Opinion
No. 2010NA029443.
2012-03-16
The PEOPLE of the State of New York, v. Carmen CRISCI, Defendant.
As can be seen therefrom, a facially sufficient Information charging a violation of this Section will properly allege, in evidentiary form, the following elements: (1) the Defendant operated a motor vehicle; (2) the vehicle being operated by the Defendant was involved in an incident; (3) the Defendant knew or had cause to known that the incident caused personal injury to another; and, (4) the Defendant left the scene where the personal injury occurred without stopping, exhibiting his license and insurance card, and without providing his name, residence address, insurance information and license number to the injured person and police in the vicinity, or if none in the vicinity, without reporting the incident to the nearest police station or judicial officer as soon as he was physically able.In assessing the facial sufficiency of the District Court Information herein, the factual allegations contained therein, as well as in any accompanying supporting depositions, must be viewed in a light most favorable to the People, People v. Martinez, 16 Misc.3d 1111(A), 847 N.Y.S.2d 898, (Dist.Ct. Nassau Co.2007); People v. Delmonaco, 16 Misc.3d 526, 837 N.Y.S.2d 869 (Dist.Ct. Nassau Co.2007); People v. Mendelson, 15 Misc.3d 925, 834 N.Y.S.2d 445 (Dist.Ct. Nassau Co.2007) and may not be given an overly restrictive or technical reading, People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000); People v. Baumann & Sons Buses, Inc., 6 N.Y.3d 404, 813 N.Y.S.2d 27, 846 N.E.2d 457 (2006). The sufficiency of the Information, however, must be determined from “within the four corners of the instrument itself' or in annexed supporting depositions [,]” People v. Thomas, 4 N.Y.3d 143, 791 N.Y.S.2d 68, 824 N.E.2d 499 (2005); See also: People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000); People v. Bottari, 31 Misc.3d 90, 924 N.Y.S.2d 733 (9th & 10th Jud. Dists.2011), not from additional factual representations made by counsel which are not properly supported by the pleadings themselves. This section “underscores and facilitates the defendant's right, prior to trial, to test the reliability of any out-of-court identifications that the People intend to introduce. The statutory scheme ensures that the identifications are not the product of undue suggestiveness, and lessens the possibility of misidentification (citations omitted).” People v. Boyer, 6 N.Y.3d 427, 813 N.Y.S.2d 31, 846 N.E.2d 461 (2006) The due process concerns underlying the notice provisions of [CPL] 710.30 are implicated whenever identification procedures come about at the deliberate direction of the State (citations omitted).” People v. Bello, 219 A.D.2d 657, 631 N.Y.S.2d 714 (2nd Dept.1995); See also: People v. Gomez, 60 A.D.3d 782, 874 N.Y.S.2d 582 (2nd Dept.2009) Consequently, “the purpose of a Wade hearing is to test identification testimony for taint arising from official suggestion during police-arranged confrontations between a defendant and an eyewitness” ( People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924; People v. Newball, 76 N.Y.2d 587, 591, 561 N.Y.S.2d 898, 563 N.E.2d 269).' “ People v. Dixon, 85 N.Y.2d 218, 623 N.Y.S.2d,647 N.E.2d 1321(1995); See also: People v. Gee, 99 N.Y.2d 158, 753 N.Y.S.2d 19, 782 N.E.2d 1155 (2002); People v. Vera, 235 A.D.2d 509, 653 N.Y.S.2d 360 (2nd Dept.1997) Neither notice of identification nor a Wade hearing are required where there was no previous identification of the Defendant, See: People v. Williams, 58 A.D.3d 771, 873 N.Y.S.2d 641 (2nd Dept.2009) lv. den. 12 N.Y.3d 922, 884 N.Y.S.2d 703, 912 N.E.2d 1084 (2009) or where a defendant and a witness were previous known to each other. See: People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924 (1979); People v. Corchado, 225 A.D.2d 560, 638 N.Y.S.2d 766 (2nd Dept.1996)
Kathleen Rice; NC District Attorney, Dominic Errichiello, Esq; attorney for defendant.
ANDREW M. ENGEL, J.
+----------------------------+ ¦Papers Submitted: ¦ ¦ +--------------------------+-¦ ¦Notice of Motion ¦1¦ +--------------------------+-¦ ¦Affirmation in Support ¦2¦ +--------------------------+-¦ ¦Notice of Motion ¦3¦ +--------------------------+-¦ ¦Affirmation in Support ¦4¦ +--------------------------+-¦ ¦Affirmation in Opposition ¦5¦ +----------------------------+
The Defendant is charged, by District Court Information, with Leaving the Scene of an Accident Involving Personal Injury, and by Simplified Traffic Information, with Driving While Intoxicated Per Se, Operating an Uninsured Motor Vehicle, Operating an Unregistered Motor Vehicle, Operating a Motor Vehicle With Improper Plates and Operating an Uninspected Motor Vehicle, all in violation of Vehicle and Traffic Law §§ 600(2), 1192(2), 319(1), 401(1)(a), 402(4) and 306(b), respectively.
The Defendant now moves to dismiss the accusatory insturments, alleging that they are facially insufficient. If this branch of his motion should be denied, the Defendant seeks an order precluding the introduction of testimony concerning observations of the Defendant as being unduly suggestive and to suppress any in-court identification of the Defendant. The Defendant also seeks an order suppressing statements he may have made to public servants or their agent, or, alternatively directing that a hearing be held in relation thereto. The Defendant additionally seeks an order directing that a Dunaway/Mapp
hearing be held; that the People comply with the Defendant's Discovery Demand by a certain date or be precluded from introducing any evidence not so provided; directing the People to disclose the Defendant's past criminal history and/or prior bad or immoral acts which the People intend to use at trial, should the Defendant chose to testify, and a pre-trial hearing pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (1974); directing the People to provide the Defendant with all favorable evidence; and, should this matter go to trial, directing the People to provide the Defendant with all material pursuant to People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961).
Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)
The People consent to a hearing pursuant to People v. Huntley, 15 N.Y.2d 22, 255 N.Y.S.2d 838 (1965), exclusive of the issue of probable cause for the Defendant's arrest, and oppose the remainder of the Defendant's motion in its entirety. For reasons they do not explain, and cannot be discerned by the court, the People also include their own demand for discovery in their opposition papers. Contrary to the People's assertion, such a demand is not “in accordance with the provisions of Section 240.30 of the Criminal Procedure Law[.]” ( Schlissel Affirmation 11/1/2011, ¶ 62)
FACIAL SUFFICIENCY
VTL § 600(2)
The District Court Information charging the Defendant with Leaving the Scene of an Accident Involving Personal Injury will be found facially sufficient if it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereof, People v. Hall, 48 N.Y.2d 927, 425 N.Y.S.2d 56, 401 N.E.2d 179 (1979), and a factual part containing “a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]” CPL § 100.15(3) based upon either the complainant's personal knowledge or upon information and belief. CPL § 100.15(3) The factual part, taken together with any supporting depositions [CPL § 100.20], must “provide reasonable cause to believe that the defendant committed the offense,” People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987); CPL § 100.40(1)(b) and contain non-hearsay allegations which, if true, establish every element of the offense charged, CPL § 100.15(3); CPL § 100.40(1)(c) People v. Moore, 5 N.Y.3d 725, 800 N.Y.S.2d 49, 833 N.E.2d 192 (2005); People v. Thomas, 4 N.Y.3d 143, 791 N.Y.S.2d 68, 824 N.E.2d 499 (2005); People v. Bottari, 31 Misc.3d 90, 924 N.Y.S.2d 733 (9th & 10th Jud. Dists.2011)
The Defendant argues that there are no allegations in the accusatory instrument or supporting depositions alleging that the complaining witness suffered any injuries; nor, is there an allegation of a medical diagnosis. The Defendant further argues that “there is no indication or allegation that the defendant knew or had reason to know that the alleged victim in the motor vehicle accident suffered any physical injury.” ( Errichiello Affirmation 7/18/11, ¶ 47)
In opposition, the People allege that the supporting deposition of Christine Palmigiano identifies the Defendant as the operator of a vehicle involved in a motor vehicle accident and attests that the Defendant left the scene without checking on the other individuals involved in the accident. The People further allege that a passenger in the vehicle involved in the accident with the Defendant “complained of pain and was transported by ambulance.” ( Schlissel Affirmation 11/1/2011, ¶ 22)
VTL § 600.2(a) provides, in pertinent part:
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 or her license and insurance identification card for such vehicle, ..., and give his or her name, residence, including street and street number, insurance carrier and insurance identification information including but not limited to the number and effective dates of said individual's insurance policy and license number, to the injured party, if practical, and also to a police officer, or in the event that no police officer is in the vicinity of the place of said injury, then, he or she shall report said incident as soon as physically able to the nearest police station or judicial officer.
As can be seen therefrom, a facially sufficient Information charging a violation of this Section will properly allege, in evidentiary form, the following elements: (1) the Defendant operated a motor vehicle; (2) the vehicle being operated by the Defendant was involved in an incident; (3) the Defendant knew or had cause to known that the incident caused personal injury to another; and, (4) the Defendant left the scene where the personal injury occurred without stopping, exhibiting his license and insurance card, and without providing his name, residence address, insurance information and license number to the injured person and police in the vicinity, or if none in the vicinity, without reporting the incident to the nearest police station or judicial officer as soon as he was physically able.In assessing the facial sufficiency of the District Court Information herein, the factual allegations contained therein, as well as in any accompanying supporting depositions, must be viewed in a light most favorable to the People, People v. Martinez, 16 Misc.3d 1111(A), 847 N.Y.S.2d 898, (Dist.Ct. Nassau Co.2007); People v. Delmonaco, 16 Misc.3d 526, 837 N.Y.S.2d 869 (Dist.Ct. Nassau Co.2007); People v. Mendelson, 15 Misc.3d 925, 834 N.Y.S.2d 445 (Dist.Ct. Nassau Co.2007) and may not be given an overly restrictive or technical reading, People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000); People v. Baumann & Sons Buses, Inc., 6 N.Y.3d 404, 813 N.Y.S.2d 27, 846 N.E.2d 457 (2006). The sufficiency of the Information, however, must be determined from “within the four corners of the instrument itself' or in annexed supporting depositions [,]” People v. Thomas, 4 N.Y.3d 143, 791 N.Y.S.2d 68, 824 N.E.2d 499 (2005); See also: People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000); People v. Bottari, 31 Misc.3d 90, 924 N.Y.S.2d 733 (9th & 10th Jud. Dists.2011), not from additional factual representations made by counsel which are not properly supported by the pleadings themselves.
With the aforesaid limitations in mind, if true, the non-hearsay allegations of the supporting depositions of Christine Palmigiano demonstrate that on November 13, 2010, at approximately 11:30 p.m., she was driving on Sunrise Highway, in Merrick, when she observed a 2005 Ford Crown Victoria, plate number EXH 7248, slow down to enter the left turning lane when it was struck from behind by a 1994 Ford motor vehicle, plate number FAV 3919, being operated by the Defendant, at a high rate of speed. Ms. Palmigiano approached the Defendant's vehicle and tried to pull open the vehicle's passenger's door, which was stuck. She then asked the Defendant and his passenger if they were alright, to which the Defendant responded that they were fine. Ms. Palmigiano then advised the Defendant that she would call an ambulance, and the Defendant yelled, “don't call an ambulance we are fine.” ( Palmigiano Supporting Deposition, 11/14/10) At that time, Ms. Palmigiano observed the Defendant exit his vehicle, pull open the passenger's door and say to his passenger, “Babe let's go.” ( Palmigiano Supporting Deposition, 11/14/10) Ms. Palmigiano asked the Defendant if he was drunk; and, the Defendant answered, “Yeah, I'm fucked up, I gotta get outta here. Babe let's go.” ( Palmigiano Supporting Deposition, 11/14/10) The Defendant was observed dragging his passenger from his vehicle and they fled across Sunrise Highway and onto Hewlett Avenue. Thereafter, after being informed by the police that a male and female had been stopped a short distance from the scene of the accident, Ms. Palmigiano was transported to that location by a Police Officer Ferrari, where she immediately recognized the two individuals and identified the Defendant the driver of the vehicle which caused the accident who then fled from the scene.
The supporting deposition of Melissa Ann Linder, if true, establishes that on November 13, 2010, at about 11:30 p.m. she was with the Defendant at a bar on Hempstead Turnpike for about an hour and a half, where the Defendant consumed about four beers, and that she and the Defendant left the bar in the Defendant's Thunderbird. The Defendant was driving and Ms. Linder was in the front passenger's seat. As they were traveling on Sunrise Highway, in Merrick, they struck the rear of another car. Following the accident the Defendant told Ms. Linder to run, at least three times. Without going up to the other car or attempting to help anyone, the Defendant and Ms. Linder fled the scene.
Read in a light most favorable to the People, the non-hearsay allegations of the sworn statement of Police Officer Daniel H. McKenna, as contained in the Information, alleges that he and an officer from the Seventh Precinct stopped two individuals on the west side of Hewlett Avenue. The balance of his statement is hearsay.
The court finds that, while the non-hearsay allegations contained in the Information and supporting depositions establish that the Defendant was operating a motor vehicle involved in an incident and that he fled the scene, without properly providing his information or reporting same, these allegations do not establish that he did so “knowing or having cause to know that personal injury [had] been caused to another person[.]” VTL § 600(2)(a)
Conspicuously absent from the Information and supporting depositions are any allegations which demonstrate “circumstances [which] would ordinarily give rise to the belief in a reasonable man that injury would flow, or had flowed, from the accident or collision[.]” People v. Hakala, 270 A.D. 612, 61 N.Y.S.2d 718 (1st Dept.1946) There is no description of the accident “involving an impact of great magnitude,' “ People v. Hatcher, 181 Misc.2d 622, 694 N.Y.S.2d 602 (Crim. Ct. Bronx Co.1999) from which the Defendant's “knowledge can be gleaned or imputed from the circumstances surrounding the collision (citation omitted).” People v. Levy, 157 Misc.2d 941, 599 N.Y.S.2d 898 (Sup.Ct. Kings Co.1993) Likewise, there is no description whatsoever of the condition of the vehicle allegedly struck by the Defendant following the accident. Similarly absent is any non-hearsay description of any of the occupants of the vehicle allegedly struck by the Defendant following the accident. While Officer McKenna alleges that “Front passenger Kiriki Kaloudis complained of pain and was treated at scene by Nassau County Ambulance 2351 [,]” there is no indication that this alleged complaint of pain was made to Officer McKenna or that he personally observed the passenger being treated at the scene, or of what this treatment might have consisted. Moreover, even if this alleged complaint of pain was made directly to Officer McKenna, it is hearsay.
The People having failed to establish every element of the crime of Leaving the Scene of an Accident Involving Personal Injury with non-hearsay allegations, in evidentiary form, the District Court Information must be dismissed.
VTL § 1192(2)
The Defendant alleges that, although charged by Simplified Traffic Information, he timely served a demand for a supporting deposition, pursuant to CPL § 100.25(2), and that the supporting depositions provided by the People “fail to allege, by non-hearsay allegations of fact, that on the date and time in question, the defendant was operating a motor vehicle on a public highway.” ( Errichiello Affirmation 7/18/11, ¶ 24) The Defendant further alleges “[t]here is no statement which combines the necessary elements of (1) the defendant was intoxicated with a blood alcohol level of above a .08 percent BAC; and (2) the defendant was operating a motor vehicle on a public highway.” ( Errichiello Affirmation 7/18/11, ¶ 26)
In opposition, the People acknowledge that the Defendant timely served a demand for a supporting deposition and that the Defendant was provided with four supporting depositions, all of which meet the criteria for facial sufficiency, which the People claim require “non-conclusory allegations providing for reasonable cause to believe that the defendant committed the offense charged, as well as non-hearsay allegations of facts which establish, if true, every element of the offense charged.” ( Schlissel Affirmation 11/1/11, ¶ 5)
The Defendant and the People confuse and conflate the facial sufficiency requirements of a District Court Information and a Simplified Traffic Information accompanied by supporting depositions.
The requirements for the facial sufficiency of a District Court Information are set forth hereinabove. Unlike a District Court Information, a Simplified Traffic Information accompanied by supporting depositions will be facially sufficient where the supporting depositions “contain allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged.” CPL § 100.25(2); See: People v. Key, 45 N.Y.2d 111, 408 N.Y.S.2d 16, 379 N.E.2d 1147 (1978); People v. Hohmeyer, 70 N.Y.2d 41, 517 N.Y.S.2d 448, 510 N.E.2d 317 (1987); People v. Titus, 178 Misc.2d 687, 682 N.Y.S.2d 521 (App. Term 2nd Dept.1998); People v. Chittaranjans, 185 Misc.2d 871, 714 N.Y.S.2d 650 (Dist.Ct. Nassau Co.2000) It should be noted that there is no requirement that the Simplified Traffic Information be supported by non-hearsay allegations establishing every element of the crime charged.
As detailed hereinabove, the supporting depositions of Christine Palmigiano and Melissa Ann Linder establish, if the allegations therein are true, that on November 13, 2010, at approximately 11:30 p.m., the Defendant consumed about four beers and operated a motor vehicle on Sunrise Highway, in the vicinity of Merrick Road, in Merrick. These supporting depositions are accompanied by the supporting deposition of Officer McKenna which alleges, inter alia, that the Defendant was apprehended and observed to have glassy bloodshot eyes, slurred speech, the odor of an alcoholic beverage on his breath and was behaving in a belligerent manner. Accompanying these supporting depositions and the Simplified Traffic Information is a certified breath card indicating that on November 14, 2010, at 12:55 a.m., the Defendant's blood alcohol concentration was .10 of one percent.
Based upon the foregoing, the court finds the Simplified Traffic Information charging the Defendant with Driving While Intoxicated Per Se is facially sufficient.
VTL §§ 319(1), 401(1)(a), 402(4) and 306(b)
While, “in evaluating the sufficiency of an information, the court must also consider the factual allegations contained in any supporting depositions.” People v. Modica, id. at 363, 714 N.Y.S.2d 650, 187 Misc.2d 635, 724 N.Y.S.2d 825, 826 (Crim. Ct. Richmond Co.2001); See also: People v. Olmo, 2 Misc.3d 1012(A), 784 N.Y.S.2d 923 (Crim.Ct. Bronx Co.2003), none of the supporting depositions filed herein support any of the remaining alleged Vehicle and Traffic Law violations. The only allegation set forth in any of the accompanying supporting depositions which appears to relate to at least one of the alleged violations is Officer McKenna's statement that “Vehicle registration FAV3919 does not match vehicle.” Officer McKenna provides no other information. He does not indicate from where that information was obtained, what is meant by “does not match,” or whether there was a problem with the plate, the registration, the car, or something else. This lone statement does not provide reasonable cause to believe that the defendant committed the other offenses charged.
PRECLUDE OBSERVATIONS OF THE DEFENDANT AND SUPPRESS ANY IN COURT IDENTIFICATION
Alleging that the People have failed to serve notice of the out of court identification of the Defendant, pursuant to CPL § 710.30, the Defendant seeks to preclude the People from introducing any identification evidence at the time of trial.
The People concede that they failed to provide appropriate notice within fifteen days of the Defendant's arraignment [ See:CPL § 710.30(2) ] with regard to the out of court identification made by Christine Palmigiano. The People argue, however, that the Defendant was previously known to Mellisa Ann Linder and that her identification of the Defendant should not be precluded.
CPL § 710.30 provides, in pertinent part:
(1) Whenever the people intend to offer at trial ... testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such, they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered.
(2) Such notice must be served within fifteen days after arraignment....
This section “underscores and facilitates the defendant's right, prior to trial, to test the reliability of any out-of-court identifications that the People intend to introduce. The statutory scheme ensures that the identifications are not the product of undue suggestiveness, and lessens the possibility of misidentification (citations omitted).” People v. Boyer, 6 N.Y.3d 427, 813 N.Y.S.2d 31, 846 N.E.2d 461 (2006) The due process concerns underlying the notice provisions of [CPL] 710.30 are implicated whenever identification procedures come about at the deliberate direction of the State (citations omitted).” People v. Bello, 219 A.D.2d 657, 631 N.Y.S.2d 714 (2nd Dept.1995); See also: People v. Gomez, 60 A.D.3d 782, 874 N.Y.S.2d 582 (2nd Dept.2009) Consequently, “the purpose of a Wade hearing is to test identification testimony for taint arising from official suggestion during police-arranged confrontations between a defendant and an eyewitness” (People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924;People v. Newball, 76 N.Y.2d 587, 591, 561 N.Y.S.2d 898, 563 N.E.2d 269).' “ People v. Dixon, 85 N.Y.2d 218, 623 N.Y.S.2d,647 N.E.2d 1321(1995); See also: People v. Gee, 99 N.Y.2d 158, 753 N.Y.S.2d 19, 782 N.E.2d 1155 (2002); People v. Vera, 235 A.D.2d 509, 653 N.Y.S.2d 360 (2nd Dept.1997) Neither notice of identification nor a Wade hearing are required where there was no previous identification of the Defendant, See: People v. Williams, 58 A.D.3d 771, 873 N.Y.S.2d 641 (2nd Dept.2009)lv. den.12 N.Y.3d 922, 884 N.Y.S.2d 703, 912 N.E.2d 1084 (2009) or where a defendant and a witness were previous known to each other. See: People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924 (1979); People v. Corchado, 225 A.D.2d 560, 638 N.Y.S.2d 766 (2nd Dept.1996)
In the matter before the court, it is clear from the supporting depositions of Christine Palmigiano and Officer McKenna that the Defendant and Ms. Palmigiano were not previously known to each other and that Ms. Palmigiano identified the Defendant as the driver of the subject vehicle at a police arranged show-up conducted not far from the accident in which the Defendant was allegedly involved. As indicated hereinabove, the People concede that they failed to serve a timely notice of this identification in accordance with CPL § 710.30. Accordingly, this identification shall be precluded at the time of trial; and, Ms. Palmigiano shall not be permitted to make an in court identification of the Defendant at the time of trial.
As to Melissa Ann Linder however, Ms. Linder's supporting deposition makes clear that she did not participate in any police arranged identification procedure and, in fact, previously knew the Defendant, as the father of her child. Accordingly, the People were not required to serve a notice in accordance with CPL § 710.30; and, Ms. Linder may be permitted to identify the Defendant at the time of trial as the driver of the vehicle in question.
SUPPRESSING DEFENDANT'S STATEMENTS
The Defendant seeks to suppress the statements attributed to him, as disclosed in the People's notice served pursuant to CPL § 710.30, challenging their voluntariness. The People consent to the court conducting a hearing regarding the voluntariness of the statements attributed to the Defendant, limited to the issues of coercion and the application of the Defendant's rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A date for such a hearing shall be scheduled at the next conference to be held in this matter.
DUNAWAY/MAPP HEARING
The Defendant seeks to suppress testimony concerning the observations which may have been made of him by the police, alleging that there was no legal basis for stopping and seizing him. In support of this branch of his motion the Defendant denies that he was driving a motor vehicle, that he was involved in an automobile collision and that he fled the scene of such a collision on the date and time in question.
The court finds that the Defendant's allegations are sufficient to raise factual disputes to be resolved at a hearing before the court can determine the legal issues raised by the Defendant relative thereto. See: People v. Mendoza, 82 N.Y.2d 415, 604 N.Y.S.2d 922, 624 N.E.2d 1017 (1993)
DISCOVERY
CPL § 240.80 provides that a demand to produce must be served within thirty (30) days of arraignment, or within thirty (30) days of the appearance of counsel. The Defendant's demand herein was not served until the Defendant served the instant motion, on or about July 18, 2011, almost eight months after the Defendant's arraignment. Clearly the Defendant's discovery demand is untimely. Additionally, the Defendant's incorporation of his discovery demand into his motion is contrary to the procedure contemplated by the Criminal Procedure Law and inappropriate.
Moreover, the People, in opposition to the motion, allege that they provided the Defendant with all of the discovery to which he is entitled on December 17, 2010, in response to a demand previously served on November 14, 2010. The court notes that the Defendant has not submitted any reply contesting these alleges, thereby admitting same. People v. Gruden, 42 N.Y.2d 214, 397 N.Y.S.2d 704, 366 N.E.2d 794 (1977); People v. Wright, 86 N.Y.2d 591, 635 N.Y.S.2d 136, 658 N.E.2d 1009 (1995); People v. Ciaccio, 47 N.Y.2d 431, 418 N.Y.S.2d 371, 391 N.E.2d 1347 (1979)
SANDOVAL
That branch of the Defendant's motion which seeks the disclosure of the Defendant's past criminal history and/or prior bad or immoral acts which the People intend to use at trial should the Defendant choose to testify and a pre-trial hearing pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (1974) is granted to the extent of ordering that such hearing shall be held immediately before the commencement of trial.
BRADY MATERIAL
Inasmuch as the People's affirmative duty to disclose Brady material within their possession or control exists regardless of any order confirming it, regardless of the People's good or bad faith concerning the disclosure, Defendant's application for an order directing the People to turn over same is denied as unnecessary. ( cf. People v. Morgan, 178 Misc.2d 595, 682 N.Y.S.2d 533 (Co. Ct. Fulton Co.1998); People v. Jackson, 154 Misc.2d 718, 593 N.Y.S.2d 410 (S.C. Kings Co.1992).
ROSARIO MATERIAL
Inasmuch as the People's affirmative duty to disclose Rosario material within their possession or control exists regardless of any order confirming it, regardless of the People's good or bad faith concerning the disclosure, Defendant's application for an order directing the People to turn over same, should this case go to trial is denied as unnecessary.
CONCLUSION
Based upon all of the foregoing, the Defendant's motion is decided as follows:
(1) that branch of the Defendant's motion seeking an order dismissing the charges against him is granted to the limited extent of dismissing the charges of Leaving the Scene of an Accident Involving Personal Injury, Operating an Unregistered Motor Vehicle, Operating a Motor Vehicle With Improper Plates and Operating an Uninspected Motor Vehicle, all in violation of Vehicle and Traffic Law §§ 600(2), 319(1), 401(1)(a), 402(4) and 306(b), respectively, is granted; and these charges are hereby dismissed. This branch of the Defendant's motion to dismiss is denied in all other respects.
(2) that branch of the Defendant's motion seeking an order precluding the use at trial of any out of court identification, and to suppress any in court identification of the Defendant, is granted to the limited extent of precluding Christine Palmigiano from testifying at the time of trial to any out of court identification and suppressing any in court identification which may be made by her, and is denied in all other respects.
(3) that branch of the Defendant's motion seeking an order suppressing statements attributed to him or seeking a hearing regarding the voluntariness of such statements is granted to the extent of directing that a hearing be held;
(4) that branch of the Defendant's motion seeking an order suppressing the results of the test of his urine is denied;
(5) that branch of the Defendant's motion seeking an order granting a Dunaway and Mapp hearing is granted;
(6) that branch of the Defendant's motion seeking an order directing discovery and inspection and precluding the People from using, at the time of trial, any material not so provided is denied;
(7) that branch of the Defendant's motion seeking disclosure of his past criminal history and/or prior bad or immoral acts which the People intend to use at trial should the Defendant choose to testify and a Sandoval hearing is granted; and, such hearing shall be held immediately before the commencement of trial;
(8) that branch of the Defendant's motion seeking an order directing the People to furnish all exculpatory material is denied.
(9) that branch of the Defendant's motion seeking an order directing the People to furnish all Roasario material, should this case go to trial, is denied.
This constitutes the decision and order of the court.