People v. Fuller–Gist

• Decision Date: 28 November 2012
• Citation: 2012 N.Y. Slip Op. 22349,38 Misc.3d 690,958 N.Y.S.2d 861
• Parties: The PEOPLE of the State of New York v. David FULLER–GIST, Defendant.
• Court: New York Criminal Court

38 Misc.3d 690
958 N.Y.S.2d 861
2012 N.Y. Slip Op. 22349

The PEOPLE of the State of New York
v.
David FULLER–GIST, Defendant.

Criminal Court, City of New York,
Kings County.

Nov. 28, 2012.

[958 N.Y.S.2d 863]

Shannon Heery, Esq., Brooklyn Defenders Services, Brooklyn, for defendant.

ADA Ross Yaggy, Kings County District Attorney's Office, Brooklyn, for The People of the State of New York.

EVELYN J. LAPORTE, J.

[38 Misc.3d 691]The defendant, DAVID FULLER–GIST, is charged with Operating a Motor Vehicle in the Opposite Direction of Traffic on a One–Way Roadway (VTL § 1127[A] ); Reckless Driving (VTL § 1212); Leaving the Scene of an Accident Involving Physical Injury Without Reporting (VTL § 600[2][a] ); and Unsafe Backing Up of a Motor Vehicle (VTL § 1211[a] ). He moves to dismiss the charge of Leaving the Scene of an Accident Involving Physical Injury Without Reporting (VTL § 600[2][a] ) pursuant to C.P.L. § 30.30(1)(b) on the grounds that he has been denied his statutory right to a speedy trial on that charge as it has not been made facially sufficient under CPL § 170.35. It is noted that the defendant has not moved to dismiss the charge for facial insufficiency pursuant to C.P.L. §§ 100.40, 170.30 and 170.35. For the reasons that follow, the defendant's motion to dismiss this charge under CPL § 30.30 is denied.

FACIAL SUFFICIENCY

To be sufficient on its face a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed [38 Misc.3d 692]the offenses charged. (C.P.L. §§ 100.15[3]; 100.40[1][b]; 70.10.) These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses. (C.P.L. § 100.40[1][c].) An information which fails to satisfy these requirements is jurisdictionally defective. (C.P.L. §§ 170.30 and 170.35; People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987];People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986].)

Vehicle and Traffic Law § 600(2)(a) provides that any person operating a motor vehicle who, knowing or having cause to know that personal injury has been caused to another person, due to an incident involving the motor vehicle operated by such person shall, before leaving the place where the said personal injury occurred, stop, exhibit his license and insurance identification card, give his name, residence and other enumerated information to the injured party, if practical, and also to a police officer. After a review of the court papers, relevant facts, case law and statutes, the court comes to the following conclusions regarding the facial sufficiency of that count.

The complaint alleges that a bystander saw the defendant driving a car and striking a female pedestrian in the crosswalk. The car then shifted into reverse and drove backward down a one-way street, leaving the scene of the accident without displaying the required identification and insurance information. In the complaint the pedestrian states that she suffered

[958 N.Y.S.2d 864]

bruising and substantial pain as a result of the collision. The People filed a supporting deposition from the bystander, but not from the injured pedestrian. The factual portion of the complaint reads as follows:

[Police Officer Artese C. Davis] is informed by Etisyai Prince, that at [approximately 1:16 p.m. at Lewis Avenue and Bainbridge Street in Kings County, New York State] the informant observed the defendant driving a 2003 Cadillac Seville N.Y. State license No. DRP5337 and that defendant did strike Joan Cooper, a pedestrian who was crossing the above-mentioned intersection.

Deponent is further informed by the informant that the defendant then began driving in reverse in the wrong direction down Lewis Avenue and then left the scene of the above-mentioned collision without exhibiting the defendant's license or insurance identification card to the informant.

Deponent is further informed by Joan Cooper that the defendant did not report the above-mentioned [38 Misc.3d 693]collision to any police officer and that the above described collision caused Informant to suffer bruising about the body, and to suffer substantial pain.

The complaint is accompanied by a supporting deposition from Etisyai Prince dated August 25, 2011.

The defendant argues that facial sufficiency of the charge of VTL § 600(2)(a) requires that allegations of pain and injury to Ms. Cooper must be corroborated through a sworn statement from Ms. Cooper herself. This court agrees that absent a sworn allegation of circumstantial facts that tend to make it clear that Ms. Cooper suffered physical injury, a supporting deposition would be required to corroborate this essential element of that charge.

VTL § 600(2)(a) requires that the driver of a motor vehicle that is involved in an accident must know or have reason to know a human being has been physically injured as a result of an accident involving the defendant's vehicle. The complaint states that the bystander, Etisyai Prince, observed the defendant's vehicle strike Ms. Joan Cooper. But there is no description of what the defendant was able to perceive or should have been able to observe from the defendant's vantage point.

The People assert that the defendant displayed evidence of guilty knowledge of Ms. Cooper's injury by putting the car into reverse and driving backward down a one-way street...