Andrew M. Engel

The Defendant is charged with Reckless Endangerment in the Second Degree, pursuant to Penal Law § 120.20. He now moves for an order dismissing the accusatory instrument as facially insufficient, pursuant to CPL §§ 100.40 and 170.30; granting discovery and inspection, pursuant to CPL §§ 240.20, 240.40, 240.43 and the Constitutions of the United States and the State of New York; dismissing the accusatory instrument for lack of probable cause or, in the alternative, holding a hearing pursuant to People v. Huntely, 15 NY2d 72, 255 NYS2d 838 (1965); and, suppressing any statements made by the Defendant to law enforcement in violation of the his constitutional rights, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), and/or granting a hearing to determine the voluntariness of the statements. The People oppose the motion.

FACIAL SUFFICIENCY

This proceeding was commenced by misdemeanor complaint, CPL § 100.10(4), accompanied by two (2) supporting depositions, CPL § 100.20, converting the accusatory instrument to an information. The accusatory portion of the information alleges, inter alia, that on December 3, 2008, at approximately 5:08 p.m., at the corner of Plaza East and Henry Street, in Freeport, County of Nassau, the Defendant did recklessly engage in conduct which created a substantial risk of serious physical injury to another person. The supporting deposition of Annabell Massott-Balladares alleges that while she was waiting for a bus at the Freeport train station she observed her bus pull into the station, short of the designated bus stop; and, she approached the bus and inquired of the driver, who she identifies as the Defendant, whether she should board the bus at that location or wait for it to pull completely into the designated bus stop. According to Ms. Massott-Balladares, the Defendant replied, "are you coming you fucking bitch." Ms. Massott-Balladares describes the rest of her encounter with the Defendant as follows:

I got on the steps of the bus and asked the driver why are you cursing at me. At this point the driver started cursing again and told me to get off the bus. I said fine and told him i (sic) was calling 911. I started to back off the steps to get off the bus. I stepped off the bus with my right foot and my left foot was still on the bottom step when the driver closed the door on my left leg. i (sic) immediately started banging on the door and yelling to the driver. The bus started to move slowly and the driver made eye contact with me. I continued to bang on the door while the bus was moving. After hopping along with the bus for about 20 feet i (sic) was able to pull my foot free of the door. The bus driver just continued to drive away. At this point i (sic) called 911. I am sure that the bus driver saw me and my leg caught in the door but he didn't stop. I have no injuries from this incident and i (sic) didn't give the bus driver Michael Williams permission to put me in jeopardy of getting injured and seriously hurt.

The supporting deposition of Thomas Wright, who alleges to have been an eyewitness to the foregoing, similarly relates that he was waiting for a bus at the Freeport train station when he observed a woman boarding a bus and saw the bus door close on one of her legs. The bus then "kept going slowly while her leg was still inside the door." According to Mr. Wright the woman "started yelling and screaming and banging on the bus to stop." Mr. Wright alleges that he then ran after the bus, to stop it; and, when the bus did come to a stop he heard the bus driver say, "Are you still getting on the bus bitch?"

The information will be found facially sufficient where, in conformity with CPL §§ 100.15 and 100.40, it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereof, People v. Hall, 48 NY2d 927, 425 NYS2d 56 (1979), and a factual part containing "a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]" CPL § 100.15(3) based upon either the complainant's personal knowledge or upon information and belief. CPL § 100.15(3) The factual part, taken together with any supporting depositions, must contain non-hearsay allegations which "provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information;" People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987); CPL § 100.40(4)(b) and, if true, establish every element of such offense, People v. Moore, 5 NY3d 725, 800 NYS2d 49 (2005); People v. Thomas, 4 NY3d 143, 791 NYS2d 68 (2005) "Reasonable cause to believe that a person has 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, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70.20 Additionally, "the burden [is] on the People to make out their prima facie case for the offense charged in the text of the information." People v. Jones, 9 NY3d 259, 848 NYS2d 600 (2007); See also: People v. Casey, 95 NY2d 354, 717 NYS2d 88 (2000); People v. Allen, 92 NY2d 378, 681 NYS2d 216 (1998) Such a showing is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Swamp, 84 NY2d 725, 622 NYS2d 472 (1995); People v. Porter, 75 AD2d 901, 428 NYS2d 63 (2nd Dept. 1980)

The Defendant argues that these pleading requirements have not been met. Specifically the Defendant alleges that the information is based upon hearsay and fails to establish the elements of Reckless Endangerment in the Second Degree. According to the Defendant, the information does not establish, or even provide facts from which it can be inferred, that he acted recklessly. Pointing to the allegations that the bus was moving slowly and that Ms. Massott-Balladares did not sustain an injury, the Defendant further claims that the information fails to establish that his alleged conduct created a substantial risk of serious physical injury.

In opposition the People argue that the Defendant's conduct was reckless on its face. The People allege that the facts set forth in the information establish that the Defendant was aware that Ms. Massott-Balladares' foot was closed in the bus' door as he drove off and that he initially failed to stop. The People argue that, the rate of speed notwithstanding, the Defendant disregard the risk to Ms. Massott-Balladares and placed her in a position where there was a substantial risk that she might fall, be dragged under the bus, be hit by the bus' rear tires or sustain serious physical injury in some other related fashion.

Penal Law § 120.20 provides that "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." In relation, thereto Penal Law § 15.05(3) provides, in pertinent part, "a person acts recklessly ... 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." Penal Law § 10.00(10) defines "serious physical injury" as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." Based thereon, the information presently before the court will be facially sufficient if the non-hearsay allegations set forth therein establish (1) the defendant engaged in reckless conduct, (2) which created a substantial risk, (3) of serious physical injury to Ms. Massott-Balladares, (4) and consciously disregarded same.

The supporting depositions of Ms. Massott-Balladares and Mr. Wright, viewed in a light most favorable to the People, People v. Martinez, 16 Misc 3d 1111(A), 847 NYS2d 898 (Table), (Dist.Ct. Nassau Co. 2007); People v. Delmonaco, 16 Misc 3d 526, 837 NYS2d 869 (Dist.Ct. Nassau Co. 2007); People v. Mendelson, 15 Misc 3d 925, 834 NYS2d 445 (Dist.Ct. Nassau Co. 2007), and without giving them an overly restrictive or technical reading, People v. Baumann & Sons Buses, Inc., 6 NY3d 404, 813 NYS2d 27 (2006) sufficiently provide a first hand account of the alleged incident establishing each of the aforesaid elements of the crime charged. As such they clearly serve the purpose of providing the Defendant with notice enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from again being tried for the same offense. People v. McDermott, 69 NY2d 889, 515 NYS2d 225 (1987); People v. McGuire, 5 NY2d 523, 186 NYS2d 250 (1959)

If the allegations in the supporting depositions are true, it is readily apparent that the Defendant closed the bus door on Ms. Massott-Balladares' foot as she stepped off the bus, and began to drive away, while looking right at her. Such conduct is no less reckless than deliberately backing a vehicle up in the path of an individual standing behind the vehicle, See: People v. Chaney, 163 AD2d 617, 558 NYS2d 672 (3rd Dept.1990), driving a vehicle toward a police officer, See: People v. Simpson, 99 AD2d 555, 471 NYS2d 645 (2nd Dept.1984), or driving one's vehicle toward a pedestrian, See: People v. Smith, 76 Misc 2d 867, 352 NYS2d 92 (Just.Ct. Spring Valley 1973) Each "constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." Penal Law § 15.05(3)

The allegations of the supporting depositions similarly clearly establish that such conduct created a substantial risk of serious physical injury to Ms. Massott-Balladares. It is not unreasonable to believe that, after being dragged in this fashion for some twenty (20') feet Ms. Massott-Balladares could have fallen under the bus and been run over or simply fallen to the ground resulting in her "death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." Penal Law § 10.00(10) As evidenced by the allegation that the Defendant was looking at Ms. Massott-Balladares as he drove off, all of this was consciously disregard by the Defendant. It is irrelevant that the Defendant drove at a slow rate of speed. See: People v. Brinson, 36 AD3d 418, 827 NYS2d 51 (1st Dept. 2007) [defendant's "trying to force his way through the traffic at a slow rate of speed, while beeping his horn and flashing his high beams ... establishes that the defendant acted recklessly, and that his actions create[d] a substantial risk of serious physical injury' to other drivers ....") Similarly, it is immaterial that Ms. Massott-Balladares did not sustain an injury. Penal Law § 120.20 "seek[s] to prevent the risk created by the actor's conduct, not a particular outcome." People v. Davis, 72 NY2d 32, 530 N.Y.S2d 529 (1988); See also: In re Shaniqua W., 262 AD2d 496, 692 NYS2d 164 (2nd Dept.1999) "[T]he risk of injury alone will sustain prosecution." People v. Galatro, 84 NY2d 160, 615 N.Y.S. 650 (1994); See also: People v. Roth, 80 NY2d 239, 590 NYS2d 30 (1992)

Accordingly, the branch of the Defendant's motion seeking dismissal is denied.

DISCOVERY RESPONSES

Pursuant to CPL § 240.80 a demand to produce must be served within thirty (30) days of arraignment, or within thirty (30) days of the appearance of counsel. Counsel for the Defendant appeared at arraignment on December 23, 2008. The Defendant's demand herein was served no earlier than March 31, 2009, as part of the instant motion. Clearly the Defendant's discovery demand is untimely. Additionally, the Defendant's incorporation of his discovery demand into his prayer for relief in the instant motion is contrary to the procedure contemplated by the Criminal Procedure Law and inappropriate. Moreover, this branch of the Defendant's motion has been mooted by the responses provided by the People in their Voluntary Disclosure and in their opposition papers, to which the Defendant has not objected in reply. This branch of the Defendant's motion is therefore denied.

DISMISSAL OR HEARING BASED ON ALLEGED LACK OF PROBABLE CAUSE

While the court finds that the uncontroverted allegations contained in the supporting depositions establish probable cause for the Defendant's arrest, "[l]ack of probable cause is not, in and of itself, one of the bases ... for dismissal[.]" People v. Aiken, 251 AD2d 339, 673 NYS2d 1012 (2nd Dept. 1998); See also: People v. Davidson, 9 Misc 3d 131, 808 NYS2d 919 (App.Term 9th & 10th Judicial Dists. 2005); People v. Davis, ___ Misc 3d ___, ___ NYS2d ___, 2009 WL 820223 (App.Term 9th & 10th Judicial Dists. 2009)

If probable cause were lacking, and evidence ultimately suppressed for that reason, "whether the People can or should proceed on the evidence remaining after the suppression of evidence is a determination reserved to the People (citations omitted)." People v. Smedman, 184 AD2d 600, 548 NYS2d 627 (2nd Dept. 1992); See also: People v. Asher, 16 Misc 3d 89, 842 NYS2d 168 (App.Term 9th & 10th Judicial Dists. 2007)

Accordingly, this branch of the Defendant's motion is denied.

SUPPRESSION OF STATEMENTS

While the Defendant's Notice of Motion states that the Defendant seeks an order "Suppressing any statements made to law enforcement in violation of Defendant's Constitutional rights pursuant to Miranda v. Arizona, and/or granting a hearing to determine the voluntariness of any such statemanets prusuant to People v. Huntley[,] (Notice of Ominibus Motion 3/31/09, ¶ 4] this prayer for relief is not discussed anywhere in the papers submitted by the Defendant in support of his motion. Nowhere does the Defendant indicate what statement(s) he wishes to suppress or what might be the basis for such suppression. Moreover, the People's Voluntary Disclosure Form does not indicate that any statements were alleged to have been made by the Defendant.

Accordingly, this branch of the Defendant's motion is denied.

RESERVATION OF RIGHTS

The Defendant's request to reserve his rights to serve and file additional motions, based upon a blanket request, unsupported by the proper papers and grounds, is denied as unauthorized. See: CPL § 255.20(3) Any future motions will be determined on an individual basis, based upon the timeliness and merits thereof

This constitutes the decision and order of the court.