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The People of the State of New York v. Iskhakov, Defendant.
Among other arguments, they allege that the People's statement of readiness was illusory because the People never filed a facially sufficient information. Specifically, the defense argues that the count charging N.Y.C. Administrative Code § 19-190[b] does not allege any facts establishing a necessary element—that Mr. Iskhakov failed to exercise due care.
In reviewing the relevant appellate case law, the court agrees that the information is facially insufficient. (See People v. Urena, 65 Misc 3d 145[A] [App. Term, 2d Dep't 2019]; People v. Sanson, 59 Misc 3d 4 [App. Term, 2d Dep't 2018]). Accordingly, the People have never validly stated ready for trial. (See People v. Colon, 59 NY2d 921 ; People v. Maslowski, 187 AD3d 1211 [2d Dep't 2020]; People v. Sosa, 71 Misc 3d 140[A] [App. Term, 2d Dep't 2021]). As over 90 days have elapsed from arraignments without a valid statement of readiness, the court must grant the motion. (C.P.L. § 30.30[b]). The case is dismissed.
Where, as here, an information's top count is a misdemeanor punishable by 364 days in jail, the People have 90 days from filing their complaint to validly state ready for trial.1 In order to validly state ready for trial, the People must first file a facially sufficient information. (People v. Colon, 59 NY2d 921 ; People v. Maslowski, 187 AD3d 1211 [2d Dep't 2020]; People v. Sosa, 71 Misc 3d 140[A] [App. Term, 2d Dep't 2021]). The information must be facially sufficient as to all its charges. (C.P.L. § 30.30[5-a]).
An information is facially sufficient only if it contains non-hearsay evidentiary factual allegations that, if true, establish "every element" of the charged offenses. (People v. Sanson, 59 Misc 3d 4, 6 [App. Term, 2d Dep't 2018]; see also C.P.L. §§ 100.40[c]; 100.15; People v. Sumter, 151 AD3d 556, 558 [1st Dep't 2017] [rejecting the dissent's argument that not "every element" must be established for an information to be facially sufficient]). This standard is also called a "prima facie" case. (People v. Alejandro, 70 NY2d 133, 138 ). The prima facie standard is "necessary because of the 'unique function that an information serves' " under our criminal procedure law. (People v. Parsons, 69 Misc 3d 11, 14 [App. Term, 1st Dep't 2020] [quoting Alejandro, 70 NY2d at 137]). Unlike an indictment, which requires support "by legally sufficient evidence before a Grand Jury," an information is an accusatory instrument for which the People "need not, at any time prior to trial, present actual evidence." (Alejandro, 70 NY2d at 137-38 [internal citations omitted]). Of course, the law does not require that an information contain the most precise words that most clearly express the alleged narrative. As such, courts must give an accusatory instrument "a fair and not overly restrictive or technical reading." (Sanson, 59 Misc 3d at 6).
Under the 2020 reforms to the criminal procedure law, an information's facial sufficiency has only become more important. Criminal Procedure Law § 30.30[5-a] now explicitly requires the People to certify that "all counts" are facially sufficient before their statement of readiness may be "valid." Otherwise, "a statement of readiness shall not be valid." (C.P.L. § 30.30[5-a]). Therefore, it is now the People's burden to "prove the sufficiency of each count of the information." (People v. Ramirez-Correa, 71 Misc 3d 570, 574-75 [Crim. Ct., Queens County 2021]).
As C.P.L. § 30.30[5-a] plainly "mandates that a statement of readiness is only valid when all charges in an accusatory instrument are facially sufficient," this court follows the statute's plain text. (See People v. Matos, 180 N.Y.S.3d 890, 893 [Crim. Ct., Kings County 2023] [doing the same]). A statute's plain text is "the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning." (Daimler-Chrysler Corp. v. Spitzer, 7 NY3d 653, 660 ). In fact, the plain text here accords with the legislative intent of the statute. (See Matos, 180 N.Y.S.3d at 893 [discussing the legislative history]; see also People v. Saavedra, 76 Misc 3d 626, 631 [Crim. Ct., Bronx County 2022]; Hon. William C. Donnino, Practice Commentaries, C.P.L. § 30.30 [noting that C.P.L. § 30.30[5-a] was "designed to abrogate decisional law that authorized the prosecution to answer 'ready for trial' " on an information that was only facially sufficient as to some of the charges]). True to that intent, "partial conversion or readiness [is] no longer available under the changes made to the applicable statutes effective January 1, 2020." (People v. Jackson, 74 Misc 3d 1224[A], at *5 [Crim. Ct., NY County 2022]; see, e.g., People v. Herrera, 73 Misc 3d 334 [Crim. Ct., Bronx County 2021] [same]; People v. Young, 72 Misc 3d 1203[A], at *3 [Crim. Ct., NY County 2021] [same]). From both plain text and context, it is now a "pre-requisite to a valid statement of readiness that an accusatory instrument is facially sufficient as to all charges." (Matos, 180 N.Y.S.3d at 893).
The court now turns to the facial sufficiency of the count charging A.C. § 19-190[b]. This provision—colloquially called the "Vision Zero" or "Right of Way" law—is a local misdemeanor defined by the N.Y.C. Administrative Code. Once the subject of a heated constitutional debate,2 the law creates a crime where: (1) a person operates a motor vehicle; (2) fails to yield to a pedestrian or bicyclist who has the right of way; (3) comes into contact with that pedestrian or bicyclist; and (4) thereby causes physical injury to that pedestrian or cyclist; but only if (5) the operator's failure to exercise due care caused them to fail to yield and caused physical injury. (A.C. § 19-190[b]; Sanson, 59 Misc 3d at 6-8). These are the five necessary elements of the crime. (See Sanson, 59 Misc 3d at 6-8). As a result, an information "charging a violation of Administrative Code § 19-190[b] must set forth nonhearsay allegations of fact" establishing each one of these elements. (Id. at 8).
The Second Department's Appellate Term has passed on the facial sufficiency of counts charging A.C. § 19-190[b] in two cases. The first, People v. Sanson, involved an information alleging that a driver "violated A.C. § 19-190, by striking a pedestrian in the crosswalk, thereby causing her to sustain physical injuries." (See People v. Sanson, 52 Misc 3d 980, 982 [Crim. Ct., Queens County 2016] [providing the information's allegations]; Sanson, 59 Misc 3d at 5-9 [analyzing facial sufficiency on appeal]). The Appellate Term found this information facially insufficient, holding that it contained "no factual allegations—nonhearsay or otherwise—establishing, if true, defendant's failure to exercise due care." (Sanson, 59 Misc 3d at 8). In the second case, People v. Urena, the complaint alleged that a driver "turned from Maple Street onto Main Street . . . striking and killing . . . a pedestrian on the Main Street crosswalk." (See People v. Urena, 54 Misc 3d 978, 980 [Crim. Ct., Queens County 2016] [providing the complaint's allegations]; People v. Urena, 65 Misc 3d 145[A], at *1-*2 [App. Term, 2d Dep't 2019] [analyzing facial sufficiency on appeal]). There, the Appellate Term similarly found "no facts in the accusatory instrument that support or tend to support a failure to exercise due care." (Urena, 65 Misc 3d 145[A], at *2).3 The import of these cases is clear: merely alleging that a driver, while turning, struck a pedestrian in a crosswalk is insufficient to establish a failure to exercise due care.
Here, the information, in relevant part, alleges that:
Deponent states that she is informed by the complainant . . . that at the above mentioned date, time, and place of occurrence she was crossing the street at a crosswalk and the defendant . . . was driving a motor vehicle and struck her with his motor vehicle while turning.
Nowhere does the information allege, with any evidentiary facts, that Mr. Iskhakov failed to exercise due care. Indeed, the information here alleges only what the Second Department's Appellate Term found facially insufficient in Sanson and Urena. It simply alleges that Mr. Iskhakov struck a pedestrian in a crosswalk while he was turning.
In support of their information, the People do not make any specific argument as to why they have properly alleged a failure to exercise due care. Instead, they only argue that a pedestrian, "per VTL § 1151[a]," has "the right of way at a crosswalk and a driver of a motor vehicle must yield the right of way." (Pr. Resp. at 3). Read most favorably, the People's argument is that a driver who fails to yield to a pedestrian in a crosswalk necessarily fails to exercise due care because of V.T.L. § 1151[a]. As an initial matter, the People do not accurately recite V.T.L. § 1151[a], which appears to only gives pedestrians in crosswalks the default right of way in certain situations. (See V.T.L. § 1151[a] ["When traffic-control signals are not in place or not in operation the driver of a vehicle shall yield the right of way."] [emphasis added]). But in any event, this argument is impossible to square with Sanson and Urena, cases where drivers struck pedestrians who were in crosswalks and where the Appellate Term nonetheless found that mere fact insufficient to establish a failure to exercise due care. As a result, the count here charging a violation of A.C. § 19-190[b] is facially insufficient.
Because the information is not facially sufficient as to A.C. § 19-190[b], the People's statement of readiness was not valid. (C.P.L. § 30.30[5-a]). Accordingly, time accrued from June 12, 2022, the date on which the People filed the information, to October 12, 2022, the date on which the defense requested a motion schedule. That is 122 days. It is the People's burden to show that any C.P.L. § 30.30 exclusions should nonetheless apply, and they have identified none. Therefore, the People have exceeded the 90-day limit to validly state ready for trial. (C.P.L. § 30.30[b]). The case must be dismissed.
The defense's remaining arguments are moot.
The foregoing constitutes the order and decision of the court.
Dated: Queens, NY
March 3, 2023
Wanda L. Licitra, J.C.C.
1. This deserves further comment. The information's most serious count charges a violation of V.T.L. § 600[a], leaving the scene of an accident involving physical injury without reporting. A violation of that section can either constitute a class A or a class B misdemeanor. (The People inaccurately list it on the information as an unclassified misdemeanor.) It is a class B misdemeanor if the violation of V.T.L. § 600[a] results "solely from the failure of an operator to exhibit his or her license and insurance identification card for [their] vehicle or exchange [their] information." (V.T.L. § 600[c]; see also People v. Auguste, 64 Misc 3d 1240[A], at *1-*2 [Crim. Ct., Queens County 2019]; People v. Ghorab, 51 Misc 3d 1225[A], at * 2 [Crim. Ct., Queens County 2016]). "However, when the driver fails to stop," then the People may charge the violation as a class A misdemeanor "because that is more tha[n] the failure to exhibit the necessary documents." (Auguste, 64 Misc 3d 1240[A], at *2; see also Ghorab, 51 Misc 3d 1225[A], at *2 [same]; V.T.L. § 600[c]). In the information here, the People allege that Mr. Iskhakov "drove away from the location while failing to stop." That would indicate that the information charges V.T.L. § 600[a] as a class A misdemeanor. Inexplicably, however, the information also alleges that "at the above mentioned location"—the scene of the accident—"the defendant produced an expired registration card." This suggests that Mr. Iskhakov did stop at the scene of the incident. That would indicate the information charges V.T.L. § 600[a] as a class B misdemeanor. For the sake of this decision, the court here assumes that the charge on the information is the class A misdemeanor.
2. The law is unique in that it requires a culpable mental state of "failure to exercise due care," which is rare in criminal statutes. Because of that requirement, some courts believed the statute to be unconstitutional. (See People v. Sanson, 52 Misc 3d 980 [Crim. Ct., Queens County 2016]; People v. Salamon, 54 Misc 3d 960 [Crim. Ct., Kings County 2016]). Others thought it was constitutional. (People v. Walters, 64 Misc 3d 862 [Crim. Ct., NY County 2019]; People v. Clyburn, 56 Misc 3d 1204[A] [Crim. Ct., NY County 2017]). The Court of Appeals eventually resolved the issue and found the statute constitutional. (People v. Torres, 37 NY3d 256 ). In so doing, it reaffirmed that "failure to exercise due care" is, in fact, an element of the statute—the necessary mental state of the accused. (See id. at 262-68).
3. Indeed, in People v. Urena, the Appellate Term found this allegation insufficient to meet even the lower standards of a misdemeanor complaint, which only requires evidentiary facts tending to show "reasonable cause" of the offense. (65 Misc 3d 145[A], at *2 [App. Term, 2d Dep't 2019]).
Wanda L. Licitra, J.
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Docket No: Docket No. CR-012757-22QN
Decided: March 03, 2023
Court: Criminal Court, City of New York,
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