The defendant is charged with one (1) count of Menacing in the Second Degree in violation of PL §120.14, and one (1) count of Harassment in the Second Degree in violation of PL §240.26(01).Defendant now moves for an order 1) dismissing the accusatory instrument on the ground of facial insufficiency; 2) dismissing the accusatory instrument in the interest of justice; 3) suppressing physical evidence on the grounds that such evidence was unlawfully seized, or in the alternative, granting a Mapp/Dunaway hearing to determine the admissibility of tangible evidence; 4) suppressing evidence of his statements to police, or in the alternative, granting a Huntley hearing; 5) compelling the People to provide defendant with any and all Rosario and Brady material; 6) precluding the People from introducing at trial evidence of his prior criminal convictions, any underlying bad acts, and all prior uncharged criminal, or wrongful conduct; 7) compelling the People to provide defendant with a bill of particulars; 8) directing the transcription of hearing minutes at least 20 days prior to commencement of trial; and 9) granting him the right to make additional pretrial motions.It is alleged that on December 20, 2018, at approximately 2:41 p.m., at 60 West 1st Street, in the City of Mount Vernon, County of Westchester and State of New York, the defendant arrived at the above location to conduct an inspection of the victim’s home. While inside the home, the victim and defendant got into a verbal dispute regarding repairs. During the verbal dispute, the defendant is alleged to have lifted up his shirt and brandished a silver .32 caliber handgun. The defendant then allegedly threatened the victim with said firearm placing the victim in fear of physical injury. After the defendant left the apartment, the Mount Vernon Police Department was called by the victim, and shortly thereafter police officers arrived on scene.Upon arriving on the scene and speaking to the victim, members of the Police Department went to the building manager’s office and spoke with the defendant. Police observed a bulge near the waistband area of the defendant’s person. Police then recovered a loaded .32 caliber firearm from the defendant along with a brown holster. The defendant did state to police while at the scene that he had a license for said firearm, and that he did go to the victim’s apartment but never brandished said firearm. The defendant was then placed under arrest and transported back to police headquarters. An Ejustice search of the defendant’s privilege of carrying said firearm in the State of New York revealed that the defendant did in fact have a full carry permit.Defendant seeks to dismiss the misdemeanor information based on facial insufficiency. In order for an information to be facially sufficient, it (and/or any supporting depositions accompanying it) must allege nonhearsay allegations of fact of an evidentiary character that establish, if true, every element of the offense charged (see CPL 100.15 [3]; 100.40 [1] [c]; People v. Dumas, 68 NY2d 729, 731 [1986]). These requirements are jurisdictional (see People v. Kalin, 12 NY3d 225 [2009]; People v. Casey, 95 NY2d 354 [2000]; People v. Alejandro, 70 NY2d 133 [1987]; People v. Dumas, 68 NY2d at 731), and the failure to meet these requirements may be asserted at any time, with the exception of the requirement of nonhearsay allegations, which is waived if it is not timely raised by motion in the trial court (see People v. Casey, 95 NY2d 354). The law does not require that the most precise words or phrases which most clearly express the thought be used in an information, but only that the crime be sufficiently alleged so that the defendant can prepare himself for trial, and so that he will not be tried again for the same offense (see People v. Dreyden, 15 NY3d 100, 103 [2010]; People v. Konieczny, 2 NY3d 569, 575 [2004]; People v. Casey, 95 NY2d at 360).The crime of Menacing in the Second Degree requires an intent to place another person in “reasonable fear of physical injury” by “displaying” a deadly weapon or dangerous instrument. (People v. Bartkow, 96 NY2d 770, 772 [2001].)In order to be facially sufficient, an accusatory instrument charging the offense of Harassment in the Second Degree (Penal Law §240.26 [1]) must establish that the defendant struck, shoved, kicked or otherwise subjected another person to physical contact, or attempted or threatened to do the same, and did so with the intent to harass, annoy or alarm the other person.A review of the information and supporting deposition reveals that same complies with the requirements of CPL §100.15. Furthermore, a review of the accusatory instrument provides reasonable cause to believe that the defendant committed the offense of Menacing in the Second Degree and Harassment in the Second Degree. Certainly, the supporting deposition states clearly and succinctly that during a verbal dispute between the parties, the defendant pulled out a gun and dared the complainant to hit him.CPL §170.40 provides that a Court may dismiss an accusatory instrument in the interest of justice where there exists “some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice.” CPL §170.40 lists 10 factors which the court must consider when determining whether to grant dismissal in the interest of justice. “The power to dismiss on such ground is, as provided in the statutory text, committed to the trial court’s discretion; it should be exercised sparingly and only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations.” People v. Harmon, 181 AD2d 34, 36 (1st Dept. 1992) (internal quotation marks omitted).The court need not “engage in a point-by-point catechistic discussion of all ten statutory factors; instead, the court is required to consider the factors individually and collectively in making a value judgment that is based upon striking a sensitive balance between the interests of the individual and those of the state.” People v. Gragert, 1 Misc 3d 646, 648 (Crim Ct, NY County 2003); see also, People v. Rickert, 58 NY.2d 122 (1988). Where the defendant fails to meet his burden of demonstrating by the preponderance of the evidence that a compelling factor exists to warrant dismissal in the interest of justice, the court may summarily deny the motion. People v. Schlessel, 104 AD2d 501 (2d Dept. 1984).“Defendant is reminded that “[i]t is the District Attorney’s prerogative to prosecute those who commit crimes, to bring charges or discontinue criminal proceedings” (People v. Keith R., 95 AD3d 65, 67 [1st Dept. 2012]) and absent a showing by defendant that a compelling factor exists to warrant dismissal in the interest of justice, this court will not exercise its discretion under CPL §170.40(1).Defendant’s principal appeal is to CPL §170.40(d), the “history, character and condition of the defendant.” Defendant argues that the prosecution of him would constitute or result in an injustice. The primary thrust of defendant’s motion is that he is a seventy-eight (78) year old male, who is a former law enforcement officer, licensed to carry a gun in Westchester County, with no prior criminal history. The Court accepts these facts for purposes of this motion. However, although the various personal background factors enumerated by the defendant may be considered in mitigation upon imposition of sentence, they do not rise to the level of requiring the Court to act favorably on the defendant’s request to dismiss. The mere fact that the defendant has no prior record (see, People v. Belkota, 50 AD2d 118 [4th Dept 1975]), or has an exemplary background (see, People v. Andrew, 78 AD2d 683 [2nd Dept 1980]), is insufficient to justify the exercise of the court’s discretion, and “does not immunize him from the normal processes of the criminal law” (People v. Varela, 106 AD2d 339, 340 [1st Dept. 1984]). In consideration of all the statutory factors set forth in CPL §170.40, this Court finds that none of the enumerated factors provides a basis for dismissal.The Defendant also moves to suppress physical evidence seized from him as a result of his arrest. “[T]he sufficiency of [the] defendant’s factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) [the] defendant’s access to information.” People v. Mendoza, 82 NY2d 415, 426 (1993). However, even if the defendant’s factual allegations are deficient, summarily denying a motion to suppress is disfavored. In Mendoza, supra, the Court of Appeals explained:The CPL does not mandate summary denial of defendant’s motion even if the factual allegations are deficient. If the Court orders a Huntley or Wade hearing, and defendant’s Mapp motion is grounded in the same facts involving the same police witnesses, the court may deem it appropriate in the exercise of discretion to consider the Mapp motion despite a perceived pleading deficiency. Indeed, considerations of judicial economy militate in favor of this procedure; an appellate court might conclude that summary denial of the Mapp motion as improper, requiring the parties and witnesses to reassemble for a new hearing, often months or years later.This Court finds that defendant’s moving papers are “minimally sufficient” to warrant a hearing on the issue of suppression. See, People v. Harris, 160 AD2d 515, 515 (1st Dept. 19990). Here, members of the Mount Vernon Police Department were called to the subject location regarding a person being menaced at gun point, and after speaking with the complainant, they observed the defendant with a gun in his waistband, which was recovered. Defendant was subsequently arrested based, in part, upon the statements made by him to the officers, in addition to the victim’s statements to them regarding the defendant’s conduct.Defendant’s denial of any wrongdoing challenges the facts relied upon by the arresting officer to establish probable cause. “When the validity of a warrantless arrest is challenged, the presumption of probable cause disappears and the People bear the burden of coming forward with evidence showing that it was supported by probable cause.” People v. Chaney, 253 AD2d 562, 564 (3d Dept. 1998). When material facts are in issue, a hearing must be held in order for the Court to determine whether evidence was obtained lawfully (People v. Burton, 6 NY3d 584 [2006]). A hearing shall be held to determine the propriety of defendant’s warrantless arrest and whether, in light of all the circumstances, probable cause existed for it. Therefore, defendant’s motion for a Mapp/Dunaway hearing is granted.In a motion to suppress a statement, all that is required to warrant a Huntley hearing is the mere claim that the defendant’s statement was involuntary. People v. Weaver, 49 NY2d 1012 (1980); People v. Bingham, 144 AD2d 682 (2d Dept. 1988); Matter of Brian E., 206 AD2d 665 (3d Dept. 1994). Therefore, defendant’s motion for a Huntley hearing is granted.The Sandoval motion is granted on consent, and shall be renewed before the trial judge. Since the People have not indicated that they plan to introduce any evidence of defendant’s prior bad acts on their direct case, the motion for a Ventimiglia hearing is denied as premature at this time. In the event the People later indicate they plan to introduce such evidence, the defendant may renew the motion before trial.Since the People have consented to open file discovery and to providing the defendant with Brady material as it becomes available, those portions of the defendant’s motion are denied. Defendant is, however, granted leave to renew his application for Brady material before the trial Judge (see CPL §240.45; People v. White, 178 AD2d 674 [2nd Dept 1991]; People v. Goins, 73 NY2d 989 [1989]). The defendant also seeks disclosure of Rosario material which the People have acknowledged will be provided in a timely manner and as such, defendant’s request for Rosario material is also denied at this time.Defendant’s motion to require that any pre-trial hearings in this case be held at least twenty days in advance of the trial is denied. In the event the Defendant seeks production of the minutes of any pre-trial hearing prior to trial, that request will be considered by the Court at the time it is made.The defendant’s request for a bill of particulars is denied on the basis that the misdemeanor information with the supporting deposition, provides sufficient information delineating defendant’s alleged conduct at the time of the incident. Lastly, defendant’s reservation of his right to file further motions is unauthorized pursuant to CPL §255.20(3). Any other motions shall be summarily denied absent a showing of good cause.Accordingly, defendant’s motion to dismiss the information as defective and/or in the interest of justice is denied. The motion for a Huntley/Dunaway/Mapp hearing is granted. Defendant’s motion for a Sandoval hearing is granted and respectfully referred to the trial judge. That branch of defendant’s motion for a Ventimiglia hearing is denied as premature. Defendant’s request to file additional motions is denied subject to rights under CPL 255.20(3) to move for further leave upon good cause shown. Defendant’s request for a bill of particulars is denied. The People are reminded of their continuing obligation to supply all Brady and Rosario material.This constitutes the Decision and Order of this Court.Dated: March 13, 2019Mount Vernon, New York
