The following named papers numbered 1-2 submitted on this motion on May 30, 3018papers numberedNotice of Motion 1Order to Show Cause and Affidavits AnnexedAffirmation in Opposition to Defendant’s Omnibus Motion 2Reply Affidavits 3 Defendant is accused of Leaving the Scene of an Incident without Reporting-Personal Injury (VTL §600.2[a]). The charge arises out of an incident alleged to have occurred at about 4:45AM on October 29, 2017, at the intersection of East Meadow Avenue and North Jerusalem Road in East Meadow, New York. His omnibus motion is decided as set forth herein. Initially, defense counsel moves to dismiss the accusatory instrument as insufficient and facially defective, pursuant to CPL 170.30, 170.35, 100.40 and 100.15. Section 100.40 of the CPL provides that an information is facially sufficient if: (1) it substantially conforms to the requirements of CPL 100.15; (2) the non-hearsay facts stated in the information, together with any supporting depositions, establish reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the information; and (3) the non-hearsay allegations of the factual portion of the information and/or any supporting deposition establish each and every element of the offense charged and the defendant’s commission thereof.In determining a motion to dismiss for facial insufficiency, the court must view the facts in the light most favorable to the People (People v. Mellish, 4 Misc 3d 1013[A] [Crim Ct, New York County 2004]; People v. Gibble, 2 Misc 3d 510 [Crim Ct, New York County 2003]). The allegations need only make out a prima facie case, and need not establish defendant’s guilt beyond a reasonable doubt (People v. Henderson, 92 NY2d 677 [1999]).In relevant part, CPL 70.10(2) provides that:“‘Reasonable cause to believe that a person has committed an offense’ exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.”Pursuant to VTL §600.2(a), 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, when such card is required pursuant to articles six and eight of this chapter, 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.”Thus, to be sufficient an instrument charging a violation of VTL §600.2(a) must properly allege: (1) that defendant operated a motor vehicle; (2) that the vehicle while operated by defendant was involved in an incident; (3) that defendant knew or had cause to know that the incident caused personal injury to another; and (4) that defendant left the scene where the personal injury occurred without stopping, exhibiting the necessary information, and reporting the incident to the police.Upon review of the accusatory instrument at bar together with the supporting deposition, this court finds no merit to defense counsel’s argument that same fails to sufficiently establish that defendant was the driver of the motor vehicle involved in the subject incident.Nonetheless, for an information charging Leaving the Scene of an Incident without Reporting — Personal Injury to be sufficient, the accusatory instrument must include non-hearsay allegations that demonstrate circumstances which would lead the driver to know or have reason to know that there was injury to another person. It is well settled that “[k]knowledge may be proven circumstantially…” (People v. Mizell, 72 NY2d 651, 656 [1988]; see People v. Birmingham, 41Misc3d 129[A] [App Term 2d Dept 2013]). As such, knowing or having cause to know that the incident resulted in personal injury to another, can be inferred from the incident itself and/or the circumstances surrounding it.In the instant action, it is alleged that the incident occurred when defendant struck another vehicle which was stopped at a steady red traffic signal in East Meadow. However, the record is devoid of any indication whatsoever of the speed at which the defendant’s vehicle was then moving, or of any resulting damage to the victim’s car. Nor is there any other evidence from which the fact that defendant knew or should have known that the other driver had suffered personal injury may be inferred. There is no description of same being visible, or claim that the victim told defendant that he was injured. The other driver’s actions did not evince that he was injured. To the contrary, he states in his supporting deposition that he got out of his car after it had been struck, spoke to defendant, took a picture of defendant’s license with his cell phone, and informed defendant that he was going to call the police to report the accident.Sorely absent here is any proof that the defendant knew or had cause to know that personal injury had been caused to another person due to the underlying incident. Therefore, the accusatory instrument fails to establish, by non-hearsay allegations, all of the required elements of the crime charged. Accordingly, same is fatally defective. On this basis, defendant’s motion is granted, and the charge is hereby dismissed.Given the foregoing, the remainder of defendant’s motion is denied as moot.SO ORDERED:Dated: June 26, 2018
