STATE OF NEW YOK. COUNTY COURT SCHOHARIE COUNTY THE PEOPLE OF THE STATE OF NEW YORK ws Indictment No. 2019-33 NAUMAN HUSSAIN. Defendant. RECEIVED ocr DEFENDANT NAUMAN HUSSAIN’S 7 REPLY MEMORANDUM OF LAW HOMARIE COUNTY courts “SUPPORT OF HIS OMNIBUS MOT! JOSEPH TACOPINA, ESQ CHAD D. SEIGEL, ESQ. Tacopina & Seigel 275 Madison Avenue, 35" Floor New York, New York 10016 Tel: (212) 227-8877 Fax: (212) 619-1028 LEE C. KINDLON, ESQ. The Kindon Law Firm, PLLC 52 James Street Albany, New York 12207 Tel: (518) 434-1493 Fax: (518) 935-9336 Attomeys for Defendant Nauman HussainTABLE OF CONTENTS Table of Authorities eee a Preliminary Statement... 000000600000 c0 cece cece eee cece et eeeeeeeeeees wl Argument .. The Court Should Dismiss the Indictment Based on Grand Jury Insufficiency, Particularly with Respect to the Elements of Legal Causation and Foreseeability ......2 A. Introduction. B. The Evidence .......... The Evidence Was Legally Insufficient ........... be eteeeteeee eee ee 220 D. The Applicable Case Law... 23 E. Summary 235 Conclusion oo... .e eee eeeeeee cece eens etereeeeeeeeeeeteeeeeeeeeeeteeeneneres 37TABLE OF AUTHORITIES CASES PAGES Com. v, Fabian, 60 A.34 146 (Pa. Sup. Ct. 2013)... 22. feces 26, 28, 29 Com. v, Keysock, 345 A.2d 767 (Pa. Sup. Ct. 1975) vee ctteteeeeeees 26, 29-31 People v. Bonaventura, 271 A.D. 900 (2d Dept. 1946) . 3,32 People v. Cannon, 210 A.D.2d 764 (3d Dept. 1986) [ae People v. Carrasco, 125 A.D.2d 696 (2d Dept. 1986) ......000000ceceeeeeeeceeeeeeeeee IS People v. Congregation Khal Chaisidei Skwere, 232 A.D.2d 919 (3d Dept. 1996) 0... .22eece cere boven 28 People v. Curry, 153 Misc.2d 61 (Queens Sup. Ct. 1992) es People v. Filis, 87 Misc.2d 1067 (Queens Sup. Ct. 1976) ..... ees .8 People v. Hernandez, 82 N.Y.24 39 (1993)... 0.005 25,26 People v. Hiraldo, 177 Mise.2d 33 (Kings Sup. Ct. 1998)... People v. Huston, 88 N.Y.2d 400 (1996) . veers 36 People v. Kibbe, 35 N.Y.2d 407 (1974) . 23-27 People v. Livingston, 175 Mise.2d 322 (Broome Co. Ct. 1997)......0.ee2ee 8 People v. Matos, 83 N.Y.2d 509 (1994)... settee ects esses eB People v. Roth, 80 N.Y.24 239 (1992) ....... cece ceeeeees 20,21, 24, 26, 32-34 People v. Roth, 176 A.D.2d 1184 (4th Dept. 1991) ...... 33 People v. Stewart, 40 N.Y.2d 692 (1976). eeeaeeee eee People v. Suquisupa, 167 Mise.2d 109 (Bronx. Sup. Ct. 1996) fer People v. Swamp, 84 N.Y.2d 725 (1995)... - 0.2.06. c0eeceeeseeee seen eee Ls)CASES People v. Taibi, 174 A.D.2d 585 (2d Dept. 1991) . . bie} People v. Warner-Lambert Co., $1 N.Y.2d 295 (1980) 223,24, 34, 35 State v. Steenburg Homes, 589 N.W.24 668 (Wis. Ct. App. 1998)... «26,28 STATUTES AND REGULATIONS PAGES C.ER., Title 49, Transportation Parts 390-396. 00000... 00 ccc cee eeee eee eeee eee ID CPL. § 210.20(1(¢) ... 6pe550suaosesaeRo5s00060E) CPLL.§ 210.300.0002. PLL. § 15.05......... ere ee 22, 23 PLL. § 125.10... poooge00¢0000900q900G0000q o7qonsEoonun0oGoE! PL. § 125.15(1) ..... itiSTATE OF NEW YOK COUNTY COURT SCHOHARIE COUNTY x THE PEOPLE OF THE STATE OF NEW YORK ws. Indictment No. 2019-33 NAUMAN HUSSAIN, Defendant. xX DEFENDANT NAUMAN HUSSAIN’S REPLY MEMORANDUM OF LAW IN SUPPORT OF HIS OMNIBUS MOTI PRELIMINARY STATEMEN” The defense respectfully submits this Reply Memorandum of Law on behalf of defendant ‘Nauman Hussain: (1) in further support of his motion for dismissal of the Indictment, and (2) to respond to the People’s brief in opposition thereto. With respect to the remaining relief sought in Mr. Hussain’s Notice of Motion, the defense relies upon its September 4, 2019 Memorandum of Law (“Def. MOL”). As detailed below, allowing the Indictment to stand on this record would impose upon the driving public the onerous and unreasonable burden of becoming mechanical experts, in order to personally confirm that its vehicles are roadworthy. Permitting the continued prosecution of Mr. Hussain would send a message to the public that automobile operators can no longer rely upon professional mechanics without risking homicide charges. And, in the absence of foreseeability, it would also sanction homicide prosecutions premised on strict liability for regulatory vehicular violations. It is beyond cavil that the tragedy in this case has affected many. But the decision now before this Court has larger ramifications still. Consequently, we respectfully ask this Court to reject the People's pitch to change the well-settled landscape of criminal liability, and to di ss the Indictment.ARG! LENT THE COURT SHOULD DISMISS THE INDICTMENT BASED ON GRAND JURY INSUFFICIENCY, PARTICULARLY WITH RESPECT TO THE ELEMENTS OF LEGAL CAUSATION AND FORESEEABILITY A. Introduction The People have advanced many claims, strewn across numerous detailed pages, concerning their theory of criminal liability against Mr. Hussain. Yet, beneath the patina of the People’s tortured arguments lies an astonishing bid to impose strict liability for homicide based on putative violations of the Department of Transportation’s (“DOT”) regulations and the Code of Federal Regulations (“CFR”), irrespective of lack of foreseeability and causation. Stripped of all its window-dressing, the People’s contention is that Mr. Hussain is guilty of manslaughter and criminally negligent homicide, twenty times over, because he “chose not to have the 2001 Ford Explorer stretch limousine inspected pursuant to a New York State Department of Transportation semi-annual bus inspection” [DA Opp., p.5]', and instead “took the limousine on several occassions [sic] to mechai at Mavis Discount Tire [‘Mavis’] in Saratoga for various repairs, including the vehicle’s brakes.” [DA AMf., #10]. What the People’s position glaringly fails to explain, however, is why Mavis was not qualified to inspect and service the limousine’s brakes - and, more to the point - how Mr. Hussain would have possibly known or had reason to know of that fact. Indeed, the People have submitted a total of 45 pages of alleged facts and argument, after taking one month and ‘Citations in the form “[DA Opp. __]” refer to pages of the District Attorney's Memorandum of Law in opposition to the defense’s Omnibus Motion. Similarly, citations in the form “[DA Aff._]” refer to paragraphs of the District Attorney's affirmation in further opposition thereto.twelve days (following their requested three-week deadline extension) to prepare their opposition. Yet, nowhere in their lengthy and detailed papers have they even attempted to answer that critical question. —to do so stems from the obvious: A The People’s failure — or. more aptly put, inabili person is not guilty of hor cide for a fatal vehicular accident after having the vehicle serviced at a supposedly reputable mechanic simply because the mechanic was negligent or reckless. Stated otherwise, the law does not impute a mechanic’s liability to a customer, particularly without proof of the customer's own mens rea — ice, that the customer, himself, was aware of, understood the import of, and could foresee the ramifications of the mechanic’s negligent or reckless conduct. Discarding the need for such proof of a defendant's own mens rea would open the floodgates for homicide prosecutions based on strict criminal liability for the misconduct of a third party. Beyond sanctioning an overreach of prosecutorial power, countenaneing such a result would plainly violate P.L. §: 125.10 and 125.15(1), which, respectively, make a defendant's own mens rea critical elements of criminally negligent homicide (c., criminal negligence) and manslaughter (ie., recklessness). It would also produce a manifest injustice. That is especially true where the mechanic here was nationally renowned Mavis, which markets itself as: (a) having “500 bright, clean, fully equipped service centers ... in 13 states,” and (b) being “one of the largest independent multi-brand tire dealers in the United States [that] offers a menu of additional services including brakes, alignments, suspension, shocks, struts, oil changes, battery replacement and exhaust work.” See hutp://www.mavistire.com/producteart/pe! about_us.asp. While the People unsurprisingly tur a blind eye to the following exculpatory fact, the DOT knew Mr. Hussain serviced the limousine at Mavis and made no objection.Indeed, Chad Smith (“Mr. Smith”), a DOT Intermodal Transportation Specialist 1 [DA Aff, | 19], personally saw the limousine at Mavis on multiple dates ~ June 8, 2017, January 12, 2018, and July 28, 2018 — and never once voiced concer. To the contrary, as set forth below, Mr. Smith, and thus the DOT, actually ratified such automotive work by Mavis. B. The Evidence At the outset, with regard to the evidence in this matter, the People incredibly assert that “(nowhere does the defendant swear he never drove the limousine or that he knew nothing about the condition of the limousine....” [DA Aff.. 447]. But as the People ~ prosecuting a defendant criminally ~ should fully know, the defense’s motion is not one for summary judgment in a civil case, Instead, the instant motion seeks dismissal based on the insufficiency of the People’s Grand Jury presentation. Thus, the burden is not on the defense to produce factual averments from Mr. Hussain showing he was unaware of the condition of the limousine’s brakes. Rather, to the complete contrary, the onus here was on the People to present legally sufficient evidence to the Grand Jury establishing Mr. Hussain’s alleged awareness of that supposedly deficient condition, in order to satisfy the mens rea elements of the offenses charges (i... criminal negligence and recklessness). Were the contrary the rule, as the People disingenuously urge, a defendant would be required to forego his Fifth Amendment right to remain silent in order to protect his Fifth Amendment right to be prosecuted by a legally sufficient Indictment ~ a patently tution. absurd result in contravention of the Cons To be clear, the defense maintains that the People’s Grand Jury presentation was legally insufficient, based on the information set forth in our initial papers and herein. Although the People take exception with the defense’s inability to support that position by reciting portions ofthe Grand Jury minutes in “swom supporting affidavits of fact” [DA Aff, 48}, that is only because the People have insisted upon keeping those minutes far away from the defense, under strict lock and key, out of some professed concer that exposing them will “possibly taint the jury pool.” [DA Aff., 451]. The People’s purported reason for withholding the Grand Jury ‘minutes from opposing counsel is a farce, as the defense seeks the minutes to review them for itself and not for public disclosure.’ Moreover, the People, quite hypocritically, have no problem with summarizing the purported contents of the Grand Jury minutes (in whatever one-sided manner advances their continued prosecution) or turning them over at later stage, closer to trial and jury selection.’ In any event, pursuant to C.P.L. § 210.30, the Court is nonetheless required to inspect the Grand Jury minutes for itself to determine whether the People have presented legally sufficient evidence against Mr. Hussain, And, at a bare minimum, the defense’s motion should assist the Court in that process, as it highlights expected deficiencies in the Grand Jury presentation. Accordingly, without access to the Grand Jury minutes, the defense is constrained to address herein only the evidence which the People have disclosed. At the People’s request, the Court previously issued an Order, dated September 27, 2019, directing the defense not to turn over any Grand Jury subpoenaed records and videos to any third parties ‘who are not part of the defense team without further Court Order. To ensure for themselves that the defense is true to its word, the People are always free to request a similar Order from the Court with respect to the Grand Jury minutes. >The People’s true reason for not tuming over the Grand Jury minutes at this time is painfully obvious; they seek to sandbag the defense and hamstring its ability to challenge this prosecution. Instead of engaging in untoward gamesmanship by playing “hide the ball” in a solemn matter involving someone's liberty, the People should seek to promote faimess and justice. 3Although the People persist in their claim that the “defendant does not submit an affidavit with sworn allegations of fact pertinent to his motion to dismiss” [DA Aff., 4 16], as explained above, such an affidavit is unnecessary for purposes of the instant motion. Nonetheless, in the face of their emphatic cries for “an affidavit of swom allegations of fact,” the People have obviously overlooked the October 10, 2018 affidavit of Mr. Smith, which is attached as Exhibit C to the defense’s Omnibus Motion. Notably, the People, themselves, relied upon that very same affidavit as an exhibit in support of their April 23, 2019 application to take saliva and buccal cell samples from Mr. Hussain, More to the point, that affidavit makes clear the following: + “Onor about June 8, 2017, [DOT Intermodal Transportation Specialist 1 Mr. Smith] was at Mavis Tire on Route 9 in Saratoga Springs, NY when [he] observed [the] Ford Excursion Limo ... which was parked outside, in th parking lot.” (Exhibit C (p.2 of Mr. Smith’s affidavit)}*; + “On January 12, 2018 ... [Mr. Smith] responded to Mavis on Rt. 9 Saratoga Springs and checked on the vehicle. At the location a Mavis staff member approached [Mr. Smith] and told [him] the vehicle was there to be worked on.... (Mr. Smith] allotted some time for the repair of the vehicle....” Id. (emphasis added). + “On July 28, 2018 [Mr. Smith] visited the vehicle storage site ... and found that the Ford Excursion was not at the location. (Mr. Smith] checked the City of Saratoga Springs to attempt to find it in operation and found it in the Mavis Parking lot. Mr. Smith] then departed under the belief that it was undergoing mechanical work. [Exhibit C (p.4 of Mr. Smith’s affidavit)] (emphasis added). In light of the foregoing, the evidence before the Grand Jury should have established that the DOT knew and condoned Mr. Hussain having the limousine serviced at Mavis. “Mr, Smith’s affidavit is attached as Exhibit A to the People’s motion to take saliva and buccal cell samples from Mr. Hussain.For that matter, the People wholly ignore the fact that Mr. Smith — afier previously inspecting the limousine and issuing a violation for deficient brakes on March 21, 2018 [DA Aff, $9 23-24] — “performed a follow up inspection on the limousine” himself on September 4, 2018 — only 32 days before the accident on October 6, 2018 — and no longer observed any deficiency with respect to the brakes. [DA Att., 431]. To be clear, Mr. Smith's September 4, 2018 inspection included the brakes, as he “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....” [DA Aff. 31]. Significantly, all of the information set forth above stems from sworn factual assertions advanced by the People, Thus, the People presumably presented such evidence during the course of their Grand Jury presentation. To recap, such evidence has shown that: (1) Mr. Hussain repeatedly brought the limousine to Mavis for mechanical servicing; (2) the DOT knew Mr, Hu had the limousine repeatedly serviced at Mavis: (3) the DOT never objected to Mr. Hussain having the limousine serviced at Mavis; (4) the DOT never informed Mr. Hussain that Mavis was not qualified to service the limousine; (5) the DOT allotted time for Mavis to repair the vehicle before conducting its own inspection; and (6) the DOT inspected the limousine 32 days before the accident and, despite issuing various violations, specifically found none relating to brake deficiency (as it had done in the past. The defense stresses that it does not present the preceding information to litigate the facts of this case, for that is obviously the purpose of a trial. However, given the People’s staunch position that it will not disclose, at this time, the Grand Jury minutes to the defense, we are necessarily restricted to challenging their Grand Jury presentation by reference to their statementsand disclosures. Presumably, the People have acted consistently throughout their investigation, and prosecution, such that the information they have made known to the defense accurately reflects their evidence before the Grand Jury With the foregoing in mind, the defense turns to other relevant evidence provided by the People, including voluminous Mavis invoices and related documents (only first provided to the defense on October 16, 2019), which prove that Mr. Hussain regularly had the subject limousine serviced at Mavis, well beyond the three dates set forth above.’ In fact, such material evidences that Mr. Hussain brought that limousine to Mavis for mechanical service, including that relating to the vehicle’s brakes, as early as September 10, 2016. Specifically, based on the Mavis records provided by the People, the limousine was serviced by Mavis on: September 10, 2016: June 9, 2017; September 28, 2017; January 25, 2018; May 11, 2018; June 8, 2018; and June 25, “Because the Court is copied on the People’s cover letter. dated October 16. accompanied the production of such material, itis not provided herewith. However, if the Court is not ‘yet in possession of such material, upon request, the defense is readily prepared to produce it separately to the Court. “Mavis provided the material to the People along with an affidavit of compliance dated December 7, 2018, in response to a Grand Jury subpoena. Thus, the People were in possession of such ‘material atthe time of the Grand Jury proceedings and should have presented it accordingly. This is especially true where such evidence would have definitively shown that Mr. Hussain did not fail to have the limousine’s brakes serviced. See People v. Livingston, 175 Mise.24 322 (Broome Co. Ct. 1997) (dismissing Indictment because prosecutor's failure to present exculpatory evidence to Grand Jury impaired integrity of proceeding and prejudiced defendant): People v. Curry, 153 Mise.2d 61, 66 (Queens Sup. Ct. 1992) (The Grand Jury’s “prime function is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution, However, in satisfaction of this underlying policy, it is eritical that the Grand Jury be presented with all evidence, including any exculpatory facts, which, if disclosed, would have materially influenced the grand jurors and logically caused them to change their ultimate determination.”) (internal citations and quotations omitted); People v. Filis, 87 Misc.24 1067, 1069 (Queens Sup. Ct. 1976) (“[I}a any case where there would be evidence so compelling as to legally cause the Grand Jury to consider an alternate action under section 190.60 of the Criminal Procedure Law, the District Attorney would be obligated to introduce such evidence.”).2018. And, signi -antly, according to those same records, Mavis provided a customer invoice to Mr. Hussain on May 11, 2018, which memorialized Mr. Hussain’s specific request to “CHECK BRAKES,” and included, among other things, the following description of parts and services provided: FACTORY REBUILT CALIPER LABOR - BRAKE CALIPER BRAKE HOSE/LINE LABOR — BRAKE HOSE REAR BRAKE PADS PROFESSIONAL BRAKE SERVICE LIFETIME WARRANTY ON PADS. LABOR BRAKE PADS BRAKE MASTER CYLINDER LABOR ~ BRAKE MASTER CYLINDER BRAKE SYSTEM FLUSH NYS SAFETY/EMISSION INSPECTION This evidence alone renders the People’s Grand Jury presentation insufficient, as it confirms that Mr. Huss: : (1) explicitly requested Mavis to inspect the limousine’s brakes, and (2) received confirmation from Mavis that the company not only did so but performed maintenance on the vehicle’s brake system. Significantly, it also shows that Mavis informed Mr. Hussain that it performed a New York State Safety and Emission Inspection of the limousine. In fact, according to another document contained within the Mavis production (again, which the People possessed during their Grand Jury presentation), Mavis recorded the limousine as having passed that safety inspection. Notwithstanding the foregoing, the People’s recent Brady letter of October 7, 2019 — which the defense attached to its letter to the Court on October 8, 2017 — states that the People learned on September 17, 2019, that Mavis never performed certain brake services or the safetyinspection for which it billed Mr. Hussain on May 11, 2018. But, the People were apparently not aware of that fact during its Grand Jury presentation, And, much more importantly, there is absolutely no evidence that Mr. Hussain was ever aware of that fact prior to the People’s Brady disclosure on October 7, 2019. Consequently, the evidence in possession of the People at the time they presented the case to the Grand Jury would have shown only that: (1) Mr. Hussain brought the limousine to Mavis, to be inspected and repaired in May of 2018; (2) Mavis inspected and repaired the limousine in May of 2018; (3) the inspection and repair work involved the limousine’s braking system; (4) Mavis billed Mr. Hussain for such inspection and repair work, thereby informing him such inspection and repair work was performed; and (5) Mavis informed Mr. Hussain that the limousine passed a safety inspection. Because Mr. Hussain brought the limousine to a then reputable mechanic for mechanical inspection and mechanical maintenance of its braking system, the People’s alleged underlying ‘mechanical reasons for the vehicle’s brake failure [DA AfF., J¥ 43-45] do nothing to establish his alleged legal sation. In particular, the People summarily assert the following as the mechanical cause of the crash: 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, braking of the limousine would rely on the deficient left and right brake components. Due to the pre- existing inadequate brake efficiency and poor thermal energy transfer attributes of these components, the extreme heat generated by braking friction resulted in initial brake fade and ultimately catastrophic brake system failure. [DA Aff, $45].This alleged mechanical cause of the crash, far from inculpating Mr. Hussai actually exonerates him. As the People’s mechanical analysis makes clear, their entire prosecution against Mr. Hussain hinges on what they characterize as the “pre-existing inadequate brake efficiency and poor thermal energy transfer attributes of these components.” /d. But, as detailed above, Mr. Hussain paid Mavis to inspect and repair the limousine’s brakes. According to its invoicing of Mr. Hussain, Mavis did so, performing “professional brake service” and “labor.” including that relating to a “brake caliper,” “brake pads,” a “brake hose/line,” a “brake master cylinder,” and a “brake system flush.” Certainly, Mr. Hussain, a customer (ce., not a mechanic) ‘would have had no reason to think such apparently extensive brake work would be insufficient to render his vehicle roadworthy Nonetheless, if Mavis were, in fact, deficient in providing such “professional brake service” and “labor” to its customer ~ such that the vehicle experienced “pre-existing inadequate brake efficiency and poor thermal energy transfer attributes of these components,” as the People contend — lawful recourse is not a criminal prosecution against that customer, for homicide no less. By way of reminder, the People first arrested and charged Mr. Hussain by complaint on October 10, 2018 - only four days afier the accident — and thus long before they completed their investigation. Given the highly emotional and sensationalized nature of this tragedy. the defense recognizes why the People immediately looked for a scapegoat. However, based on the evidence that has developed, and lack thereof, rather than blindly remaining wedded to a theory devoid of any legally sufficient basis, the People should have dismissed this case of their own accord. Because of their unreasonable and adamant unwillingness to do what is just, the defense now tums to the Court for such relief, pursuant to clear and controlling law. uEven viewing the evidence in the light most favorable to the People, itis indisputable that in May of 2018, Mr. Hussain brought the limousine to a then reputable mechanic for inspection and maintenance of its braking system. ‘Thus, he had no reason to foresee that the vehicle would experience “catastrophic” brake failure less than five months later in October of 2018. That critical fact undermines the People’s entire theory of prosecution against Mr. Hussain. And, as much as they want to ignore that fact, they cannot escape it— Mr. Hussain had the limousine inspected and serviced. So, instead, the People seek to distract the Court from that crucial point by trumpeting superfluous allegations having nothing to do with the issue of foreseeability and legal causation For instance, the People assert that: 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 a reason for removing the limousine from the road. [DA Opp., p.5]. ‘What the People deceptively fail to tell the Court here is that, according to their own affirmation, the only time the limousine was taken out of service for “the poor condition of the brakes” and “brake-related issues” was when the NYSDOT, by Mr. Smith, first issued a violation on March 21, 2018 [DA Aff., | 24] — and thus before Mavis inspected and repaired the limousine’s brakes on May 11, 2018. For that matter, as set forth in People’s affirmation, Mr. Smith inspected the limousine for the second time on September 4, 2019, after Mavis inspected and repaired the limousine’s brakes ‘on May, 11, 2018. And, on that second occasion, the NYSDOT specifically did nor take the limousine out of service for “the poor condition of the brakes” or “brake-related issues.” [DAAAT, 31]. Thus, far from supporting the People’s empty claim that “{t]he defendant knew or should have known about the poor condition of the brakes” on the day of the October 6, 2018 crash, the evidence shows just the opposite ~ that Mr, Hussain had every reason to believe the brakes were working properly Notwithstanding these facts, the People insist on absurdly arguing that Mr. Hussain “ignored repeated warnings and signs that the limousine’s brakes would fail.” [DA Opp.. p.8] And, they try to support that baseless claim with reference to immaterial allegations that “[h]e placed or caused to be placed a vice grip on one of the brake lines” and “[hJe left brake lines dangling near a wheel.” Id. This just smacks of desperation by the People. First of all, according to the People’s own affirmation, DOT Specialist Chad Smith noted on September 4, 2018, that the vice grip had been removed from the vehicle following his earlier inspection on March 21, 2018, [DA Aff, 31]. Thus, it was not in place during the accident on October 6, 2018. And, in any event, there is no evidence that the presence of a vice grip would foreseeably cause catastrophic brake failure. Indeed, it did not do so previously. Likewise, as set forth in the defense’s initial submission, while a single line (not “lines”) relating to the anti-lock braking system was reported to be dangling during Mr. Smith’s inspection on September 4, 2018, the People’s own expert report specifically found that such condition was “not casual to the multiple fatality crash of October 6, 2018 in Schoharie.” [Def. MOL. p.10, n.4]. The People do not dispute that fact. Consequently, neither of these alleged conditions would have led “[a]ny reasonable person [to] have foreseen that [they] could cause people to die in a crash,” as the People contend. [DA Opp., p.8]. As much as the People may wish otherwise, simply saying, things does not make them true, particularly where those things are contradicted by actual proof. 1BIn short, the proof does not simply fail to support the People’s position, it cripples it. As a result, the People desperately resort to mischaracterizing and straining the evidence beyond the pale. For example, the People contend that “[tJhe defendant was also aware of the poor condition of the limousine’s brakes, based upon conversations with drivers and Mavis employees.” [DA Opp., pS]. But, as explained below, the conversations cited by the People do not come close to evidencing that Mr. Hussain was aware of the “poor condition of the limousine’s brakes” or, more to the point, that he had reason to know that such brakes would catastrophically fail on October 6, 2018. A careful inspection of the People’s own papers reveals their concession on that point. Indeed, when recounting Mr. Hussain’s conversation with Mavis’s store manager, Virgil Park, on May 11, 2018, the People alleged that it only served to inform him of some unidentified “potential brake issues.” [DA Aff., $27]. Specifically, as alleged by the People, Mr. Park told Mr. Hussain on that date that “tranny and brake fluid doesn’t mix” and the limousine has “brakes now and I’m hoping it stays that way because if it happens again then your [sic] gonna need the other three calipers.” [DA Aff., 27]. The People actually ask this Court to compel Mr. Hussain to stand trial for the deaths of twenty people based on those two nebulous statements, plucked in isolation out of an entire discussion. To be clear, these statements do not constitute legally sufficient proof of Ms. Hussain’s alleged criminal mens rea for homicide. The first statement presumably was meant to convey that transmission fluid does not mix with brake fluid, But what that has to do with anything here remains a mystery without context or further explanation. And the second statement about the limousine having “brakes now” simply proves that Mr. Hussain had reason to believe that his brakes were indeed functioning. What the remainder of that 4statement meant ~ i.e., him needing other calipers if some unexplained “it” happened again — does nothing to advance the People’s position, apart from distracting from the main issue here by means of rank conjecture. In the most simplest terms, these two statements do not remotely constitute notice to Mr. Hussain — a customer, not a mechanic ~ that the limousine would experience “catastrophic” brake failure.” To illustrate that point by contrast, the People can present absolutely no evidence whatsoever that Mr. Hussain was ever wamed of a risk that the brakes on the limousine might catastrophically fail within approximately the next half-year if he failed to have additional ‘maintenance performed on the vehicle. Without real evidence — and not just utter speculation — the People would have failed to present legally sufficient proof of foreseeability and legal causation to the Grand Jury. The same holds true with respect to Mr. Hussain’s alleged “conversations with drivers.” which the People offer up in another failed effort to establish his supposed awareness of “the poor condition of the brakes” on October 6, 2018. [DA Opp., p.5]. Indeed, the only conversation with respect to the specific limousine at issue cited by the People allegedly occurred “{dJuring prom season in 2017,” when a driver supposedly informed Mr. Hussain ofa brake problem, which was confirmed. [DA Aff., {17]. What the People overlook, however, is that, according to “Additionally, (1) the recording of this conversation is largely inaudible; (2) an Indictment must be based on legally sufficient evidence that is “competent.” People v. Swamp, 84 N.Y 2d 725, 730 (1995); and (3) “in order to constitute competent proof, a tape should be at least sufficiently audible so that independent third parties can listen to it and produce a reasonable transcript.” People v. Carrasco, 125 A.D.2d 695, 696 (2d Dept. 1986); see also People v. Taibi, 174 A.D.2d 585, 586 (24 Dept.1991) (trial court “dismissed the conspiracy count of the indictment on the ground of insufficient evidence of an ‘overt act” because “the audiotape of a conversation between the defendant and the undercover officer [was] inaudible and inadmissible” before the Grand Jury.) 15their own affirmation, Mr. Hussain, in response to such information, “had a mechanic at a repair shop look at the limousine’s brakes.” Id. Moreover, this episode allegedly occurred during prom season in 20/7 — more than 1% years before the crash in October of 20/8, which is the basis for the instant Indictment. And, importantly, as discussed above, Mr. Hussain had the limousine’s brakes inspected and repaired during that intervening period. As such, this 2017 conversation does not serve as legally sufficient evidence of Mr. Hussain’s awareness of the risk of catastrophic brake failure in October of 2018. Ina similar vein, the People attempt to show Mr. Hussain’s purported awareness of the subject limousine’s risk of catastrophic brake failure by pointing to the alleged deteriorating condition of his entire “limousine fleet” and the non-specifie claim that “[d]rivers consistently experienced problems with the fleet.” [DA Aff., 4 16]. However, generic references, including those relating to other limousines on other occasions, hardly serve as competent proof with respect to the specific limousine’s alleged brake i sues in this case, Nor can they thus be used to show Mr. Hussain was allegedly aware of the risk that the subject limousine would experience catastrophic brake failure on October 6, 2018. Without the existence of sufficient proof, the People have elected to throw anything and everything against the proverbial wall in the hope that something sticks. That said, quantity over quality cannot serve as a substitute for legally sufficient evidence. Yet, the People still seek to fallaciously attack Mr. Hussain by alleging that it was not “reasonable for him to assume” that the limousine’s driver “was capable of evaluating the limousine’s safety.” [DA Opp., 5]. But that myopic view fails to recognize that it was certainly “reasonable for him to assume” that Mavis and DOT Inspector Transportation Specialist 1 Chad Smith — both of whom inspected the vehicle 16prior to the accident — were capable of such an evaluation. In fact, while the People cite to vague and abstruse statements by Mavis manager Virgil Park (supra), they fail to quote the following cone made by him to Mr. Hussain on May 11, 2018, at 9:30 am, that is perfectly elear: “I'm the only place that works on twenty passenger limousines for Christ sake. Despite bringing this homicide case against Mr. Hussain, the People have yet to explain — in open Court, in their statements to the press, in any of their prior filings, or in response to the instant motion - why Mr. Hussain was supposedly not able to reasonably rely upon a DMV- licensed mechanic (Mavis) and/or a DOT specialist (Chad Smith) in having his vehicle inspected and maintained Additionally, in yet another diversionary attempt, the People argue that “t]he defendant provides no sworn 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.” [DA Aff., § 9]. First, the defense has not asserted that Mr. Hussain “was totally ignorant of anything to do with the limousine,” as the People grossly misstate. Rather, the defense has merely noted that “in the absence of sufficient proof that Mr. Hussain... had actual reason to know of the allegedly catastrophic condition of the brakes (a mechanical issue), he cannot possibly be held criminally liable for the ensuing accident.” [Def MOL, p.16]. Certainly, the People do not contend that Mr. Hussain was a mechanic. And, second, while the defense’s initial submission did describe Mr. Hussain as “the alleged operator of the company (an administrative position)” [Def MOL, p.16], it is dumbfounding that the People would challenge “The defense understands that the People provided this recording to the Court as part of its Grand Jury production, However, if necessary, the defense is prepared to provide a copy to the Court separately, 7that assertion when they, themselves, have sworn that he “was responsible for the day to day operations of the multiple limousine companies he owned and/or operated” and “hired drivers, scheduled drivers to work particular jobs and arranged payment for the drivers.” [DA Aft. 10]. The People’s need to meaninglessly attack every assertion by the defense is clearly an attempt to distract from the main issue now before this Court —ie., the People’s failure to present legally sufficient evidence to the Grand Jury establishing that Mr. Hussain had reason to foresee the fatal accident resulting from catastrophic brake failure, Lastly, in perhaps their most specious effort to eradicate the requirements of causation and foreseeability, the People seek to hold Mr. Hussain strictly liable for homicide based on alleged DOT and CFR violations. [DA Opp.. p.18]. First, with regard to the putative DOT violations, the People contend that Mr. Smith informed Mr. Hussain on September 4, 2018, that the subject limousine: (1) did not have “NYSDOT Authority and a NYSDOT Bus Inspection to operate legally in NYS” [DA Aff., $ 33]; and (2) “had three out of service violations.” [DA Aff, 431]. But, the People have not presented sufficient proof that these alleged violations made catastrophic brake failure foreseeable to Mr. Hussain, particularly given that: (1) Mr. Hussain had the limousine inspected, repaired and maintained by Mavis, and (2) DOT Specialist Chad Smith, after inspecting the limousine himself on September 4, 2018, did not notify Mr. Hussain of any deficiency with respect to its braking system. Rather, the only three out-of-service violations noted at that time were: “no or defective bus emergency exits; operating a motor coach with seating in excess of manufacturing seating capacity; and an ABS line by axle 1 left side which was dangling and able to make contact with the front left tire.” [DA Aff., 31]. 18In its initial submission, the defense explained at length why none of these violations “could have caused catastrophic brake failure.” [Def. MOL., p.10, n.4]. And, importantly, the People have not disagreed with that finding. Accordingly, none of these alleged DOT violations can legally give rise to a finding of foresceability and causation.” Similarly, the People, attempting to salvage their defective Indictment, point to alleged violations of the Code of Federal Regulations, Title 49, Transportation Parts 390-396. [DA Opp.. p.19]. Specifically, the People assert that those regulations require “the owner/operator of a commercial motor vehicle capable of transporting 16 or more passengers” to comply with certain requirements, including: (1) requiring drivers to prepare a written report at the end of each day's work on each vehicle operated; (2) equipping said vehicle with acting brakes, and (3) having said vehicle inspected, repaired and maintained. [DA Opp., p.19-20]. The People further claim: The evidence before the grand jury showed that the defendant did not comply with a single one of these safety regulations. Had he done so, the limousine would not have been in service on October 6, 2018. Simply put, the defendant was solely responsible for illegally placing the limousine back in service without proper functioning brakes on October 6, 2018. [DA Opp... p.. 20]. As an initial point, there is not a single allegation in this case that any driver's failure to prepare a written report made the limousine accident foreseeable. Additionally, while the People remain fixated on the absence of a DOT bus inspection, the evidence makes clear that Mr. °With regard to the DOT bus inspection, the People speculate that “[i)f such an inspection is reasonable to infer that the brake components that were negligently maintained and not roperly would again cause the vehicle to be taken out of service by NYSDOT until properly repaired.” [DA Opp.. p-5] (emphasis added). But apart from pure conjecture, the People do not offer any evidence to support that inference. Most tellingly, the People have not alleged why Mavis (a DMV- licensed mechanic) was not qualified to perform the same inspection and maintenance of the limousine’ brakes, and more to the point, how Mr. Hussain would have possibly known or had reason to know of that fact when he had the limousine serviced. 19Hussain did indeed have the limousine inspected, repaired and maintained (by Mavis and/or a DOT Specialist). ‘Thus, the lack of a DOT bus inspection is a red-herring. By the same token, because Mr. Hussain had the limousine inspected and repaired, the limousine’s alleged catastrophic brake failure was not a circumstance he could foresee. Once more, the People seek to hold Mr. Hussain criminally liable based purely on actual causation (‘., but for his alleged violations, the limousine would not have been operated on October 6, 2018) without regard to the requirement of /egal causation (ie,, he could allegedly foresee his conduct causing catastrophic brake failure). This point cannot be overstated — operating a motor vehicle in violation of the law does not make one guilty of homicide, in and of itself, even if that vehicle causes a fatal accident. Instead, what is required is proof that a defendant could foresee his operation of the vehicle causing such fatal accident. The People readily cater to emotional impulse over what they describe as the death of “young friends and family members.” [DA Opp.. p.15]. But, with respect to the law, they offer no evidence of foreseeability and causation in this case. ‘The Evidence Was Legally Insufficient Based on all of the facts set forth above, derived from the People’s own statements and filed submissions, the Grand Jury presentation could not have sufficiently established the requisite elements of causation and foreseeability necessary to sustain each and every homicide charge in the Indictment. Simply put, given the above-referenced evidence, there is no basis to conclude that Mr. Hussain “should have foreseen” that the fatal limousine accident would occur on October 6, 2018, in the very “manner that it did” ~ ie., catastrophic brake failure. People v. Roth, 80 N.Y.2d 239, 243— 44 (1992). And, without such proof, the evidence before 20the Grand Jury would have been insufficient, as a matter of law, to support a finding that Mr. Hussain’s conduct was a “sufficiently direct cause of the ensuing death{s}” ~ i-e., “legal cause” — in order to impose upon him criminal liability. People v. Stewart, 40 N.Y.2d 692, 697 (1976), Quite amazingly, the People, over the course of multiple pages [DA Opp., pp.12-13, 16], vehemently object to the defense’s use of the word “very” when referring to the Court of Appeals’s decision in Roth, 80 N.Y.2d at 243-44, which requires the People to show, as a prerequi te to establishing legal causation for homicide, not merely that a fatal accident was foreseeable but, more stringently, that “it was foreseeable that the [fatal accident] would occur in the manner that it did.” Unable to shuck that impossible standard in this case, the People instead create a ridiculous strawman argument to attack — namely, that the defense adding “the word very” before the word ‘manner’ as to the manner of death which a defendant must have foreseen” is “misleading[ J” and somehow results in “conflating the mechanical causation of the crash with legal causation.” [DA Opp., p.16]. First of all, the word “very” simply emphasizes the Court of Appeals’s requirement that “the manner” of death must be foreseeable to a defendant in order to hold him criminally liable for homicide. To illustrate that point, remove the word “very” from the defense’s exposition and the requirement here remains the same ~ the charges against Mr. Hussain cannot stand if the People failed to present legally sufficient evidence that it was foreseeable to him that the fatal limousine accident would occur as a result of the alleged catastrophic brake failure. After all, the limousine experiencing such brake failure is the very manner in which the People, themselves, claim the fatal accident occurred.Second, the defense by no means conflates “mechanical causation” with “legal causation.” But, the two concepts are inextricably intertwined. Indeed, legal causation ean only apply to Mr. Hus in’s conduct relating to the limousine if he could foresee the mechanical causation underlying the crash. Stated otherwise, without him knowing that Mavis was apparently not qualified to inspect and service the limousine’s brakes, and that the brakes would thus remain unrepaired creating a risk of catastrophic brake failure (mechanical causation), he could not have foreseen the fatal accident to occur from such catastrophic brake failure (legal causation). Perhaps the People’s failure to grasp the foregoing explains, in part, why they are so hellbent in condemning Mr. Hussain for something that, as a matter of law, is not his fault. It ‘would also explain why the People so absurdly state that “the defendant appears to concede that his conduct satisfies the mens rea element and makes no claim that the grand jury improperly found he was negligent and/or reckless in causing the crash and deaths of 20 people.” [DA Aff. | 56]."" For the sake of accuracy, the defense does not concede that Mr. Hussain was criminally negligent or reckless. To the contrary, because there is no evidence that Mr. Hussain had reason to foresee that his conduct would allegedly result in catastrophic brake failure, he was not criminally negligent or reckless, as matter of law. As set forth in our initial papers (Def. MOL., p.11}, pursuant to subsections (3) and (4) of PLL. § 15.05, respectively, a person does not act recklessly or with criminal negligence unless he consciously disregards (i.e., for recklessness) or fails to perceive (ie., for criminal negligence) a "If the People did not make ridiculously false claim in error, arguably worse, they did so simply to pander to the media 2“substantial and unjustifiable risk that such result will occur or that such circumstance exists.” In other words, there can be no recklessness or criminal negligence without foreseeability, which the defense plainly challenges. Again, while not condoning the People’s jons, the defense recognizes why they haphazardly rushed to arrest and charge Mr. Hussain as a scapegoat only four days after the accident. But, by this stage of the proceedings, the People should understand the law as it relates to the interconnected concepts of mens rea, foreseeability, and causation. D. ‘The Applicable Case Law Clearly, the People did not understand the appli ble law in May of 2019, when they erroneously argued to the Court, without explanation, that the defense’s citation to People v. Matos, 83 N.Y.2d 509 (1994), and People v. Kibbe, 35 N.Y.2d 407 (1974), binding Court of Appeals’s authority, somehow “misstates the law regarding causation.” [Exhibit E., 4 14]."" ince then, the People have apparently reconsidered their stance, as they no longer claim these cases misstate the relevant law. Nor do they contend that any of the other cases cited in the defense’ s initial brief misstate the law. Thus, there is no dispute that the Indictment cannot stand without legally sufficient proof that Mr. Hussain’s actions were not just the actual (“but for”) cause of the fatal accident, but also a sufficiently direct cause of it. As stated in our prior submission, the Court of Appeals in People v. Warner-Lambert Co., 51 N.Y.2d 295, 306 (1980), has held: "The People took that position in their reply papers, dated May 24, 2019, seeking permission to take saliva and buccal cell samples from Mr. Hussain. Accordingly, the Court should review the Grand Jury minutes to determine whether the People failed to properly instruct the grand jurors on the critical elements of mens rea, foreseeability and causation. “The test is whether the instructions were so deficient as to impair the integrity of the Grand Jury's deliberations.” People v. Cannon, 210 A.D.2d 764, 166 (3d Dept. 1994). 23We subscribe to the requirement that the defendants’ actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability, and recognize, of course, that this standard is greater than that required to serve as a basis for tort liability. Thus, we were concerned for the nature of the chain of particularized events which in fact led to the victim’s death; it was not enough that death had occurred as the result of the defendants? [conduct]. (Emphasis added) (Internal citations and quotations omitted). Similarly, there is no dispute that a sufficiently direct cause of an ensuing death can only be found if “the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused.” People v. Kibbe, 35 N.Y.2d 407, 412 (1974) (internal citation omitted). And, lastly, there is also no dispute that to hold a defendant criminally liable, the manner in which the ultimate harm occurred must have been foreseeable: To support the charges of reckless manslaughter and criminally negligent homicide, [] the People [are] required to submit proof from which the Grand Jury could conclude that the actual cause of the {fatal accident] was foreseeable. For purposes of criminal liability, it [is] not enough to show that, given the variety of dangerous conditions existing [ ], a [fatal accident] was foreseeable; instead the People fare] required to show that it was foreseeable that the [fatal accident] would occur in the manner that it did. (Emphasis added), People v. Roth, 80 N.Y.2d 239, 243-44 (1992). Based on the foregoing, there is no dispute that to sustain the Indictment, the People were required to present to the Grand Jury legally sufficient evidence that Mr. Hussain’s alleged conduct made it reasonably foreseeable that the ultimate harm in this case (a fatal vehicular accident) would occur in the manner it did (catastrophic brake failure). No longer able to claim without explanation that the preceding axiom somehow misstates the applicable legal standard, the People instead cite irrelevant cases that conflict with the 24evidence. For example, the People heavily rely upon People v. Congregation Khal Chaisidei Skwere, 232 A.D.2d 919 (3d Dept. 1996), going so far to as to wildly claim that it is “diteetly on point.” [DA Opp., p-4]. However, nothing could be further from the truth. In Congregation Khal Chaisidei Stovere, the Court expres rested its decision on the fact that the defendant (a corporation) “had not taken any steps to evaluate the vehicle's safety.” 232 A.D.2d at 920 (emphasis added)."* In stark contrast here, the evidence shows that Mr. Hussain had the limousine evaluated by both Mavis and a DMV specialist. While quoting at length from Congregation Khal Cha sidei Skwere, the People conspicuously fail to quote the above language, which makes clear that the decision is directly antithetical to the evidence at hand."? In fact, the decision’s focus on the lack of “any steps” to evaluate the vehicle in that case highlights by distinction why the evidence in this matter is legally insufficient. Mr. Hussain took steps to have the limousine evaluated and repaired, Itis precisely because Mr. Hussain took such steps that all five of the cases upon which the People heavily rely are inapposite. See People v. Hernandez, 82 N.Y.2d 39 (1993); People v. "In Congregation Khal Chaisidei Skwere Inc, the vehicle was purchased by the corporate defendant in late July 1990 (shortly before its State inspection certificate expired), the corporate defendant took no steps to have the vehicle inspected, and the vehicle was thus operating on the day of the accident, August 7, 190, without any inspection having been performed. As a result, the defendant’s dereliction in operating “this lately purchased, uninspected, used vehicle” created a substantial and unjustifiable risk that was foreseeable. 232 A.D.2d at 921. Operating a recently purchased used vehicle with an expired inspection sticker, without performing any inspection whatsoever, of course assumes a risk of foreseeable harm. Under that circumstance, the owner would be operating a potentially dangerous instrument blindly. However, the same cannot be said of a defendant who has an existing vehicle Periodically evaluated and serviced by a DMV-licensed mechanic, and has the same vehicle inspected by a DOT specialist (who found no braking deficiency only 32 days before the accident) "For that matter, the People also fail to note that the finding of criminal liability in Congregation Khal Chaisidei Skwere specifically did not take “into consideration the fact that defendant was also in violation of its own rules as to transportation operators.” 232 A.D.2d at 921 25Kibbe, 35 N.Y.2d 407 (1974); State v. Steenburg Homes, 389 N.W.2d 668 (Wis. Ct. App. 1998); Com, v. Fabian, 60 A.3d 146 (Pa. Sup. Ct. 2013); Com. v. Keysock, 345 A.2d 767 (Pa. Sup. Ct. 1975). ‘The People cite People v. Hernandez, 82 N.Y.2d 39 (1993), for the proposition that foreseeability does not mean that the result must be “the most likely event.” [DA Opp., p.7]. Nonetheless, the event must still occur in a manner that is foreseeable, People v. Roth, 80 N.Y.2d at 243-4, and not just be “obscure or merely probable.” People v. Stewart, 40 N.Y.2d 692, 697 (1976). In Hernandez, the Court held that it was “simply implausible” for defendants, who provoked a gun battle with police officers following an attempted robbery, to claim that they could not have foreseen one officer shooting another as a result of “a bullet going astray,” 82 N.Y.2d 319. To put it mildly, those circumstances are not at all comparable to those present in this case. Stray bullets during a firefight are of course foreseeable. However, the same cannot be said of a vehicle that experiences catastrophic brake failure after the vehicle is examined and serviced by a DMV-licensed mechanic (the customer said: “check brakes”) and then subsequently inspected by a DOT specialist who observed no braking deficiency. In fact, beyond catastrophic brake failure, none of the out-of-service violations noted on ‘September 4, 2019 ~ relating to a dangling ABS line, a missing federal sticker, or emergenc} exits ~ put the vehicle at risk of any type of foreseeable crash, Nor do the People claim otherwise. That being said, the People know that in order to prove homicide in this case, they need to establish that the manner of harm allegedly made foreseeable by Mr. Hussain’s conduct was catastrophic brake failure (resulting in the crash), and not some other “obscure or merely probable” mechanical defect. People v. Stewart, 40 N.Y.2d 692, 697 (1976). ‘That is why they 26strain credulity trying to do so, as they specifically argue that Mr. Hussain “ignored repeated warnings and signs that the limousine’s brakes would fail,” despite the lack of evidence to support that position. (Supra). Because such proofis lacking, the People’s reliance on People v. Kibbe, 5 N.Y.2d 407 (1974) is similarly misplaced. In Kibbe, the defendants, after robbing a “thoroughly intoxicated” victim (who was denied service at multiple bars “due to his condition”), thrust him out of a vehicle at night, onto the shoulder of a rural two lane highway, shoeless, without outer clothing, and with his trousers down around his ankles and his shirt rolled up towards his chest. [dat 410. Further, the freezing temperature was “near zero,” there was no artificial illumination, and visibility was obscured by heavy winds and blowing snowdrifts. /d. at 410-11. To aggravate matters, the defendants drove off with the victim’s glasses, leaving him in that helpless condition, nearly one-half mile away from the nearest structure. [d. In finding causation (for the victim being struck by a vehicle) to be sufficient, the Court held that the “despicable” actions of the defendants, leaving the victim to traverse the highway in such conditions, “clearly foreboded the probability of his resulting death.” Jd. at 413. Amazingly, the People urge this Court to find the circumstances in Kibbe akin to those present here, Far from knowingly placing vietims in some perilous situation rife with a foreseeable risk of harm, as the People would have one preposterously believe, the evidence in this case shows that Mr. Hussain had no reason to foresee that catastrophic brake failure would occur. As detailed above, the evidence, comprising Mr. Hussain having the limousine evaluated and/or serviced by a DMV-licensed mechanic and a DOT specialist (without notice of such a foreseeable risk), renders the factual underpinnings of Kibbe inapplicable. 27The same holds true for State v. Steenburg Homes, 589 N.W.2d 668 (Wis. Ct. App. 1998), also cited by the People. In Steenburg Homes, a corporate defendant violated its own. express policy to attach safety chains between its tractors and trailers, resulting in one trailer striking bicyclists after it disengaged from a tractor. While the Court found the corporate defendant's conduct was the legal cause of the harm, it specifically held that foreseeability existed because the corporate defendant “had an express policy of requiring its drivers to attach safety chains.” /d. at 673. In other words, the fact that the corporate defendant had its own express policy requiring it to attach safety chains was proof that it knew or should have known of the risks inherent in not doing so. /d. Here, there is no proof that Mr. Hussain violated any of his ‘own express policies. Nor is there any other proof that he knew or should have known that the limousine’s operation would give rise to a foreseeable risk of catastrophic brake failure, particularly given that the vehicle was evaluated and/or serviced by a DMV-licensed mechanic and a DOT specialist, neither of whom alerted Mr. Hussain of any such risk. In addition, the People rest confidently on Com. v, Fabian, 60 A.3d 146 (Pa. Sup. Ct 2013), as some towering pillar of support for its Indictment against Mr. Hussain, Notably, the People’s entire “description” of that case is as follows: The victims in that case were special needs students and their aide, who were transported to school by van. The van’s driver had told the company that there was something wrong with the van and that the vvan shook when she applied the brakes. She returned to the garage, where she was told that a mechanic would look at the van, According to witnesses, the mechanic later “mashed the brakes three times”, put it om a lift, pulled some of the wheels off, but did not remove the brake drums. The driver drover 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 increased and the driver vainly attempted to 28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. [DA Opp., pp.9-10] The People left out one not so insignificant detail ~ the defendant in Fabian was not the vehicle’s operator; it was the mechanic. And that makes sense, because it would have been the mechani —not the customer — who would have known or had reason to know of the risks arising from his (the mechanic's) deficient servicing of the vehicle. That conclusion is further buttressed in Fabian by the fact that the mechanic, after the crash, falsely claimed to law enforcement that he had conducted certain brake work on the vehicle which, in fact, was never performed (i.e., evidencing his awareness of the risks and consciousness of guilt). Strikingly similar to those circumstances, Mavis here falsely invoiced Mr. Hussain for brake work it never performed. Yet, in light of all these factors, the People apparently have elected to continue their baseless prosecution against Mr. Hussain simply because they arrested him first, four days after the accident, before they knew all the facts."* For the very reasons Com v. Fabian undermines the People’s position, so does the final case upon which they rely, Com. v. Keysock, 345 A.2d 767 (Pa. Sup. Ct. 1975). Once again, the People’s so-called case description leaves much to be desired. The People, summarizing the "The decision in Fabian supports a prosecution not of Mr. Hussain but of Mavis. On that point, the People write that the defendant “vaguely alleges an intervening cause” to relieve him of liability. [DA Opp...p.17]. However. that is misleading, as the defense maintains that Mr. Hussain’s own conduct was not a legal cause at all, Put simply, because Mr. Hussain could not foresee catastrophic brake failure based on his own conduct, he has no liability from which to be relieved. 29facts of Keysock, state: [TJhe defendant was charged with involuntary manslaughter. He chose to drive a ear 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 car with obviously defective tires. [DA Opp...p.11] What the People have neglected to share with this Court is that the defendant in Keysock performed the mechanical work on the vehicle himself. In September, 1972, appellant purchased for $100 a 1956 Chevrolet. The car was not operative, so appellant towed it to his parents’ garage and began to rebuild it. He did such things as put in a new engine, replace the transmission, fix the electrical system, repair the chassis and the interior, add a roll bar, and put on new tires. His hope was to make the car suitable for general family use. Appellant's interest in automobiles was not limited to this one car; he was interested in a career as an automobile mechanic. To that end, he enrolled in a course at Willow Street Vo-Tech on December 4, 1972. There he was on the third shift and was taught “about cars and inspections and the driver training, the motor and all of this.” Much of the work he did on his ear was done at the Vo-Tech workshop. After he got the car running, appellant noticed that the wide tires he had bought for the rear wheels of the car were rubbing and therefore an adjustment ‘would have to be made. Pending making this adjustment, appellant put on a pair of tires that had been on his mother’s car. On the day of the accident, January 27, 1973, appellant was driving his car with these replacement tires on it, on Route 30, a four lane highway. He had never had the car inspected; the inspection sticker on the front windshield had expired on July 31, 1972.... The most important of those circumstances is that appellant chose to drive his car with defective tires. The defect was not latent, but rather the tires were visibly worn. [A trooper] immediately noticed this when he examined the car after the accident. If [the trooper] could make this observation, so could appellant. He was not unfami with cars; rather, by his own admission, he had practically built the car himself, and he was taking a course in automobile mechanics. 345 A.2d 767 at 72-74, 30How the People think they can pass off Keysock as some analogous case is utterly baffling. Here, Mr. Hussain did not mechanically service the limousine himself. Rather, he brought it toa DMV-licensed mechanic for such service. And, the evidence shows that the alleged defect in this case (the brakes) was indeed latent and not visible, as DOT Specialist Chad SI did not detect it during his September 4, 2019 inspection of the vehicle. [DA Aff. 31]. Contrary to salvaging the Indictment, Keysock reinforces its invalidity. In fact, Com v. Keysock makes clear that a violation of a motor vehicle law (even that imposing an inspection requirement) does not, in and of itself, constitute criminal conduct: In the present case, appellant was driving his car in violation of the Motor Vehicle Code, Supra. The car had not been inspected as required by the Code, Supra at s 834(h), and the rear tires did not meet the requirements of the Code, Supra at s 841. Appellant was therefore clearly committing an “unlawful act.’ Our courts, however, have expressly held that conduct made unlawful by The Motor Vehicle Code is not necessarily the kind of ‘unlawful act” included within the definition of involuntary manslaughter. ‘The reason for these decisions is that the Code in many instances makes acts of ordinary negligence unlawful. Therefore to say that any violation of the Code is sufficient Perse to prove involuntary manslaughter would be to allow a person to be held criminally liable for acts of simple negligence. 345 A.2d at 773 The preceding cases cited by the People underscore that foreseeabili is a necessary linchpin in this case. And itis sorely lacking. That is why the People are forced to rely upon cases which are factually dissimilar. To emphasize that point, the People spotlight ses involving such disparate things as a gun battle with police officers and a virtually unclothed and blinded man abandoned in freezing conditions on a visibly obscured roadway. Yet, they bury within a footnote People v. Bonaventura, 271 A.D. 900 (2d Dept. 1946) [DA Opp.. p.12,n.1], which was cited by the defense. 31As the defense explained in it prior submission [Def MOL., pp.15-16], the Court in Bonaventura, 271 A.D. at 900, dismissed an Indictment charging a defendant with criminally negligent operation of a vehicle resulting in death, where the defendant's vehicle, prior to the fatal accident, experienced “a partial loss of brake fluid, in that brake fluid was enabled to seep through” defective parts of the braking system. The People, without any explanation, dismissively ask this Court to disregard the import of Bonaventura simply because “the People’s expert fin that ease] stated, “I don’t know, [ wouldn’t answer that’ when asked about the cause of the crash.” [DA Opp., p12, n.1]. What the People fail to address, however, is the legal consequence of the expert’s statement ~ namely, that the evidence in Bonaventura “failfed] to show notice to defendant which would serve to make plain to her the grave nature of the latent defect and the dire jeopardy in which she placed the lives of her family, as passengers, and herself, as well as those of other persons, by operation of the automobile.” 271 A.D. at 900. In short, the evidence in Bonaventura was legally insufficient to establish that the defendant could foresee the ensuing brake failure. That is precisely the circumstance which exists in this case Next, rather than imprudently giving short shrift to People v. Roth, 80 N.Y.2d 239 (1992), which was also cited by the defense [Def. MOL., pp.13-14], the People instead seek to supplant the authority of the Court of Appeals with a lower court’s decision. By way of reminder, the defendants in Roth were charged with manslaughter and criminally negligent homicide, for causing a “variety of unsafe conditions and improper practices at [a business] facility” that led to the explosion and death of an employee. 80 N.Y.2d 243. Although the evidence established that “the defendants allowed a tank containing petroleum products to be cleaned without adequate 32ventilation and in the presence of numerous sources of ignition,” 80 N.Y.2d at 245, the Court of Appeals held that dismissal of the Indictment was warranted based on lack of foreseeability ‘The People do not disagree with the preceding recitation. However, they remarkably ask this Court to flagrantly disregard the Court of Appeals’ reason for finding lack of foreseeability and instead adopt that of the lower court. And, they do so despite the fact the Court of Appeals. expressly disagreed with the lower court’s decision and consequently modified it. 80 N.Y.2d at 243 (“We agree that the other charges were properly dismissed, but for different reasons.”). Specifically, the Fourth Department in People v. Roth, 176 A.D.2d 1186, 1187 (4th Dept. 1991) affirmed the trial court’s dismissal of the Indictment, finding that the People failed to establish foreseeability, based on its view that evidence of the actual, triggering cause of the explosion was hypothetical and speculative, That is the factual determination the People ask this Court to adopt. However, the Court of Appeals expressly rejected the Fourth Department's, decision, holding contrarily that the Grand Jury evidence was indeed “sufficient to establish that the fatal explosion underlying this homicide prosecution was triggered by a spark from a nonexplosion proof trouble light.” Roth, 80 N.Y.2d at 243.'° Thus, the Court of Appeals held that the evidence was legally sufficient to establish “that the explosion was in fact caused by "The Court of Appeals in Roth, 80 N.Y.2d at 243, explained: “According to the evidence, the spark was produced when the unprotected bulb was struck by a stream of water from a high pressure washer. Witnesses also identified a number of other unsafe conditions atthe site, several of which had the potential to trigger an explosion in the vapor-laden atmosphere. The fire investigator, however, who was the only witness to offer an expert opinion about the actual cause of the explosion, stated that he was 99.9% certain that the explosion was caused by a spark from the trouble light. This was legally sufficient proof to support the conclusion that the explosion was in fact caused by conditions for which the defendants were responsiblconditions for which the defendants were responsible.” Id. at 245. Notwithstanding the existence of such actual causation, the Court of Appeals nonetheless held that the Indictment required dismissal because the People could not “show that it was foreseeable that the explosion would occur in the manner that it di ice., legal causation, 80 N.Y.2¢ at 244, In plain terms, the Court of Appeals in Roth, supra, has made clear that even where a defendant's conduct is the actual cause of a fatality, he may not be charged without proof that he could foresee such conduct causing that fatality “in the manner that it did.” 80 N.Y.2d at 244. It is little wonder the People ask this Court to reject that binding authority in favor of a lower court’s modified decision. Given insufficient evidence of Mr, Hussain’s ability to foresee catastrophic brake failure, the Court of Appeals’s decision in Roth calls for dismissal of the instant Indictment. For that matter, despite the People’s futile effort to downplay the applicability of other cases cited in the defense’s initial brief, they all stand for the same controlling principle — that a defendant's conduct is not the legal cause of an injury or death in the absence of foreseeability. See People v. Suquisupa, 167 Misc.2d 109, 112-13 (Bronx. Sup. Ct. 1996) (“Given the increased foreseeability required for criminal liability. the defendant cannot reasonably have been expected to foresee” the harm); People v. Hiraldo, 177 Misc.2d 33, 38 (Kings Sup. Ct. 1998) (“The death of the victim... was not [ ] reasonably foreseeable.... The evidence presented to the Grand Jury [] does not establish that the defendant recklessly or negligently caused the death of the vietim....”); People v, Warner-Lambert Co., 51 N.Y.2d 295, 307 (1980) (dismissing indictment "*In fact, based on that finding, the Court of Appeals reinstated a charge of reckless endangerment, which, unlike homicide charges, contained “no requirement that the defendants” reckless conduct cause injury or death.” 80 N-¥.24 at 245. 34charging defendants with manslaughter and criminally negligent homicide where “the evidence before the Grand Jury was not legally sufficient to establish the foreseeability of the actual immediate, triggering cause” of the fatal accident) E. Both the defense and the People have expended significant effort analyzing the factual circumstances of other cases. But what is most important are the facts of this case, particularly given that there is no dispute concerning the applicable legal standard. The Indictment against Mr. Hussain must be dismissed in its entirety, as a matter of law, if the People failed to present sufficient evidence that he should have foreseen the fatal limousine accident occurring due to catastrophic brake failure. ‘The mere allegation that Mr. Hussain’s conduct caused a limousine to be on the road with defective brakes is not enough. Nor does proof that the vehicle was simply not permitted on the road alter that conclusion. In no uncertain terms, the People were obligated to present proof that Mr. Hussain knew or should have known, based on the facts available to him, that the limousine would crash as a result of catastrophic brake failure. And, based on their comments and disclosures to date, that is where they fail miserably. DOT Specialist Chad Smith personally saw the limousine at Mavis, a DMV-licensed mechanic, on June 8, 2017, January 12, 2018, and July 28, 2018, and ratified it being repaired at that location, Separate and apart from those dates, based on invoices, Mr. Hussain brought the limousine to Mavis for inspection and servicing on September 10, 2016, June 9, 2017, September 28, 2017, January 25, 2018, May 11, 2018, June 8, 2018, and June 25, 2018. On May 11, 2018, Mr. Hussain specifically told Mavis to “check [the] brakes,” and Mavis generated an invoice 35notifying Mr. Hussain that it did so, and that it provided “professional brake service” and “labor,” which included the installation of various parts. On September 4, 2018, only 32 days before the accident, DOT Specialist Chad Smith inspected the limousine personally and notified Mr. Hussain of various issues having nothing to do with the alleged brake failure. ‘That is the evidence presented by the People. And, it negates any claim that Mr. Hussain could foresce the limousine sustaining catastrophic brake failure on October 6, 2018. Indeed, the People have yet to explain why Mavis was not qualified to inspect the limousine’s brakes and, more significantly, how Mr. Hussain would have known or had reason to know of that fact. In sum, the evidence before the Grand Jury was necessarily insufficient to establish the critical elements of foreseeability and causation. “[l]in order to protect the liberty of all citizens, the Legislature requires that an indictment be dismissed where the Grand Jury proceeding is defective.” People v. Huston, 88 N.Y.2d 400, 401-02 (1996), citing C.P.L. § 210.20(1)(¢). That is exactly the circumstance which exists here. Permitting the prosecution of Mr. Hussain to continue on this record would, in the absence of foreseeability, (1) amount to sanctioning homicide prosecutions against vehicle owners for their reliance on professional mechanics, and (2) elevate violations of vehicular regulations to potential acts of homicide. The Court of Appeals has made clear that the law does not recognize such strict liability for criminally negligent homicide and manslaughter. ‘This Court should thus reject outright the People’s effort to rewrite the law, simply to justify their rush to judgment in arresting and charging Mr. Hussain four days afier the accident.For the reasons set forth herein, and in the defense’s initial Memorandum of Law, we respectfully submit that the Court should grant the relief sought in the annexed Notice of Motion, including dismissal of the Indictment based on legal insuffi jency, as well as such other and further relief as this Court deems just and proper. Dated: New York, New York October 23, 2019 District Atorney susan J. Mallery, Esq. 275 Madison Avenue, 35" Floor New York, New York 10016 Tel: (212) 227-8877 Fax: (212) 619-1028 LEE C. KINDLON, ESQ. ‘The Kindon Law Firm, PLLC 52 James Street Albany, New York 12207 Tel: (518) 434-1493 Fax: (518) 935-9336 Attomeys for Defendant Nauman HussainSTATE OF NEW YOK COUNTY COURT SCHOHARIE COUNTY THE PEOPLE OF THE STATE OF NEW YORK avs AFFIRMATION OF SERVICE NAUMAN HUSSAIN, Indictment No. 2019-33 Defendant I, Chad D. Seigel, Esq.,, an attorney duly admitted to practice in the State of New York. hereby affirms: | am not a party to the action, am over 18 years of age and reside in New York. On October 23, 2019, I served the within Reply Memorandum of Law in Support of Defendant Nauman Hussain’s Omnibus Motion by Federal Express. Service was made to the District Attorney's Office at the following address: Hon. Susan J. Mallery, Esq. District Attorney's Offi Schoharie County P.O. Box 888, Public Safety Facility Schoharie, New York 12157