PEOPLE v. BLANCO (2021)

Upon the following papers numbered 1 to 5 read on this motion for omnibus relief Notice of Motion/xxxxxxxxxxxxxxxxxxx and supporting papers 1, 2 Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 3; Replying Affidavits and supporting papers; Filed papers Other Accusatory instrument 4. and after hearing counsel in support of and opposed to the motion) it is,

ORDERED that this motion by the defendant for omnibus relief is decided as follows: The motion to dismiss the accusatory instrument for insufficiency is granted. The within two-count accusatory instrument charges assault in the third degree (PL § 120.00(1)) and criminal mischief in the fourth degree (145.00(1)). The information states that it is based upon both the personal knowledge of the complainant police officer and upon information and belief, the source for same being Lary Ruiz. The factual allegations set forth therein state that the arrest “is based in part on the sworn statement given by Ofelia Perez to PO Ruiz at Southside Hospital and the oral statement given by the defendant to your deponent at the above location at approximately 2315 in sum and substance “I was giving her a ride and she wouldn't pay me.” This arrest is also based in part on the translation certificate given by PO Ruiz.” The translation certificate in question references an “English written statement of Perez, Ofelia dated 10/9/20” that purports to be a translation of her Spanish spoken statement. However, the Court file fails to contain any such written statement, nor is the content of the alleged victim's statements detailed. The within accusatory instrument therefore fails to provide the requisite non-hearsay factual allegations supporting each element of the offenses charged. (See CPL 100.15, 100.40). As such, the defendant's motion to dismiss for insufficiency must be granted. By reason of the foregoing, the remainder of the defendant's omnibus motion is denied as moot.

Alfred C. Graf, J.