Criminal Court of the City of New York, Bronx County
the Defendant: Willoughby Jennet, Esq.
the People: ADA Clair Pelella Bronx District Attorney's
JEFFREY ROSENBLUETH, J.
TO DISMISS COUNT TWO (2), LEAVING THE SCENE OF AN INCIDENT
WITHOUT REPORTING, FOR FACIAL INSUFFICIENCY: GRANTED
is charged in the accusatory instrument with one count of
Driving While Intoxicated [VTL § 1192(3)], one count of
Leaving the Scene of an Incident without Reporting [VTL
600(1)(a)] and one count of Driving While Ability Impaired
[VTL § 1192(1)]. The accusatory information sets forth,
in pertinent part, that:
"P.O. Alex Hutt... states that on or about June 6, 2019
at approximately 9:30 P.M. in front of 3016 Webster Avenue,
county of the Bronx... he observed John Estrellado on the
ground next to a 2019 Indian motorcycle... [P.O. Hutt]
further states that said motorcycle's exhaust pipe and
frame were scratched. [P.O. Hutt] further stated that John
Estrellado pointed to a green Chevrolet and stated in sum and
substance HE HIT ME. [P.O. Hutt] further states that he
observed said vehicle driving away from above location.
[P.O. Hutt] is further informed by Officer Michael
Savastano... that he observed defendant operating a 1998
green Chevrolet van... in that he observed defendant seated
behind the steering wheel, keys in the ignition, engine
running, headlights on and moving along a public roadway.
[P.O. Hutt] is further informed that [Officer Savastano]
observed defendant driving at a rate of speed in excess of
the speed limit.
[P.O. Hutt] is further informed by [Officer Savastano] that
he observed the defendant to have bloodshot, watery eyes,
swaying balance, and a strong odor of alcoholic beverage on
his breath. [P.O. Hutt] is further informed by [Officer
Savastano] that defendant had urine on his pants. [P.O. Hutt]
further states that he was present at the administration of a
chemical test analysis of defendant's breath, and
defendant refused to take the test."
now moves to dismiss count two (2) of the accusatory
instrument, Leaving the Scene of an Incident without
Reporting [VTL 600(1)(a)] for facial insufficiency. Defendant
claims that without a supporting deposition from the witness,
John Estrellado, the accusatory instrument fails to establish
with non-hearsay allegations the elements of the offense.
Specifically, defendant claims that there are no non-hearsay
allegations to support that he knew or should have known that
he was in a motor vehicle accident.
People, in opposition to defendant's motion to dismiss,
contend that the statement, "He hit me," made by
John Estrellado as contained in the accusatory instrument is
an "excited utterance" which as an exception to the
hearsay rule establishes together with the other allegations
in the complaint, the necessary statutory elements of the
offense of Leaving the Scene of an Incident without
response to the People's affirmation in opposition,
defendant claims in his sur-reply that there are no facts
alleged in the accusatory instrument to support the
prosecutor's assertion that John Estrellado's
statement, "He hit me," was an excited utterance.
motion to dismiss count two (2) of the accusatory instrument
for facial insufficiency is decided as follows:
In order for a misdemeanor information to be sufficient on
its face it must contain factual allegations of an
evidentiary character demonstrating reasonable cause to
believe that defendant committed the offenses charged (CPL
§100.15(3); CPL§ 100.40(1)[b]; CPL §70.10).
These facts must be supported by non-hearsay allegations
which, if true, establish every element of the offenses
charged (see CPL §100.40(1)(c); People v.
Henderson, 92 N.Y.2d 677). Reasonable cause 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, judgment and experience that it is
reasonably likely that such offense was committed and that
such person committed it" [CPL § 70.10 (2)]. An
information which fails to satisfy these requirements is
jurisdictionally defective (see CPL §170.35); People
v. Alejandro, 70 N.Y.2d 133 ; People v. Dumas,
68 N.Y.2d 729).
People bear the burden of satisfying the facial sufficiency
requirements by doing so within the "four corners"
of the accusatory instrument [see People v. Jones, 9
N.Y.3d 259; People v. Thomas, 4 N.Y.3d 143;
People v. Liranzo, 46 Misc.3d 140 (A)]. In
evaluating whether the pleaded allegations establish
reasonable cause to believe that a person has committed an
offense, the court must do so in the light most favorable to
the People and consider all favorable inferences drawn
therein [see People v Williams, 84 N.Y.2d 925;