People v. Kelly
| Decision Date | 27 July 2020 |
| Docket Number | CR-029068-19NA |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Robert KELLY, Defendant. |
| Court | New York District Court |
Madeline Singas, Nassau County District Attorney
Attorney for Defendant: Susan Carman, Esq.
Papers Submitted:
Notice of Motion 1
Affirmation in Opposition. 3
The Defendant is charged with leaving the scene of an incident involving personal injury without reporting, driving while intoxicated, reckless driving, reckless endangerment in the second degree and assault in the third degree, in violation of VTL § 600(2), 1192(3), and 1212, and PL § 120.20 and 120.00(2), respectively.
The Defendant now moves for an order dismissing all charges, pursuant to CPL § 100.50, 170.30, and 170.35 ; suppressing the Defendant's alleged refusal to submit to a chemical test, statements allegedly made by the Defendant, the identification of the Defendant and all other evidence in this case, or, in the alternative, directing that a Dunaway/Mapp/Huntely/Wade/Payton1 hearing be held; and precluding the People from asking questions or presenting evidence concerning the Defendant's arrest and conviction record, or any immoral, vicious, or other bad acts, or, in the alternative directing that a Sandoval/Molineaux2 hearing be held.
The Defendant avers that he was arraigned in this matter, on November 18, 2019, on a misdemeanor Information filed by the People, charging leaving the scene of an incident involving personal injury [ VTL § 600(2) ], driving while intoxicated [ VTL § 1192(3) ] and reckless driving [ VTL § 1212 ]. The accusatory instrument was accompanied by four (4) supporting depositions of Police Officer A. Buonadonna dated November 18, 2019, two (2) supporting depositions of Cesar Armando dated November 17, 2019 and one (1) supporting deposition of Jefferson Monzon dated November 17, 2019.
On February 25, 2020, the Defendant was arraigned in this matter on an accusatory instrument bearing the heading "PROSECUTOR'S INFORMATION," charging reckless endangerment in the second degree [PL § 120.20] and assault in the third degree [PL § 120.20(2) ].This instrument was accompanied by a supporting deposition of Jefferson Monzon dated January 21, 2020.
The Defendant acknowledges the fact that the court's file contains a Felony Complaint filed by the People originally charging the Defendant with vehicular assault in the second degree, along with leaving the scene of an incident involving personal injury without reporting, driving while intoxicated and reckless driving, accompanied by three Simplified Traffic Informations also charging the latter three offenses. The court notes that the charge of vehicular assault in the second degree appears to have been stricken from the Felony Complaint with the use of a pen, leaving the other three charges intact. The Defendant, nevertheless, alleges that he was never arraigned upon any of these instruments.
With this predicate, the Defendant argues that the instrument entitled "PROSECUTOR'S INFORMATION" was filed "at the district attorney's own instance," as set forth in CPL § 100.10(3)(c), pursuant to the provisions of CPL § 100.50(2) According to the Defendant, the arraignment of the instrument entitled "PROSECUTOR'S INFORMATION" "results in the dismissal of the original information, by operation of law." (Carman Affirmation 4/14/20, ¶ 9)
In the alternative, the Defendant argues that the original accusatory instrument upon which he says he was arraigned must be dismissed because it is facially insufficient. Specifically, the Defendant alleges that the instrument is not supported by non-hearsay allegations. The Defendant avers that, with regard to the charge of leaving the scene of an incident involving personal injury without reporting, "the accusatory instrument does not contain any allegations from which it can be inferred that the Defendant knew or should have known that personal injury had occurred to another." (Carman Affirmation 4/14/20, ¶ 31) With regard to the charge of reckless driving, the Defendant claims that "such charges may not be premised upon " ‘a single violation of the rule of the road’—i.e., running a red light." (Carman Affirmation 4/14/20, ¶ 33) Similarly, with regard to the charge of driving while intoxicated, the Defendant argues that "there is no corroborating affidavit from the officer who observed the Defendant's alleged clues of intoxication or admission of operation." (Carman Affirmation 4/14/20, ¶ 38) It is the Defendant's position that Officer Buonadonna's supporting depositions fail to provide legally sufficient allegations of intoxication or operation.
The Defendant further argues that the instrument entitled "PROSECUTOR'S INFORMATION" must also be dismissed. According to the Defendant, the court may not consider the new supporting deposition accompanying the second accusatory instrument and that the factual allegations of the original accusatory instrument and its accompanying supporting depositions are not legally sufficient to support the charges in the instrument entitled "PROSECUTOR'S INFORMATION," citing to CPL § 170.35. In support thereof, the Defendant argues that running a single red light, plus intoxication, without more, does not establish recklessness sufficient to support the charges of reckless endangerment in the second degree and assault in the third degree. Additionally, the Defendant argues that allegations of bruising and substantial pain are insufficient to support the assault charge.
The People also aver that the Defendant was arraigned on November 18, 2019, on a misdemeanor Information charging him with leaving the scene of an incident involving personal injury without reporting, driving while intoxicated and reckless driving. In conflict with that statement, however, the People also aver that on December 3, 2019 the court "dismissed counts 2,3 and 4, on the ‘Felony Complaint’ and converted the Simplified Traffic Information's (sic ) as Counts 5, 6 and 7." (Singh Affirmation 5/29/2020, ¶ 21)
The People further aver that on February 5, 2020 they filed a Prosecutor's Information charging the Defendant with reckless endangerment in the second degree and assault in the third degree, with a new supporting deposition of Jefferson Monzon. The Defendant was arraigned on that instrument on February 25, 2020.
With this predicate, the People argue that the Simplified Traffic Informations charging leaving the scene of an incident involving personal injury without reporting, driving while intoxicated and reckless driving can never be superseded by a Prosecutor's Information; that the Defendant incorrectly relies upon CPL § 100.50, which only applies to Informations and Prosecutor's Informations; and, therefore, the Simplified Traffic Informations are not dismissed as a matter of law. Relying on People v. Towey , 52 Misc 3d 471, 28 N.Y.S.3d 838 (Dist. Ct. Nassau Co. 2016), the People argue that it is permissible to have multiple types of accusatory instruments on the same docket and that Simplified Traffic Informations and Prosecutor's Informations may co-exist within the same docket.
The People further argue that the added charges of reckless endangerment in the second degree and assault in the third degree are supported by non-hearsay allegations providing reasonable cause to believe that the Defendant committed these crimes. In so doing, the People point to the allegations that the Defendant, while intoxicated, drove through a red light, while a pedestrian was crossing the street with the right of way. The People suggest that "[t]his clearly shows the Defendant acted recklessly as the Defendant's operation of the vehicle constituted a gross deviation from the standard of conduct any reasonable person would have, in that they would slow down and stop their vehicle at an approaching intersection, specifically one where their right of way indicated a red light." (Memorandum of Law 5/29/2020, p. 10) The People further argue that the allegations made by Mr. Monzon, of bruising, body soreness and substantial pain, sufficiently allege a physical injury supporting the charge of assault in the third degree.
Similarly, the People argue that the "court information upon which defendant was arraigned meets the requirements for facial sufficiency." (Memorandum of Law 5/29/2020, p. 11) In support thereof, the People then argue that the Simplified Traffic Informations charging driving while intoxicate, leaving the scene of an accident involving personal injury and reckless driving "substantially conform to the requirements set forth by the Commissioner of Motor Vehicles," (Memorandum of Law 5/29/2020, p. 13) and are accompanied by supporting depositions of an officer who recounts the police department's investigation and eyewitnesses.
Before addressing the legal issues raised by this motion, there needs to be a clarification of the procedural history which brings us here. It is important to know upon which accusatory instruments the Defendant is being prosecuted, for the court to be able to address the legal and facial sufficiency of same.
That both parties allege, at one point or another, that the Defendant was arraigned on a Misdemeanor Information, does not make it so. In fact, upon a review of the court's file in this matter, the filings with the Uniform Case Management System ("UCMS") and any other documentation the parties chose to submit to the court, it does not appear that the Defendant was arraigned on an Information.
The court notes that the Information which the Defendant annexes to his motion papers as Exhibit A is not stamped as filed with the court, does not bear a Docket Number, nor is it subscribed or witnessed. It is a document that the People provided in their voluntary disclosure packet....
To continue reading
Request your trial