Crimes - Accusatory Instrument - Defective Misdemeanor Information - Accusatory Portion Charging Class A Misdemeanor Based on Failure to Stop before Leaving Scene of Incident Unsupported by Nonhearsay Allegations Establishing That Defendant Stopped after Striking Pedestrian with Vehicle

Crimes - Right to Speedy Trial - Certificate of Readiness Stating That Charges in Accusatory Instrument Met Requirements of CPL 100.15 and 100.40 was Illusory Where Misdemeanor Information was Jurisdictionally Defective

Grauman Law, P.C. (James Hodnett of counsel) for defendant.

Anne T. Donnelly, District Attorney (Robert DeDona of counsel), for the People.

The defendant moves this court by notice of motion and affirmation in support of Grauman Law, P.C. by James Hodnett, Esq., each dated February 21, 2024, for an order, inter alia, deeming the accusatory instrument to be insufficient and dismissing the within matter pursuant to sections 170.30 (1) (a) and (e); 30.30 (1) (c) and 710.60 of the Criminal Procedure Law. Such relief is sought based upon the allegation that the certificate of readiness for trial filed by the People on October 26, 2023, is illusory and invalid due to a defective accusatory instrument (see CPL 30.30 [5-a]), and that as a result, the defendant has been denied her constitutional right to a speedy trial. Alternatively, counsel for the defendant seeks pretrial suppression hearings to address a statement purportedly made by the defendant to law enforcement on August 17, 2023, at 1:30 p.m. and her subsequent seizure and arrest. By affirmation in opposition of Jake Wohl, Esq., dated March 13, 2024, the People partially oppose such relief. The defendant elected to forgo a reply in response thereto and the motion was initially submitted on April 1, 2024.

By short form order dated June 5, 2024, this court directed that a motion conference be conducted based upon its inability to reconcile the position of defense counsel that the offense charged is improperly classified (see affirmation in support ¶¶ 15-19) and the apparent concession by the prosecution as to same (see affirmation in opp ¶ 29). Following brief oral argument on the record on June 6, 2024, the People were granted leave to submit the supplemental affirmation (sic) in opposition of Robert DeDona, J.D. (at such time), sworn to on June 27, 2024. After granting extensions of time to defense counsel on both August 8, 2024, and August 27, 2024, the motion was submitted for reconsideration and without reply on September 9, 2024.

The defendant is currently charged with violating a single count of the Vehicle and Traffic Law, to wit: section 600 (2) (a), which offense is identified and defined as a class A misdemeanor in the accusatory instrument filed herein. Notwithstanding such denomination, the prosecution acknowledges{**86 Misc 3d at 192} that the facts and circumstances of the purported incident fall within the statutory definition of the associated class B misdemeanor, and that the applicable time period within which the People must be ready for trial is 60 days following the commencement of the action pursuant to CPL 30.30 (1) (c) (see affirmation in opp ¶ 29) based upon the classification of the intended charge and the potential sentence of imprisonment associated therewith. The defendant bears the burden of proving by a preponderance of the evidence that there exist various delays that have resulted in the expiration of such 60 day period prior to the declaration of readiness for trial by the People (see e.g. People v O'Neal, 99 AD2d 844, 845 [2d Dept 1984]). Once a defendant has demonstrated a delay greater than the 60 day statutory speedy trial period, the burden of proving that certain time periods should be excluded from this calculation falls upon the People. (Id.) Finally, prior to any announcement of readiness for trial, the People must meet all obligations imposed by both CPL article 245 and section 30.30 as amended.

On or about August 4, 2023, at approximately 3:35 p.m., it is alleged that the defendant was operating her 2016 Acura motor vehicle on a public roadway located in Great Neck, County of Nassau, when she struck and injured a pedestrian in a designated intersection crosswalk. It is further alleged that the defendant then exited her vehicle and assisted the complaining witness to an adjacent sidewalk before leaving the scene without providing either identification or insurance information. Later that day, the complaining witness presented herself to the Nassau County Police Department (NCPD) Sixth Precinct to report the incident but refused any medical attention at such time. Following an investigation by law enforcement, the defendant voluntarily surrendered herself and was placed under arrest on August 17, 2023, at 3:33 p.m. at which time she was issued an appearance ticket.

The defendant was arraigned on the pending charge on September 5, 2023. The speedy trial time commenced the following day on September 6, 2023 (see People v Stiles, 70 NY2d 765, 767 [1987]; see also General Construction Law § 20), and thus the People were required to state their readiness for{**86 Misc 3d at 193} trial within 60 days thereof, to wit: November 4, 2023.^[FN1] On October 26, 2023, the People filed a certificate of compliance with initial discovery and a certificate of readiness for trial (COC/COR) off-calendar pursuant to CPL 245.50 ostensibly tolling the speedy trial clock. On January 23, 2024, counsel for the defendant requested a motion schedule to prepare and submit the within application for relief. [*2]Following the aforesaid motion conference conducted on June 6, 2024, and supplemental opposition filed by the People on June 27, 2024, the motion was submitted in current form on September 9, 2024. Counsel for the defendant contends that the misdemeanor information is facially deficient in that it misidentifies the sole offense with which the defendant is charged. Based upon the foregoing, the defendant seeks to have the certificate of readiness for trial deemed illusory and invalid, and to retroactively revive the statutory speedy trial clock in this matter.

All aspects of remedial relief sought by counsel for the defendant are addressed in sequence below.

There is established precedent that the requirement of actual readiness will be met unless there is proof that the readiness statement did not accurately reflect the position of the People at the time of filing (see People v Carter, 91 NY2d 795, 799 [1998]; see also People v Brown, 126 AD3d 516 [1st Dept 2015]). Moreover, there is a presumption that a statement of readiness is truthful and accurate until proved otherwise by a defendant challenging same (see People v Brown, 28 NY3d 392, 405 [2016]). Accordingly, the court must address whether the defendant is being prosecuted by a defective accusatory instrument as a threshold matter prior to considering any alternative relief.

Sufficiency of Accusatory Instrument

"The factual part of a complaint must establish 'reasonable cause' to believe that the defendant committed the charged offense (see CPL 100.40 [4] [b])," and must contain " 'nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof.' This is referred to as the 'prima facie case requirement.' " (People v{**86 Misc 3d at 194} Kalin, 12 NY3d 225, 228-229 [2009] [citations omitted].) Hence, a proper accusatory instrument must include valid and reliable information to ensure due process, to avoid running afoul of the constitutional rights of the defendant, and to confirm that a court of competent jurisdiction is presiding over the matter.

It is well-established that the court is strictly bound to the four corners of the accusatory instrument for an evaluation of sufficiency (see e.g. People v Slade, 37 NY3d 127, 136-137 [2021]) including "all reasonable inferences that may be drawn from the allegations." (See People v Matos, 78 Misc 3d 322, 324 [Crim Ct, Kings County 2023] [citations omitted].) "The purpose of requiring nonhearsay allegations establishing every element of the charged crimes is to assure that there exists a sound and supportable basis for subjecting the accused to a trial." (Matter of Edward B., 80 NY2d 458, 464 [1992] [citations omitted].) "This requirement, unique to informations among accusatory instruments under the Criminal Procedure Law, serves a function analogous to that of the grand jury, requiring the People to lay bare their prima facie case before trial." (People v Cruz, 44 Misc 3d 640, 642 [Crim Ct, Queens County 2014] [citation omitted]; see also People v Alejandro, 70 NY2d 133 [1987].) While the court recognizes that the "prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt" necessary for conviction (see People v Kalin, 12 NY3d 225, 230 [2009]), a baseline measure of adequacy and reliability of allegations must still be presented at the inception of any criminal proceeding. Within this aspirational framework, evaluations of sufficiency must be tempered with a "fair and not overly restrictive or technical [*3]reading" of the charging document (People v Casey, 95 NY2d 354, 360 [2000]) coupled with the flexibility to consider circumstantial evidence or credible supposition at the pleading stage. The totality of such evidence presented must then be assessed by the court "in the light most favorable to the People." (People v Jensen, 86 NY2d 248, 252 [1995].)

In the instant matter, counsel for the defendant asserts that the accusatory instrument charging a violation of Vehicle and Traffic Law § 600 (2) (a) as a class A misdemeanor is defective pursuant to CPL 170.35 in that the requisite components of such offense are not properly substantiated (see affirmation in support ¶ 18). Vehicle and Traffic Law § 600 (2) (a) states in applicable part that the failure of a defendant to "stop" and provide pedigree information following an incident involving{**86 Misc 3d at 195} known personal injury caused by the operation of a motor vehicle qualifies as a class A misdemeanor while any such violation "resulting solely from the failure of an operator to exhibit his or her license and insurance identification card . . . shall constitute a class B misdemeanor." (Vehicle and Traffic Law § 600 [2] [c]; see e.g. People v Ghorab, 51 Misc 3d 1225[A], 2016 NY Slip Op 50810[U] [Crim Ct, Queens County 2016]; People v Auguste, 64 Misc 3d 1240[A], 2019 NY Slip Op 51463[U] [Crim Ct, Queens County 2019]; cf. People v Iskhakov, 78 Misc 3d 1204[A], 2023 NY Slip Op 50154[U], *1 n 1 [Crim Ct, Queens County 2023].) While these statutory variants share a common foundation, this subtle distinction wields significant impact upon applicable speedy trial time, potential monetary fines, and permissible sentencing following conviction.

The accusatory portion of the subject misdemeanor information expressly designates the sole offense charged as a class A misdemeanor. The illustrative definition included therein incorporates the failure to "stop" before leaving the scene of an incident as a component of the enumerated crime. Moreover, the factual portion subscribed to by law enforcement contends that the defendant "left the scene without stopping" (see affirmation in support, exhibits 1, 2). In contrast, the complaining witness acknowledges under oath that "[t]he unknown female [driver] picked me up off the ground before driving away" (see affirmation in support, exhibit 3) demonstrating that the defendant stopped her automobile at the scene.^[FN2] Finally, the purported statement of the defendant noticed pursuant to CPL 710.30 (1) (a) and integrated into the charging document asserts that "I made a left turn and felt something hit my car. I got out and saw a lady and helped her to the sidewalk and got back in my car."

"It is fundamental that a person accused of [a] crime is not required to speculate as to what crime, if any, the information charges, for he is entitled to know in advance of trial what crime he is called upon to defend. When the information fails to state facts sufficient to constitute the crime charged, it is jurisdictionally defective and must be dismissed." {**86 Misc 3d at 196}(People v McGuire, 5 NY2d 523, 526 [1959]; see also People v Patrick, 175 Misc 997, 998-999 [Columbia County Ct 1941].)

Moreover, "[t]he requirement that an . . . information must state the crime with which a defendant is charged, and the particular acts constituting that crime is more than a technicality; it is a fundamental, a basic principle of justice and fair dealing, as well as a [*4]rule of law." (People v Zambounis, 251 NY 94, 97 [1929].) As the nonhearsay portion of the within misdemeanor information establishes that the defendant stopped following the alleged incident, the elements required to prove the class A misdemeanor as charged are unsupported (see CPL 100.40 [1] [c]). The suggestion proffered by the People that a "competent counselor" (see supplemental affirmation [sic] in opp ¶ 13) should infer the actual crime to be defended in order to absolve the prosecution from their statutory burden is constitutionally untenable.

Notwithstanding the inclusion of distinguishing facts in the misdemeanor information such as time, date, and location, the defendant herein was denied sufficient notice of the elements of the intended charge. The resulting uncertainty placed the defendant at an impermissible disadvantage regarding tactical case analysis, effective trial strategy, and meaningful plea negotiation. Hence, this disparity cannot be regarded as a mere technical defect (see e.g. supplemental affirmation [sic] in opp ¶ 12) but rather a justifiable challenge to the validity of the accusatory instrument. While the court acknowledges that the various components of a charging document need not be "precisely symmetrical" (see affirmation in opp ¶ 24), they must align to the extent that they allege the same elemental conduct. The examples cited by the People regarding judicial tolerance of drafting ambiguities and errors (see supplemental affirmation [sic] in opp ¶¶ 5-7, 10) are unpersuasive as they do not address issues of comparable significance or consequence.

Pursuant to the latest iteration of CPL 30.30, the responsibility of verifying the accuracy of charges falls upon the prosecution and may not be shifted to the accused. The certificate of readiness for trial filed by the People on October 26, 2023, contains the standard certification that "all counts charged in any local criminal court accusatory instrument(s) filed in connection with the above-captioned criminal action meet the requirements of CPL §§ 100.15 and 100.40, and any counts not meeting said requirements have been dismissed." As the violation of Vehicle and Traffic Law § 600 (2) (a) as the intended {**86 Misc 3d at 197}class B misdemeanor is inaccurately specified and pleaded in the misdemeanor information, the subject accusatory instrument is facially insufficient and jurisdictionally defective (see CPL 170.35 [1]). Thus, the certification of trial readiness in this matter must be deemed illusory and invalid pursuant to CPL 30.30 (5-a).

Pretrial Suppression Hearings

In light of the foregoing analysis, the request for pretrial suppression hearing(s) need not be addressed by the court.

Based upon the above determination, includable time chargeable to the People in this matter is calculated below.

Period between September 5, 2023, and September 28, 2023

As stated hereinabove, the within matter was arraigned on September 5, 2023, and the action was commenced. At arraignment, the proceeding was adjourned until September 28, 2023, for discovery compliance and no consent was obtained from the defendant. Therefore, the time of 23 days is chargeable to the People.

Period between September 28, 2023, and October 26, 2023

It is undisputed that the matter was further adjourned from September 28, 2023, to October 31, 2023, for discovery compliance and no consent was obtained from the defendant; however the People filed a COC/COR on October 26, 2023, in an attempt to pause the speedy trial clock. Therefore, the time of 28 days is chargeable to the People.

Period between October 26, 2023, and October 31, 2023

As the certificate of readiness for trial filed by the People on October 26, 2023, has been deemed illusory and invalid, this period of adjournment without the consent of the defendant is now includable for purposes of calculating speedy trial time pursuant to CPL 30.30 (1) (c). Therefore, the time of 5 days is chargeable to the People.

Period between October 31, 2023, and November 28, 2023

It is undisputed that this matter was further adjourned from October 31, 2023, to November 28, 2023, upon the consent of counsel for the defendant. As it does not appear that counsel for the defendant raised any jurisdictional challenges to the charging document in his possession at such time, this adjournment constitutes a "period of delay resulting from a continuance {**86 Misc 3d at 198}granted by the court at the request of, or with the consent of, the defendant or . . . her counsel" (see CPL 30.30 [4] [b]) and must be excluded from the computation of speedy trial time. Therefore, the time of 0 days is chargeable to the People.

Period between November 28, 2023, and January 9, 2024

As the certificate of trial readiness filed by the People on October 26, 2023, has been deemed illusory and invalid, this period of adjournment without the consent of the defendant^[FN3] is now includable for purposes of calculating speedy trial time pursuant to CPL 30.30 (1) (c). Therefore, the time of 42 days is chargeable to the People.

Period between January 9, 2024, and January 23, 2024

It is undisputed that this matter was further adjourned from January 9, 2024, to January 23, 2024, at the request of counsel for the defendant. As it does not appear that counsel for the defendant raised any jurisdictional challenges to the charging document in his possession at such time, this adjournment constitutes a "period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or . . . her counsel" (see CPL 30.30 [4] [b]) and must be excluded from the computation of speedy trial time. Therefore, the time of 0 days is chargeable to the People.

Period between January 23, 2024, and September 9, 2024

Following the pretrial motion schedule established by the court on January 23, 2024, this matter was adjourned from January 23, 2024, to March 25, 2024; from March 25, 2024, to April 1, 2024; from April 1, 2024, to May 30, 2024; from May 30, 2024, to June 6, 2024; from June 6, 2024 (date of motion conference), to July 17, 2024; from July 17, 2024, to August 8, [*6]2024; from August 8, 2024, to August 27, 2024; and from August 27, 2024, to September 9, 2024 (submission of motion), and thus this cumulative period is excludable for purposes of calculating speedy trial time in accordance with CPL 30.30 (4) (a). Therefore, the time of 0 days is chargeable to the People.

In the case at bar, the total time chargeable to the People based upon the invalidation of the certificate of readiness for trial is 98 days (23 + 28 + 5 + 42). Accordingly, the People have{**86 Misc 3d at 199} exceeded their statutory speedy trial time of 60 days pursuant to CPL 30.30 (1) (c).

Based upon the foregoing, and upon all of the proceedings conducted herein, and after due deliberation, it is ordered that the certificate of readiness for trial filed by the People on October 26, 2023, is deemed illusory and invalid, and is hereby vacated; and it is further ordered that in accordance with CPL 30.30 (1) (c), the motion of the defendant to dismiss this matter pursuant to CPL 170.30 (1) (e) is hereby granted in its entirety; and it is further ordered that any other matters not specifically addressed herein are hereby denied as moot as this matter is now concluded.