PAPERS CONSIDERED NUMBERED Notice of Motion 1 Affidavit and Memorandum of Law in Opposition 2 Reply Affirmation 3 The defendant moves to dismiss the accusatory instrument pursuant to CPL 100.40, 170.30, 170.35 and 170.40 based upon facial insufficiency and in the interest of justice. The defendant is charged with criminal mischief in the fourth degree: reckless damage to property in excess of $250 (Penal Law 145.00(3), reckless endangerment in the second degree(Penal Law 120.20) and leaving the scene of an incident: property damage (VTL 600(1)(a). The accusatory instrument states that the defendant: [D]id intentionally leave the scene of an auto accident that cause[d] damage to another vehicle and property at 9 Pine Rd, Woodbury without reporting the incident. The defendant recklessly drove her vehicle nearly striking a person, Aviana Murphy, causing her to fear of substantial risk of serious physical injury to her person. The defendant recklessly caused damage to the property located at 9 Pine Rd, Woodbury in the amount exceeding two hundred and fifty dollars. The supporting deposition of Aviana Murphy provides as follows: I was working for Mosquito Squad at the residence located at 9 Pine Dr, Woodbury, when I witnessed an accident. As I was spraying, I heard loud tire screeching sounds from behind me. When I turned around, I saw a large white SUV, out of control, coming through the bushes in front of me. I jumped out of the way as the SUV launched into the air and struck a parked Nissan in the driveway. The parked car slid across the driveway and the SUV rolled over onto its roof. I immediately called 911. While on the phone with 911, I turned and saw a man in a white T-shirt, unknown to me, yelling at the driver of the SUV to “Get up and get out” of the vehicle. He then pulled the driver out of the vehicle. At this time, I saw that the driver was a female, white, around 5’5″, brown hair wearing a light colored T-shirt and plaid gray/white pajama pants. She exited the vehicle and the two people walked away without saying a word, crossed the street and entered the house at 6 Pine Street. I was startled and scared as I saw the SUV coming towards me. I jumped out of the way in fear of my life. The supporting deposition of Karla Charlery provides as follows: I was at work in the backyard of 9 Pine Dr Woodbury NY 11797 where I am employed as a housekeeper whin I heard a loud bang and ran to the front of the house. I was approximately 20 feet from my vehicle that was parked in the driveway when I saw a white suburban strike my 2015 Nissan Murano * * *causing it to go off the driveway and onto the neighboring property. The estimated damage to the vehicle is $25,000. The impact put me in fear of my safety and caused me to have a panic attack. A sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution (People v. Case, 42 NY2d 98 [1977]). A legally sufficient misdemeanor information must substantially conform to the requirements prescribed in CPL §100.15 (CPL §100.40[1][a]). Additionally, the factual part of a misdemeanor information “must allege facts of an evidentiary character demonstrating reasonable cause to believe that the defendant committed the crime charged” (People v. Dumas, 68 NY2d 729 [1986]; CPL §100.40[1][b]). The information must also set forth “non-hearsay, factual allegations which, if true, establish every element of the offense charged and the defendant’s commission thereof” (CPL §100.40[1][c]); People v. Konieczny, 2 NY3d 569 [2004]). A court reviewing an accusatory instrument for facial insufficiency must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from them (People v. Jackson, 18 NY3d 738, 747 [2012]; People v. Casey, 95 NY2d 354, 360 [2000]). However, “[f]acial sufficiency, by definition, limits the Court’s analysis to the four corners of the accusatory instrument” (People v.Mazzone, 72 Misc3d 15 [Sup. Ct, App Term, 2d Dept., 9th & 10th Jud. Dist.]). The Court of Appeals has instructed that where “it cannot be determined upon the face of the information whether the pleading is in compliance with CPL 100.40(1)(c), the information is subject to a motion to dismiss” (Casey, supra, 361). Penal Law §145.00(3) provides, in pertinent part, “A person is guilty of criminal mischief in the fourth degree when, having no right to do so nor any reasonable ground to believe that he or she has such right, he or she: Recklessly damages property of another person in an amount exceeding two hundred fifty dollars.” Penal Law §120.20 provides: “A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.” Penal Law §15.05(3) provides: A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. 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 in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto. Here, there allegations, as supplemented by the supporting depositions, are insufficient as to any alleged recklessness on behalf of the defendant. Neither of the witness’s supporting depositions indicated what caused the defendant’s vehicle to lose control. While the People contend that the circumstances of the accident alone support a finding that the defendant’s “conduct should be viewed as nothing but reckless,” that is not the standard to be applied. Indeed, while this was clearly a serious accident, it could very well be that negligence and not recklessness was the cause. Vehicle malfunction could have been the cause. A finding of recklessness in this case would require speculation that the defendant was “aware of and consciously disregard[ed] a substantial and unjustifiable risk that such result will occur or that such circumstance exists.” Accordingly, the factual allegations do not support a finding that the defendant’s conduct was reckless and, therefore, the counts charging criminal mischief in the fourth degree and reckless endangerment are dismissed. Vehicle and Traffic Law §600(1)(a) provides in pertinent part: Any person operating a motor vehicle who, knowing or having cause to know that damage has been caused to the real property or to the personal property, not including animals, of another, due to an incident involving the motor vehicle operated by such person shall, before leaving the place where the damage 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 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 party sustaining the damage, or in case the person sustaining the damage is not present at the place where the damage occurred then he or she shall report the same as soon as physically able to the nearest police station, or judicial officer. The facts as alleged do not support this charge either. While the defendant left her vehicle and went to her home directly across the street, this does not support a finding of “leaving the place where the damage occurred.” The place where the damage occurred includes where the incident started which is on the defendant’s property. Additionally, it is not unreasonable for someone to go merely steps away to the safety of his or her own home until the police arrive. Clearly, the defendant was not trying to avoid apprehension as her car was still overturned on the neighbor’s property. Accordingly, the charge of leaving the scene of an incident is dismissed. The defendant’s motion is granted in its entirety. All applications not specifically addressed are hereby Denied. This constitutes the Decision and Order of the Court. Dated: April 14, 2023
