People v. Lopez

DECISION AND ORDER Defendant Mario Lopez, charged with two counts of Leaving the Scene of an Incident without Reporting with Personal Injury [VTL §§600(2)(a) and (2)c)] moves, by notice of motion dated July 20, 2023, for an order: 1) dismissing the accusatory instrument pursuant to CPL §30.30 and §170.30(1)(e) and 2) granting such other relief as this Court may deem proper. For reasons that follow, Mr. Lopez’s motion to dismiss is DENIED in part and GRANTED in part. Background and Procedural History Defendant was arrested on December 14, 2022, in connection with a vehicular incident that occurred on December 13, 2022, at approximately 11:25 PM, at the southeast corner of Rutgers Street and Cherry Street, in New York County. On January 3, 2023, Defendant was arraigned on two counts of Leaving the Scene of an Incident without Reporting, with Personal Injury and one count of Leaving the Scene of an Incident without Reporting — Property Damage. The matter was adjourned for conversion to February 15, 2023. On January 4, 2023, off calendar, the People filed and served a superseding information (SSI) with a supporting deposition. On January 20, 2023, off calendar, the People filed and served an Automatic Disclosure Form (ADF), discovery list, certificate of compliance (COC), and Certificate of Readiness (COR). On February 15, 2023, the Defendant was then arraigned on the SSI. The accusatory instrument was deemed an information and the matter was adjourned for trial to March 24, 2023. On March 7, 2023, off calendar, the People filed and served an updated discovery list, Supplemental Certificate of Compliance (SCOC), and COR. On March 24, 2023, the People were deemed ready for trial and the matter was adjourned for trial to May 12, 2023. On April 21, 2023, off calendar, the People filed and served another updated discovery list, SCOC, and COR. On May 2, 2023, off calendar, Defendant filed an omnibus motion and a motion to dismiss count 2 on the accusatory instrument for facial insufficiency. On May 12, 2023, the Court set a motion schedule and the matter was adjourned for decision to June 30, 2023. On May 25, 2023, the People filed their response off calendar and consented to the dismissal of one count of VTL §600(1)(a). On May 31, 2023, the Court issued a Decision and Order dismissing one count of VTL §600(1)(a) from the accusatory instrument in the instant matter. On June 30, 2023, the matter was adjourned to August 2, 2023, for hearing and trial. On July 13, 2023, off calendar, the People filed and served another discovery list, SCOC, and COR. On July 18, 2023, off calendar, the People filed and served another discovery list, SCOC, and COR. On July 20, 2023, off calendar, Defendant filed the instant motion to dismiss. On August 2, 2023, the matter was adjourned for the People to respond off calendar to defense motions and for the Court’s decision to September 19, 2023. On August 21, 2023, the People filed their response off calendar. On August 30, 2023, Defendant filed his reply to the People’s response. Discussion Charge Classification Mr. Lopez is charged with Leaving the Scene of an Incident without Reporting, with Personal Injury [VTL §§600(2)(a) and (2)(c)], charges, that depending on the facts and circumstances of the defendant’s actions, may be considered either an A or B misdemeanor. The question here is whether Mr. Lopez’s alleged actions rise to the level of an A misdemeanor, as the People’s accusatory instrument does not specify. Defense argues that the crime the Defendant is charged with a is B misdemeanor, requiring the People to state ready for trial within 60 days from the commencement of the criminal action, less any excludable time. CPL §30.30(1)(c). The People respond that the Defendant’s actions, as stated in the People’s SSI, rise to the level of an A misdemeanor, thus requiring the People to be ready with 90 days from the commencement of the criminal action, less any excludable time. CPL §30.30(1)(b). Although commencement of a criminal action begins at the arraignment, computation for speedy trial purposes begins on the next day. People v. Stiles, 70 N.Y.2d 765 (1987). Once a defendant has alleged that an excess of the allowable time has elapsed, the burden shifts to the People to demonstrate whether any periods are to be excluded from the calculation, such that the allowable time has not elapsed. People v. Santos, 68 N.Y.2d 859 (1986); People v. Berkowitz, 50 N.Y.2d 333 (1980). VTL §600(2)(a) states 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…to the injured party…. (emphasis added). Further, the actions of an individual charged with VTL §600(2)(a) rise to the level of an A misdemeanor when the defendant’s actions include something “other than the mere failure of an operator to exhibit his or her license and insurance identification card for such vehicle or exchange [information]….” VTL §600(2)(c). Here, the People’s SSI, filed on January 4, 2023, alleges that the complainant “observed a Blue 2019 Nissan Pathfinder with a New York license plate number KUP2993 strike her, causing a bruise, swelling, bleeding, and substantial pain to her head and elbow.”¹ The complainant further states she then “observed the driver drive away without giving [the complainant] his name or otherwise identifying himself.”² The Defendant, allegedly, not only failed to provide his license and/or insurance information following the motor vehicle accident, but he also failed to stop his vehicle and remain on the scene. Defendant argues that the People’s SSI does not explicitly state that he failed to stop, but rather states that the complaining witness saw “‘the driver drive away without giving [the complainant] his name or otherwise identifying himself.’” See Defense Mtn. p. 5, 8. This Court rejects Defendant’s word play and contention that “driving away” does not constitute a failure to stop as required by VTL §600(2)(c). The People argue their SSI shows that the defendant’s actions meet all five elements required by VTL §600(2)(c). See Peo. Response 22. Namely, the People argue that their SSI shows that the defendant is accused of 1) being involved in a motor vehicle accident where the Defendant was operating one of the vehicles; 2) having reason to know that personal injury was caused as a result of the accident; 3) not reporting the incident as soon as possible; 4) not providing his identification following the accident; and 5) leaving the scene of said accident by driving away. Id. This Court finds that facts of this matter are extremely similar to those of People v. Ghorab. 41 N.Y.S.3d 451 (Crim. Ct. Queens Co. 2016). In Ghorab, the defendant was charged with VTL §600(2)(a) after allegedly striking another vehicle, causing the driver of that vehicle to experience lower back pain, and fleeing the scene. Id. at 2. The Ghorab court found that the defendant’s actions rose to the level of an A misdemeanor because he failed to exhibit his identification documents and failed to stop his vehicle following the accident.³ Id. This Court agrees with the People that the defendant’s actions as stated in their SSI, constitute an A misdemeanor, thus giving the People 90 days to state ready. Readiness Following the Dismissal of a Count for Facial Insufficiency The issue here is whether the People can validly state ready on an accusatory instrument with a facially insufficient count.⁴ Essentially, the case turns on whether the People’s CORs dated January 17, 2023, March 7, 2023, and April 21, 2023, effectively tolled the speedy trial clock. If the COR was not effective, then by the time the People answered ready for trial at subsequent court appearances, as well as filed an additional CORs on July 13, 2023, and July 18, 2023, the allowable speedy trial time would have already expired. The People are deemed “ready for trial” when they either 1) communicate their actual readiness in open court or 2) file a certificate of readiness with the court and serve a copy on defense counsel. People v. Kendzia, 64 N.Y.2d 331 (1985). However, as of January 1, 2020, any statement of trial readiness must be accompanied or preceded by a certificate of compliance with the discovery disclosure requirements mandated by CPL §245.20. CPL §30.30(5). The legislature also added a new subsection to CPL §30.30 as part of the 2019 amendments to the statute, which provides: “Upon a local criminal court accusatory instrument, a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed.” CPL 30.30 (5-a) (emphasis added). This statute imposes on the Court a simple language interpretation and this Court relies on long-standing Court of Appeals precedent that “[t]he governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory ‘language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of [the] words used.” People v. Finnegan, 85 N.Y.2d 53, 58 (1995); People v. Francis, 30 N.Y.3d 737, 740 (2018); Matter of Walsh v. New York State Comptroller, 34 N.Y.3d 522, 524 (2019); Colon v. Martin, 35 N.Y.3d 75, 78 (2020). The Supplementary Practice Commentary to CPL §30.30 (5-a) by William Donnino notes that this new subsection was added to abrogate the practice of partial conversion, whereby some counts of an accusatory instrument have been deemed converted, while at the same time leaving other existing counts unconverted on the same accusatory instrument. Therefore, the enactment of CPL §30.30 (5-a) was a response to critics of the practice of partial conversion and to provide a bright-line rule as to when the People can answer ready for purposes of speedy trial. See, People v. Brooks, 190 Misc.2d 247, 252 (App. Term 1st Dept. 2001) (concurring opinion, Suarez, J.)⁵ As such, a CPL §30.30 (5-a) certification requires the People to attest in a “COR”: (1) that all counts of an accusatory instrument are facially sufficient in compliance with CPL §§100.15 and 100.40 and (2) that those counts not meeting the requirements for facial sufficiency have been dismissed, before they can “answer ready” and toll the speedy trial clock. This requirement does not place an additional burden on the People. In the case at bar, the People filed a COR on January 17, 2023, which states: Ashlyn Dean, an Assistant District Attorney in the County of New York, awaiting admission to the Bar, hereby certifies that the People are ready for trial in the above-entitled action. I further certify that all counts currently charged in the accusatory instrument meet the requirements of CPL 100.15 and 100.40. Those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed. (emphasis added). The People then filed restatements of readiness on March 7, 2023, and April 21, 2023, confirming their readiness after filing SCOCs on the same dates. Following the filing of motion to dismiss for facial insufficiency, the People, on May 25, 2023, conceded that count 2 on the accusatory instrument, VTL §600(1)(a), Leaving the Scene of an Incident without Reporting — Property Damage, was facially insufficient. The Court, on May 31, 2023, then issued a Decision and Order dismissing the VTL §600(1)(a) count and ordering various other hearings in accordance with the Defendant’s omnibus motion. The People then filed additional CORs on July 13, 2023, and July 18, 2023. The People’s COR dated January 17, 2023, and subsequent CORs filed on March 7, 2023, and April 21, 2023, do not comport with the requirements of CPL §30.30 (5-a) that “all counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed” as the VTL §600(1)(a) count was still on the accusatory instrument at the time the CORs were filed. Accordingly, these CORs did not effectively toll the speedy trial clock. Defendant argues that at least 132 chargeable days have elapsed since the commencement of the case. The People contend that only 14 chargeable days have elapsed. The Court makes the following speedy trial calculations with respect to each adjournment: January 3, 2023 — February 15, 2023 The case was arraigned and adjourned to February 15, 2023, for the People to file a supporting deposition. On January 4, 2023, off calendar, the People filed and served a SSI and supporting deposition. On January 17, 2023, off calendar, the People filed and served am ADF, COC, and COR. The People’s COR filed on January 17, 2023, is invalidated in accordance with this decision. This period is chargeable to the People. 43 days are charged. February 15, 2023 — March 24, 2023 On March 7, 2023, off calendar, the People filed an ADF, SCOC, and COR. The People’s COR filed on March 7, 2023, is invalidated in accordance with this decision. On March 24, 2023, the People were deemed ready and the case was adjourned for trial to May 12, 2023. The People’s in court statement of readiness is invalidated in accordance with this decision. This period is chargeable to the People. 27 days are charged. March 24, 2023 — May 12, 2023 On April 21, 2023, off calendar, the People filed an ADF, SCOC, and COR. The People’s COR filed on April 21, 2023, is invalidated in accordance with this decision. On May 2, 2023, off calendar, the Defendant filed an omnibus and facial sufficiency motion to dismiss count 2 on the accusatory instrument. On May 12, 2023, the court set a motion schedule and the case was adjourned for decision to June 30, 2023. 39 days are charged. May 12, 2023 — June 30, 2023 On May 25, 2023, off calendar, the People responded to Defendant’s motion and conceded that count 2 on the accusatory instrument must be dismissed. On May 31, 2023, the Court issued a decision and order dismissing count 2 on the accusatory instrument. A CPL §30.30 calculation was not conducted at this time. On June 30, 2023, the case was adjourned to August 2, 2023, for hearing and trial. This period is excludable pursuant to CPL §30.30(4)(a). 0 days are charged. June 30, 2023 — August 2, 2023 On July 13, 2023, off calendar, the People filed an ADF, SCOC, and COR, the first COR filed following the dismissal of the facially insufficient count of VTL §600(1)(a). On July 18, 2023, off calendar, the People filed an ADF, SCOC, and COR.⁶ On July 20, 2023, off calendar, Defendant filed the instant matter to dismiss. On August 2, 2023, the Court set another motion schedule and the case was adjourned to September 19, 2023, for decision. 13 days charged. August 2, 2023 — September 19, 2023 On August 21, 2023, off calendar, the People filed and served their motion response. On August 30, 2023, off calendar, Defendant filed his reply to the People’s motion response. This period is excludable pursuant to CPL §30.30(4)(a). 0 days are charged. Conclusion The Court finds that a total of 122 chargeable days have elapsed since the commencement of the case, which exceeds the allowable time for the People to be ready for trial pursuant to CPL §30.30(1)(b). For the reasons stated therein, Mr. Lopez’s motion to dismiss the instant matter pursuant to CPL §30.30 is DENIED in part and GRANTED in part. This opinion constitutes the decision and Order of the Court. Dated: September 19, 2023