State of Connecticut v. Stephen Ongley (2014)

MEMORANDUM OF DECISION RE MOTION TO DISMISS

On October 10, 2013, the defendant, Stephen Ongley, filed a motion to dismiss for failure to charge an offense.   The State filed an objection to the motion to dismiss on October 31, 2013.   On February 27, 2014, the parties agreed to have the Court take the matter on the papers.   With the court's permission, the defendant filed a supplemental memorandum in support of his motion to dismiss on March 13, 2014.

The motion to dismiss is denied.

I

FACTS

As described in the arrest warrant, signed on December 10, 2012, Marano, J., a motor vehicle accident occurred on or about September 5, 2012, involving a truck registered to and operated by the defendant.   The defendant's truck “veered off of the roadway and struck the wire rope guide wire off of the right shoulder of the eastbound travel lane.”   The defendant “fled the scene prior to the arrival of the State Police.”   Upon arrival at the scene, the police observed that the motor vehicle was left “at final rest with the front end over the wire rope guide wire and the rear end in the small shoulder of the eastbound lane [of Route 4].” The defendant was arrested and charged with, inter alia, evading responsibility, pursuant to General Statutes § 14–224.

On October 10, 2013, the defendant filed the present motion to dismiss, pursuant to Practice Book § 41–8(2), for failure to charge an offense, on the ground that there is no allegation in the arrest warrant or evidence that there were any injuries or property damage.

II

DISCUSSION

The defendant is moving to dismiss under Practice Book § 41–8(2), based on the statements in the affidavit accompanying the arrest warrant.   The defendant claims that the affidavit fails to allege injuries or damage to property.   The State objects, arguing that the warrant is not defective, as it provides objective evidence of a fair probability that the defendant violated the evading statute, General Statutes § 14–224(b).¹  In response, the defendant asserts that the warrant is defective as it does not present a necessary element of the evading statute, to wit, that the accident caused damage to property.

Under Practice Book § 41–8(2),² the motion to dismiss is properly considered against the information, not the warrant.   The defendant's motion attacks the warrant, and the defendant provided this court with no authority that the sufficiency of a warrant may be challenged under Practice Book § 41–8(2).   Nonetheless, “an information that states the exact section and subsection of the statute under which a defendant is charged, as well as the time and place of the alleged unlawful event, is sufficient to charge a defendant with such offense.”  State v. Alston, 141 Conn.App. 719, 732, 62 A.3d 586 (2013);  see State v. Vlahos, 138 Conn.App. 379, 51 A.3d 1173 (2012) (although substitute information did not specifically state the element of operation on a public highway, it did provide the defendant with the statutory section under which he was charged as well as the time and place of the incident, and the state's inclusion of these items in the information was sufficient to inform the defendant of the charges against him).

In State v. Alston, supra, 141 Conn.App. 733, the Appellate Court found that “the charging instrument at issue surpassed [the] minimum requirements, articulating each of the essential elements set forth in the statute.”   The court rejected the defendant's argument “that the information failed to state an offense because it was not articulated in accordance with the definition of certain words and phrases that appear in the statutory provision under which he was charged.”  Id. The court found that “[t]here is no support in the law for the defendant's argument that this more detailed type of information was required ․” Id.

In the present case, a review of the warrant affidavit and the information leads the court to the conclusion that the charging documents are complete and proper.   See, e.g., State v. Bangulescu, 80 Conn.App. 26, 31–32, 832 A.2d 1187, cert. denied, 267 Conn. 907, 840 A.2d 1171 (2003) (rejecting defendant's argument that warrant was invalid because it did not state the charges against him where information accompanying warrant clearly stated the charges).   The information contains two counts:  one for evading responsibility, under General Statutes § 14–224, and one for making a restricted turn, under General Statutes § 14–242.   The information states that these offenses were committed in the town of Sharon on or about September 5, 2012.   As such, the information is sufficient to charge the defendant with evading responsibility.   See State v. Alston, supra, 141 Conn.App. 732.

Furthermore, “[w]here a motion to dismiss an information against an accused is made prior to trial, only probable cause sufficient to justify the continued prosecution need be established ․ To establish probable cause, the state [is] not required to present evidence as to each of the elements of the offense in a form that would be admissible at a later trial.”  (Citation omitted;  internal quotation marks omitted.)  State v. Howell, 98 Conn.App. 369, 378, 908 A.2d 1145 (2006).  “In determining whether the evidence proffered by the state is adequate to avoid dismissal, such proof must be viewed in the light most favorable to the state.”  State v. Kinchen, 243 Conn. 690, 702, 707 A.2d 1255 (1998).   Therefore, the State, in establishing probable cause to avoid a dismissal, may rely on information contained in, among other things, police reports.   See id.   The court finds that the warrant provides probable cause to establish that the defendant violated General Statutes § 14–224(b).

In his supplemental memorandum, the defendant asserts that the present case is analogous to State v. Humphrey, 22 Conn.Sup. 317, 171 A.2d 201 (1961).   However, the defendant's reliance on Humphrey is misplaced as that case addressed the sufficiency of the state's evidence, at trial, of damage to property.   Indeed, our Appellate Court recently cited to Humphrey, explaining that “[i]n Humphrey, the Appellate Division of the Circuit Court reviewed a case in which the only damage allegedly caused to the complainant's vehicle by an accident with the defendant's vehicle was a streak of paint ․ There, however, the focus of the court's analysis as to the sufficiency of the evidence to prove that the accident had caused damage to property was not whether a streak of paint could ever constitute damage to property as a matter of law, but whether the particular streak of paint allegedly left by the accident on the complainant's vehicle had in fact been caused by the defendant's vehicle ․ Concluding that there was insufficient evidence before the court to prove that the paint streak in question had actually been left there by the defendant's vehicle, the court reversed the defendant's conviction on the ground of insufficient evidence.”  (Citations omitted.)  State v. Hodkoski, 146 Conn.App. 701, 717, 78 A.3d 255 (2013);  see State v. Humphrey, supra.

If the defendant seeks further specificity with respect to the facts underlying the charge of evading responsibility, he has the option of filing a motion for a bill of particulars.   See State v. Alston, supra, 141 Conn.App. 731–32 (“[u]nder our practice, it is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged, leaving to the defendant the burden of requesting a bill of particulars more precisely defining the manner in which the defendant committed the offense” (internal quotation marks omitted));  State v. Gardner, 96 Conn.App. 42, 51, 899 A.2d 655, cert. denied, 280 Conn. 906, 907 A.2d 92 (2006) (“[i]t is sufficient for the state to set forth a statutory designation of the crime charged, leaving ‘the defendant the burden of moving for a bill of particulars where [the defendant] wishes greater detail regarding the manner in which [the crime allegedly was committed]’ ”).

For the foregoing reasons, the motion to dismiss is denied.

BY THE COURT,

Marano, J.

FOOTNOTES

FN1. “Each person operating a motor vehicle who is knowingly involved in an accident which causes physical injury, as defined in section 53a–3, to any other person or injury or damage to property shall at once stop and render such assistance as may be needed and shall give his name, address and operator's license number and registration number to the person injured or to the owner of the injured or damaged property, or to any officer or witness to the physical injury to person or injury or damage to property, and if such operator of the motor vehicle causing the physical injury of any person or injury or damage to any property is unable to give his name, address and operator's license number and registration number to the person injured or the owner of the property injured or damaged, or to any witness or officer, for any reason or cause, such operator shall immediately report such physical injury of any person or injury or damage to property to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and shall state in such report the location and circumstances of the accident causing the physical injury of any person or the injury or damage to property and his name, address, operator's license number and registration number.”   General Statutes § 14–224(b)..  FN1. “Each person operating a motor vehicle who is knowingly involved in an accident which causes physical injury, as defined in section 53a–3, to any other person or injury or damage to property shall at once stop and render such assistance as may be needed and shall give his name, address and operator's license number and registration number to the person injured or to the owner of the injured or damaged property, or to any officer or witness to the physical injury to person or injury or damage to property, and if such operator of the motor vehicle causing the physical injury of any person or injury or damage to any property is unable to give his name, address and operator's license number and registration number to the person injured or the owner of the property injured or damaged, or to any witness or officer, for any reason or cause, such operator shall immediately report such physical injury of any person or injury or damage to property to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and shall state in such report the location and circumstances of the accident causing the physical injury of any person or the injury or damage to property and his name, address, operator's license number and registration number.”   General Statutes § 14–224(b).

FN2. “The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information ․ (2) Defects in the information including failure to charge an offense ․” Practice Book § 41–8..  FN2. “The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information ․ (2) Defects in the information including failure to charge an offense ․” Practice Book § 41–8.

Marano, Richard M., J.