SCHOHARIE COUNTY DISTRICT ATTORNEY SUSAN J. MALLERY, ESQ. P.O. BOX 888, Public Safety Facility Schoharie, New York 12157 Tel. (518) 295-2272 Fax (518) 295-2273 susan.mallery@co.schoharie.ny.us Michael L. Breen, Esq. Lora J. Tryon, Esq. Assistant District Attorney Assistant District Attorney October 16, 2019 By Hand Hon, George R. Bartlett, III RECEIVED choharie County Court OCT 16 2019 P.O. Box 669 Schoharie, New York 12157 ‘SchoHAR county cours RE: People v. Nauman Hussain Ind. #2019-33 Dear Judge Bartlett: Enclosed herewith please find the People’s Affirmation in Opposition to Defendant's Omnil ibus Motion and the People’s Memorandum of Law in Opposition. Said documents are being hand delivered to Attorney Lee Kindlon on today’s date. An Affidavit of Service will be submitted upon completion of the personal service. Respectfully yours, SUSAN J MALLERY, ESQ. District Attorney SIM/et Enel, Ce: Lee Kindlon, Esq. (w/ene. - By Hand)STATE OF NEW YORK SCHOHARIE COUNTY COURT EOPLE OF THE STATE OF NEW YORK AFFIRMATION IN OPPOSITION TO THE DEFENDANT'S ~against- OMNIBUS MOTION NAUMAN HUSSAIN, AKA ARSLAN HUSSAIN, Ind. No. 2019-33 AKA SHAWN HUSSAIN, : RECEIVED i OCT 16 20 Defendant. ‘SCHOHARIE COUNTY couRTS Susan J. Mallery, Esq., an attorney duly admitted to practice law in the State of New York, affirms the following statements to be true under penalty of perjury 1 Lam the District Attomey of the County of Schoharie, and am prosecuting the above-captioned ease, and, as such, I am familiar with its facts. I submit this affirmation in opposition to the September 4, 2019 omnibus motion filed by the defendant. ‘The grounds for my information and source of my belief as to all matters set forth herein are the papers contained in the file; conversations with police officers, forensic motor vehicle expert Brian Chase and numerous other witnesses and information gained during the investigation of this matter. 2 As this affirmation is being submitted for the limited purpose of opposing the defendant’s omnibus motion, it does not include all the facts learned during the investigation. Where the contents of documents and the actions, statements and conversations of others are reported here, they are reported in substance and in part, except where otherwise indicated. In addition, the People provided the Court with the grand jury minutes on May 14, 2019. The facts in this affirmation are consistent with the evidence heard by the grand jury.N_AND STATEMENT OF FACTS Procedural History 3. The Schoharie County Grand Jury indicted the defendant for the crimes of Manslaughter in the Second Degree (Penal Law Section 125.15) (20 counts) and Criminally Negligent Homicide (Penal Law Section 125.10) (20 counts). The charges stem from an October 6, 2018 erash that occurred near the intersection of State Routes 30 and 30A in the Town of Schoharie, County of ‘Schoharie, State of New York. The crash caused the deaths of 20 people. The Court arraigned the defendant on the indictment on April 10, 2019. 4 On April 23, 2019, the defendant filed a request for discovery. In response, on May 8, 2019, the People completed our discovery obligations by providing the defendant with a hard drive containing .06 terabytes of discovery and additional paper discovery. The Court set August 5, 2019 as the date for the defendant’s omnibus motion. ‘The defendant requested an adjournment to file his omnibus motion, which he filed on September 4, 2019, ‘The Defendant's Motion 5 Regarding paragraph number one of the defense counsel's affirmation, the People acknowledge that the defendant is represented by the firms of Tacopina & Seigel and Lee Kindlon, sq. and that defense counsel made an affirmation in support of the relief sought in the Notice of Motion. 6 Regarding paragraph number two of the defense counsel’s affirmation, the defense counsel requests the Court schedule hearings if the court denies defense counsel’s motion to dismiss. The People have no opposition to the defense presenting evidence at any hearingsordered by the Court. The People have no opposition to any hearings being scheduled at least 20 days prior to the commencement of trial with the exception of any Sandoval/Ventimiglia hearings. 7 Regarding paragraph three of the defense counsel's affirmation, the People acknowledge defense counsel had access to Nauman Hussain, filed papers in this case, documents made available by the District Attorney's Office and information produced by the defenses investigation, 8 Regarding paragraph four of the defense counsel's affirmation, the People concede or admit the general statements of this paragraph. 9 Regarding paragraph number five of the defense counsel’s affirmation, the People deny the factual allegations suggested by the defense counsel. The defendant provides no swom. allegations to the central premise of his motion that he was merely an “administrator” of the limousine company and was totally ignorant of anything to do with the limousine. Nothing could be further from the truth. Our investigation revealed the following facts, among many others, that demonstrate the defendant's control over the limousine and the absolutely negligence and reckless manner in which he used and maintained it, 10. The facts obt ned during our investigation clearly demonstrate that Nauman Hussain was more than just the operator of Prestige Limousine and Chauffeur. The defendant was responsible for the day to day operations of the multiple limousine companies he owned and/or operated: Prestige Limousine, Saratoga Luxury Limousine and Hasy Limousine, He proclaimed ownership of at least two of the three companies that rented out the 2001 Ford Excursion stretch limousine (hereafter the “limousine”) involved in the deadly October 6, 2018 crash. ‘The defendant hired drivers, scheduled drivers to work particular jobs and arranged payment for the drivers. Hehired unqualified drivers without proper commercial driver’s license endorsements to drive the limousine. He received complaints from at least one of his drivers, who refuused to drive the Jimousine because of its poor condition. When another properly licensed driver refuused to drive the limousine due to brake problems, the defendant simply replaced the driver. ‘The defendant hired Scot Lisinicechia, who died on October 6, 2018 to drive the limousine, despite knowing that he was not qualified to drive a 16- or more passenger limousine. The defendant was aware that New York State Trooper Roy placed Mr. Lisinicchia out of service as a driver because he lacked the necessary passenger endorsement when Trooper Roy encountered the limousine on August 2: 2018 in Saratoga. ‘The defendant was both financially and physically responsible for the care and maintenance of the limousine. Since September 2016, the defendant took the limousine on several occassions to mechanies at Mavis Discount Tire in Saratoga for various repairs, including the Vehicle's brakes. The defendant allowed the limousine to be used for commercial purposes despite the fact that the limousine had brakes that did not function properly. The defendant failed or refused to have the limousine undergo a rigorous mandatory semiannual NYSDOT bus inspection. Instead, he sought out a DMY inspection that was completely inadequate for a commercial vehicle transporting 16 or more passengers. ul Regarding paragraph number six of the defense counsel’s affirmation, the People have provided the defense with an 83 page expert report plus exhibits by expert Brian Chase. The People deny the defense’s interpretation of the report. The report of Brian Chase speaks for itself. 12. Regarding paragraph number seven of the defense counsel’s affirmation, the People deny the material allegations and oppose the relief sought.13. Regarding paragraph number B(8-14) of the defense counsel’s affirmation, the Exhibits speak for themselves. 14, In the defense counsel's Notice of Motion, the defense seeks: a. Inspection and release of the Grand Jury minutes; b. Dismissal of all counts based on insufficient evidence; ¢. Suppression of statements attributed to the defendant; d. Disclosure of Brady material; Disclosure of Sandoval material; and f Leave to file additional motions. Events in the Months Before the rash Put the Defendant on Noti 15, Itis essential that the Court understand the chronology of events involving the limousine in the months before the defendant put it on the road and caused the death of twenty people. The limousine was acquired on or about July of 2016, Since this time, the defendant was aware of the maintenance required for this vehicle, the need for New York State Department of ynnual bus Transportation (“NYSDOT”) operating authority, and the need for a NYSDOT ser inspection. Although the defendant generally learned of these requirements from the former limousine owner's agent, this information was also directly conveyed to the defendant by NYSDOT. As outlined in more detail below, the NYSDOT Transportation informed the defendant ‘on or about June 9, 2017 that the limousine was not permitted to carry passengers for hire and was subject to a NYSDOT bus inspection prior to receiving authority to operate as a for hire vehicle. In addition, multiple other events occurred that put the defendant on notice that his failure to havethe limousine properly \spected, remedy violations and properly maintain the limousine would inevitably lead to the tragedy of October 6, 2018. The chronology shows in detail the numerous times that the defendant was put on notice. He could have taken steps to prevent the crash but failed to do so. 16. Between 2017 and October 6, 2018, the defendant knew or should have known, about the limousine’s condition from conversations with previous drivers. He was aware that the condition of his limousine fleet was deteriorating. Drivers consistently experienced problems with the fleet — specifically the limousine involved in the deadly October crash. 17. During prom season in 2017, a driver experienced a problem with the brakes of the limousine involved in the deadly crash. On this occasion, the driver stated that when he tried to stop, the brake pedal went “pretty much to the floor.” He was only able to stop by driving extremely cautious and repeatedly pumping the brake pedal. The driver informed the defendant of this problem, and the defendant had a mechanic at a repair shop look at the limousine’s brakes. Despite a confirmed brake problems, the defendant asked the driver to use the vehicle to transport passengers to a prom. When the driver refused, the defendant simply found another person to drive the limousine. Afier this experience, the driver informed the defendant that he did not trust the limousine and never drove it again 18, According to former drivers, the defendant would not properly address issues they raised about his fleet of limousines, Instead, the defendant chose to ignore the problems or only perform quick, temporary, and cheap repairs, 19, The defendant's negligent and reckless approach to vehicle maintenance continued when issues were raised by NYSDOT. On June 9, 2017, DOT Intermodal Transportation Specialist 1 Chad‘Smith (hereafter “Mr, Smith”) emailed the defendant at the email address hasylimousine@yahoo.com, warning him that he did not have DOT authority to operate the limousine. Mr. Smith instructed the defendant that the law required “the vehicle/driver to comply with having a USDOT number, CDLs [Commereial Driver's License], drug and aleohol testing and the company would need to comply with commercial motor vehicle requirements if using the vehicle in furtherance of commercial enterprise.” ‘Among other things, Mr. Smith provided the defendant with the name of a NYSDOT contact person, a link to NYSDOT requitements and applications, a link for information about NYSDOT bus inspections and what they requite, and a link for certified driver requirements for the limousine. (See Exhibit 1). 20. ANYSDOT Bus Inspection is an inspection performed by New York State Department of Transportation, Specially trained inspectors perform a comprehensive inspection of a vehicle’s exterior, interior, and undercarriage. The undercarriage inspection thoroughly exams the suspension, condition of the driveshaft, condition of the exhaust, and the condition of the brake system. Additionally, a road test is performed using an instrument called a decelerometer. This instrument is used to determine and ensure that the vehicle’s braking system is capable, especially in an emergency, of stopping the vehicle in a safe and appropriate manner, Had the defendant obtained such an inspection before the crash, the compromised brake components would have been discovered and the limousine would again have been placed out of service. 21 On January 8, 2018, Mr. Smith emailed the defendant hasylimousine@yahoo.com confirming their telephone call that day, and to further emphasize that the DOT had issued a notice of violation because the limousine did not have NYSDOT passenger authority. Mr. Smith sent the defendant the notice of violation and wrote that “It appears that you had previously applied for NYSDOT Authority under Prestige Limo but did not follow through on the process of obtaining your full NYSDOTAuthority”. Mr. Smith again gave a contaet person to help with the application for authority. Mr. Smith further stated, “you have several business names here. (Prestige Limo, Hasy Limousines, Saratoga Luxury Limousine). Keep in mind that your NYSDOT Authority would need to reflect the actual business name of your company which may include other names as DBAs — but the actual name of the company needs to be identified.” (See Exhibit 2) 22, On March 15, 2018, Mr. Smith emailed the defendant to discuss NYSDOT authority and he attached an application. (See Exhibit 3). 1e with the defendant, 23. On March 21, 2018, Mr. Smith personally inspected the limou: 1¢ out of service for four who misrepresented himself as Shahed Hussain. Mr. Smith took the limou: 1 that he had violations and issued many other violations. Mr. Smith reminded the defendant by em: Mr. Smith told the defendant that he needed been unable to put the limousine on a lift to fully inspect to fix the out of service violations, and that the other violation would be included in the NYSDOT bus inspection and those violations could prevent the limousine from passing the bus inspection. (See mith placed an out of service sticker on the limousine. Exhibit 4). Mr. 24. The March 21, 2018 NYSDOT violation notice included the following statements: a, BRAKES OUT OF SERVICE: the number of defective brakes was equal to or greater than 20 percent of the service brakes on the vehicle or combination, 25% of brakes defective; b. While the limousine was observed to have 18 seats, only ten passengers were turer's designed seating capacity according to the permitted based on the manuf25. limousine’s MPV FMVSS label (the limousine was missing the final manufacturer's tag); ‘The hydraulic brake line going to axle | on the left side was dangling and was able to make contact with tire on that axle; It appeared that the defendant had placed or permitted to be placed a vice grip on the left side brake connection that constricted the hydraulic brake; ‘The vehicle was not authorized under NYSDOT rules to be used for hire: ‘The defendant had switched, or permitted to be switched the license plate corresponding to the limousine in DMV records; The vehicle showed no proof of the required periodic inspections: A portion of the frame of the vehicle was rusted through; The ABS malfunction indicator remained on while the limousine was in operation; and ‘The emergency exits were defective or inoperable. Subsequent to Mr. Smith’s March 21, 2018 roadside inspection, the defendant took the limousine to a Saratoga Springs mechanic, Mavis Discount Tires (hereafter “Mavis”), Upon information and belief, the sources of which are my interviews with three Mavis employees, ‘a review of the Mavis records and videos and pictures, the defendant had previously taken the limousine for brake repairs to Mavis on or about May 17, 2017 and September 10, 2016. 26. According to interviews with Mavis employees and confirmed with Mavis surveillance video footage, on April 30, 2018, a Mavis employee had a conversation with the Mavis store manager, Virgil Park. The employee told the supervisor that, if the repair was to beright, the limou e needed all new hoses, all new calipers and a master cylinder. The manager told the employee, he had told the defendant that it was a temporary repair, but the defendant was selling the limousine, 27. According interviews with Mavis employees and confirmed with Mavis surveillance video footage, on May 11, 2018 at approximately 9 2 am., the defendant is observed speaking to the store manager ~ Virgil Park. This interaction shows the defendant was informed about potential brake issues. During this interaction, Mr. Park informs the defendant that “tranny and brake fluid doesn’t mix.” He also informs the defendant that the limousine has “brakes now and I’m hoping it stays that way because if it happens again then your gonna need the other three calipers.” Mr, Park stated that the defendant was “cheap”, The defendant and Mr. Park went to test drive the limousine. 28. On August 2, 2018, Chad Smith of NYSDOT sent an email to the defendant about things that would need to be fixed in order for the limousine to be in compliance and used for commercial service. (See Exhibit 5). 29. On August 25, 2018, New York State Trooper David Roy stopped the limousine in Saratoga after observing it drop off passengers at the Saratoga Race Track. After initiating the stop, Trooper Roy permitted the limousine to be returned to its storage location on Weibel Avenue, where he conducted a level 3 inspection. This type of inspection only involves reviewing the vehicle's inspection status and the driver’s credentials — in this case Scott Lisinicel The defendant was present for the inspection, and he was directly informed from Trooper Roy about the following: Scott Lisiniechia did not have a passenger vehicle endorsement on his commercial driver's license and Mr. Lisinicchia was not legally allowed to drive the limousine. Trooper Roy's 10inspection further informed the defendant about other violations relating to the limousine, which included the lack of proper USDOT markings on the vehicle. Trooper Roy advised the defendant about the violations for improper markings, and the defendant indicated he was already aware of this requirement. See Exhibit 6. At the conclusion of his inspection, Trooper Roy referred the matter toa NYSDOT investigator ~ Martin Dufly 30. Inresponse to Trooper Roy’s referral, NYSDOT Investigator Martin Dufly performed a visual inspection of the limousine on August 25, 2018. Although he was not able to access inside the limousine, he observed the limousine lacked the proper and necessary NYSDOT bus inspection. Based on this observation and information conveyed by Trooper Roy, Investigator Duffy issued the defendant a notice of violation for operating the limousine without NYSDOT authority and more importantly for operating the limousine without a NYSDOT bus inspection (See Exhibit 7). This notice of violation was issued on or about September 10, 2018, (written as September 1, 2018) and it was mailed to the address the defendant provided to Trooper Roy - 776 Route 9 Gansevoort NY 12831. 31. On September 4, 2018, Mr. Smith performed a follow up inspection of the limousine. The man who was there (and who had previously identified himself as Shahed Hussain) now admitted that he was the defendant, Although Mr. Smith observed that the vice grip he noted during his March 21, 2018 inspection was removed from the brake line and the left rear tire appeared to have newer parts, the limousine still had three out of service violations: no or defective bus emergency exits; operating a motor coach with seating in excess of manufacturer seating capacity; and an ABS line by axle 1 left side which was dangling and able to make contact with the front left tire. Mr. Smith further identified ten additional violations, including failure to correct, nTdefects or provide evidence of the correction of defects listed on the March 21, 2018 inspection report. See Exhibit 8, 32. Mr. Smith again placed an out of service sticker on the limousine. He also took two other limousines belonging to the defendant out of service for serious violations. 33. On September 4, 2018, Chad Smith again emailed the defendant. See Exhibit 9. Mr. Smith told the defendant that: The most re intly noted “violations need to be corrected before the vehicle can be used on the roadways in New York State;” “Your larger vehicle requires NYSDOT Authority and a NYSDOT Bus Inspection to operate legally in NYS"; and “You have been cited for failure to correct defects indicated on the previous inspection I conducted on March 21st, 2018. If you have any documentation to show that these violations were addressed after March 21st, 2018, please send those to me within the next 48 hours. 34. On September 6, 2018, Mr. Smith emailed the defendant to tell him that he had not received proof that the March 21, 2018 outstanding violations were fixed and told the defendant that the limousine’s registration was scheduled to b suspended. He provided a contact person for the defendant to speak to. ‘The defendant then emailed Mr. Smith, “I will contact him in the morning to get it situated. Thank you Shawn”. See Exhibit 10. 35. On September 19, 2018, the NYSDOT inspector emailed the defendant to tell him that “In addition to the information I requested in regards to your DBA documents, | will also cers. If there require any drug and/or alcohol testing documents of information on any of your di are no records you can just respond and tell me that fact.” See Exhibit 11 36. Thereafter, the defendant and Mr. Smith sent emails back and forth regarding the actual business names and the correct nature of the business. The defendant listed the legalname/DBA Name: as “Shahed Hussain / Prestige Limousine Chauffeur Service Saratoga Luxury Limousine Hasy limousine with a physical address of 776 Saratoga Road, Gansevoort, NY 12831- 3233.” Mr. Smith continued to request DBA’s for “Shawn's” businesses and drug and alcohol testing for “Shawn's” drivers. 37. Between March 21, 2018 and the day of the crash, the defendant did not sul the limousine to the NYSDOT bus inspection. Each time he was emailed about the violations, he did not bring the limousine into compliance. At times, he complained that he could not figure out how to access the DOT website or that he was “sick all day”. See Exhibit 12. 38. Five days before the crash, on October 1, 2018, Mr. Smith again emailed the defendant to tell him that he had not received the requested documents. 39. The day before the crash, on October 5, 2018, Mr. Smith called the defendant to report that the NYSDOT had not received the DBA documents and the drug and alcohol testing information. The defendant told Mr. Smith that the necessary information would be sent the following Monday, October 8". 40. Despite knowingly not having DOT authority to operate and a properly performed NYSDOT bus inspection, the defendant contracted with Axel Steenberg on the morning of October 6, 2018, agreeing to transport Axel — and 16 of his friends and family ~ through the hilly roads of Montgomery, Schoharie, and Otsego Counties, in a nearly 18 year old, extremely poorly- maintained 2001 Ford Excursion stretch limousine that was not safe to carry 18 people. The defendant specifically knew or should have known that the limousine had compromised brake components and many other neglected parts. The limousine was improperly inspected, had an improperly licensed driver, was improperly registered, and improperly maintained. 341. When the defendant was arrested on October 10, 2018 a shredded NYSDO1 service” sticker was found in his possession ~ with DNA consistent with his own DNA on 42. Despite the fact that the defendant knew the terrible condition of the limousine and its DOT commercial vehicle ineligibility, NYS BCI Investigator Hock observed , there was a Craigslist posting just days before the crash listing the limousine for sale, stating that the vehicle was in “excellent” “very clean, inside and out” condition, that it could carry 18 passengers, and that it was “DOT ready full serviced”. See Exhibit 13. ‘The Mechanical Cause of the Crash was Catastrophic Brake Failure 43. Afier the crash, the New York State Police hired Brian Chase, Chief Vehicle Forensies Expert for Comprehensive Motor Vehicle Services & Consulting, to determine the mechanical cause of the crash (as opposed to the legal cause, which the case law cited in the attached memorandum of law clearly demonstrates was the direct result of the defendant's misconduct.) In his Motor Vehicle Forensic Analy is Report (See Exhibit 14 annexed hereto and made a part hereof), Mr. Chase very precisely and methodically lists his opinions and conclusions. The cause of the crash was neither hypothetical nor speculative. In short, Mr. Chase concluded that the mechanical cause of the crash was due to catastrophic brake failure resulting from a protracted history of neglect of proper inspection and maintenance of the nearly 18-year-old limousine. 44, Mr. Chase noted the following pre-existing and severe brake system deficiencies with the defendant's limousine: a. The right rear wheel brake was inoperable, attributable to pre-existing deficiencies of the two seized disc brake caliper pistons. 1445. ‘The left rear wheel brake had reduced brake efficiency, attributable to pre-existing deficiencies/deterioration of disc brake rotor swept area condition, as well as reduced hydraulic brake force. The disc brake rotor sweep area is the sole portion of the rotor that makes contact with the dise brake pad. ‘The right front wheel brake had reduced brake efficient attributable to pre- existing deficiencies/deterioration of dise brake rotor swept area condition, as well as disc brake pad friction material condition. The dise brake rotor sweep area is the sole portion of the rotor that makes contaet with the dise brake pad. ‘The left front wheel brake had reduced brake e! incy, attributable to pre-existing deficiencies of dise brake rotor swept area condition, as well as disc brake pad fi mn material condition, The dise brake rotor sweep area is the sole portion of the rotor that makes contact with the dise brake pad. ‘The rear crossover brake tubing was severely corroded ultimately realizing burst failure from brake Mud pressure relied upon to activate the hydraulic braking system of the limousine. ‘The limousine was equipped with the left front tire of a different size then the right front tire, which resulted in unequal braking of the front wheel location. Simply stated, the pre-existing deficiencies of the brake system components of the limousine created a condition of inadequate slowing/stopping ability. Once the rear crossover brake tubing failed due to the pre-existing condition, bral deficient left and right front brake components. Due to the pre: ing of the limousine would rely on the isting inadequate brake efficiency and poor thermal energy transfer attributes of these components, the extreme heat generated by 15braking friction resulted in initial brake fade and ultimately catastrophic brake system failure. It is clear that these pre-exis ng deficiencies resulting from neglectful maintenance would have been discovered through proper compliance with federal and state commercial motor vehicle rules and regulations. 46. It n the context of the facts outlined above, as well as those elaborated more thoroughly in the grand jury minutes, that this Court must evaluate ~ and deny ~ the defendant's motion to dismiss the indictment. 47. The defendant’s motion provides no sworn testimony to rebut any of these facts. Rather, the motion merely consists of an attorney affirmation and a memorandum of law. The defendant does not submit an affidavit with swom allegations of fact pertinent to his motion to dismiss. Nowhere does the defendant swear that he never drove the limousine or that he knew nothing about the condition of the limousine (both of which, given the undisputed facts above, both the defendant and defense counsel know to be false). Instead, the unsworn memorandum of law, page 16, states that the defendant is “alleged only to have operated the company which owned the subject vehicle, and not to have driven the vehicle himself” and that he was merely in an “administrative” position. 48. Criminal Procedure Law Section 710.60(1) requires: “The motion papers must state the ground or grounds of the motion and must contain swom allegations of fact, whether of the defendant or of another person or persons, supporting such grounds.” Here, defense counsel makes unsworn allegations in his memorandum of law. He does not include sworn supporting affidavits of facts. Instead, defense counsel disingenuously states, “Nauman Hussain adopts and incorporates herein by reference the averments made by his attorney”. (Mem. p. 3). Since the 16defendant has not complied with the requirement for sub itting allegations of fact, this Court should disregard all of the alleged “fact in the motion, attorney affirmation and memorandum of law. THE COURT SHOULD DENY THE DEFENDANT'S MOTION ‘TO RELEASE THE GRAND JURY MINUTES AND DISMISS THE INDICTMENT The People Consent to the Court's Inspection of the Grand Jury Minutes. 49, The People consent to the Court’s inspection of the grand jury minutes and exhibits, ‘The People provided the minutes to the Court on May 14, 2019. Inspection of those minutes will demonstrate that the evidence presented to the grand jury fully supports the counts charged in t and that the People properly charged the grand jury ‘The Court Should Deny the Defendant’s Request for Release of the Grand Jury Minutes, 50. ‘The defendant seeks release of the grand jury minutes, The defendant fai provide sworn factual allegations and alleges nothing specifically in support of his claim that he should assist the Court in examining the grand jury minutes. This Court is obviously capable of evaluating the evidence before the grand jury, and the People oppose releasing the grand jury minutes to the defendant. 31 Criminal Procedure Law Section 210.30(3) permits the People to assert why release of grand jury minutes would not be in the public interest. This is easily shown. In a high profile, sensitive case such as this, with so much press coverage of materials the People submitted to the Court, the Court should not create the risk that the minutes will be exposed to the public and possibly taint the jury pool. 752. The release of grand jury minutes to any person “run[s] counter to the long, standing and fundamental doctrine of the secrecy of grand jury minutes.” In re Larry N.Y.2d 244, 250-251 (1982). Criminal Procedure Law Section 210.30(3) authorizes release of the minutes to the defendant only i the court finds that such release “is necessary to assist the court in ‘making its determination on the motion, ...” . The court may then release the minutes provided that “such release shall be limited to that grand jury testimony which is relevant to a determination of whether the evidence before the grand jury was legally sufficient to support a charge or charges contained in such indictment.” C.P.L, Section 210.30(3). If this Court were to acknowledge that it is incapable of rendering a decision without the assistance of defense counsel, the statute only authorizes release of the grand jury minutes after the People have been “given an opportunity to present argument to the court that the release of the minutes, or any portion thereof, would not be in the public interest.” C.P.L. Section 210.30(3)._ Itis against the public interest to permit pro forma inspection of the grand jury testimony by a defendant, inasmuch as such inspection controverts the statutory intent that grand jury proceedings remain secret. 53. Asstated above, defendant will receive, in a timely manner prior to trial, any portion of the grand jury minutes to which he is entitled. The People oppose release of any further portion of the grand jury minutes and this portion of the defendant's motion should be denied. 34, The Grand Jury indicted the defendant for the crimes of Manslaughter in the Second Degree (P.L. Section 125.15) (20 counts) and Criminally Negligent Homicide (P.L. Section 125.10) (20 counts). 1858. The defendant makes unsubstantiated claims that the evidence before the grand [jury was insufficient to support these charges. ‘The defendant speculatively alleges that the People “could not possibly” have submitted legally sufficient evidence, and the evidence “must have been” legally insufficient to support the elements of legal causation, as an element of both manslaughter and criminally negligent homicide. The defense asserts that, there could have been “no legally sufficient proof” before the Grand Jury. (Mem. pp.5, 6 and 16) 56. Notably, the defendant appears to concede that his conduct satisfies the mens rea element and makes no claim that the grand jury improperly found that he was negligent and/or reckless in causing the crash and the deaths of 20 people. 57. With regard to his sole argument about causation, the defendant makes the conclusory statement that “there is no possible circumstance in which Mr. Hussain should have reasonably foreseen that this trag accident would occur in the manner that it did”. (Mem. p. 2) ‘The People assert that the Court's review of the grand jury minutes and exhibits will demonstrate that the evidence was legally sufficient as to this element, and each and every other element of the crimes charged. 58. Asnoted in the attached memorandum of law, under the principles set forth in the relevant case law, the grand jury heard legally sufficient evidence to establish each and every clement of the crimes charged, and particularly, that the defendant's conduct caused the victims” deaths. 19THE PEOPLE CONSENT TO THE DEFENDANT'S REQUEST FOR A HUNTLEY HEARING 59, Regarding defense counsel’s Notice of Motion and Memorandum of Law Section “II” and first paragraph and paragraphs 1-11 and second paragraph through fifth following paragraphs, the People deny the factual allegations, oppose suppression but consent to a Huntley hearing. It is our position that all statements made by the defendant are fully admissible, having been obtained without any violation of defendant's constitutional rights. The statements that were made by defendant were voluntary in nature and can in no Way be construed to be the product of coercion or other improper conduct by a public servant engaged in law enforcement activity or by ‘a person acting under such public servant's direction or in cooperation with such public. Rather, the defendant was not in custody at the time of his voluntary statements. The substance of the oral and written statements are found in the People’s 710.30 Notice and 710.30 Notice Continuation put forth in defense counsel's memorandum of law and objected to are outlined follows: A. The defendant was not in custody when he gave his oral statement on January 8, 2018. New York State Department of Transportation Motor Carrier Investigator Chad Smith telephoned a number listed on the intemet for Saratoga Luxury Limousine (518) 306-7663. The telephone call was answered as “Saratoga Luxury Limousine”. The person affirmed that he was “Shahed Hussain". Upon information and belief, Nauman Hussain confirmed the license plate on the 2001 Ford Excursion stretch limousine, the address from the registration, hasylimousine@yahoo.com email and location the limousine ‘was parked to conduct a terminal inspection. ‘Thereafter, the telephone call was terminated B. In response to an email from “Shawn info@saratogalusrylimo.com Saratoga Luxury Limousine Main: (518)306-7663" and sent from hasylimousine@yahoo.com, New York State Department of Transportation Motor Carrier Investigator Chad Smith telephoned Saratoga Luxury Limousine at (518)306-7663 on January 12, 2018. The person affirmed he was “Shahed Hussain”. Smith was told the limousine was moved to Mavis for exhaust work. Smith was given permission to go Mavis Discount over on 20iii iv. vi E. |. The follo Broadway and inspect the 2001 Ford Excursion stretch limousine. The telephone call was terminated. The defendant was not in custody at the time of these oral statements, On March 15, 2018, New York State Department of Transportation Motor Carrier Investigator Chad Smith telephoned Saratoga Luxury Limousine at (518)306-7663. The person indicated he was Shahed Hussain. It was agreed that the 2001 Ford Excursion stretch limousine would be made available for \spection at 68 Weibel Avenue on Wednesday, March 21, 2018. The call was terminated. The defendant was not in custody. On March 21, 2018, New York State Department of Transportation Motor Carrier Investigator Chad Smith went to 68 Weibel Avenue. The defendant affirmed he was Shahed Hussain. The defendant expressed that he was looking to bring those items into compliance. The defendant expressed that he would like to get the limousine up to speed. The defendant indicated he has several tan limousines that are both the same make and model, he must have put the wrong plates on the wrong vehicle. After the limousine inspections, the defendant left. The defendant was not in custody when he gave his oral statements. (On August 2, 2018, New York State Department of Transportation Motor Carrier Investigator Chad Smith telephoned Saratoga Luxury Limousine at (518)306-7663. He asked if he was speaking to Shahed Hussain. Mr. Smith received an affirmative response. The discussion followed about how to get the limousine in compliance, related education materials and the outstanding, notice of violation. The telephone call was terminated. The defendant was not in custody when he gave his oral statements. oral statements made by Nauman Hussain to New York State Trooper David Roy on August 25, 2018. After the driver inspection by ‘Trooper Roy, the driver, Scott Lisinicchia left and the defendant stayed. Trooper Roy and Nauman Hussain left separately. The defendant was not in custody when he gave his oral statements. Tam the owner of the company. Can we do the inspection at my place of business? Tam the owner of Saratoga Luxury Limousine, Tam Nauman Hussain, Yes, I have a contract. Yes, I can email you the contract. hasylimousine@yahoo.com. No, I own Saratoga Luxury Limousine. 2vii, viii ix. xi. xii No, that’s my father’s company. Tam just starting Saratoga Luxury Limousine, 716 Saratoga Road, Gansevoort New York 12831. I don’t have a DOT number (assigned to my company). Tam aware that | needed to get a name and DOT number on the side of my vehicle. talked with DOT earlier he said I need the name and number in the sides of the Limo. I'm not sure (when asked other DOT workers he had contact with), G. On August 27, 2018, New York State Department of Transportation Motor Carrier Investigator Chad Smith telephoned (518)306-7663, ‘The person indicated he was Shahed Hussain. It was agreed that the 2001 Ford Excursion stretch limousine would be made available for inspection behind 68 Weibel Avenue Saratoga Springs. The call was terminated. The defendant was not in custody. H. On September 4, 2018, New York State Department of Transportation Motor Carrier Investigator Chad Smith met Nauman Hussain at 68 Weibel Avenue, Saratoga Springs. Mr. Smith asked if the individual was “Shahed Hussain”. The defendant indicated, yes. Mr. Smith asked, “who is Nauman Hussain?” The defendant responded, “It is me.” Mr. Smith asked the defendant, “Who is Shaded Hussain, then?” the defendant responded, “he is my father.” Mr. Smith asked the defendant for clarification for the legal business name and the defendant said, “Prestige Limousine.” Mr. Smith asked if the business was a DBA and the defendant stated, the business under Shahed Hussain. The defendant stated the business was a sole proprietorship. Mr. Smith asked if the defendant had authority to act for Shahed Hussain and the defendant stated that he did. Mr. Smith and the defendant left the location separately. The defendant ‘was not in custody I. On October 5, 2018, New York State Department of Transportation Motor Carrier Investigator Chad Smith telephoned (518)306-7663. Mr. Smith asked if the person he was speaking with was Nauman Hussain. The person responded yes. Mr. Smith requested DBA documents and drug and aleohol testing information and arrangements for sending those items to Mr. Smith were made. The telephone call ended. The defendant was not in custody. J. The defendant was not in custody when he gave his oral statement on October 6, 2018, at approximately 3:34 p.m. to Investigator Hock. Investigator Hock conducted a google search for the Prestige Limousine telephone number listed on the internet. Investigator Hock dialed (518)306-7663, the number listed through an internet search through Google.com and associated with the 22business, Prestige Limousine. The purpose of the conversation was to identify the individuals in the Limousine that had crashed. K. On October 6, 2018, the defendant and Melissa Bell drove to Investigator Burns and voluntarily met with New York State Police Investigator Burns to memorialize the oral statement/information Nauman Hussain had provided New York State Police Investigator Hock. Nauman Hussain provided a written deposition between 5:16 p.m. and 5:43 p.m. on October 6, 2018 and Nauman Hussain and Melissa Bell left. The defendant was not in custody. 60. Contrary to defense counsel’s unsworn allegations in the memorandum of law, the defendant was never in custody and was never interrogated by the police when making these statements. After each of the defendant’s voluntary statements, the telephone call was disconnected or he left the station. The defendant's written voluntary statement was given to help the investigators identify the victims of the limousine crash. ‘Therefore, the defendant’s statements should not be suppressed. (See Exhibit 15 for the Peoples Notice of 710.30 and Continuation of 710,30 annexed hereto and made a part hereof). THE PEOPLE ARE AWARE OF, HAVE COMPLIED WITH, AND WILL CONTINUE TO COMPLY WITH THEIR BRADY OBi :ATIONS, 6 Regarding defense counsel’s Notice of Motion and Memorandum of Law Section “III” and first paragraph and paragraphs one through eight, the People are aware of their obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and have provided, and will continue to provide, any and all evidence that may be exculpatory if and when such material comes into the custody and/or control of the People. To the extent the defense is requesting material that falls outside the scope of Brady and its progeny, the request should be denied. 23|E PEOPLE WILL PROVIDE SANDOVAL MATERIAL AT THE APPROPRIATE TIME 62. Regarding defense counsel’s Notice of Motion and Memorandum of Law Section “IV” and first and second paragraphs, the People oppose suppression of any evidence of defendant's arrest record, conviction record, prior immoral, vicious or other bad acts for use in the cross-examination of the defendant or in their case-in-chief. 63. The People consent to a Sandoval hearing (People v. Sandoval, 34 N.Y.2d 371 (1974). Generally, when a Sandoval ruling is requested, the defendant has the burden to inform the court of the prior convictions and misconduct wl h might unfairly affect him as a witness in his or her own behalf, People v, Matthews, 68 N.Y.2d 118 (1986). At this ime, the People intend to inquire about the defendant's prior convictions should he take the stand. Once the defendant has obtained a copy of his criminal history from the Court, the People request the defendant comply with the requirements of Sandoval and its progeny and provide an affidavit of any prior criminal convictions he wishes to have excluded from cross examination. Once he has done so, the People will notify the defendant of all specific instances of “prior uncharged criminal, vicious, or immoral conduct” which they intend to use at trial for impeachment purposes. See C.P.L. Section 240.43 HE PEOPLE TAKE NO POSITION ON THE DEFENDANT’S REQUEST FOR ADDITIONAL TIME TO MAKE MOTIONS 64. At this time, the People take no position as to the defendant's request for time to make further motions. The People do reserve the right to object to future motions if and when they are made.WHEREFORE, the People respectfully request that the defendant's motion be denied in all respects except as to those requests to which the People consent. Dated: Schoharie New York October 16, 2019 Public Safety Facility 157 Depot Lane, P.O. Box 888 Schoharie, New York 12157 Phone: (518) 295-2272; Fax (518) 295-2273 ce: LEE C. KINDLON, ESQ. ‘The Kindon Law Firm, PLLC 52 James Street Albany, New York 12207 Tel: (518) 434-1493 Fax: (518) 935-9336 Attorneys for the defendant 25STATE OF NEW YORK RECEIVED SCHOHARIE COUNTY COURT ‘SCHOHARIE COUNTY couRTs THE PEOPLE OF THE STATE OF NEW YORK Ind. No. 2019-33 -against- MEMORANDUM OF LAW NAUMAN HUSSAIN, AKA ARSLAN HUSSAIN, AKA SHAWN HUSSAIN, Defendant. ‘THE PEOPLES’ MEMORANDUM OF LAW IN OPPOSITION TO THE DEFENDANT’S OMNIBUS MOTION Statement of Facts The People hereby incorporate by reference all the facts contained in the affirmation of Susan J. Mallery in opposition to the defendant's omnibus motion. THE COURT SHOULD DENY ‘THE DEI S MOTION TO DISMISS THE INDICTMENT. ENDA’ The defendant's motion seeks the following: a) inspection and release of the Grand Jury minutes; b) dismissal of the indictment because of insufficient evidence; ¢) suppression of statements attributed to the defendant; d) disclosure of Brady material; e) disclosure of Sandoval material; and f) leave to file additional motions. In support of these requests, the defendant filed. an attorney affirmation and a memorandum of law but no sworn allegations of fact as required by c .L.. Section 710.60. ‘As noted in the attached affirmation, the People consent to the Court’s inspection of the grand jury minutes and to a Huntley hearing. ‘The People take no position as to whether the Court should permit the defendant to file additional motions. The People oppose the defendant'smotion to dismiss the indictment. This memorandum of law will address the reasons why the law requi ss the Court to deny the defendant’s motion to dismiss the indictment. ‘The defendant alleges that the evidence before the grand jury was insufficient to support the indicted charges. With no basis in fact or law, the defendant speculates that the People ould not possibly” have submitted legally sufficient evidence, and the evidence “must have been” legally insufficient to support the element of legal causation. The defendant makes the conclusory and unsupported statement that “there is no possible circumstance in which Mr. Hussain should have reasonably foreseen that this tragic accident would occur in the manner that it did”. (Mem. p. 2). The People assert that the Court’s review of the grand jury minutes and exhibits will demonstrate that the evidence was legally sufficient as to this element — and each and every other element relating to the crimes charged. ‘The People submit that there was ample competent evidence before the grand jury to support the erimes charged. In support of his motion, the defendant is required to demonstrate a “clear showing that the evidence presented before grand jury, if unexplained and uncontradicted, ‘would not warrant a conviction by a trial jury.” See People v. Scott, 131 A.D.2d 893, 894 (2d Dept. 1987). The defendant's burden is heavy, for he must overcome the presumption of validity that attaches to Grand Jury indictments, See People v. Green, 80 A.D.2d 995 (4th Dept. 1981) (Grand jury indictment is presumptively valid” (citing People v. Waterman, 9 N.Y.2d 561. 565 (1961) and People v. Rallo, 46 A.D.2d 518, 527, aff'd 39 N.Y.2d 217)). See also People v, Eason, 45 A.D.2d 863 (2d Dept. 1974) and People v. Jackson, 32 A.D.2d 590 (3rd Dept. 1968). The evidence before the grand jury must be viewed in a light most favorable to the People. SeePeople v. Jennings, 69 N.Y.24 103, 114 (1986). The Court should defer all questions as to the weight and quality of the evidence for trial. See People v. Swamp, 84 N.Y.2d 725, 730 (1995) As acknowledged by the defendant, in reviewing the sufficiency of the evidence before the grand jury, itis well established that the Court must view the evidence in the light most, favorable to the People, and should defer all questions as to the weight and quality of the evidence for trial. People v. Swamp, 84 N.Y.2d 725 (1995). See also People v. Grant, 17 N.Y.2d 613 (2011); People v. Jensen , 86 NY2d 248 (1995) (in a motion to dismiss the indictment for insufficiency, the court must view the evidence in the light most favorable to the People, and itis irrelevant if proof presented to the grand jury is also susceptible of inferences of innocence so long as the grand jury could rationally infer that the defendant was guilty) (citing People v. Deegan, 69 N.Y.2d 976 (1987) and People v. Mayo, 36 N.Y.2d 1002 (1975); and People v. Spratley, 152 A.D.2d 195 (3"" Dept. 2017) (a reviewing court must consider whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant convietion by a petit jury and the court must limit its inquiry to assessing whether the facts and logical inferences supply proof of elements of the charged crimes and whether the grand jury could rationally draw a guilty inference) (internal quotation marks and citations omitted). THE INDICTMENT IS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE ‘The defendant's only argument is that the evidence “must have been” insufficient to prove legal causation, Over the years, New York and other state courts have analyzed when and how a defendant can be deemed to have “caused” a death. The New York Court of Appeals has provided guidance in several cases. See, e.g., People v. DaCosta, 6 N.Y.3d 181 (2006); People vStewart, 40 N.Y.2d 692,697 (1976); People v. Kibbe, 35 N.Y.2d 407 (1974); and People v. Hernandez, 82 N.Y.2d 309 (1993). The holdings are nec ly very case and fact specific. However, there is one case directly on point, decided in this Department, which the defendant conspicuously fails to cite. In People v. Congregation Khal Chaisidei Skwere, 232 A.D.2d 919 (3rd Dept. 1996), aff'd, 89 N.Y.2d 984, the defendant, a summer camp owner, was found guilty of, among other things, criminally negligent homicide. In Congregation, the defendant asked a teenage driver to drive 18 employees to another camp in a 15-person van, which broke down on the way. Later, the defendant asked the same driver to drive a newly purchased, six-passenger 1983 Suburban in the rain, back to the camp to pick up 16 employees. The Suburban had been purchased right before its State inspection was due to expire, and it was not re-inspected before the crash, In addition, the owner had not evaluated the Suburban’s safety before turing that task over to the teenage driver, a person with no safety training, without making any effort to find out if the driver was able to accomplish it. On the way back, the Suburban hydroplaned, left the road and ultimately struck a tree. Two of the passengers ied and seven others were injured. The defendant was convicted after nonjury trial of, among other things, criminally negligent homicide and reckless endangerment. The Third Department affirmed the convictions, holding that the defendant's conduct in “allowing the driver to operate this lately purchased, uninspected, used vehicle to transport staffers and, on occasion, campers. created a substantial and unjustifiable risk of injury or death.” Most significant, and completely applicable to this case, the court ruled that: there is no question that defendant's failure to remedy the unsafe conditions that would have heen uncovered by a timely inspection, prior to placing the vehicle in service, was a “direct cause of the accident” (citing People v Stewart, 40 NY2d 692, 697 (1976)), ‘The uncontroverted testimony of the People’s expert established that the vehicle, which 4‘was traveling at a speed in excess of 60 miles per hour, hydroplaned as a result of the inadequacy of the tread depth of the two front tires, and that at least one of those tires would not have passed inspection. That an accident might occur in this fashion, as a result of [the defendant's] dereliction, was foreseeable under the circumstances (see, People v Roth, 80 NY2d 239, 243-244). (Emphasis added.) The fa tual scenario i ‘ongregation is directly on point. Without reference to grand jury materials, the evidence adduced in this case demonstrates that: despite repeated wamings just months and days before the crash, the defendant chose not to have the 2001 Ford Explorer stretch limousine inspected pursuant to a New York State Department of Transportation semi- annual bus inspection. If'such an inspection occurred, it is reasonable to infer that the brake components that were negligently maintained and not operating properly would again cause the vehicle to be taken out of service byNYSDOT until properly repaired, But the defendant did not censure that his nearly 18-year old, neglected limousine had properly working brake components when he rented the car to 17 young friends and family members. Nor was it reasonable for him to assume that Scott Lisinicchia, who did not have the proper commercial driver’s license endorsement to drive the limousine, was capable of evaluating the limousine’s safety. The defendant knew or should have known about the poor condition of the brakes. The NYSDOT had taken the limousine out of service twice before the crash and the NYSDOT specifically listed brake-related issues as reasons for removing the limousine from the road. The defendant was also aware of the poor condition of the limousine’s brakes, based on his conversations with drivers and Mavis employees. ‘The application of the legal standards set forth in Congregation have been applied by the Court of Appeals in subsequent cases. Most recently, in People v, DaCosta, 6 N.Y.3d 181 (2006), the Court summarized the relevant standards in analyzing whether the defendant causedthe death of a police officer who was chasing him and subsequently killed by traffic. The Court affirmed the defendant's com n of manslaughter in the second degree, since the defendant's conduct “set in motion and legally caused the death” of the police officer, emphasizing that “had defendant not fled, [the officer] would not have faced the circumstances that ultimately resulted in his death.” In reaching its decision, the Court relied on the following principles (citations omitted ) the defendant’s conduct must actually contribute to the victim's death by setting in ‘motion the events that result in the death; 2) liability will attach even if the defendant's conduct is not the sole cause of death if the actions were a sufficiently direct cause of the ensuing death; 3) more than an obscure or merely probable connection between the conduct and result is required; and 4) an act qualifies as a sufficiently direct cause when the ultimate harm should have been reasonably foreseen. Here, the grand jury heard legally sufficient evidence to determine that each of these principles was satisfied: Had the defendant not engaged in the misconduct that he did, the 20 vietims “would not have faced the circumstances that ultimately resulted in {their] death”. The grand jury properly found that the defendant's conduct set in motion the events that led to 20 deaths, There was not an obscure or merely probable connection between the defendant's ‘misconduct and the deaths, and he should reasonably have foreseen that the extremely poorly maintained, out-of-service, uninspected limousine was going to fail. In the weeks before the crash, the defendant was repeatedly told to remedy the violations and obtain a DOT bus inspection. Instead, the defendant avoided the cost of the necessary repairs and steps to bring the limousine into DOT compliance. He intended to sell the limousine to an unsuspecting buyer, falsely stating in a Craigslist ad that the limousine was “DOT ready full serviced.” Thedefendant’s disregard of the necessary steps to ensure the limousine’s safety caused the deaths of 20 people. Other Court of Appeals cases are instructive. Some of these eases involve situations where violent action or misconduct was directed towards @ known or unknown individual who later dies. For example, in People v. Hernandez, 82 N.Y.2d 309 (1993), the Court held that the defendants initiated or participated in the chain of events that led to an officer's death by attempting to rob an undercover officer in a failed drug transaction. The Court found that the defendants, in starting a gun battle, should have foreseen that a bullet would go astray and a police officer was killed by another officer's bullet. Notably, the Court emphasized that “foreseeability does not mean that the result must be the most likely event.” Id. at 319 (emphasis added). Also directly applicable are those cases involving a defendant's failure to properly act, which lead to a death. The foremost case involving a defendants failure to act is People v. Kibbe, 35 N.Y.2d 407 (1974). There, the defendants left an incapacitated, barely clothed man on the side of a rural, poorly lit road in freezing temperatures. A pickup driver driving on the road did not have time to react to prevent hitting and Killing the man. The Court rejected the defendants’ argument that they did not cause the man’s death. The Court held that the defendants could be found guilty if their conduct was a “sufficiently direct” cause of death, regardless of whether the defendants intended the ultimate harm, so long as it “should have been foreseen as being reasonably related” to the defendants’ acts. ‘The Court emphasized that the defendants engaged in a “despicable” course of action, and left the victim in a position fromwhich, he “could not extricate himself” and in a condition in which he “could not even protect himself” As this Court ean determine from the grand jury minutes, the defendant engaged in similar wrongful conduct. He left the 20 vietims in this ease in a position from which they could not extricate themselves and facing danger against which they could not protect themselves. He caused them to ride in a nearly 18 year old, stretch limousine that was unsafe, mechanically neglected, improperly inspected, and federal and state noncompliant. The defendant purposely, repeatedly and illegally put the limousine on the road for commercial hire. He took short cuts and made merely temporary fixes to the limousine’s serious deficiencies. He placed or caused to be placed a vice grip on one of the brake lines. He left brake lines dan; 1g near a wheel. He ignored repeated warnings and signs that the limousine’s brakes would fail. Any reasonable person would have foreseen that this misconduct could cause people to die in a crash. Courts in other states have applied similar standards under their laws and found causation in cases similar and consistent with the facts in Congregation and in this case, These cases offer valuable guidance. For example, in State v. Steenburg Homes, 589 N.W.2d 668 (Wis. Ct. Appls 1998), the court affirmed the defendant’s conviction of negligent homicide. In that case, three bicyclists were struck by one of Steenberg's trailers after it detached from one of its tractors. If either the ball hitch or the safety chains had been properly attached, the trailer would not have disengaged and struck the bicyclists, ‘The defendant in Steenburg Homes had not established a procedure to ensure that the ball hitch and safety chains were both secure before a tractor-trailer entered a public roadway. Even though Steenberg knew or should have known of the danger, it had no procedure which required a safety check, such as a form checklist the driver was requiredto complete, showing he had attached the safety chains, before he could begin his driving assignment, Steenberg did not use due diligence to ensure that its employees properly coupled the tractor-trailers and attached the safety chains. The Court thus concluded that the defendant's conduct “was a cause of the bicyclists’ deaths because had there been a checking procedure, established and enforced, the safety chains would have been attached; the trailer would not have detached from the tractor; and the accident would likely not have happened.” The court emphasized that both state and federal law required that safety chains be attached when a trailer is being pulled on a public highway. ‘As in Steenburg Homes, this Court can see that the evidence presented before the grand jury demonstrated that the defendant did not establish procedures, required by state and federal law, to guarantee that the limousine was in proper working order and safe. Instead, he ignored repeated orders to bring the limousine into compliance, to have it properly inspected and to fix violations. He hired drivers who did not have the proper credentials to drive the limousine. He likely removed an out of service sticker and placed the limousine back in service for hire. Had he put in place and followed the necessary procedures pursuant to DOT regulations, the crash would not have happened. ‘The defendant’s actions and omissions directly caused the deaths of 20 people. In Commonwealth v, Fabian, 60 A.3d 146 (Sup. Ct. Pa. 2013), appeal denied, 620 Pa. 719, (Pa. Sup. Ct. 2013), the defendant was convicted of involuntary manslaughter and I needs students and recklessly endangering another person. The victims in that case were speci their aide, who were transported to school by a van, ‘The van’s driver had told the company that there was something wrong with the van and that the van shook when she applied the brakes.She returned to the garage, where she was told that a mechanie would look at the van, According to witnesses, the mechanic later “mashed the brakes three times”, put it on a pulled some of the wheels off, but did not remove the brake drums. The driver drove the van down a “narrow, very steep street with two-way traffic” and the van picked up speed. ‘The driver put her foot on the brake but it went to the floor and there were no brakes. ‘The van's speed inereased and the driver vainly attempted to slow it down by running over grass on the side of the street, The van's speed increased and it hit a tree. The students’ aide was killed. Observations at the scene showed no brakes were applied or there were no brakes working. Inspectors and experts testified that the van should not have been allowed to leave the garage with brake system defects that they found. ‘The defendant was charged and convicted of involuntary manslaughter for causing the death of the students’ aide as a “direct result” of his reckless or negligent failure to properly repair the brakes, Under Pennsylvania law, as in New York, the People must prove a sufficiently direct causal relationship between the acts of a defendant and a victim's death and the defendant's conduct must be a “direct and substantial factor” producing the death. ‘The court in Fabian held that the defendant was responsible for the “duty of maintaining the safety of the vehicles used by the transportation company”, and that “his actions or inactions started the chain of causation which led to the vietim’s death.” Had the defendant “properly performed his duties, the accident would not have occurred.” The court rejected the defendant's claim that the trial evidence invited the jury to speculate about the cause of the crash or his role in it: “Rather, given the Commonwealth's evidence at trial, including the driver's complaint about the vehicle's brakes, and the [defendant's] subsequent “inspection,” the jury could reasonably conclude that 10the van crashed as a result of [defendant's ] failure to insure the van's safety. The Court cited with approval the trial court’s statement: “[cJouple a school van with brakes that could fail at any moment with the topography of Allegheny County, and you have a death warrant for any unfortunate occupant. [The aide’s] death was the direct result of [the defendant's} conduct.” Again, the defendant's behavior in the case before this Court mirrors that of the ‘The defendant was responsible for the maintaining the safety of the limousine and he knew or should have known about the brake problems. The language of the Fabian court could exactly fit the situation here: the defendant hired out a vehicle “with brakes that could fail at any moment”, and he rented it for use on the steep hills of Montgomery, Schoharie County and Otsego Counties. In another case, Commonwealth v. Keysock, 345 A.2d 767 (Sup. Ct. Pa. 1975), the defendant was charged with involuntary manslaughter. He chose to drive a car that was not inspected and did not have proper tires on a rainy, slippery road, and the car was involved in a crash that killed another driver. ‘The court found that the defendant's conduct was the direct cause of the death since he chose to drive the ear with obviously defective tires. The court ruled that if the defendant “had put the tires on his car and taken it to be inspected, as required by law, he would have been told that the tires were not safe for highway use. Thus, it seems clear not only that appellant operated his car with defective tires, but that he did know or should have known of the dangers involved... If the [defendant] had been required to use his car because of some emergency, or if he had taken some precautionary measures, our decision might be different.”Again, the Court’s review of the grand jury minutes will show that the defendant failed to obtain the necessary inspection of the limousine. The inspection could have confirmed for the defendant that the limousine was not safe for commercial use. The defendant rented the limousine, with defective brakes, and he certainly knew of the dangers involved. The defendant's conduct was the direct cause of 20 deaths. Rather than addressing all of the cases directly on point, and spec ically Congregation, the defendant heavily relies on four Court of Appeals cases (People v. Matos, 83 N.Y.2¢ 509, 511 (1994); People v. Roth, 80 N.Y.2d 239 (1992); People v. Stewart, 40 N.Y.2d 692 (1976); and People v. Warner-Lambert Co., 51 N.Y.2d 295 (1980) as well as some lower court cases! for the proposition that he can only be convicted of criminally negligent homicide or manslaughter in the second degree if the deaths of the 20 individuals killed in the erash of the vehicle he owned was “foreseeable in the very ‘manner’ it occurred”. Citing Roth, supra, 80 N.Y.2d 243-44. None of these cases are factually on point. A close examination of the facts of these cases demonstrates that the defendant is misrepresenting the definition of the phrase “manner of occurrence”. As further outlined below, the defendant, citing Roth, attempts to narrowly restrict the definition of the phrase “manner” by adding the word “very.” In fact, the word * ery” appears nowhere in that decision, Further, while the defendant does not explain the facts or findings of these cases, it is important for the " Other cases cited by the defendant are simply inapposite, not controlling, ancient or counterfactual, In Suquisupa, 167 Mise.2d 109 (Sup. Ct, Bronx Co. 1996), the defendant gave an allegedly defective firework that he did not ‘manufacture to a child. In Hiraldo, 177 Mise.2d 33 (Sup. Ct. Kings Co. 1998), the defendant punched the vietim, who later unpredictably died of a heart attack. In Bonaventure, 71 A.D). 900 2d Dept . 1946), the People’s expert stated “I don't know, I wouldn't answer that” when asked about the cause of the crash, 12People to provide this information to the Court, becaus demonstrates how the disingenuous the defendant's argument is. In People v. Matos, 83 N.Y.2d 509 (1994), the defendant was charged with murder when, afier robbing McDonald’s employees at gunpoint, he fled, and a pursuing police officer fell down an airshaft and died, The Court held that the defendant’s actions must have been a contributory cause of death and that he set in motion the events that ultimately resulted in the victim's death, The Court cited holdings in other cases regarding when a defendant’s conduct can be said to have caused a death: 1) the defendant's acts “need not be the sole cause of death’ 2) the defendant's acts must be a “sufficiently direct cause of the ensuing death”; 3) the defendant need not have committed the “final, fatal act”; and 4) “foreseeability does not mean that the result must be the most likely result”, Id, at 511-12. The Court affirmed the murder conviction, stating “defendant's conduct set in motion and legally caused the death of Police Officer Dwyer. Had defendant not first committed an armed violent felony and then attempted to escape by way of the roof, the officer would not have pursued him onto the roof, thereafter plunging to his death in the airshaft”. Id. at $11. The Court held that “it should also be foreseeable that someone might fall while in hot pursuit across urban roofs in the middle of the night.” In People v. Roth, 80 N.Y.2d 239 (1992), both the defendant and the People appealed” from an Appellate Division order which upheld the dismissal and reinstatement of several counts of an indictment against a corporation and individuals. ‘The corporation was engaged in the business of transporting petroleum products. One of its employees died when petroleum vapors 2 The Court of Appeals did not review all aspects of the Appellate Division's order. 80 N.Y.2d at p, 245, fh. * 13exploded while he was cleaning a tank trailer. The People charged the corporation and its district ‘manager and operations manager with, among other charges, “second degree manslaughter, criminally negligent homicide, reckless endangerment, endangering public health, safety or the environment in the second degree and a variety of other charges relating to their handling and documentation of hazardous waste.” 80 N.Y.2d at 242. The People’s theory in Roth was that the defendants were responsible for unsafe conditions and improper practices at the facility, and that the explosion and death of the victim were the foreseeable results of that conduct. The trial court dismissed the homicide charges, and the Appellate Division affirmed the dismissal, because it found that “the evidence before the grand jury was insufficient because it did not establish the “actual triggering cause of the explosion”. Id. at 243. ‘The Court of Appeals agreed that those counts were properly dismissed but reinstated a count (reckless endangerment) because “defendants allowed a tank containing petroleum products to be cleaned without adequate ventilation and in the presence of numerous sources of ignition”. The Court found that the fatal explosion was “triggered by a spark from a nonexplosion proof trouble light.” ‘The spark was produced when water from a pressure washer struck the unprotected bulb. The evidence showed a number of other unsafe conditions at the site which could have caused an explosion. The expert fire investigator somewhat ambiguously opined that he was “99.9% certai that the explosion was caused by a spark from the trouble light. The Court stated: “For purposes of criminal liability, it was not enough to show that, given the variety of dangerous conditions existing at the site, an explosion was foreseeable; instead the People were required to show that it was foreseeable that the explosion would occur in the manner that it did.” Id. at 243-44. In Roth, the court found that the evidence was insufficient to 14prove the criminally negligent homicide and manslaughter counts because it did not show that the defendants should have foreseen that the deceased would “place the unprotected trouble light in the path of the high pressure washer d ‘ing the tank cleaning operation and that an explosion- causing spark would result from this combination.” The court upheld the Reckless Endangerment count, because the evidence was sufficient to demonstrate that the defendants acted recklessly because they “allowed a tank containing petroleum products to be cleaned without adequate ventilation and in the presence of numerous sources of ignition.” Although the defendant does not outline pertinent facts underlying this conclusion, the Appellate Division decision, People v. Roth,176 A.D.2d 1186 (4" Dept. 1991) provides further facts that this Court should consider. In that case, unlike here where the expert’s opinion was precise and uncontroverted, the Appellate Division ruled that the “evidence as to the actual, triggering cause of the explosion was hypothetical and speculative” because the fire investigator, an OSHA investigator and a medical examiner conceded that “other causes of the explosion were possible” and that there were “several other possible sources of ignition”? People v. Roth, 176 A.D.2d at 1187 (emphasis added). Furthermore, in another circumstance not explained by the defendant here, the Appellate Division held that the defendants could not have foreseen the explosion since they were entitled to rely on a warranty that the pressure washer was safe to use ina flammable atmosphere. 1d. * The dissent believed that the majority had misstated the evidence, since the fire investigator testified that he was “99% certain” about the cause of the explosion, and therefore the evidence was not hypothetical and speculative, and was sufficient to prove causation. The sent also held that the cause of the explosion was foreseeable by the at 1189. 15As noted above, in the defendant's argument, Mem. p. 13, when citing to Roth, the defendant makes his own telling addition to the holding of the case: he adds the qualifier “very” before the word “manner” as to the manner of death which the defendant must have foreseen. He does so to support his argument that the People must show that he must have foreseen the precise and specific, cause of the deaths before he can be charged. ‘This is why he somewhat misleadingly adds the word “very” before the phrase “manner of death” in describing the Roth ruling. In fact, the word “very” does not appear in the Court of Appeals decision. Simply put, the defendant is conflating the mechanical causation of the crash with legal causation. ‘The defendant, Mem. p.2, cites People v. Stewart, 40 N.Y.2d 692 (1976) for the proposition that “the occurrence of the death must be more than a mere probability”. The defendant cites only one of the holdings and he does not outline the specific facts of that case. In -wart, the defendant was convicted of Manslaughter in the First Degree after he stabbed the victim, who later died at the hospital. The defendant on appeal asserted that medical malpractice at the treating hospital actually caused the vietim’s death, ‘The Court of Appeals held that “the prosecutor must, at least, prove that the defendant's conduct was an actual cause of death, in the sense that it forged a link in the chain of causes which actually brought about the death” and that it was “a sufficiently direct cause of the ensuing death” and was not merely an “obscure or merely probable connection” to the death. Id, at 696-97 (emphasis added; citations o ied), The Court emphasized that “direct” does not mean “immediate”. It further underscored that a al defendant could still be responsible even if an intervening act or other factors contributed to the death, Id, at 697. A defendant could assert a defense of intervening actions only if the death was “solely attributable” to intervening actions and if his own actions did “not at all” induce the 16death. Given the People’s expert witness’ “irreconcilable” testimony about what caused the victim's cardiac arrest and whether he would have survived if an unrelated hernia surgery had not been performed, the Court reduced the conviction from Manslaughter in the First Degree to Assault in the First Degree. Here, the defendant’s misconduct obviously forged a link in the chain that led to the victims’ deaths. Although the defendant vaguely alleges an intervening cause, he does not even attempt to claim that it was the sole cause of the deaths or that his own conduct “in no way” induced the deaths. ‘The People emphasize the Stewart Court’s holding that “direct” does not ‘mean “immediate” SIN. In People v, Warner-Lambert C 2d 295 (1980), also cited by the defendant, the defendants were a corporation and its officers who were charged with manslaughter and negligent homicide arising out of an explosion and fire at a facility, where six employees died. ‘The Court of Appeals dismissed the indictment charging manslaughter in the second degree and criminally negligent homicide because it found that although there was evidence of a highly flammable chemical at the plant, “there was no proof of what triggered the explosion” and the People's experts merely “theorized” about what happened (emphasis added). Here, Brian Chase’s expert opinion and his testimony before the grand jury as to the cause of the crash was neither hypothetical, speculative, or contradictory. Instead, the grand jury was amply pro led with clear expert and lay testimony as to the cause of the crash, as well as its, foreseeability. + * In People v. Ballenger, 106 A.D.3d 1375 (3% Dept. 2013), the court found that the People did not provide proof of a sufficiently direct cause of death. However, there, unlike here, the expert could not provide an opinion as to the ‘sequence of the collision, the speed of the vehicles; he failed to reconstruct the crash; and offered no opinion to support the conclusion that the ultimate crash was a foreseeable result ofthe intial accident. 7