DECISION AND ORDER Defendant Minott Craig,1 charged with one count of Assault in the Third Degree (PL §120.00[3]), one count of Reckless Endangerment in the Second Degree (PL §120.20), and one count of Reckless Driving (VTL §1212), moves for an order dismissing the information on the ground that it is facially insufficient. For the reasons set forth below, the Defendant’s motion is DENIED. I. Factual Allegations The criminal court information alleges that on September 30, 2019, at approximately 2:21 p.m., a truck driven by the Defendant struck a pedestrian who was crossing the street. Specifically, the information alleges that the complaining witness was crossing Chatham Square from West to East, outside of the crosswalk, when the Defendant, driving “a Brink [sic] armored truck,” made a left-hand turn from Division Street to Chatham Square.2 The truck struck the pedestrian, knocking him to the ground. NYPD Detective Michael Murphy reviewed dash camera video footage from the interior of the truck, which showed that the Defendant had a cellular phone balanced on his left thigh, and glanced down at it repeatedly while he operated the truck. The Defendant was looking down at the phone as he made the left-hand turn and struck the pedestrian. The pedestrian was rendered unconscious on the ground, bleeding from his ears. He was transported to a hospital, and, upon regaining consciousness, was unable to speak or walk. II. Legal Standards An information must contain factual allegations providing reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information, and non-hearsay factual allegations establishing, if true, that the defendant committed every element of the offense charged. (CPL 100.40[1][b]-[c]) This latter requirement — the “prima facie case requirement” — “‘is not the same as the burden of proof beyond a reasonable doubt required at trial,’ nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial.” (People v. Smalls, 26 NY3d 1064, 1066 [2015], quoting People v. Kalin, 12 NY3d 225, 230 [2009].) “So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading.” (People v. Casey, 95 NY2d 354, 360 [2000].) III. Analysis (A) Typographical Errors in the Information The information contains certain typographical errors. The legal landscape regarding such errors has recently changed with the Court of Appeals’ decision in People v. Hardy, 35 N.Y.3d 466 (2020). In that case, the defendant was charged with violating an order of protection for an incident that had occurred on January 25, 2015. (Id at 469.) The accusatory instrument, however, incorrectly stated the incident date as October 25, 2015, a date that had yet to occur and fell after the expiration of the order of protection. (Id.) The Court of Appeals found that the trial court had erred when it permitted the People to amend the accusatory instrument to correct the incident date, holding that the Criminal Procedure Law (“CPL”) precludes prosecutors “from curing factual errors or deficiencies in informations and misdemeanor complaints via amendment.” (Id at 468-69.) The CPL instead requires “a superseding accusatory instrument supported by a sworn statement containing the correct factual allegations.” (Id at 469.) The Court dismissed the accusatory instrument, holding that “[a]bsent the challenged amendment,” it “would have failed to state a crime,” and the legality of the amendment thus presented “a nonwaivable jurisdictional issue.” (Id.) As in Hardy, the information here contains typographical errors in the factual allegations. The parties did not raise this issue in their papers; however, a consideration of the implication of these errors in light of Hardy is warranted, pursuant to the Court’s independent obligation to ensure that it retains subject matter jurisdiction. (People v. Abrams, 59 Misc 3d 1220[A] [Sup Ct, Queens Cty 2018]; People v. Barber, 42 Misc 3d 1225[A] [Crim Ct, NY Cty 2014].) The accusatory part of the information states that the incident occurred at “Doyers Street & Chatham Square in the County and State of New York.” The factual portion, on the other hand, states that “as the [D]efendant made a left turn from Division Street to Chatham Street,” he struck a pedestrian “who was crossing Chatham Street from West to East.” There are two potential errors here: the naming of “Doyers Street” in the accusatory part of the information and “Division Street” in the factual part, and the reference to “Chatham Square” in the accusatory part versus “Chatham Street” in the factual part. The Court examines each in turn. The intersection at issue is the junction of Chatham Square, Doyers Street, and Division Street. The factual allegation that the Defendant turned from “Division Street” onto Chatham Square is thus not inconsistent with the accusatory allegation that the incident occurred at “Doyers Street” and Chatham Square, because both Division Street and Doyers Street intersect Chatham Square at that location. The references to both “Division Street” and “Doyers Street” in the information are therefore not in error. The references to “Chatham Street” in the factual part of the information pose a different issue. “Chatham Square” exists in the location described, but there is no “Chatham Street” in that location, or anywhere in Manhattan. The references to “Chatham Street” in the factual section of the information thus appear to be typographical errors: the word “Street” should have been “Square.” It remains to consider the implication of those errors in light of Hardy. “[T]he distinction between jurisdictional and nonjurisdictional defects is between defects implicating the integrity of the process…and less fundamental flaws, such as evidentiary or technical matters.” (People v. Hightower, 18 NY3d 249, 254 [2011], citing People v. Dreyden, 15 NY3d 100, 103 [2010].) In Hardy, the incorrect date constituted a fundamental jurisdictional defect because it negated an element of the alleged crime: the defendant was charged with violating an order of protection, but the purported date of the crime fell outside the bounds of the order of protection. (Hardy, 35 NY3d at 475-76.) Here, in contrast, the references to “Chatham Street,” rather than “Chatham Square,” do not negate an element of the crime. (Hardy, 35 NY3d at 466.) Changing the word “Street” to the word “Square” would not “convert[] a facially insufficient accusatory instrument into a facially sufficient instrument.” (Id at 475-76.) Nor do the errors implicate the reasonable cause requirement. (Hightower, 18 NY3d at 254.) Even with the typographical errors, moreover, the information provides the Defendant with “notice sufficient to prepare a defense.” (Casey, 95 NY2d at 360.) The location of the incident is not in question. The information alleges that it took place in “the County and State of New York,” and names the intersection at which the alleged crime occurred. Indeed, the references to both Doyers Street and Division Street are helpful here, because those two streets intersect Chatham Square at a specific location. In short, the errors here are akin to the “typographical error in the spelling of a name,” which “does not constitute a jurisdictional defect.” (People v. Baum, 65 Misc 3d 1225[A] [Crim Ct, NY Cty 2019]; People v. Vargas, 55 Misc 3d 130[A] [App Term, 1st Dept 2017].) The errors in the information thus do not implicate “the integrity of the process” and do not render the information facially insufficient. (Hightower, 18 NY3d at 254.) It may nonetheless be best practice for the People to file a superseding information to correct these errors, (Hardy, 35 NY3d at 469), particularly since the information also inverts the Defendant’s first and last names. (B) Reckless Driving Reckless Driving is defined as operating a vehicle “in a manner which unreasonably interferes with the free and proper use of the public highway,” or “unreasonably endangers users” thereof. (VTL §1212) A person thus violates the statute when he operates “an automobile under such circumstances as to show a reckless disregard of the consequences.” (People v. Knupp, 159 AD3d 510, 510 [Sup Ct, App Div, 1st Dept 2018], citing People v. Grogan, 260 NY 138, 143 [1932].) The Defendant argues that the information is facially insufficient because his alleged actions did not pose a threat to other users of the street. The Court disagrees: the information alleges that the Defendant operated his vehicle in a manner that unreasonably endangered other drivers and pedestrians. The Defendant was not driving a car, or even an ordinary truck. He was driving a Brinks armored truck, which is, by design, a heavy, large motor vehicle. A reasonable operator of an armored truck would drive with a level of caution corresponding to the inherent risks that such a vehicle may present to others on the road. Yet here, the Defendant not only drove with his cellular phone balanced on his thigh, but he repeatedly glanced down at it while operating the truck, including at the very moment that he was executing a left-hand turn into the junction of several Manhattan streets, midday.3 Vehicle and Traffic Law §1225-d prohibits the operation of a motor vehicle “while using any portable electronic device,” when the vehicle is in motion. (VTL §1225-d) The Governor’s Memorandum approving the statute notes that “[r]esearch has established that the use of portable electronic devices while driving, and text messaging, in particular is extremely dangerous,” and concludes that prohibiting the use of electronic devices while operating motor vehicles “make[s] our roads safer.” (Governor’s Approval Mem, Bill Jacket, L 2009, Ch 403 at 5.) Although the Defendant was not charged with Vehicle and Traffic Law §1225-d, his alleged use of his cellular phone while driving violated the statute, and was therefore unsafe.4 The inquiry does not end there, however. A “single violation of a rule of the road” does not necessarily constitute reckless driving. (People v. Goldblatt, 98 AD3d 817, 819 [3d Dept 2012].) But such a violation, coupled with “additional aggravating acts or circumstances” may establish conduct that “rises to the level of unreasonable interference or endangerment such that it constitutes the requisite recklessness.” (Id.) Aggravating circumstances are present here. The Defendant looked down at the phone on his thigh — taking his eyes off the road — not just once, but repeatedly. He did so while driving a heavy, armored truck, and while executing a left-hand turn into an intersection of multiple streets, midday. A driver of any vehicle is expected to observe his surroundings and exercise caution when turning into an intersection, never mind the driver of an armored truck. (See VTL §1172[a]) This is particularly so given the time and location of the alleged offense: approximately 2:21 p.m., at the intersection of Chatham Square, Division Street, and Doyers Street, that is, in the middle of the afternoon on a weekday in downtown Manhattan. Accordingly, the allegations that the Defendant made a left-hand turn into the junction of several streets, in an armored truck, mid-afternoon, while repeatedly looking down at a cellular phone balanced on his thigh are sufficient to establish that the Defendant unreasonably endangered others using the road at the time. (C) Reckless Endangerment in the Second Degree A person commits Reckless Endangerment in the Second Degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person. (PL §120.20) A defendant acks “recklessly” when he “is aware of and consciously disregards a substantial and unjustifiable risk that [a] result will occur or that [a] circumstance exists.” (PL §15.05[3]) The “risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe.” (Id.) Determining the sufficiency of a charge of reckless endangerment requires “an objective assessment of the degree of risk presented” by the defendant’s conduct. (People v. Chrysler, 85 NY2d 413, 415 [1995].) The defendant’s subjective intent is irrelevant. (People v. Galatro, 84 NY2d 160, 165 [1994].) “Risk of injury alone will sustain prosecution,” because the reckless endangerment statutes “seek to prevent the risk created by the actor’s conduct, not a particular outcome.” (Id at 164.) The Defendant argues that he did not act recklessly because the information does not allege that he saw the complaining witness, or that he was aware of the complaining witness crossing the street. This argument misses the mark. To act recklessly, the Defendant need not have disregarded an actual pedestrian that he saw crossing the street. In repeatedly looking down at his phone while turning his armored truck into an intersection of several streets, mid-afternoon, in Manhattan, the Defendant consciously disregarded the substantial risk that his actions could seriously injure another driver or pedestrian who happened to be in or near the intersection. And that risk, tragically, came to fruition: the Defendant struck the complaining witness with his truck. Because the reckless endangerment statutes are intended to address “the risk created” by a defendant’s conduct, rather than a specific outcome, neither the absence nor the occurrence of a physical injury is dispositive as to the sufficiency of an information. (Id.) It is worth noting, however, that the injury here was directly attributable to the Defendant’s reckless conduct. (See Goldblatt, 98 AD3d at 822.) The Defendant’s vehicle knocked the pedestrian to the ground, rendering him unconscious and bleeding from the ears, and unable to walk or speak thereafter. (See PL §§120.20; 10.00[10]) (D) Assault in the Third Degree An individual commits Assault in the Third Degree when, “[w]ith criminal negligence,” he “causes physical injury to another person by means of a deadly weapon or a dangerous instrument.” (PL §120.00[3]) Criminal negligence requires that the individual “fails to perceive a substantial and unjustifiable risk” that a certain result will occur, and that the risk is “of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.” (PL §15.05[4]) The Defendant’s conduct in repeatedly looking down at his phone while turning his vehicle, an armored truck, into an intersection in downtown Manhattan in the middle of the afternoon constituted a failure to perceive a substantial and unjustifiable risk of harm to another driver or pedestrian. Accordingly, the motion to dismiss the information as facially insufficient is denied. This opinion constitutes the decision and order of the Court. Dated: February 4, 2021
