), which states that "(w)ith intent to cause physical injury to another person, he causes such injury to such person" (emphasis added);

Assault in the Third Degree in violation of PL Sec. 120.00(2), which states that "He recklessly causes physical injury to another person" (emphasis added); and

Criminal Possession of a Weapon in the Fourth Degree in violation of PL Sec. 265.01(2), which states that "he possesses...any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another" (emphasis added);

Harassment in the Second Degree in violation of PL Sec. 240.26(1), which states "with intent to harass, annoy or alarm another person...(1) He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact" (emphasis added); and

Disorderly Conduct in violation of PL Sec. 240.20(7), which states "with intent to cause public inconvenience, annoyance or alarm...(7) He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose" (emphasis added).^[FN2]

The undated Bill of Particulars provided by the People states that in "refusing to stop driving when ordered to do so by the police and running over PO Gelband's foot...(Defendant did) Recklessly cause physical injury...Intentionally cause physical injury by running over PO Gelband's foot."

Defendant asserts that "(t)o the extent that the complaint charges the conflicting mental [*5]states of intent and depraved indifference or recklessness based on the same underlying conduct, the complaint is improper and this Court must dismiss the conflicting counts." See, Defendant's motion dated July 1, 2013, p 4, para 1.

In support of this position, Defendant cites People v. Gallagher, 69 NY2d 525, 528, (1987); "One who acts intentionally...with the conscious objective of bringing about that result - cannot at the same time act recklessly - that is, with conscious disregard of a substantial and unjustifiable risk...(t)he act is either intended or not intended; it cannot simultaneously be both." See, Defendant's motion dated July 1, 2013, p 4, para 5.

Thus, even after the People have provided their Bill of Particulars, the question remains the same. Assault in the Second Degree in violation of PL Sec. 120.00(1), Criminal Possession of a Weapon in the Fourth Degree, Harassment in the Second Degree, and Disorderly Conduct all require the Defendant to have acted with intent. Assault in the Third Degree in violation of PL Sec. 120.00(2) is predicated upon "reckless" behavior, which is a different mental state.

Can Defendant be charged with both intentional and reckless acts in the same complaint, for the same act?

This question must be answered in the affirmative.

Defendant's reliance on Gallagher is misplaced. Gallagher applies to the determination of which charges will be submitted to a jury, a matter which is left to the discretion of the trial court. Gallagher, and the principles discussed therein, is not applicable to a review of the facial sufficiency of a complaint.

Gallagher states the common practice of trial courts of the time; where a defendant is charged with two inconsistent crimes, "both counts may be submitted to the jury, but only in the alternative." See, 69 NY2d at 528 (emphasis added). Gallagher, and the majority of the cases which analyze mens rea in this context are a discussion of the difference between depraved indifference murder, and intentional murder.^[FN3] These cases do not address the facial sufficiency of an indictment which charges two separate mental states for the same act.

For years, indictments charging both an intentional and reckless state of mind were submitted to juries, even when there was only one act committed by a defendant, such as stabbing or shooting a single victim. People v. Suarez, 6 NY3d 202, 215, 811 NYS2d 267 (2005) continued the discussion of this issue with this observation: " (T)win-count' indictments...should be rare. Twin-count submissions to a jury, even rarer. For by the time the proof has been presented, it should be obvious in most cases whether or not the evidence [*6]establishes an intentional (act) or no other.' Thus, when twin-count indictments are lodged, trial courts should presume that the defendant's conduct falls within only one category...and, unless compelling evidence is presented to the contrary, dismiss the count that is least appropriate to the facts.'" (Citations omitted.)

In People v. McMillon, 31 AD3d 136, 816 NYS2d 167 (2d Dept, 2006), app den, 7 NY3d 815, 822 NYS2d 490 (2006), cert den, 131 S Ct 426, 178 L Ed2d 332 (2010), the court left open the possibility that twin counts can be submitted to a jury. "It should be rare for a defendant to be charged with both intentional and depraved indifference murder, and rarer still for both counts to be submitted for jury consideration...(w)hen that does happen, however, the jury may not convict the defendant of depraved indifference murder unless it also acquits him or her of intentional murder." 31 AD2d at 140-141, citing Gallagher. (Other citations omitted). See, also, People v. Martinez, 20 NY3d 971, 959 NYS2d 674 (2012) (Smith, J, concurring)

The reason for this position is explained in Suarez - a finding by the jury of reckless or depraved conduct "was never meant as a fallback crime enabling courts and juries to avoid making these difficult decisions" as to whether or not a defendant's conduct was intentional. 6 NY3d at 214.

Thus, in all but the rarest of cases, once the facts have been heard, only charges supporting either a reckless or intention mental state may be submitted to the jury for their consideration - not both. It is for the trial court to decide which charges are to be submitted based upon the evidence adduced at trial regarding the defendant's mental state, and all charges supporting a different mental state must be dismissed.

The point to be adduced from the case law cited above that is relevant to our analysis, is that the decision regarding which charges are to be submitted to the jury is to be made by the trial court, after submission of all evidence. See, Morissette v. United States, 342 US 246, 274, 72 S Ct 240, 96 L Ed 288 (1951), quoting, People v. Flack, 125 NY 324, 334, 26 NE 267 (1891) ("the question of intent can never be ruled as a question of law, but must always be submitted to the jury.") The determination of a defendant's mental state cannot be made by the Court in the context of an analysis of facial sufficiency.

Here, there is evidence to support a view that the act of running over the police officer's foot after being directed to stop was intentional. However, there is another equally viable view that such an act is reckless, particularly if there is evidence presented that the Defendant did not hear the directive to stop.

Under People v. Kalin, 12 NY3d 225, 230, 878 NYS2d 653 (2009), "so long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." Citing, People v. Konieczny, 2 NY3d 569, 575, 780 NYS2d 546 (2004), citing, People v. Casey, 95 NY2d 354, [*7]360, 717 NYS2d 88 (2000). The instant complaint complies with this rule in all respects.

Therefore, Defendant's motion to dismiss for facial insufficiency is denied. The decision regarding what charges will be submitted to the jury is left to the trial court, after hearing the evidence.

OTHER RELIEF REQUESTED

Defendant has moved for suppression of any statements allegedly made to law enforcement personnel, and any physical evidence seized. This motion is granted to the extent of ordering a pre-trial hearing at which the Court shall consider whether or not the statements taken and evidence seized was legally obtained, and whether or not there was probable cause for the Defendant's arrest.

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

Since the People assert that no identification procedure was conducted at the time of Defendant's arrest, the motion to suppress such evidence is denied.

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

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

Dated: Bronx, New YorkFebruary 19, 2014

_______________________________Hon. John H. Wilson, JCC