[*1]
People v Stanley
2015 NY Slip Op 51308(U) [48 Misc 3d 1229(A)]
Decided on September 10, 2015
District Court Of Suffolk County, First District
Wilutis, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 10, 2015
District Court of Suffolk County, First District


People of the State of New York,

against

Jermaine O. Stanley, Defendant




2014SU033202



For the Defendant:
Adam J. Markou
for Robert C. Mitchell, Legal Aid Society of Suffolk County

For the People:
Daniel J. Opisso
for Thomas J. Spota, District Attorney of Suffolk County


Karen M. Wilutis, J.

The within defendant is charged with driving while intoxicated (V & TL §§1192(2), (3)), aggravated unlicensed operation of a motor vehicle in the third degree (V & TL §511(1)) and leaving the scene of a property damage accident (V & TL §600(1)). The defendant moves for omnibus relief and the Court will address the defendant's demands ad seriatim.



I)Dismissal of count three -



The defendant's motion to dismiss count three charging a violation of V & TL §511(1) is granted on sufficiency grounds. The information pertaining to said charge is stated to be based upon both the personal knowledge of the complainant police officer and information and belief, with the source for same being an Intoxilyzer 9000 printout and the supporting deposition of Lakishia Tolar. A review of the instrument and its accompanying documents reveals that there exist no non-hearsay factual allegations establishing an element of the offense; namely, that the defendant knew or had reason to know that his license was suspended. As such, the defendant's motion to dismiss must be granted. Upon issuance of this order, the Court shall furnish the defendant with notice pursuant to 22 NYCRR §200.40.



II)Dismissal of count four -



The defendant's motion to dismiss count four charging a violation of V & TL §600(1) is granted on sufficiency grounds. Count four has been charged via a simplified traffic information. A supporting deposition of the complainant police officer was furnished in response to the defendant's demand. A review of said deposition reveals that it fails to specify the source of information and belief upon which it is partially based, that it provides no allegation that any damage was caused to the property of another or that the defendant knew or had cause to know of any damage. As such, the supporting deposition fails to provide the requisite reasonable cause (see CPL 100.25(2)) and the simplified information is rendered insufficient on its face. The Court notes that the People's argument seeking to incorporate a supporting deposition filed in conjunction with informations on other counts herein is unavailing. The charge under count four was brought on by simplified information and the Court must look only to the four corners of that accusatory instrument in assessing its sufficiency.



III, IV, VI)Suppression -



The defendant's motion to suppress the chemical breath test results herein, upon the basis that the Intoxilyzer 9000 is not a chemical testing device approved for use in the State of New York, is granted to the extent that the matter shall be set down for a hearing.



"Regardless of whether CPL 710.20(5) is applicable to consented-to breath tests ....an extensive body of case law has made clear that consented-to breath tests can be challenged via a motion in limine where the defendant raises a substantial question as to whether the People will be able to lay the necessary foundation for admissibility of the defendant's chemical test results at trial." (Gerstenzang, Handling the DWI Case in New York 24:16 [2014- 2015]). It has been held that such hearings should be held prior to trial "because of the potential for prejudice to defendant if the issue was litigated during trial in the jury's presence, only thereafter to be found inadmissible." (See People v. Colon, 180 AD2d 876 [3rd Dept 1992], lv app den 80 NY2d 829 [1992]). Accordingly, because the within defendant has raised the requisite substantial question and, inter alia, because the exhibits to the People's opposition are not in proper evidentiary form, the matter shall be set down for such a hearing.



The defendant's motions to suppress any observation of the defendant, any tangible property, chemical test results and the defendant's statement(s) are ranted solely to the extent that Mapp/Dunaway/probable cause and Huntley hearings shall be held immediately prior to trial.



V)Preclusion -



The defendant's motion to preclude identification evidence is denied. The defendant argues that preclusion is required due to the fact that the CPL 710.30 notice failed to reference any identification evidence that the People plan to introduce. In the supporting deposition that accompanies the within information, the deponent details the circumstances of an accident in which the defendant allegedly hit the deponent's vehicle and left the scene without providing information. The deponent further states that she followed the defendant and did not [*2]lose sight of him until police arrived and arrested the defendant. It is the opinion of the Court that, under the circumstances set forth in the matter sub judice, the identification did not constitute a police-arranged procedure that would necessitate CPL 710.30 notice. (Cf. People v. Rios, 156 AD2d 397 [2nd Dept 1989], lv app den 75 NY2d 923 [1990]). The Court further finds that the caselaw relied upon by the defendant is inapposite, as it contains specific reference to a "police identification procedure"; namely, a "show-up."



VII)Discovery and inspection -



Motions granted solely to the extent that the People shall furnish the defendant with the Prisoner Activity Log; a copy of the pertinent Department of Health operator's permit; a copy of the Suffolk County Police Department rules and regulations governing the administration of chemical tests, to the extent that such documentation exists (cf. Matter of Constantine v. Leto, 157 AD2d 376 [3rd Dept 1990], affd 77 NY2d 975 [1991]; V & TL §1194(2)(a)(2)); and, to the extent not already furnished, the most recent inspection, calibration and repair records for the instrument used to perform the chemical test herein (see CPL 240.20(1)(k)). The defendant's motions are otherwise denied, as the People have responded, aver that they are not in possession of any further discoverable material and acknowledge their continuing discovery obligations. Thus, no further order of the Court is necessary or warranted at this time.



VIII, IX)Brady and Rosario material -



The defendant's motions for an order directing the People to furnish same is denied, as the People have responded, aver that they are not currently in possession of any further such material and acknowledge their continuing obligations pursuant to CPL Article 240 and Brady v. Maryland (373 US 83). Thus, no further order of the Court is necessary or warranted at this time.



X, XI)Sandoval/Ventimiglia/Molineux relief -

Motions granted, with hearings to be held immediately prior to trial. The People shall furnish the defendant with CPL 240.43 material immediately prior to said hearing.

Dated: September 10, 2015

J. D. C.