PEOPLE v. ARZU (2022)

Defendant Brendan Arzu, charged with Assault in the Third Degree (PL § 120.00[2]) (“Count One”); Reckless Driving (VTL § 1212) (“Count Two”); Operating a Motor Vehicle while Impaired by Alcohol (VTL § 1192[1]) (“Count Three”); and Failure to Exercise Due Care while Driving, Causing Serious Physical Injury (VTL § 1146[c][1]) (“Count Four”), moves for an order dismissing Counts One and Two of the superseding information on the ground that they are facially insufficient. The Defendant also moves for discovery-related relief. For the reasons set forth below, the Defendant's motions are granted in part and denied in part.

I. Factual Allegations

The criminal court superseding information alleges that on June 30, 2021, at approximately 7:15 p.m., NYPD Officer Stephen Sheridan responded to the scene of a motor vehicle collision at the corner of West 73rd Street and Broadway, New York, New York. Officer Sheridan observed the Defendant, who was wearing a shirt bearing a DHL logo, standing near a yellow van with a DHL logo on it. A man was lying down in the street, approximately twenty-five feet from the vehicle. The man was bleeding from the mouth and ears, was unconscious, unresponsive, and had a large abrasion on his shoulder. The Defendant stated to Officer Sheridan, “I had the right of way. I had the light. How bad is he hurt? Is he going to be okay?”

Officer Sheridan reviewed video surveillance footage of the incident, which showed the DHL van driving through the intersection of West 73rd Street and Broadway. The van struck a man, who was crossing the intersection inside the crosswalk. The man was “near the middle” of the crosswalk at the time of the collision, and the driver of the van “did not move to avoid” the man until “almost immediately prior to the collision.” Upon being hit by the van, the man “flew up in the air, traveled for several feet, and landed on the ground, before rolling to a stop.”

Detective Karl Zarek of the Highway Safety Enforcement Unit also reviewed the video surveillance footage of the incident. Based upon his training and experience as a collision investigator, Detective Zarek believes that the van was traveling at approximately 35 to 45 miles per hour at the time that it struck the pedestrian. The posted speed limit for the intersection of West 73rd Street and Broadway is 25 miles per hour.

Officer Douglas Gerber administered a portable breath test to the Defendant at approximately 9:00 p.m. The test indicated that the Defendant had a blood alcohol content of 0.06 of one per centum by weight of alcohol in his blood. At approximately 10:48 p.m., Officer Stephen Lewis administered a second test to determine the Defendant's blood alcohol content; this test indicated that the Defendant had a blood alcohol content of 0.03 of one per centum by weight of alcohol in his blood. At the time of this test, Officer Lewis smelled a faint odor of alcohol on the Defendant's breath, and observed that the Defendant had bloodshot eyes.

II. Legal Standards

An information must contain factual allegations providing reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information, and non-hearsay factual allegations establishing, if true, that the defendant committed every element of the offense charged. (CPL 100.40[1][b]-[c]) This latter requirement — the “prima facie case requirement” — “ ‘is not the same as the burden of proof beyond a reasonable doubt required at trial,’ nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial.” (People v. Smalls, 26 N.Y.3d 1064, 1066, 23 N.Y.S.3d 134, 44 N.E.3d 209 [2015], quoting People v. Kalin, 12 N.Y.3d 225, 230, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009].) “So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading.” (People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000].)

III. Analysis

(A) Facial Sufficiency

The Defendant moves to dismiss Counts One and Two, charging the Defendant with Assault in the Third Degree and Reckless Driving, as facially insufficient.¹ For the reasons set forth below, the motion is denied.

i. Assault in the Third Degree

A person commits Assault in the Third Degree, pursuant to Penal Law § 120.00(2), when he recklessly causes physical injury to another person. (PL § 120.00[2]) A defendant acts “recklessly” when he “is aware of and consciously disregards a substantial and unjustifiable risk that [a] result will occur or that [a] circumstance exists.” (PL § 15.05[3]) 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.” (Id.)

The Defendant argues that the superseding information fails to allege that he acted “recklessly.” The Court disagrees. All drivers are expected to observe their surroundings and exercise caution when crossing an intersection. (See VTL § 1172[a]) This is especially true for commercial drivers, whose vehicles are often larger and heavier than ordinary cars. A reasonable operator of a commercial van would thus drive with a level of caution corresponding to the inherent risks that such a vehicle may present to others on the road.

Here, the Defendant, driving a commercial DHL van, allegedly sped through an intersection at 35 to 45 miles per hour—ten miles per hour over the posted speed limit. And although a pedestrian was inside the crosswalk, near the middle of the street, the Defendant did not attempt to avoid hitting him “until almost immediately prior to the collision.”

Moreover, at the time of the collision, the Defendant was allegedly impaired by alcohol. Evidence of a blood alcohol content of more than 0.05 of one per centum but less than 0.07 per centum of one per centum by weight of alcohol in an individual's blood is “relevant” in determining “whether the ability of such person to operate a motor vehicle was impaired by the consumption of alcohol.”² (VTL § 1195[2][b]) Here, an hour and forty-five minutes after the incident, the Defendant's blood alcohol level was allegedly 0.06 of one per centum by weight of alcohol in his blood. The Defendant also exhibited additional indicia of alcohol use, even three-and-a-half hours after the incident: at 10:48 p.m., Officer Lewis smelled the odor of alcohol on the Defendant's breath, and observed that the Defendant had bloodshot eyes.

A driver of a commercial vehicle, with an elevated blood alcohol content, who speeds through an intersection at ten miles over the speed limit, disregards a substantial and unjustifiable risk that he will injure another person. This is particularly true here, where a pedestrian was near the middle of the crosswalk of the intersection, and the Defendant—whether due to alcohol impairment, the speed at which he was driving, or some other reason—did not attempt to avoid the pedestrian until almost immediately prior to the collision. The pedestrian's serious injuries were directly attributable to the Defendant's reckless conduct. Accordingly, the motion to dismiss Count One of the information is denied.

ii. Reckless Driving

Reckless Driving is defined as operating a vehicle “in a manner which unreasonably interferes with the free and proper use of the public highway,” or “unreasonably endangers users” thereof. (VTL § 1212) A person thus violates the statute when he operates “an automobile under such circumstances as to show a reckless disregard of the consequences.” (People v. Knupp, 159 A.D.3d 510, 510, 72 N.Y.S.3d 74 [1st Dept. 2018].)

The Defendant argues that the information is facially insufficient because his alleged actions did not pose a threat to other users of the street. He correctly asserts that a “single violation of a rule of the road” does not necessarily constitute reckless driving. (People v. Goldblatt, 98 A.D.3d 817, 819, 950 N.Y.S.2d 210 [3d Dept. 2012].) But such a violation, coupled with “additional aggravating acts or circumstances” may establish conduct that “rises to the level of unreasonable interference or endangerment such that it constitutes the requisite recklessness.” (Id.)

Aggravating circumstances are present here. The Defendant sped through an intersection at ten miles per hour over the speed limit, while driving a commercial DHL van. He did not slow down when approaching a pedestrian near the middle of the street in a crosswalk, until “almost immediately prior to the collision.” One hour and forty-five minutes after the incident, the Defendant's blood alcohol level was 0.06 of one per centum by weight of alcohol in his blood, and three-and-a-half hours after the incident, he still had the odor of alcoholic beverage on this breath and bloodshot eyes. The superseding information thus sufficiently alleged that the Defendant's conduct unreasonably endangered other drivers and pedestrians. (See People v. McKenzie, 52 Misc. 3d 1217[A], 2016 WL 4224214 [Crim. Ct., Kings Cty 2016]; People v. Brown, 44 Misc. 3d 129[A], 2014 WL 2869770 [Sup. Ct., App. Term, 2d Dept. 2014].) The motion to dismiss Count Two of the superseding information is denied.

(B) CPL § 30.30

The Defendant also moves to dismiss the superseding information pursuant to CPL § 30.30. He argues that the People's certificate of readiness, dated December 23, 2021, is invalid, because Counts One and Two of the superseding information are facially insufficient. To the contrary, however, Counts One and Two of the superseding information are facially sufficient, and the certificate of readiness is therefore not invalid on this basis.

(C) Remaining Motions

The Defendant's motion for Huntley/Dunaway/Johnson hearings is granted. The motion for a Victory hearing is denied. (People v. Rosa, 112 A.D.3d 551, 552, 977 N.Y.S.2d 250 Sup. Ct., App. Div., 1st Dept. [2013].)

The Defendant's motion for a Wade hearing is granted.

The Defendant's motion requesting a hearing to determine the voluntariness of any non-noticed statements that the Defendant made to police officers, which the People intend to use on cross-examination, is denied at this time, subject to renewal before the trial court.

The Defendant's motion requesting a hearing to determine the voluntariness of statements made by the Defendant to civilians is denied at this time, subject to renewal before the trial court.

The motion directing the People to disclose any search warrants and supporting materials is denied at this time. The People affirm that they have previously produced the search warrant and warrant application at issue, and state that they will promptly disclose the transcript of the swearing of the search warrant.

The motion for a bill of particulars is denied. The material contained in the accusatory instrument, together with the discovery the People must produce pursuant to CPL Article § 245, provide the information to which the Defendant is entitled.

The Defendant's motions for orders directing the People to comply with CPL § 245.55(2) and 245.55(3) are denied. The People's obligation to provide the requested information is set forth in the statute.

The Defendant's motion seeking preservation and Brady Orders are granted to the extent that the People have a continuing obligation to comply with their disclosure obligations pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), People v. Geaslen, 54 N.Y.2d 510, 446 N.Y.S.2d 227, 430 N.E.2d 1280 (1981), and their progeny.

The Court declines to order the People to file an additional certificate of compliance. (CPL § 245.35[3])

The Defendant's motion for a Sandoval hearing is reserved for decision by the trial court. This opinion constitutes the decision and order of the Court.

FOOTNOTES

1.   The Defendant has not moved to dismiss Counts Three and Four, charging him with Operating a Motor Vehicle while Impaired by Alcohol (VTL § 1192[1]) and Failure to Exercise Due Care while Driving, Causing Serious Physical Injury (VTL § 1146[c][1]).

2.   Count Three of the superseding information charges the Defendant with Operating a Motor Vehicle While Impaired by Alcohol (VTL § 1192[1]), and the Defendant has not moved to dismiss that Count.

Anne J. Swern, J.