DECISION & ORDER Defendant Delvis Cruz moves to dismiss the accusatory instrument for facial insufficiency and to dismiss all counts of the accusatory instrument pursuant to Criminal Procedure Law (“CPL”) §§30.30 (1) (b) and 170.30 (1) (e) or, alternatively, for an order deeming the prosecution’s Certificate of Compliance (“CoC”) invalid pursuant to CPL §§245.20 and 245.50; and for a hearing pursuant to People v. Allard, 28 NY3d 41 [2016] should the Court deny the motion; and for additional relief as this Court deems just and proper. Upon review and consideration of the submissions, court file and relevant legal authority, the Court: DENIES defendant’s motion to dismiss for facial insufficiency; and DENIES defendant’s motion to dismiss all counts of the accusatory instrument; and DENIES the defendant’s motion to find that the People’s CoC, served and filed on December 28, 2022, was invalid; and FINDS that there are no unresolved issues which warrant a hearing pursuant to People v. Allard, 28 NY3d 41 [2016]. RELEVANT PROCEDURAL BACKGROUND1 On October 28, 2022, defendant Delvis Cruz was arrested and charged with violating Vehicle and Traffic Law (“VTL”) §600 (2) (a) (leaving the scene of an incident without reporting- personal injury), a misdemeanor, and VTL §600 (1) (a) (leaving the scene of an incident without reporting- property damage), a violation. On October 30, 2022, defendant was arraigned. On December 28, 2022, the prosecution filed a CoC, Statement of Readiness (“SoR”) and a superseding information (“SSI”) which added the following charges: VTL §1212 (reckless driving), §1192 (3) (driving while intoxicated), both misdemeanors, and §1192 (1) (driving while impaired), a violation. On March 7, 2023, the prosecution’s CoC was deemed valid. On July 31, 2023, the Hon. Craig J. Ortner denied defendant’s motion to dismiss, filed May 22, 2023, and held that the People’s CoC, dated December 30, 2022, and supplemental CoCs, dated January 30, 2023, and March 6, 2023, were valid and that the People’s SoR and Statements Maintaining Readiness stopped the prosecution’s speedy trial time at 59 days. On February 7, 2024, the docket was scheduled for trial, however, although the People maintained their readiness, defense counsel advised this Court that they had filed a motion to challenge the facial sufficiency of the SSI and the validity of the CoC based on newly received discovery from the prosecution. On March 7, 2024, the prosecution opposed defendant’s instant motion to dismiss and on March 19, 2024, defense counsel filed a reply. DISCUSSION I. Applicable Legal Standards The Accusatory Instrument The factual allegations at bar, contained in the SSI, provide in pertinent part that: PO JOHN DAILEY of 46 PCT, Shield # 23134, states that on or about October 28, 2022 at approximately 10:00 PM at vicinity of WEST TREMONT AVENUE and WEST 177 Street, County of the Bronx, State of New York, […] Deponent is informed by Donald Smith that, at the above time and place, informant Smith was seated in his 2022 Hyundai Sedan (New York License Plate: JHT6319) with its hazard lights on, and said vehicle was double parked in a lane of traffic on a public roadway. Deponent is further informed by informant that he observed a red 2018 Honda Accord (New York License Plate: KDT1815) traveling at a high rate of speed and said Accord struck informant’s Hyundai Sedan on the driver’s side. Deponent further sates that the above location, West Tremont Avenue, is a two-way roadway traveling northeast and southwest wherein there is one lane of travel for each direction. Deponent is further informed by informant that he observed informant’s vehicle to be damaged in that said collision caused major scratches and dents to the rear bumper, rear left tire, the driver’s side front and rear doors. Deponent is further informed that informant observed the aforementioned 2018 Honda Accord to be damaged in that the 2018 Honda Accord was flipped on its side such that the driver’s side doors were on the ground. Deponent is further informed by informant Smith that he observed defendant standing on a public roadway, next to the aforementioned Honda Accord, with its headlights on. Deponent is further informed by informant Smith that informant Smith observed defendant to have blood coming from his face. Deponent is further informed by informant Smith that he smelled a strong odor of an alcoholic beverage emanating from defendant’s breath and that the defendant was unsteady on his feet. Deponent is further informed by informant Smith that based upon his social and life experiences in observing individuals consume alcoholic beverages and become intoxicated, informant believed that based upon the aforementioned observations of defendant and his social and life experiences, that defendant was intoxicated by alcohol. Deponent is further informed by informant Smith that he observed the defendant flee the location without displaying a license, registration or insurance information. Deponent is further informed by informant that as a result of the aforementioned collision, informant Smith suffered substantial pain to his back, minor swelling around his forehead, a laceration to the forehead, and swollen knuckles. Deponent further states that at on October 28, 2022, at approximately 10:13 PM, he responded to a radio run in the vicinity of West Tremont Avenue and West 177 Street, Bronx County. Deponent further states that he observed the aforementioned 2018 Honda Accord (New York License Plate: KDT1815) overturned on the driver’s side. Deponent further states that during the course of his investigation he reviewed a recording of a 911 call from October 28, 2022, at 10:49 PM placed by telephone number 646-377-2490, who while contemporaneously reporting their injuries stated in sum and substance: I DON’T FEEL GOOD. I AM AT GRAND CONCOURSE, HOLD ON I AM CHECKING THE MAP. YES, I AM OUTSIDE. I CANNOT WALK ANYMORE. PLEASE I AM 25 YEARS OLD. I AM AT 253 BURNSIDE AVE. I AM 25 YEARS OLD. THE PEOPLE WANNA KILL ME. I NEVER GOT NERVOUS. I NEED YOU. I AM OUTSIDE THE LAUNDROMAT. I CAN’T WALK ANYMORE. I GOT DRUNK. I BROKE MY FACE. Deponent further states that he reviewed a certification signed by PCT Teraya Chappell, a custodian of digital records in the custody of the New York City Police Department — Communications Division, that the aforementioned 911 call recording produced was made by the personnel or staff of the New York City Police Department, Communications Division during the regular course of business, at the time of the act, transaction, occurrence or event recorded therein, or within a reasonable time thereafter, and it was the regular counsel of business to make such recordings. Deponent further states that said certification signed by PCT Teraya Chappell contains the following statement: THE UNDERSIDNED MAKES THE FOLLOWING STATEMENTS UNDER THE PENALITIES OF PERJURY. Deponent is further informed by Police Officer Armani Lantiguataveras, Shield # 21099 of the 46 Precinct that, on October 29, 2022 at approximately 9:25 PM within the 46th Precinct, defendant stated in sum and substance, MY CAR IS THE 2018 HONDA ACCORD. I WAS DRIVING. I FLIPPED MY CAR YESTERDAY. MY PHONE NUMBER IS 646-377-2490. Facial Sufficiency Challenge To meet the jurisdictional standard for facial sufficiency, a misdemeanor complaint “need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense” (see People v. Smalls, 26 NY3d 1064, 1066 [2015]; see also CPL §100.40 [1] [b]; CPL §70.10). The accusatory instrument must set forth non-hearsay facts of an evidentiary nature which, if true, establish every element of the offense charged (see People v. Suber, 19 NY3d 247 [2012]; People v. Dumas, 68 NY2d 729 [1986]). It is well-settled that “mere conclusory allegations are insufficient [ ] and a purported information which fails to meet these requirements is fatally defective” (see People v. Pamulo, 48 Misc 3d 1227 [A], 2015 NY Slip Op 51286 [U], **2 [Crim Ct, New York County 2015] [citations omitted] citing People v. Alejandro, 70 NY2d 133, 136 [1987]). However, “[t]he court should approach factual allegations with a fair, not overly restrictive, or technical reading” (see People v. Suquilanda, 80 Misc 3d 1220 [A], 2023 NY Slip Op 51045 [U], *2 [Crim Ct, Bronx County 2023] citing People v. Casey, 95 NY2d 354, 360 [2000]). Additionally, “[t]he prima facie case requirement does not necessitate that the information allege facts that would prove defendant’s guilt beyond a reasonable doubt” (see People v. Washington, 46 Misc 3d 1210 [A], 2015 NY Slip Op 50030 [U], ***3 [ Crim Ct, New York County 2015] [internal citations omitted]. Consequently, the accusatory instrument need only set forth factual allegations which “give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense” (see Id. [internal citations omitted]). CoC Challenge To oppose a motion to dismiss claiming that the prosecution’s CoC is illusory due to the prosecution’s alleged failure to comply with CPL §245.20, the People must demonstrate that they met their burden by detailing their efforts to obtain discoverable information (see People v. Hernandez, 81 Misc 3d 1201[A], 2023 NY Slip Op 51201[U], *6 [Crim Ct, Bronx County 2023] citing People v. Adrovic, 69 Misc 3d 563, 572 [Crim Ct, Kings County 2020]; CPL §245.50 [3]). If the record does not establish that the People have detailed their efforts to discharge their obligation such that a court cannot determine their due diligence, the CoC must be deemed invalid (see Hernandez, 2023 NY Slip Op 51201[U], *7 citing People v. Perez, 75 Misc 3d 1205[A], 2022 NY Slip Op 50387[U], *3 [Crim Ct, Bronx County 2022]; People v. Georgiopoulous, 71 Misc 3d 1215[A], 2021 NY Slip Op 50380[U], *6 [Sup Ct, Queens County 2021]; People v. Valdez, 80 Misc 3d 544, 547 [Crim Ct, Kings County 2023]). Lastly, the Court of Appeals has now addressed the issue of how trial courts can evaluate prosecutorial due diligence in People v. Bay, __ NE3d __, 2023 NY Slip Op 06407 [2023]. The Bay court found that the “key question in determining if a proper certificate of compliance has been filed is whether the prosecution has exercised due diligence and made reasonable inquiries to determine the existence of material and information subject to discovery,” a case-specific inquiry of the record at bar (see Bay, 2023 NY Slip Op 06407, *2 [emphasis added]; CPL §§245.20 [1]). II. The Parties’ Arguments Defense counsel asserts, inter alia, that the People’s SoR cannot validly toll their speedy trial time accrual unless all counts in the accusatory instrument meet the requirements of facial sufficiency pursuant to CPL §30.30 (5-a) (affirmation of defendant’s counsel at 7). Counsel’s facial insufficiency argument is entirely premised on the argument that the factual allegations against defendant, even if true, are insufficient to assert a charge of reckless driving pursuant to VTL §1212 (affirmation of defendant’s counsel at 8). Specifically, counsel contends that the SSI fails to allege any observations about defendant’s driving by a police officer or other member of law enforcement (affirmation of defendant’s counsel at 8). Additionally, defendant maintains that the accusatory instrument is also deficient because the SSI does not allege what speed defendant was traveling nor indicate that he was driving in a manner that unreasonably interfered with the use of the public roadway or endangered users of the public highway (affirmation of defendant’s counsel at 9). Counsel argues that if this Court finds that VTL §1212 is not sufficiently pled, it must dismiss the accusatory instrument in its entirety because partial conversion is proscribed by CPL §30.30 (5-a) (affirmation of defendant’s counsel at 14). Defendant further asserts that the prosecution failed to exercise due diligence because the People should have known that their disclosure on November 4, 2023, of the transcript and translation of defendant’s telephone conversation with his insurer, Progressive Insurance, did not include pages 2, 4 and 6, and that the complete document was not shared until February 6, 2024, the day before the original trial date (affirmation of defendant’s counsel at 15). Lastly, counsel’s reply brief argues that the deponent’s observations concerning defendant’s purported intoxication are not probative at bar where the SSI does not provide details about his operation of the vehicle sufficient to infer recklessness and where the observations were not corroborated by a police officer or test (reply affirmation of defendant’s counsel at 1-3). The People argue that the prima facie burden at the pleading stage is not the same as the burden of proof beyond a reasonable doubt required at trial (People’s affirmation at 8). Further, the prosecution avers that the allegations that defendant was driving at a high rate of speed down a two-way roadway where there is only one lane of traffic in either direction and that he struck the deponent’s double-parked vehicle causing damage to the other vehicle and driver before flipping his own car on its side such that both driver’s side doors were on the ground establishes a prima facie VTL §1212 charge (People’s affirmation at 10). The People contend that the SSI has given defendant sufficient notice to prepare a defense and prevent him from being retried for the same offenses where the deponent observed that defendant appeared to be unsteady on his feet and a smell of alcohol emanated from his breath and that these allegations establish aggravating factors beyond a single violation of the VTL (People’s affirmation at 11). Additionally, the People cite to recent Second Department, Appellate Term, caselaw in support of their proposition that even if the Court deems the reckless driving charge to be inadequately pled, an SoR filing, in the absence of a finding of prosecutorial bad faith, satisfies the statutory mandate set forth by CPL §30.30 (5-a) (People’s affirmation at 11-14). Next, the prosecution contends that documents pertaining to defendant’s telephone call with his insurer were obtained by subpoena and that three pages were inadvertently omitted from the 156-page scan to defense counsel on November 4, 2023 (People’s affirmation at 16). However, the People argue that despite the copious discovery disclosed to defendant, which they posit satisfies the Bay court’s analysis of due diligence, counsel did not advise them about the missing pages until February 6, 2024, on the eve of trial (People’s affirmation at 15-18). Lastly, the prosecution states that defendant’s motion is untimely pursuant to CPL §§255.20 (3) (People’s affirmation at 19-20). III. The Court’s Analysis It is well-settled that although the allegations in a criminal complaint must give rise to a prima facie case, courts have declined to give an accusatory instrument an overly technical reading (see People v. Konieczny, 2 NY3d 569, 575 [2004]). A. Facial Sufficiency- Reckless Driving, VTL §1212 Vehicle and Traffic Law §1212 provides that “[r]eckless driving shall mean driving or using any motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or any appliance or accessory thereof in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway. Reckless driving is prohibited. Every person violating this provision shall be guilty of a misdemeanor (see VTL §1212; see also CJI2d[NY] Vehicle and Traffic Law §1212, https://nycourts.gov/judges/cji/3-vtl/vtl_1212/1212.pdf [last accessed April 21, 2024]["Intoxication, absent more, does not establish reckless driving. One can engage in reckless driving without being intoxicated and, conversely, one can drive while intoxicated without engaging in reckless driving. Evidence of an individual's intoxication and how that condition may have affected his or her ability to perceive and react to risks commonly encountered while operating a vehicle on a public highway may be relevant to prove reckless driving when that evidence is coupled with evidence of the manner in which the motor vehicle was being operated"]). A charge of reckless driving will be held to be facially sufficient when the accusatory instrument demonstrates that the defendant operated the vehicle in a way that “interferes with or endangers the user of the highway through the failure to exercise reasonable care, reasonable caution or the reasonable foresight of a reasonably prudent and careful person” (see People v. Grogan, 260 NY 138, 149 [1932]). The complaint must indicate how the vehicle was being operated at the time of the alleged offense. Additionally, reckless driving is more than the commission of a single traffic infraction (see People v. Goldblatt, 98 AD3d 817 [3d Dept 2012], lv denied 20 NY3d 932 [2012]). As set forth in the SSI, the deponent observed defendant, while driving at a high rate of speed, strike the deponent’s double-parked vehicle with enough force to cause considerable damage to his vehicle and his person insofar as he suffered substantial pain to his back, minor swelling around his forehead, a laceration to the forehead, and swollen knuckles, and then witnessed defendant flip a several thousand-pound vehicle such that defendant’s driver’s side doors were on the ground. While defense counsel posits that the probative value of a civilian’s observations concerning the smell of alcohol emanating from defendant’s breath lack corroboration by either law enforcement or a test, it is well settled that the law does not require any particular chemical or physical test to prove that a person was in an inebriated condition (see CJI2d[NY] Vehicle and Traffic Law §1192 [3], https://nycourts.gov/judges/cji/3-vtl/vtl_1192/1192[3].pdf [last accessed April 22, 2024]; see also CJI2d[NY] Vehicle and Traffic Law §1192 [1], https://nycourts.gov/judges/cji/3-vtl/vtl_1192/1192[1].pdf [last accessed April 22, 2024]). Thus, we find no imperative to discount the deponent’s observations. Considered in the light most favorable to the People, the accusatory instrument alleges facts that reasonably infer that defendant operated his vehicle in reckless disregard of the consequences for users of the public roadway. First, it is alleged that the deponent was seated inside of his double-parked car on a two-way roadway where there is only one lane of travel for either direction when he was struck by defendant’s speeding vehicle. Secondly, the SSI asserts that the collision caused scratches and dents to the deponent’s rear bumper, rear left tire and driver’s side doors and that he sustained injuries to his back, forehead, and hands. The deponent also claims that he witnessed defendant flip his vehicle onto its side such that defendant’s driver’s side doors were on the ground. Further, it is alleged that the deponent subsequently observed defendant to have an unsteady gait and a bloody face, and he smelled a strong odor of an alcoholic beverage emanating from defendant’s breath. Finally, defendant is alleged to have called 911 and stated “I GOT DRUNK. I BROKE MY FACE.” Cumulatively, the factual allegations at bar establish a reasonable inference that defendant operated his vehicle in a manner that lacked the care and caution of a reasonably prudent driver. Defense counsel correctly notes that the SSI fails to state what speed defendant was driving. Nonetheless, the fact that defendant’s operation of his vehicle resulted in a several thousand-pound Honda Accord being flipped onto its side is highly suggestive that defendant’s car was not merely cruising down the street, and when coupled with the claims that defendant smelled of alcohol and reported to 911 that he was drunk, the SSI is facially sufficient to support a reckless driving charge (see Grogan at 149; see also People v. McKenzie, 52 Misc 3d 1217[A], 2016 NY Slip Op 51187[U], *5 [Crim Ct, Kings County 2016] ["In this case, the accusatory instrument alleges more than defendant's involvement in a minor traffic accident. Here, defendant's vehicle is alleged to have been involved in a serious accident in which his car hit three parked cars and flipped onto its roof, without any indication the accident was precipitated by the actions of any other vehicle being operated on the road. A trier of fact could reasonably conclude that the accident was aggravated by the unsafe manner in which the vehicle was operated"]). Defendant has not challenged the facial sufficiency of the remaining counts. Accordingly, this Court finds that the four corners of the SSI are sufficient for pleading purposes to establish defendant’s disregard of the consequences of his actions to others using the public highway pursuant to VTL §1212. Consequently, that part of defendant’s motion seeking dismissal of the accusatory instrument based upon partial conversion pursuant to CPL §30.30 (5-a) is rendered moot. B. Belated Disclosure- Omitted Pages from the Progressive Insurance Transcript Examined through the lens of the Bay decision, the record demonstrates that the People exercised due diligence in the discharge of their discovery obligations concerning the transcripts of defendant’s telephone call with Progressive Insurance. Defendant’s motion elides any explanation of why he could not obtain the transcripts himself where there is no evidence that the transcript should be deemed within the ambit of CPL §245.20 (1) automatic disclosures. It must be axiomatic that absent particularized circumstances which do not exist here, the prosecution does not exercise custody or control over documents generated by an insurer that plays no role in law enforcement. Nevertheless, the record at bar demonstrates that the omission of three pages from a 156-page document was inadvertent and, further, that defendant’s 94-day delay in raising the issue contravenes the conferral contemplated by CPL §245.40 (4) (b) which provides, in pertinent part, that “[t]o the extent that the party is aware of a potential defect of deficiency related to a certificate of compliance or supplemental certificate of compliance, the party entitled to disclosure shall notify or alert the opposition party as soon as practicable” (see CPL §245.40 [4][b]; see also, People v. Rondon, 82 Misc 3d 1209[A], 2024 NY Slip Op 50257 [U], *4 [Crim Ct, Bronx County 2024] citing People v. Henriquez, 80 Misc 3d 1220[A], 2023 NY Slip Op 51044[U], *3 [Crim Ct, Bronx County 2023]["(d)efense counsel cannot strategically delay their CoC challenge in the hope that the People's speedy trial time will exhaust before their disclosures are supplemented, as such a course would undoubtedly contravene the Legislative intent which animates CPL §245.40 [4][b]“). The Court finds that the belated disclosure of missing pages from the transcribed phone call between defendant and Progressive Insurance is not a basis to invalidate the People’s CoC, and further that the prosecution’s CoC and SoR, filed December 28, 2022, validly certified their compliance, and tolled their speedy trial time at 59 days. CONCLUSION Based upon the foregoing, defendant’s motion for dismissal of the accusatory instrument for facial insufficiency is DENIED, and the Court further: DENIES defendant’s motion to dismiss all counts of the accusatory instrument; and DENIES the defendant’s motion to find that the People’s CoC, served and filed on December 28, 2022, was invalid; and FINDS that there are no unresolved issues which warrant a hearing pursuant to People v. Allard, 28 NY3d 41 [2016]. This constitutes the opinion, decision, and order of the Court. Dated: April 25, 2024
