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People v. Leontiev

District Court of Nassau County, First District

December 12, 2012

The People of the State of New York,
v.
Natalie Leontiev, Defendant.

Hon Kathleen Rice, Nassau County District Attorney.

Steven F. Christiansen, PLLC, attorney for Defendant.

Andrew M. Engel, J.

Papers Submitted:

Notice of Motion...................1

Affirmation in Support...........2

Affirmation in Opposition.....3

The Defendant is charged with two counts of driving while intoxicated, aggravated driving while intoxicated, two counts of reckless driving, refusing to take a breath test, leaving the scene of an incident involving property damage without reporting same, driving in excess of maximum speed limit, failure to comply with a lawful order, two counts of passing a red signal, two counts of driving on the shoulder, failing to yield the right of way to an emergency vehicle, two counts of making an improper and unsafe turn and throwing refuse onto the highway, all in violation of VTL §§ 1192(2), 1192(3), 1192(2a), 1212, 1194(1)(b), 600(1)(a), 1180(d), 1102, 1111(d)(1), 1131, 1144(a), 1163(a) and 1220(a), respectively.

The Defendant now moves for an order (1) dismissing the charges of refusing to take a breath test, reckless driving, and driving on the shoulder, pursuant to CPL §§ 170.30, 170.35, 100.15 and 100.40; (2) directing that a hearing be held pursuant to People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67 (1975); (3) directing that a hearing be held pursuant to Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248 (1979) and Mapp v. Ohio, 367 U.S. 643; 81 S.Ct. 1684 (1961); (4) directing that a hearing be held pursuant to People v. Huntley, 15 N.Y.2d 22, 255 N.Y.S.2d 838 (1965); (5) suppressing the results of a chemical test of her breath pursuant to VTL § 1194, or directing that a hearing be held on the related issues prior to trial; (6) directing the People to disclose any uncharged acts that will be used at trial to impeach the Defendant, should she testify at trial and that a hearing pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849 (1974) and People v. Molineux, 168 NY 264, 61 N.E. 286 (1901) be held; and, (7) reserving the Defendant's right to make further motions.

The People consent to the dismissal of the two counts of driving on the shoulder and to the court directing that a Mapp/Huntley/Dunaway hearing be held. They also consent to a Sandoval/Molineux hearing being held immediately before the commencement of trial. The People take no position on that branch of the Defendant's motion which seeks an order dismissing the charge of refusing to take a breath test, and oppose the Defendant's motion in all other respects.

THE ACCUSATORY INSTRUMENTS

The charges of refusing to take a breath test and reckless driving are lodged against the Defendant by way of simplified traffic informations, accompanied by the supporting deposition of P.O. Daniel C. Fliedner, subscribed and attested to on January 8, 2012, which alleges, in pertinent part, that on January 7, 2012, at approximately 9:10 p.m., Officer Fliedner:

was finishing a CB call for motor vehicle accident at Plandome Road and Dennis St in Manhasset at which time [he] witnessed a Black Honda SUV with a female driver collide with a 2007 Honda sedan NYR-FAW 1868. This vehicle made no attempt to stop and then proceeded to accelerate passing [him] in the roadway disregarding [his] directions to pull over. [He] then got into [his] RMP and activated the lights and sirens to attempt to stop this vehicle. The defendant, driving a Black Honda CRV NYR-FDM 6461, then headed South bound on Plandome Rd and proceeded West on 25a disobeying a red TSL. As [he] followed the defendant with emergency lights and sirens she approached intersection of 25A and Community Dr. with medium traffic still making no attempts to stop. She stopped behind two cars at the Red TSL in the Left Lane. As [he] exited [his] RMP and approached the defendants (sic) vehicle, she then accelerated away from [him] and into oncoming traffic disobeying a red TSL. She proceeded South on Community Dr and swerved two times into the North bound lanes crossing the middle divider. The defendant was driving at an estimated speed of 60 MPH, the posted speed limit for Community Dr is 40MPH. While S/B on Community Dr the defendant threw an item from the drivers (sic) window which appeared to be a small plastic bag. The defendant continued the rate of speed and was recklessly driving as she approached the North service rd (sic) of the LIE at which time the TSL was red and both S/B lanes had one car in each lane blocking the intersection. The defendant then collided into the rear of a 2009 Tan Toyota RAV 4, NYR-ENK 9075 in the S/B left lane. [He] parked [his] RMP blocking the defendants (sic) car and approached the drivers (sic) side door ordering the defendant to exit the vehicle at which time she did not comply after several commands.... The Defendant, now known to [him] as Natalie Leontiev, ... refused a PBT at scene from PO Palazzo.

These accusatory instruments will be found facially sufficient if "as provided by subdivision one of section 100.25, [they] substantially conform[] to the requirements therefor prescribed by or pursuant to law;" See: CPL § 100.40(2), and the supporting deposition "contain[s] allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged." CPL § 100.25(2); See: People v. Key, 45 N.Y.2d 111, 408 N.Y.S.2d 16 (1978); People v. Hohmeyer, 70 N.Y.2d 41, 517 N.Y.S.2d 448 (1987); People v. Titus, 178 Misc.2d 687, 682 N.Y.S.2d 521 (App. Term 2nd Dept. 1998); People v. Chittaranjans, 185 Misc.2d 871, 714 N.Y.S.2d 650 (Dist.Ct. Nassau Co. 2000) " Reasonable cause to believe that a person committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgement and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70.10(2).

VTL § 1194(1)(b) REFUSING TO TAKE A BREATH TEST

VTL § 1194(1)(b) provides:

Every person operating a motor vehicle which has been involved in an accident or which is operated in violation of any of the provisions of this chapter shall, at the request of a police officer, submit to a breath test [1] to be administered by the police officer. If such test indicates that such operator has consumed alcohol, the police officer may request such ...


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