The defendant, Andrew Morgan, has submitted an omnibus motion, dated September 13, 2022, seeking: inspection and release of the Grand Jury minutes and dismissal or reduction of the indictment; an order invalidating the People's certificate of compliance; suppression of evidence; Sandoval/Luck hearing; and leave to file further motions. The People's response, dated October 11, 2022, consents to some of the relief sought and opposes other relief. The court decides the motion as follows.

Defendant's motion to inspect the grand jury minutes is granted. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time the prosecutor instructed the grand jurors on the law. The indictment substantially conforms to the requirements set forth in CPL § 200.50. The instructions were not defective as a matter of law except as to counts 22 and 23. The proceedings were otherwise proper. Upon inspection of the grand jury minutes and exhibits, this court found the evidence to be legally sufficient to support [*2]all counts of the indictment except for counts 1, 2, 5, 6, 10, 15, 16, 21, 24 and 27.

In addition, counts 4, 8, 14, 18 and 20 are multiplicitous of counts 3, 7, 13, 17 and 19. Accordingly, counts 4, 8, 14, 18 and 20 are dismissed. Lastly, counts 25 and 26 are duplicitous because more than one crime is charged in each count. Accordingly counts 25 and 26 are dismissed.

Count 22 of the indictment charges Operating a Motor Vehicle While Under the Influence as a Class E felony. That statute provides "No person shall operate a motor vehicle while in an intoxicated condition." (VTL § 1192[3].) Pursuant to VTL § 1193[1][c][i], this offense qualifies as an E felony where a defendant has one prior conviction for subdivision 2, 2-a, 3, 4, or 4-a of VTL § 1192 in the preceding ten years. In support of this charge, the prosecutor, insofar as relevant to the instructions related to this charge, presented evidence that a chemical test of the defendant's breath was conducted on the Intoxilyzer 9000. The result of the test showed the defendant had .08 of one percent or more by weight of alcohol in his blood.

The Criminal Jury Instructions provides guidance to jurors in the circumstance where the Intoxilyzer 9000 has been employed to determine the blood alcohol content by a chemical analysis from a person's breath. That instruction states that "In this case, the device used to measure blood alcohol content was the Intoxilyzer 9000. That device is a generally accepted instrument for determining blood alcohol content. Thus, the People are not required to offer expert scientific testimony to establish the validity of the principles upon which the device is based." To determine the accuracy of the results of the breath test, the instruction permits jurors to consider the qualifications and reliability of the person who administered the breath test, the lapse of time between the operation of the motor vehicle and the giving of the test, whether the device used was in good working order at the time the test was administered, and whether the test was properly given. (CJI 2d [NY] VTL § 1192[3].) The instruction also defines motor vehicle and operation of a motor vehicle.

Upon instructing the grand jurors on this charge as relevant here, the prosecutor stated:

A person is guilty of Operating a Motor Vehicle While Under the Influence of Alcohol when he or she operates a motor vehicle in an intoxicated condition. If the defendant has within the previous 10 years been convicted of a violation of Vehicle and Traffic Law 1192-2, 2A, 3 ,4 or 4A or of Penal Law 125.14, this previous conviction elevated the crime of driving while intoxicated to a class E felony.^[FN1]

A person is in an intoxicated condition when such person has consumed alcohol to the extent[sic] he or she is incapable to a substantial extent of employing the physical and [*3]mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver,

The law does not require any particular chemical or physical test to prove that a person was in an intoxicated condition. To determine whether the defendant was intoxicated you may consider all of the surrounding facts and circumstances, including, for example: the defendant's physical condition, balance and coordination, manner of speech, presence or absence of an odor of alcohol; the manner in which the defendant operated the motor vehicle; opinion testimony regarding the defendant's sobriety, the circumstances of any accident.

Evidence has been introduced which shows that the defendant was previously convicted of CPL 1192-3 DWI in Westchester County. You may consider evidence of the defendant's previous conviction only to determine whether the defendant may be charged with this charge and not any other charge lacking this element.

Count 23 of the indictment charges the infraction of Operating a Motor Vehicle While Under the Influence of Alcohol. That statute provides "No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol." (VTL § 1192[1].) The Criminal Jury Instructions for this charge provide, "A person's ability to operate a motor vehicle is impaired by the consumption of alcohol when that person's consumption of alcohol has actually impaired, to any extent, the physical and mental abilities which such person is expected to possess in order to operate a vehicle as a reasonable and prudent driver." (CJI2d[NY] VTL § 1192[1].) The instruction also provides a detailed list of the facts and circumstances jurors may consider in determining whether someone was impaired, including, inter alia, "the defendant's physical condition and appearance, balance and coordination, and manner of speech," "the presence or absence of an odor of alcohol," "the manner in which the defendant operated the motor vehicle," "opinion testimony regarding the defendant's sobriety," the circumstances of any accident," and "the results of any test of the content of alcohol in the defendant's blood." (Id.)

The prosecutor instructed the grand jury regarding this count as follows:

The next charges are (sic) vehicular and traffic law charges. The next on is Driving While Ability Impaired by Alcohol, Vehicle Traffic Law 1192-1.

A person is guilty of Operating a Motor Vehicle While Under the Influence of Alcohol when, he or she operates a motor vehicle while his or her ability to operate a motor vehicle is impaired by the consumption of alcohol.

You are to consider one count of that.

In People v Calbud, 49 NY2d 389, 394, (1980), the Court of Appeals held that a grand jury "need not be instructed with the same degree of precision as a petit jury." Accordingly, a charge is sufficient in this context where it "provides the Grand Jury with enough information to intelligently decide whether a crime has been committed and determine whether there exists legally sufficient evidence to establish the material elements of the crime." (Id.) Here, the prosecutor's instructions as to counts 22 and 23 did not meet that standard.

In count 22, the prosecutor did not guide the grand jurors by listing in her instructions the detailed factors and circumstances they may consider in determining whether the results of the Intoxilyzer 9000 breath test were accurate and the possible inference that may be drawn when considering the results of the Intoxilyzer 9000 breath test as applied to the time the defendant [*4]operated the motor vehicle. Lastly, the prosecutor failed to define motor vehicle and operation of a motor vehicle in her instructions as to this count. Accordingly, the instructions with respect to this charge were defective as a matter of law.

In count 23, in charging the grand jurors, the prosecutor failed to define "impaired", "motor vehicle", and "operation". Without these definitions, the grand jurors had no guidance regarding what they were to consider in determining whether the defendant was impaired when he operated the motor vehicle. This charge, therefore, deprived the grand jury of the ability to determine whether there was legally sufficient evidence to establish material elements of this offense. Accordingly, the instruction with respect to this charge was defective as a matter of law.

Counts 22 and 23 of the indictment are dismissed with leave to re-present before another grand jury.

Count 1 of the indictment charges Aggravated Vehicular Assault (PL 120.04[-a][3]). Under that statute:

A person is guilty of aggravated vehicular assault when he or she engages in reckless driving as defined by section twelve hundred twelve of the vehicle and traffic law, and commits the crime of vehicular assault in the second degree as defined in section 120.03 of this article and has previously been convicted of violating any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law within the preceding ten years.

Count 2 of the indictment charges Aggravated Vehicular Assault (PL 120.04[-a][3]). Pursuant to that statute:

A person is guilty of aggravated vehicular assault when he or she engages in reckless driving as defined by section twelve hundred twelve of the vehicle and traffic law, and commits the crime of vehicular assault in the second degree as defined in section 120.03 of this article and has previously been convicted of violating any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law within the preceding ten years.

Count 5 of the indictment charges Vehicular Assault in the First Degree (PL 120.04[3]). Under that statute:

A person is guilty of vehicular assault in the first degree when he or she commits the crime of vehicular assault in the second degree as defined in section 120.03 of this article, and has previously been convicted of violating any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law within the preceding ten years.

Count 6 of the indictment charges Vehicular Assault in the First Degree (PL 120.04[3]). Pursuant to that statute:

A person is guilty of vehicular assault in the first degree when he or she commits the crime of vehicular assault in the second degree as defined in section 120.03 of this article, and has previously been convicted of violating any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law within the preceding ten years.

Count 21 of the indictment charges Operating a Motor Vehicle While Under the [*5]Influence as a class E felony. Pursuant to VTL § 1193(1)(c)(i), this offense qualifies as a class E felony where a defendant has a prior conviction under subdivision 2, 2-a, 3, 4, or 4-a of VTL § 1192 in the preceding ten years. Under that statute:

No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or salvia.

Each of these counts requires proof that the defendant was convicted of subdivision 2, 2-a, 3, 4, or 4-a of VTL § 1192 within the previous ten years. The prosecutor sought to satisfy this element by introducing in evidence as grand jury exhibit 11 a certificate signed by Jason Davies, an Identification Specialist employed by the State of New York Division of Criminal Justice Services within the State Identification Bureau, the State's central repository of fingerprint cards and criminal history records.^[FN2] On June 21, 2022, Mr. Davies compared the fingerprint card from Andrew A. Morgan's arrest on February 12, 2022, under arrest No. Q22604430 bearing NYSID # 02320240N under this indictment with the arrest fingerprint card on file for Andrew A. Morgan who was arrested on May 27, 2012, under arrest # 20120083580 bearing NYSID # 02320240N. Mr. Davies concluded the two sets of fingerprint impressions belonged to the same individual.

As the prosecutor was admitting exhibit 11 in evidence a grand juror asked, "I just want to clarify with the exhibit 11, these are the dates of 2/12/2022 and 5/27/2012; this is the same person that was involved?" The prosecutor responded, "Is it the same person?" The juror asked again "Is that the same person that is involved?" The prosecutor answered "Yes. That document was a certified fingerprint comparison." The juror then asked, "So the person of interest is also in this date?" The prosecutor told the juror "You can review the document during your deliberations."

Instead of instructing the jurors that it is for the members of the grand jury to decide for themselves whether the defendant is the same person as the person whose fingerprints were compared by Mr. Davies, the identification specialist whose report comprised exhibit 11, the prosecutor confirmed for the grand jury that the defendant was the same person. In so doing, the prosecutor usurped the role of the grand jurors to determine for themselves whether the defendant was the same person as the person whose fingerprints were compared and found to be the same. The fact the prosecutor told the members of the grand jury they could examine the report for themselves was meaningless because it failed to instruct the grand jurors to disregard her remark and that it was their responsibility, and only theirs, to determine for themselves whether the defendant was the same person as the person whose fingerprints were compared by Mr. Davies. This error alone would require dismissal of counts 1, 2, 5, 6 and the reduction of count 21 to an unclassified misdemeanor because the prosecutor usurped the fact-finding function of the grand jury and in so doing became an unsworn witness and thereby impaired the integrity of the grand jury proceedings insofar as these counts are concerned. (People v Huston, 88 NY2d 400, [1996] [quoting CPL § 210.35[5]; People v Elias,55 Misc 3d 707, [Sup Ct [*6]Queens County 2017], People v Gomes, 76 Misc 3d 1227(A), [Sup Ct Queens County 2022].) However, as seen later in this decision, there are other fundamental evidentiary errors that also require the dismissal of counts 1, 2, 5, 6 and the reduction of count 21 to an unclassified misdemeanor.

Exhibit 11 standing alone without some further connecting evidence to show that the defendant was convicted of driving while intoxicated within the preceding ten year period (see People v Van Buren, 82 NY2d 878, 881 [1993]), did not establish that the defendant had been previously convicted of subdivision 2, 2-a, 3, 4 or 4-a of VTL § 1192 within the preceding ten years.

The prosecutor then sought to establish that the person identified in exhibit 11 was the same person who was arrested for a violation of VTL § 1192(3) on May 27, 2012, by introducing grand jury exhibit 10, a copy of a document identified as a Uniform Sentence and Commitment. The prosecutor stated, "I am holding in my hand a multi-page document entitled Uniform Sentence and Commitment, which is [ ] a certificate of conviction from Westchester County." (GJ tr at 69) as grand jury exhibit 10. The prosecutor continued:

"Once again, it is a certificate of conviction in the matter of the People of the State of New York against Andrew Morgan. At the bottom it bears the date 6/13/13; the clerk of the court, his name Ruben Valentin. The next line has a signature. And on that line is the purported signature of R. Valentin. Next to that is a line that says title. On that line it says [...] senior court clerk. Next to that is the purported seal of the court. The NYSID number on this document is 023202409, date of birth [XX/XX/1980].

The prosecutor continued:

[...]I am now moving what has been marked Grand Jury Exhibit 10 for identification into evidence as Grand Jury Exhibit 10. Again[sic] I will read the NYSID number 023202409, date of birth [XX/XX/1980]. The above named defendant has been convicted by plea of VTL 1192-3 crime DWI, sentence imposed. (GJ tr at 69 -70)^[FN3]

Exhibit 10, a collection of related judicial documents, consists of nine pages. The first page of the exhibit is entitled Uniform Sentence and Commitment, dated June 13, 2013, and signed by Senior Court Clerk Ruben Valentin. This page of exhibit 10 bears the preprinted seal of the State of New York and also bears a stamp that the document was filed with the county clerk of Westchester County on June 26, 2013. The second through fifth pages of the exhibit consists of the order and terms of probation. The sixth page of the exhibit consists of the New York State Department of Motor Vehicles order of suspension or revocation. The last three pages of the exhibit consists of information regarding the minimum revocation periods for alcohol-related offenses, a copy of the waiver of the right to appeal, and a fine and penalty assessment notice/receipt.

The Uniform Sentence and Commitment form is the only page of the exhibit that bears a preprinted seal of the State of New York. It also appears that only the copy of the Uniform Sentence and Commitment form was filed with the county clerk of Westchester County on June 26, 2013. Thus, to be admissible as competent evidence, it must be demonstrated that exhibit 10, in its entirety, is not subject to a per se exclusionary rule (see People v Suber, 19 NY3d 247, 251 [*7][2013]. And to avoid the application of the hearsay rule, a per se exclusionary rule, exhibit 10, a collection of related judicial documents, must meet the requirements of CPLR 4540(a)-(b). CPLR 4540(a) and (b) requires that a copy of a judicial record be attested and accompanied by a certification or authenticated. As previously noted, the rules of evidence generally apply in grand jury proceedings (CPL § 190.30(1), including certain statutory exceptions (CPL § 190.30 [2-7]), and "[u]nless otherwise provided by statute or judicially established rules of evidence applicable to criminal cases, the rules of evidence applicable to civil cases are, where appropriate, also applicable to criminal cases." (see CPL § 60.10)

CLPR 4540 (a) provides for the admissibility of copies of official documents if the documents meet the requirements of CPLR 4540 (b). CPLR 4540(b) requires each document within exhibit 10 to have been attested to by an officer of the state. An attestation "is the assurance given by the certifier that the copy submitted is accurate and genuine as compared to the original." (see People v Brown, 128 Misc 2d 149, 154 [Madison County Ct 1985].) CPLR 4540 (b), in relevant part, further provides that a copy of a judicial record "[... ] shall be accompanied by a certificate signed by, or with a facsimile of the signature of the clerk of a court having legal custody of the record and with his official seal affixed. If the certificate is made by a county clerk, the county seal must be attached." A certification "is a demonstration of the legal authority of the officer who has so attested[]", and also to ensure the reliability of copies of official records in the absence of testimony from the custodians of those records (see People v Smith, 258 AD2d [4th Dept 1999]; People v Sykes, 167 Misc 2d 588 [Sup Ct Monroe County 1995], affd 225 AD2d 1093[1996] [citing Brown at 149]). A certified document is one that has been authenticated (Jerome Prince, Richardson on Evidence § 9-201 et seq.[Farrell 11th ed 1995]). Thus, the People were required to provide an authenticated certificate from the officer stating that he/she is the lawful custodian of the document and that his/her signature is genuine and has attested to it as being correct because it has been compared to the original and with the seal of the officer affixed to the document. Nowhere on Exhibit 10 is there a certificate or an attestation, or a seal of the officer or of the county, if filed with the county clerk, embossed and affixed to any of the copies of the related judicial documents that comprise exhibit 10 as required by CPLR 4540. Although the prosecutor termed exhibit 10 as a certificate of conviction, it was not. These copies of apparent judicial documents are nothing more than a collection of documents containing inadmissible hearsay of no evidentiary value to establish that the defendant was previously convicted of VTL § 1192 (3) within the previous ten years. (see People v Van Buren, 82 NY2d 878, 881 [1993]; People v Rosenfeld v City of New York, 197 AD3d 746, [2nd Dept 2021].)

Although the records that comprise exhibit 10 are separately and collectively inadmissible as evidence, an examination of the records reveals that the Uniform Sentence and Commitment form reflects the date of offense as May 29, 2012, (emphasis added) under SCI # 010645-2012 with a sentence date of June 13, 2013, while the New York State Department of Motor Vehicle order of suspension or revocation indicates a violation date of May 19, 2012, (emphasis added) under SCI # 10645-12 with a sentence date June 13, 2013. Importantly, the exhibit, despite the use of different terminology, has inconsistent dates regarding purported the date of defendant's arrest. Moreover, the two different dates of offense in exhibit 10 are inconsistent with the date of arrest reflected in exhibit 11, the certified fingerprint comparison record that reflects an arrest date of May 27, 2012 (emphasis added).

However, this discussion does not end here. The prosecutor also introduced in evidence [*8]exhibit 8, a Department of Motor Vehicles certified abstract of a driving record for a person named Andrew A. Morgan. That exhibit shows that a person by that name with a listed address of 19 Gramatan Avenue, 12, Mt. Vernon, NY and a date of birth of XX XX, 1980, under client Id # 956351024, was convicted for driving while on January 31, 2013, with a violation date of May 19, 2012(emphasis added). There is no mention of the section the person named Andrew A. Morgan was convicted of violating or the court or the judge before whom the conviction was entered.

The only evidence before the grand jury that would tend to connect the defendant to exhibit 8 is exhibit 11, the certified fingerprint comparison record. Exhibit 11 already established that the fingerprint card for the defendant's arrest on February 12, 2022, with NYSID # 02320240N and arrest # Q22604430 was compared to an arrest fingerprint card on file for Andrew A. Morgan who was arrested on May 27, 2012, under NYSID # 0230240N and arrest # 20120083580 and the two sets of fingerprint impressions were found to belong to the same person.

Notably, when exhibit 11 is compared to exhibit 8, that clearly contains information culled from other records, the only matching information in both exhibits was the name Andrew A. Morgan. Importantly, the arrest dates in each exhibit did not match, and there was no information on either exhibit that matched the person's date of birth, address, NYSID and arrest numbers. Moreover, the grand jury was not presented with any information in admissible form about the section that the defendant was convicted of violating, the date of sentence or the court or the name of the judge where the conviction was entered. While exhibit 8 stated that Andrew A. Morgan was previously convicted of a DWI, it did not state any other facts demonstrating that the person named in exhibit 8 was the defendant. The abstract only proves that a person by the same name as the defendant was previously convicted and that, standing alone, is insufficient. (see People v Vollick, 148 AD2d 950 [4th Dept 1989].) Therefore, the court finds the evidence failed to establish the defendant had a prior conviction of any subdivision of VTL § 1193 within the preceding ten years, an essential and necessary element of counts 1, 2, 5, 6 and 21. Accordingly, counts 1, 2, 5, and 6 are dismissed with leave to re-present to another grand jury. Count 21 is reduced from an E felony to an unclassified misdemeanor.

Counts 10, 15, 16 and 24 are victim-specific offenses. RUA is the victim of counts 10, 15 and 16; Rehana Akhoon is the victim of count 24. And to further clarify, counts 15 and 16 both charge Vehicular Assault in the Second Degree (PL 120.03[1], but each count is predicated on a different subdivision of VTL § 1192.^[FN4]

Count 10 of the indictment charges Assault in the Second Degree (PL 120.05[4]). Under that statute in relevant part states:

A person is guilty of assault in the second degree when he recklessly causes serious physical injury to another person by means of a dangerous instrument.

Counts 15 charges Vehicular Assault in the Second Degree (PL 120.03[1]). Pursuant to that charge:

A person is guilty of vehicular assault in the second degree when he or she causes serious physical injury to another person, and either operates a motor vehicle in violation of subdivision two, three, four or four-a of section eleven hundred ninety-two of the vehicle and traffic law and as a result of such intoxication or impairment by use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such motor vehicle in a manner that causes such serious physical injury to such other person.

Counts 16 charges Vehicular Assault in the Second Degree (PL 120.03[1]) . Pursuant to that charge:

A person is guilty of vehicular assault in the second degree when he or she causes serious physical injury to another person, and either operates a motor vehicle in violation of subdivision two, three, four or four-a of section eleven hundred ninety-two of the vehicle and traffic law and as a result of such intoxication or impairment by use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such motor vehicle in a manner that causes such serious physical injury to such other person.

All three of these offenses contain the element of serious physical injury.^[FN5] Serious physical injury means "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." (Penal Law § 10.00[10].) Legally sufficient evidence means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent. (CPL § [*9]70.10[1]; People v Suber, 19 NY3d 247, 251 [2013].) Competent evidence is evidence that is admissible because it is not subject to a per se exclusionary rule (see Suber, 19 NY3d at 252). Thus, the People were required to establish by legally sufficient evidence that RUA sustained a serious physical injury.

In support of these charges, the People presented the testimony of AA and grand jury exhibits 3 and 13. Exhibit 3, a photograph, depicted RUA in a brace that extended from his head to his back. Exhibit 13 was the Prehospital Care Report for RUA.

Ms. AA stated that she accompanied RUA in an ambulance as he was taken to hospital. A head and neck brace was placed on him and he was bleeding from the head. On arrival, RUA was examined by the trauma team, and sent for further examination by x-rays and an MRI. Ms. AA said "It turned out he had a head fracture. It was a fracture on his soft spot." She also said he seemed to be in pain, "He was crying a lot. Also, since his mom was also hurt, he could not be with his mom because his mom was taken to the other hospital, so he was crying a lot. He was not drinking, It was very ---really hard." (GJ tr at 14)

The assessment section of the Prehospital Care Report, exhibit 13, noted that RUA had a head injury with swelling. The reporter also assessed RUA's neurological condition, lung function, temperature, skin color and condition, arms and legs, abdomen and chest, and all were found normal.

The narrative section of the report noted that RUA was being held by another person while strapped in a car seat when the crash occurred. As a result of the crash, the car seat, with RUA still strapped in, flew in the air more for more than five feet.

In all grand jury proceedings, prosecutors "enjoy wide discretion in presenting their case." (People v Lancaster, 69 NY2d 20, 25 [1986]) . Nonetheless, when presenting a case to the grand jury, the prosecutor must abide by the rules of evidence for criminal proceedings (CPL § 190.30[1].)

The only testimony presented to the grand jury on the nature of the injury sustained by RUA came from AA. It is clear from the questions asked of Ms. AA and her responses, that Ms. AA was told that RUA had suffered a "head fracture" and is hearsay. That testimony, if not considered hearsay, nevertheless constitutes improper opinion testimony. There is no foundational testimony in the record that demonstrates that Ms. AA had the requisite her training, education, and experience to qualify her to diagnosis or express as a matter of personal knowledge that RUA suffered a head fracture. Ms. AA's testimony essentially expressed a medical conclusion that as a lay person she was not qualified to do (People v Brandon, 102 AD2d 832 [2nd Dept 1984] ["testimony of respective complainants before grand jury required medical conclusion and thus was not proper by a lay person before the grand jury ...including one complainant's testimony that he suffered a 'fractured jaw'"]).

Exhibit 13, the Prehospital Care Report for RUA, says nothing at all that RUA sustained a serious physical injury. The testimony of Ms. AA as to RUA's injury was hearsay. Moreover, her testimony expressed a medical conclusion that as a lay person she was unqualified to do. Thus, the evidence before the grand jury was not legally sufficient to establish that RUA suffered a physical injury that created a substantial risk of death under counts 10, 15 and 16. Accordingly, counts 10, 15 and 16 are dismissed with leave to re-present to another grand jury.

Count 24 of the indictment charges Assault in the Third Degree (PL § 120.00[2]). Under that statute:

A person is guilty of assault in the third degree when he recklessly causes physical injury [*10]to another person.

Count 24 requires proof that the victim, Rehana Akhoon, suffered physical injury. Physical injury means "impairment of physical condition or substantial pain." (PL § 10.00[9].)Legally sufficient evidence means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent. (CPL § 70.10[1]; People v Suber, 19 NY3d 247, 251 [2013].) Competent evidence is evidence that is admissible because it is not subject to a per se exclusionary rule (see Suber, 19 NY3d at 252). Thus, the People were required to establish by legally sufficient and competent evidence that Rehana Akhoon sustained an impairment of a physical condition or substantial pain.

In support of this charge, the People presented the testimony of AA, grand jury exhibit 2, a photograph of Rehana Akhoon, and grand jury exhibit 14, the Prehospital Care Report for Rehana Akhoon.

Ms. AA and Rehana were taken to the same hospital and her room was near Rehana's. Ms. AA stated the medical staff initially stabilized her "because she was kind of unconscious. She was going into shock. She was shaking a lot on her body. They had to calm her down. They gave her fluids, things like that, and after she had to go through x-rays, and things like that. She doesn't remember the whole event. She was unconscious." (GJ tr at 15)

Ms. AA testified further that Rehana's education was interrupted by this incident. She also said that Rehana no longer could engage in the physical activities that she participated in prior to the incident, for example, swimming and track. Ms. AA also told the grand jury, to the best of her knowledge, that Rehana was "still in pain". (GJ tr at 15)

Ms. AA was shown grand jury exhibit 2, which depicted Rehana in a neck brace lying in a hospital bed. Ms. AA said that "She was unconscious, so she was —they were trying to calm her down. She was hyperly moving." (GJ tr at 22-23)

The clinical section of the Prehospital Care Report, exhibit 14, prepared for Rehana shows her chief complaint was lower leg pain to both her left and right legs. The assessment portion of the report showed that on examination Rehana's breathing was normal, her lungs were clear, her skin color, temperature and condition were normal, her lower left and right legs were injured, her head and neck were normal, and her eyes were normal. She was also neurologically assessed as alert and her mental status was found to be normal.

The reporter stated in the narrative portion of the Prehospital Care Report that upon arrival Rehana was sitting on the sidewalk being held up by pedestrians. The reporter found she was very high strung and clearly shaken up by the incident. The reporter observed minor abrasions were visible throughout Rehana's body, with minor abrasions to her hands, knees, elbows and feet. There were no visible deformities and no signs of swelling. She was not complaining of pain to her head, neck, or back and she was cooperative and able to walk and talk. Finally, her vitals were stable and no serious injuries were noted.

Where a defendant is charged, as here, with Assault in the third degree, the evidence before the grand jury must establish the victim suffered an impairment of physical condition or substantial pain.

Rehana did not testify and her subjective description of what she felt was not available for consideration by the grand jury. Also, Rehana's medical records were not introduced before the grand jury. Nevertheless, "sometimes an objective account of the injury, unaccompanied by [*11]testimony about the degree of pain the victim experienced, will be enough, but sometimes it will not." (People v Chiddick, 8 NY3d 445 [2007] [citing People v Rojas, 61 NY2d 726[1984].)

Thus, all the grand jury knew of Rehana's injuries was that she sustained minor abrasions to her hands, knees, elbows and feet as documented in the Prehospital Care Report and expressed pain to her lower left and right legs. The report did not quantify the level or duration of pain that Rehana experienced (People v Cheeks, 161 AD2d 657 [2nd Dept 1990] [no evidence was presented on duration or degree of victim's pain nor of other objective indicia of 'substantial pain' to properly sustain a charge of assault in the third degree".]; People v Melcherts, 147 AD2d 594 [2nd Dept 1989] [Complainant's testimony that she was in great deal of pain because defendant punched her in the stomach, absent duration of pain, in conjunction with medical resident's testimony that complainant's abdomen was tender, was insufficient to establish physical injury.]). Moreover, the report did it capture any subjective reactions Rehana had to any physical injuries other than the documented emotional trauma.

The only remaining source of relevant information that sheds any light on whether Rehana suffered an impairment of physical condition or substantial pain, in the absence of medical records, is from the testimony of AA.

The bare fact that Rehana was taken to a hospital, given fluids and x-rayed sheds no light on the nature or duration of her injuries, if any. (People v Robin B., 78 AD2d 679 [2nd Dept 1980].) Although, Ms. AA stated that Rehana was "unconscious" at the hospital, that alone does not constitute an impairment of a physical condition or constitute substantial pain. Moreover, the fact that the grand jury was shown a photograph, exhibit 2, depicting Rehana in a neck brace does not, without more, support a finding that she suffered an impairment of a physical condition or substantial pain.

Ms. AA also asserted that Rehana was unable to participate in school or athletic events as she did prior to the accident. Ms. AA's testimony, standing alone, did not link Rehana's inability to continue in school or participate in athletic events to any evidence that established an impairment of physical condition or substantial pain.

Lastly, it is clear that Ms. AA's testimony that Rehana is still in pain months following the accident, without any accompanying detail as to how she concluded Rehana was "still in pain", is inadmissible hearsay. (see Rosenberg v Equitable Life Insurance Society of the United States, 148 AD2d 337 [1st Dept 1989] [Neighbor's testimony that decedent had told her that he had been given a stress test and complained of tiredness and pain in days following test was inadmissible as hearsay]). Accordingly, count 24 is dismissed with leave to re-present to another grand jury.

Count 27 of the indictment charges Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (VTL § 511[2][a][ii]). Pursuant to that charge:

A person is guilty of the offense of aggravated operation of a motor vehicle in the second degree when such person commits the offense of aggravated unlicensed operation of a motor vehicle in the third degree as defined in subdivision one of this section; and the suspension or revocation is based upon a refusal to submit to a chemical test pursuant to section eleven hundred ninety-four of this chapter, a finding of driving after having consumed alcohol in violation of section eleven hundred ninety-two-a of this chapter or upon conviction for a violation of any of the provisions of section eleven hundred ninety-[*12]two of this chapter.

The offense of Aggravated Unlicensed Operation of a Motor Vehicle contains the element of knowledge. Under Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (VTL § 511[1][a]), on which a violation of Aggravated Operation of a Motor Vehicle in the Second Degree is based, requires the People to establish by legally sufficient evidence that the defendant knew or had reason to know that his license was suspended or revoked. (see People v Pacer, 6 NY3d 504, 508 [2008].)

In support of this charge, the People presented testimonial evidence that the defendant drove his vehicle and his certified Department of Motor Vehicle abstract, which established that his driver's license was revoked at the time of the offense. However, the People failed to present any evidence to demonstrate that the defendant knew or had reason to know that his license was suspended or revoked at that time. There was no evidence that the defendant, for example, admitted that his license was revoked, Nor did the People introduce documentary evidence, such as proof of mailing of a notice of suspension, that would satisfy the knowledge requirement. Accordingly, the evidence before the grand jury was legally insufficient with respect to count 27 and that count is dismissed with leave to re-present to another grand jury.

It is well settled that a single offense can only be charged in one count. When a single offense is charged in more than one count it is multiplicitous. (see People v Alonzo, 16 NY3d 267 [2011] [An indictment is multiplicitous when a single offense is charged in more than one count.]); People v Campbell, 120 AD3d 827 [2nd Dept 2014].) To state it differently, "Multiplicity does not exist where each count requires proof of an additional fact that the other does not" or where "a conviction on one count would not be inconsistent with acquittal on the other." (People v Edmondson, 191 AD3d 1015 [2nd Dept 2021] [quoting People v Saunders, 290 AD2d 461 [2nd Dept 2002].)

The prosecutor's instructions for counts 3 and 4 and for counts 7 and 8

The prosecutor, in her prefatory remarks, told the grand jury she would charge the defendant with two counts each of Aggravated Vehicular Assault and Vehicular Assault in the First Degree; one count of each offense supported by the predicate crime of driving while intoxicated, common law, the second supported by the predicate crime of driving while intoxicated, per se.

The prosecutor thereupon told the grand jury:

Now I am going to read to you Aggravated Vehicular Assault. For the first it is Aggravated Vehicular Assault, Penal Law 120.02-A-4 (sic). There is two counts of this charge because one count is for the first DWI I read to you, Vehicular and Traffic Law 1192-3 common law. And the second count is for the second charge I read to you about DWIs Vehicular and Traffic Law 1192-2 per se. These are the two counts you will consider for Aggravated Vehicular Assault Penal Law 120.04-A-4.

The prosecutor continued, in relevant part, with the instructions as to counts 3 and 4:

A person is guilty of Aggravated Vehicular Assault when, he or she operates a motor vehicle and engages in reckless driving while he or she is in an intoxicated condition [*13]while(emphasis added) he or she has a .08 of one percent or more by weight of alcohol in his or her blood as shown by chemical analysis of his blood, urine, breath or saliva, and as a result of such intoxication operates such motor vehicle in a manner which causes serious physical injury to more than one person.

As to counts 7 and 8 the prosecutor prefaced her instructions by informing the grand jury in the same manner as she did for counts 3 and 4 that:

The next charge is Vehicular Assault in the First Degree. Once again, you will be considering two counts of this. One will be the common law count, Vehicular and Traffic Law 1192-3, Driving While intoxicated common law. And one will be the per se Driving While Intoxicated Law Vehicular and Law 1192-2.

The prosecutor continued, in relevant part, with the instructions as to counts 7 and 8:

A person is guilty of vehicular assault in the first degree, which is Penal Law 20.04-4, (sic) when, he or she operates a motor vehicle while he or she has a .08 of one percent (sic) or more by weight of alcohol in his or her blood as shown by chemical analysis of his or her blood, breath, urine or saliva while (emphasis added) he or she is in an intoxicated condition and as a result of such intoxication operates a motor vehicle in a manner which causes serious physical injury to more than one person.

The instructions as to each set of counts, counts 3 and 4, and counts 7 and 8, present several issues that require further discussion.

First, counts 4 and 8 are multiplicitous of counts 3 and 7 respectively because the jury instructions as to each set of counts were identical, were based on the same subdivisions of the same statute and the same conduct of the defendant. The same issue was addressed in People v O'Brien, 186 AD3d 1406 [2nd Dept 2020]). In O'Brien, the People, in a prosecution under subdivision one of vehicular manslaughter in the second degree (PL 125.12][1], charged the defendant with four counts of vehicular manslaughter in the second degree, each predicated on one distinct subdivision of VTL § 1192. The defendant was convicted of all four counts and appealed. The People argued that each count of vehicular manslaughter required them to prove additional facts that the others did not. In fact, the People were only required to prove the defendant violated one subdivision of Vehicle and Traffic Law § 1192 in order to prove his guilt under Penal Law § 125.12(1). The court found the People's election to proceed on a theory that the defendant had violated more than one subdivision by presenting evidence of his multiple, distinct manners of intoxication was not necessary to establish guilt and that "a conviction on one count of vehicular manslaughter in the second degree would have been inconsistent with an acquittal on any other count charging the same offense predicated upon a different manner of intoxication." (Id. at 1409.)

Here, counts 4 and 8 charge the defendant with the Aggravated Vehicular Assault and Vehicular Assault in the First Degree, the same crimes as charged in counts 3 and 7 respectively and are multiplicitous of counts 3 and 7. Accordingly counts 4 and 8 are dismissed. (In re Bomani L., 300 AD2d 586 [2nd Dept 2002]; People v Smalls, 81 AD3d 860 [2nd Dept 2011]; People v Demetsenare, 243 AD2d 777 [3rd Dept 1997]; People v Senisi, 196 AD2d 376, [2nd Dept 1994].)

The second issue presented by the instructions for the remaining counts of 3 and 7 is the [*14]use of the word "while". In the instructions, the word "while" was used in its conjunctive sense. The instructions as presented to the grand jury for these counts required the grand jury to find the defendant was intoxicated while operating a motor vehicle pursuant to VTL § 1192(3) and, at the same time he operated a motor vehicle while he had .08 of one percent or more by weight of alcohol in his blood, as shown by a chemical analysis of his blood, breath, urine or salvia pursuant to VTL § 1192(2).

The use of the conjunctive "while", required the People to prove more than either Aggravated Vehicular Assault or Vehicular Assault in the first degree required. Both statutes are based on a violation of subdivision one of PL § 120.03 that requires the defendant operated a motor vehicle while unlawfully intoxicated. In this regard, violations of subdivisions two, three, four or four-a of VTL § 1192 as reflected in subdivision one of PL § 120.03 are neither mutually inclusive nor mutually exclusive. Thus, the People are only required to prove that the defendant violated one subdivision of VTL § 1192 in order to establish the defendant's violation of Aggravated Vehicular Assault and Vehicular Assault in the first degree. Therefore, the prosecutor's charge to the grand jury that required they find the defendant had violated more than one subdivision of VTL § 1192 at the same time was not necessary to establish his guilt. (see People v Charles, 61 NY2d 321, 326 [1984]; People v Middleton, 35 NY3d 952 [2020]; People v Molloy, 58 AD3d 404 [1st Dept 2009][ "Use of the conjunctive 'and' in the indictment did not obligate the People to prove more than what was required under the statutes."]; People v Sutera, 107 AD3d 556 [1st Dept 2013].) The facts in Charles are instructive. In Charles, a court clerk was approached by an undercover agent and asked to fix several summonses in exchange for $100.00. The defendant was charged with bribe receiving. The statute that defined the crime of bribe receiving stated, in relevant part, that a public servant is guilty of bribe receiving when he solicits, accepts, or agrees to accept any benefit from another person. Although the statute proscribed a solicitation or an agreement to accept or acceptance of a bribe, the indictment and bill of particulars charged the defendant in the conjunctive as to each of these elements. Notwithstanding the manner by which the grand jury charged the defendant, the trial court charged the jury they could find the defendant guilty if it found that the defendant either solicited or agreed to accept or accepted a bribe, rather than requiring cumulative proof of all three.

The court finds, notwithstanding the prosecutor's use of "while" in its conjunctive sense, the instructions for counts 3 and 7, while not flawless, were not defective as a matter of law.

The prosecutor's instructions for counts 13, 14, 17- 20

The prosecutor, in her introductory remarks, told the grand jury she would charge eight counts of Vehicular Assault in the second degree at the same time. Four counts of Vehicular Assault in the second degree would be based on subdivision 3 of VTL § 1192, and the remaining four counts would be based on subdivision 2 of VTL § 1192. The prosecutor did not identify for the grand jury for these victim-specific offenses the name of the victim that would be the subject of each pair of counts charging the defendant with Vehicular Assault in the second degree. ^[FN6] The prosecutor thereupon told the grand jury:

The next charge is Vehicular Assault in the Second Degree. You will consider eight counts of this. Four counts will be under the common law DWI Vehicle Traffic Law [*15]1192-3. And four counts will be under the per se DWI Vehicle and Traffic Law 1192-2.

The prosecutor continued, in relevant part, with the instructions as to counts 13 through 20:

A person is guilty of Vehicular Assault Second Degree, Penal Law 120.08 — excuse me, 120.03-1.

A person is guilty of Vehicular Assault in the Second Degree when, he or she operates a motor vehicle while he or she has .08 of one per centum or more by weight of alcohol in his or her blood as shown by chemical analysis of his or her blood, breath, urine or salvia or(emphasis added) while he or she is in an intoxicated condition and as a result of such intoxication operates such motor vehicle in a manner that causes serious physical injury to another person.

Counts 14, 18 and 20 are multiplicitous of counts 13, 17 and 19

Counts 13, 14, 17 - 20 of the indictment charge Vehicular Assault in the second degree. That statute in relevant part provides "A person is guilty of vehicular assault in the second degree when he or she causes serious physical injury to another person, and operates a motor vehicle in violation of subdivision two, three, four or four-a of section eleven hundred ninety-two of the vehicle and traffic law. Here, the prosecutor, after the grand jury voted these victim-specific offenses, assigned Safia Mubarka as the subject of counts 13 and 14, UA as the subject of counts 17 and 18, and FH as the subject of counts 19 and 20.

Although the prosecutor's instructions did not require the grand jury to find cumulative proof for both intoxication at common law and per se for each count because she used the disjunctive "or" in her instructions, counts 14, 18 and 20 nevertheless charge the defendant with the same crime as counts 13, 17 and 19. For that reason counts 14, 18 and 20 are dismissed because they are multiplicious. (see People v O'Brien, 186 AD3d 1406 [2nd Dept 2020].)

Nonetheless, the instructions for counts 13, 17 and 19 were proper as a matter of law notwithstanding the prosecutor's use of the disjunctive in the instructions. The gravamen of Vehicular Assault in the second degree is that the defendant operated a motor vehicle that caused serious physical injury to another while unlawfully intoxicated as proscribed by any of the applicable subdivisions (subdivisions 2, 3, 4, or 4-a) of VTL § 1192. The essential elements of Vehicular Assault in the second degree do not address the specific manner in which the defendant was intoxicated; rather it requires only some form of intoxication. (see People v Hoffman, 130 AD3d 1152, [3rd Dept 2015].) Thus, the requirement of jury unanimity is not implicated by the instructions as given since the statute permits, by its terms, the defendant's guilt to be based on any applicable subdivision that establishes a violation of VTL § 1192. (see People v Alonzo, 16 NY3d 267, 269 [2011].) Whether intended or not, the instructions correctly permitted the grand jury to consider either subdivision 2 or 3 of VTL § 1192 as an element necessary to establish Vehicular Assault in the second degree in counts 13, 17 and 19 as those counts relate to Safia Mubarka, UA, and FH, respectively.

CPL 200.30(1) provides that "each count of the indictment may charge one offense only" [*16]and CPL 200.50(3) requires that an indictment must contain "[a] separate accusation or count addressed to each offense charged, if there be more than one".

Counts 25 and 26 of the indictment each charge the commission of the crime Endangering the Welfare of a Child. That statute, in relevant part, provides that "A person is guilty of endangering the welfare of a child when he or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." (PL § 260.10[1].)

The prosecutor, in her introductory remarks, told the grand jury she would charge two counts of Endangering the Welfare of a Child at the same time, but did not identify for the grand jury the name of the victim that would be the subject of each of these victim-specific offenses. Following the grand jury's vote to indict the defendant on counts 25 and 26, the prosecutor assigned RUA as the subject-victim of count 25 and FH as the subject-victim of count 26.

The prosecutor thereupon told the grand jury that:

A person is guilty of Endangering the Welfare of a Child when, he or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than 17 years old.

A person knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child when that person is aware that he or she is acting in such a manner.

The defendant's conduct need not be specifically directed at a child.

Actual harm to the child need not result.

Knowledge of the age of the child is not an element of the crime. It is not a defense to this charge that the defendant did not know or believe the age of the child to be 17 years or more.

In support of these charges, the prosecutor, insofar as relevant to the instructions related to these charges, presented the testimony of AA. Ms. AA testified that she and UA are sisters. AA is the mother of FH, HH and UH. UA is the mother of RUA. FH was eleven years old; HH was seven years old, UH was five years old and RUA was five months old on February 12, 2022.

AA, in her testimony before the grand jury, described the events just before the defendant's vehicle crashed into her car parked in front of 195-28 Hillside Avenue.

HH and UH were buckled into their car seats that were secured to the rear seat of Ms. AA's Mercedes SUV. Ms. AA was seated in the driver's seat of her SUV. Her sisters — UA, Rehana, and Safia - were standing on the sidewalk as was FH, her daughter. Rehana was holding RUA who had been buckled into his infant car seat. All were about to enter into the SUV when the defendant's vehicle crashed into Ms. AA's SUV.

The defendant's vehicle had crashed into the rear of Ms. AA's SUV so forcefully that it pushed her vehicle partly onto the sidewalk. After crashing into Ms. AA's vehicle, the momentum of the defendant's vehicle continued, causing the vehicle to smash into a street pole before coming to a stop.

Uninjured, Ms. AA got out of her SUV. All three of her sisters and FH lay on the ground. Rehana, who had been holding the infant car seat in which RUA was strapped, lost control of the car seat. Moments after the crash, Ms. AA's husband recovered RUA, still strapped in his infant car seat, from the ground.

The force of the crash threw FH to the ground and her leg became wedged or stuck under [*17]the left front wheel of the defendant's vehicle. FH's body came to rest near the defendant's front driver's side door in such a way that when the defendant opened his driver's side front door, the door struck FH's body. As Ms. AA went to her daughter, she saw the defendant opening the driver's front door, hitting FH with it. Ms. AA yelled for the defendant to stop, but he persisted. Ms. AA then placed all her weight against the door to keep the defendant from hitting her daughter with the door. The defendant then put the engine of his vehicle in reverse. As Ms. AA heard the engine accelerate, her two other children, HH and UH, had gotten out of her car and were standing directly to the rear of the defendant's vehicle. Fearful the defendant would run over her two younger daughters, Ms. AA told a male passerby to remove the keys of the defendant's vehicle; the passerby reached into the defendant's vehicle and removed the keys thereby averting a further catastrophe.

Endangering the Welfare of a Child may be committed against a child either by a single act or through a course of conduct. (see People v Keindl, 68 NY2nd 410, 421 [1986].) Here, the factual basis of Endangering the Welfare of a Child was based on the defendant's reckless operation of a motor vehicle while unlawfully intoxicated that endangered four child victims.

CPL 200.30(1) provides that "each count of the indictment may charge one offense only" and CPL 200.50(3) requires that an indictment must contain "[a] separate accusation or count addressed to each offense charged, if there be more than one". In order to avoid charging more than one crime in a count, each count must allege that a separate victim was endangered. Here, the prosecutor by submitting to the grand jury two counts of Endangering the Welfare of a Child where the evidence provided established that four children were victims, coupled with the prosecutor's failure in her instructions to link a child victim to each count, rendered each count duplicitous in that each count alleged more than one offense. (see People v Woodley, 201 AD3d 749 [2nd Dept 2022]; People v Jean, 117 AD3d 875, [2nd Dept 2014]; People v Levandowski, 8 AD3d 898 [3rd Dept 2008]; People v Corrado, 161 AD2d 658 [2nd Dept 1990].) The combination of these errors by the prosecutor also frustrated the requirement that an indictment must allege the commission of a crime with sufficient specificity to permit a defendant to know which of the four child victims was the subject of counts 25 and 26. (see People v Bruce A., 141 AD2d 736 [2nd Dept 1988].) Moreover, the prosecutor, following the vote by the grand jury to indict the defendant on counts 25 and 26, by assigning RUA as the subject of count 25 and FH as the subject of count 26, did not cure the deficiency in the instructions since the instructions rendered it impossible to know which victim the grand jury based each count on. (see People v Holtslander, 189 AD3d 1701 [3rd Dept 2020].) Therefore, counts 25 and 26 are dismissed as duplicitous with leave to the People to resubmit the charges to another grand jury.

The People filed a certificate of compliance, pursuant to CPL § 245.50(1) on August 1, 2022. On October 11, 2022, the People filed a supplemental certificate of compliance. The defendant now moves for an order deeming their certificate invalid.

The defendant filed a challenge to the validity of the People's certificate of compliance on September13, 2022. The crux of defendant's argument to invalidate the People's certificate of compliance filed on August 1, 2022, was the People's belated disclosure to the defendant on August 5, 2022, of the body worn video and memo book entries of Police Officer Jill Ragonesi.

The defendant argues that the People failed to "take diligent steps to ascertain the [*18]existence of the subject reports and documents prior to the filing of their first certificate of compliance, nor do they adequately explain the delay in exercising their due diligence." (Defendant's affirmation at 9)

The People acknowledge that they did not turn over these materials until August 5, 2022, but contend that the belated disclosure did not render their certificate invalid.

The court agrees and denies the defendant's motion to invalidate the People's certificate of compliance for the reasons discussed below. The People explained in their affirmation that prior to filing the certificate of compliance they were aware of the existence of Police Officer's Ragonesi's body worn video and memo book entries and made extensive efforts to obtain those records. Following the defendant's arraignment on the felony complaint, the assigned prosecutor made a separate attempt to obtain Police Officer Ragonesi's memo book and video in February, May, and June of 2022. In June of 2022, the assigned prosecutor met with Police Officer Lashaun Greene, the arresting officer, and requested through that officer Police Officer Ragonesi's memo book and video. In July 2022, the assigned prosecutor followed up with Officer Greene to no avail. That same month, the assigned prosecutor attempted to directly contact Police Officer Ragonesi several times to no avail. Thereafter, in July 2022, the assigned prosecutor contacted Police Officer Ragonesi's precinct supervisors multiple times without success. The assigned prosecutor then contacted the NYPD/QDA liaison and requested the missing material but received the wrong video and memo book. Then, on Tuesday, August 2, 2022, the assigned prosecutor received Police Officer Ragonesi's memo book and body worn video and e-shared the documents with the defendant on Friday, August 5, 2022.

Numerous courts have found that belated disclosures should not invalidate a certificate of compliance that was made in good faith after the exercise of due diligence. (see People v Rodriguez, 73 Misc 3d 411 [2021] citing People v Bruni, 71 Misc 3d 913, [Albany County Ct 2021]; People v Erby, 68 Misc 3d 625, [Sup Ct, Bronx County 2020]; People v Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op. 50924[U], 2020 WL 4873901 [Sup Ct, Kings County 2020]; People v Knight, 69 Misc 3d 546, 552 [Sup Ct, Kings County 2020]; People v Lustig, 68 Misc 3d 234, 247 [Sup Ct, Queens County 2020]; People v Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020]; People v Davis, 70 Misc 3d 467, 474-480 [Crim Ct, Bronx County 2020].) Moreover, the discovery statute "should not be construed as an inescapable trap for the diligent prosecutor" (Erby, 68 Misc 3d at 633). Rather, "good faith, due diligence, and reasonableness under the circumstances are the touchstones by which a certificate of compliance must be evaluated" (Rodriguez, 73 Misc 3d at 417). Here, the People's efforts to comply with their discovery obligations evinced all of these qualities. The People, in their affirmation, articulate their "efforts to comply with CPL § 245.20(1) with respect to the statutory subsections or specific items of discovery at issue" (Rodriguez at 417; see also People v Ryklin, 72 Misc 3d 1208[A], 2021 NY Slip Op. 50678 [U], *2, 2021 WL 3085880 [Sup Ct Kings County 2021] ["[T]he failure to provide a 911 call, or two 911 calls, does not per se invalidate a certificate of compliance ..."]). Here, the prosecutor detailed their efforts to obtain the memo book and video before filing their certificate of compliance and demonstrated she acted with due diligence, in good faith, and reasonably under the circumstances, when she undertook multiple efforts to obtain the video and memo book before filing the certificate of compliance. The court finds the People's certificate of compliance was valid even in the absence of these materials. Thus, the defendant's motion to invalidate the People's certificate of compliance and to impose a discovery sanction is denied in its entirety.

The defendant's motion to suppress statement evidence made to law enforcement is granted to the extent that a Huntley/Dunaway hearing is ordered to determine whether the defendant's statements were made in violation of his Miranda rights and whether the defendant's statements were involuntarily made within the meaning of CPL § 60.45. The People consented to a Huntley hearing.

The defendant motion to suppress any physical evidence, post-seizure observations, the results of any physical coordination tests and breathalyzer results is granted to the extent that a Mapp/Dunaway hearing is ordered.

The defendant's motion to suppress the identification procedure in this case or for a Wade/Dunaway hearing is denied.

The People have affirmed that "AA pointed out the defendant to police officers on scene on February 12, 2022, at 195-24 Hillside Avenue, County of Queens ... AA saw the defendant behind the wheel of the car after he drove his car onto the sidewalk, hitting her family members (the other complainants) and when the NYPD arrived on scene, she informed the officers that the defendant was the driver of the car, while the defendant was on scene, before the defendant was arrested." (Affirmation of prosecutor at 4)

In the grand jury, AA testified that when police officers arrived at the scene of the crash in front of 195-24 Hillside Avenue, she "quickly told them this was the driver, so they stood around him and started talking to me. One of the officers went to him. One of the officers was kind of taking notes from me, asking what happened, obviously who I am, what happened, who got hurt, things like that." (GJ tr at 16) Police Officer Greene testified that after he arrived at the scene of the crash at 195-24 Hillside Avenue and saw the complainant the defendant was arrested. (GJ at 57) Although inartful in describing his/her encounter with Ms. AA and the defendant, it is clear that Ms. AA pointed out the defendant to Officer Greene and then the defendant was placed under arrest.

The identification procedure at issue here, a point-out, based on the People's representation and on the Grand Jury testimony of Ms. AA and Officer Greene, was not arranged by the police. It also occurred before the defendant's arrest or detention of any kind, so its legality does not hinge on the propriety of the seizure, and thus, could not be the product of an unlawful police encounter.

The defendant's motion to suppress physical evidence, an identification card and several items of a personal nature, is granted to the extent that a Mapp/Dunaway hearing is ordered.

The defendant's request for a SandovalLuck hearing is referred to the trial court. The People are reminded that the disclosure of any Sandoval/LUCK evidence that they intend to introduce at trial shall be made in accordance with the time frame set forth in CPL § 245.10(1)(b) and 245.20(3).

This court issues this order as both a reminder and a directive that counsel uphold their constitutional, statutory and ethical responsibilities in the above-captioned proceeding:

To the Prosecutor:

The District Attorney and the Assistant responsible for the case, or, if the matter is not [*20]being prosecuted by the District Attorney, the prosecuting agency and its assigned representative, is directed to make timely disclosures of information favorable to the defense as required by Brady v Maryland, 373 US 83 (1963), Giglio v United States, 405 US 150 (1972), People v Geaslen, 54 NY2d 510 (1981), and their progeny under the United States and New York State constitutions, and pursuant to Criminal Procedure Law (CPL) article 245 and Rule 3.8(b) of the New York State Rules of Professional Conduct, as described hereafter.

• The District Attorney and the Assistant responsible for the case have a duty to learn of such favorable information that is known to others acting on the government's behalf in the case, including the police, and should therefore confer with investigative and prosecutorial personnel who acted in this case and review their and their agencies' files directly related to the prosecution or investigation of this case.

• Favorable information could include, but is not limited to:

a) Information that impeaches the credibility of a testifying prosecution witness, including (i) benefits, promises, rewards or inducements, express or tacit, made to a witness by a law enforcement official or law enforcement victim services agency in connection with giving testimony or cooperating in the case; (ii) a witness's prior inconsistent statements, written or oral; (iii) a witness's prior convictions and uncharged criminal conduct; (iv) information that tends to show that a witness has a motive to lie to inculpate the defendant, or a bias against the defendant or in favor of the complainant or the prosecution; and (v) information that tends to show impairment of a witness's ability to perceive, recall, or recount relevant events, including impairment of that ability resulting from mental or physical illness or substance abuse.

b) Information that tends to exculpate, reduce the degree of an offense, or support a potential defense to a charged offense.

c) Information that tends to mitigate the degree of the defendant's culpability as to a charged offense, or to mitigate punishment.

d) Information that tends to undermine evidence of the defendant's identity as a perpetrator of a charged crime, such as a non-identification of the defendant by a witness to a charged crime or an identification or other evidence implicating another person in a manner that tends to cast doubt on the defendant's guilt.

e) Information that could affect in the defendant's favor the ultimate decision on a suppression motion.

• Favorable information shall be disclosed whether or not it is recorded in tangible form, and irrespective of whether the prosecutor credits the information.

• Favorable information must be timely disclosed in accordance with the United States and New York State constitutional standards, and in accordance with the timing provisions of CPL article 245. The prosecutor is reminded that the obligation to disclose is a continuing one. Prosecutors should strive to determine if favorable information exists. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in CPL 245.10(1).

• A protective order may be issued for good cause pursuant to CPL 245.70 with respect to disclosures required under this order.

• Failures to provide disclosure in accordance with CPL Article 245 are subject to the available remedies and sanctions for nondisclosures pursuant to CPL 245.80.

• Only willful and deliberate conduct will constitute a violation of this order or be eligible to result in personal sanctions against a prosecutor.

To Defense Counsel:

Defense counsel, having filed a notice of appearance in the above captioned case, is obligated under both the New York State and the United States Constitution to provide effective representation of defendant. Although the following list is not meant to be exhaustive, counsel shall remain cognizant of the obligation to:

a) Confer with the client about the case and keep the client informed about all significant developments in the case;

b) Timely communicate to the client any and all guilty plea offers, and provide reasonable advice about the advantages and disadvantages of such guilty plea offers and about the potential sentencing ranges that would apply in the case;

c) When applicable based upon the client's immigration status, ensure that the client receives competent advice regarding the immigration consequences in the case as required under Padilla v Kentucky, 559 US 356 (2010);

d) Perform a reasonable investigation of both the facts and the law pertinent to the case (including as applicable, e.g., visiting the scene, interviewing witnesses, subpoenaing pertinent materials, consulting experts, inspecting exhibits, reviewing all discovery materials obtained from the prosecution, researching legal issues, etc.), or, if appropriate, make a reasonable professional judgment not to investigate a particular matter;

e) Comply with the requirements of the New York State Rules of Professional Conduct regarding conflicts of interest, and when appropriate, timely notify the court of a possible conflict so that an inquiry may be undertaken or a ruling made;

f) Possess or acquire a reasonable knowledge and familiarity with criminal substantive, procedural and evidentiary law to ensure constitutionally effective representation in the case; and

g) When the statutory requirements necessary to trigger required notice from the defense are met (e.g., a demand, intent to introduce particular evidence, etc.), comply with the statutory notice obligations for the defense as specified in CPL 250.10, 250.20, and 250.30.

The branch of the motion requesting leave to file additional motions is granted to the extent recognized by CPL 255.20(3).

This constitutes the decision and order of the court.

The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.