Opinion
08-092-I.
Decided March 13, 2009.
Pretrial motions (CPL § 255.10) by the defendant for relief in the nature of dismissal or reduction of an indictment, granting discovery and/or a bill of particulars, preclusion and/or suppression of evidence, and for dismissal of the indictment pursuant to CPL § 190.50(5)(c) on the grounds that the defendant was not afforded reasonable notice of the grand jury proceeding within the meaning of CPL § 190.50(5)(a).
Julie A. Garcia, Esq., Essex County District Attorney, (Brian W. Felton, Esq., of counsel), Elizabethtown, New York.
Mann Law Firm P.C. (Matthew J. Mann, Esq. and Andrew J. Proler, Esq., of counsel), Latham, New York, for the defendant.
The defendant is charged by a four-count indictment, filed on December 15, 2008, with having committed two counts of driving while intoxicated ( Vehicle and Traffic Law § 1192[2], [3]), both class E felonies, failure to keep right, ( Vehicle and Traffic Law § 1120 [a]), a violation, and speed not reasonable and prudent ( Vehicle and Traffic Law § 1180[a]), a class A misdemeanor. The charges arise out of an incident alleged in the indictment to have occurred on July 5, 2008 in the Town of Elizabethtown, Essex County, when the defendant operated a 2001 Harley-Davidson motor vehicle on State Route 9, a public highway, while in an intoxicated condition.
The defendant moves to dismiss the indictment on the grounds that (1) the indictment is defective ( CPL § 210.20[1][a], § 210.25), (2) the evidence before the grand jury was not legally sufficient to establish the offenses charged or any lesser included offense ( CPL § 210.20[1][b], § 210.30), and (3) the grand jury proceeding was defective ( CPL § 210.20[1][c], § 210.35). The defendant also moves to inspect the grand jury minutes ( CPL § 210.30), to preclude and suppress statements, and for rulings on the use of defendant's prior criminal history and uncharged bad acts. The defendant's motion to inspect the grand jury minutes is granted.
Testifying before the grand jury were two members of the New York State Police, Troopers Francisco Rodriguez (Rodriguez) and Joseph Jerzak (Jerzak). Rodriguez testified that at approximately 7:30 p.m. on July 5, 2008, he was dispatched to a motorcycle accident on State Route 9 in Elizabethtown, Essex County, New York. Upon reaching the accident site, he observed a motorcycle off the west side of the road, He also saw the defendant being treated by emergency medical personnel about ten yards away from the bike. Rodriguez stated that he saw no other individuals in the area and, believing the defendant to be the driver of the motorcycle, asked him twice whether there was anyone else with him. The defendant responded by saying "I wasn't driving". Rodriguez told the grand jury that the defendant's speech was slurred and eyes glassy, and that he was able to "smell an alcoholic beverage about his person". Due to the defendant's condition, Rodriguez testified that he was unable to perform a field sobriety test or get his license and registration. The presenting assistant district attorney asked Rodriguez to opine whether this was "an accident where someone else could have walked away". Rodriguez responded, "No, not at all", adding that the bike had apparently "flipped in the area and came to rest in its twisted position".
Jerzak testified that he was dispatched to the same motorcycle accident on State Route 9 in Elizabethtown on the evening of July 5, 2008. Upon his arrival, two other state troopers and the emergency medical personnel were already on the scene. Jerzak told the grand jury that he learned from the emergency medical personnel that the defendant, who was seriously injured, was going to be airlifted to Fletcher Allen Hospital in Burlington, Vermont. Jerzak testified he spoke to the defendant, who identified himself as John T. Barrett. During the course of repeated questioning, the defendant consistently stated that he was not the driver, and that he did not know the identity, condition or whereabouts of the driver. Jerzak testified that he observed the motorcycle lying on its right side on the westbound side of State Route 9, and the defendant was located about twenty feet north of the motorcycle. He added that the motorcycle had two seats and appeared to have bent forks and to have been "in some sort of serious accident." Jerzak testified that although he "is not an expert", based on the damage to the motorcycle and the injuries sustained by the defendant, he "would highly doubt that anyone could walk away" from the accident scene. Since he was able to smell the odor of alcoholic beverages during his discussions with the defendant, he believed that the defendant had been drinking. As a result, Jerzak followed the ambulance to the Elizabethtown Community Hospital where he asked the defendant to submit to a test to determine his blood alcohol content. A blood sample was taken with the consent of the defendant, resulting in a reading of .21 of 1% of alcohol by weight in the defendant's blood. The record of that test was admitted into evidence. Jerzak later learned that the defendant owned the motorcycle.
Having reviewed the grand jury minutes to determine whether sufficient evidence was presented to support each and every count in the indictment, the analysis begins with the recognition that "an indictment is presumed to be based on legal and sufficient evidence" ( People v. Bergerson, 17 NY2d 398, 402, 218 NE2d 288, 290, 271 NYS2d 236, 238; see also People v. Howell, 3 NY2d 672, 675, 171 NYS2d 801, 803, 148 NE2d 867, 868). In determining the sufficiency of the evidence before the grand jury the court must view such evidence in a light most favorable to the prosecution, and determine whether such evidence, if unexplained and uncontradicted, would constitute prima facie proof so as to warrant a conviction after trial ( People v. Swamp, 84 NY2d 725, 730, 622 NYS2d 472, 474, 646 NE2d 774, 776; People v. Pelchat, 62 NY2d 97, 105, 476 NYS2d 79, 83, 464 NE2d 447, 451; People v. Valles, 62 NY2d 36, 476 NYS2d 50, 464 NE2d 418; People v. Dunleavy, 41 AD2d 717, 341 NYS2d 500, affirmed 33 NY2d 573, 347 NYS2d 448, 301 NE2d 432). "In the context of the Grand Jury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt ( People v. Mayo, 36 NY2d 1002, 1004, 374 NYS2d 609, 337 NE2d 124; People v. Swamp, supra)" ( People v. Bello, 92 NY2d 523, 526, 683 NYS2d 168, 170, 705 NE2d 1209, 1211). "As applied to a case involving wholly circumstantial evidence, this standard limits the reviewing court's inquiry to determining whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes" ( People v. Deegan, 69 NY2d 976, 979, 516 NYS2d 651, 652, 509 NE2d 345, 346). "That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference'" ( People v. Bello, 92 NY2d 523, 526, 683 NYS2d 168, 170, 705 NE2d 1209, 1211, quoting People v. Deegan, supra). Also, "all questions as to the quality or weight of the proof should be deferred" ( People v. Sabella, 35 NY2d 158, 167, 359 NYS2d 100, 108, 316 NE2d 569, 574-575), and as long as "the prosecutor has established a prima facie case, the evidence is legally sufficient even though its quality or weight may be so dubious as to preclude indictment or conviction pursuant to other requirements'" ( Id., quoting the Commission Staff Comment to Proposed CPL 35.10, now CPL 70.10 ).
Each count of the indictment here requires "legally sufficient evidence" ( CPL § 70.10[1]; 190.65[1]) that the defendant operated a motor vehicle upon a public highway. In this case, having presented no admission by the defendant nor any eye witnesses to his operation of the motorcycle, the People's case rests solely upon circumstantial evidence. It is without question that observation of a defendant actually driving a motor vehicle is not necessary to prove the crime of driving while intoxicated, and operation of a motor vehicle in such cases can indeed be established by circumstantial evidence, when coupled with an admission by the defendant ( see, People v. Booden, 69 NY2d 185, 513 NYS2d 87, 505 NE2d 598; People v. Blake, 5 NY2d 118, 180 NYS2d 775, 154 NE2d 818; People v. Charland, 194 AD2d 827, 598 NYS2d 606) or some other indicia of defendant's operation, such as identification testimony by an eye witness prior to the accident ( see, People v. Wells, 186 AD2d 867, 588 NYS2d 938; People v. Scallero, 122 AD2d 350, 504 NYS2d 318) or the defendant's position in the driver's seat of a vehicle at the accident scene ( see, People v. Saplin, 122 AD2d 498, 505 NYS2d 460; People v. Spencer, 289 AD2d 877, 736 AD2d 428).
The grand jury did not hear from the witness(es) who reported the accident and caused the police dispatch to take place, nor from any of the emergency medical personnel or other persons who first responded the scene. Such persons may have been able to provide information, more contemporaneous with the accident, regarding the positions of the motorcycle and the defendant, any admissions by the defendant, and the period of time between the accident and the arrival of the first person to the accident scene and the state police. The record is also devoid of testimony from any witness who, prior to the accident, may have seen the defendant intoxicated or driving the motorcycle, or who heard him speak about any intent to drive it. No evidence was presented regarding fingerprints on the motorcycle's steering mechanism, key or other parts so as to exclude any other operator. Similarly, forensic evidence, such as defendant's blood or tissue or clothing fibers, on the motorcycle or the roadway, if any, and the lack of such evidence from a third person, was not presented. The prosecution did not introduce evidence of the defendant's injuries along with properly qualified expert testimony linking the defendant to being the operator based upon those injuries being consistent with those of an operator rather than a passenger.
The opinion testimony of Rodriguez and Jerzak violated the rules of evidence in criminal cases which, with certain exceptions, applies to grand jury proceedings ( CPL § 190.30; People v. Mitchell, 82 NY2d 509, 605 NYS2d 655, 626 NE2d 630). "As a general principle of common-law evidence, lay witnesses must testify only to the facts and not to their opinions and conclusions drawn from the facts. It is left to the jury to draw the appropriate inferences arising from the facts ( see, Richardson, Evidence § 361 [Prince 10th ed.]; see also, People v. Malphurs, 111 AD2d 266, 489 NYS2d 102; Hartley v. Szadkowski, 32 AD2d 550, 300 NYS2d 82)" ( People v. Russell, 165 AD2d 327, 332, 567 NYS2d 548, 551, affirmed 79 NY2d 1024, 584 NYS2d 428, 594 NE2d 922). While expert opinion evidence "is admissible where the conclusions to be drawn from the facts depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence' ( Dougherty v. Milliken, 163 NY 527, 533, 57 NE 757; De Long v. County of Erie, 60 NY2d 296, 469 NYS2d 611, 457 NE2d 717)" ( People v. Cronin, 60 NY2d 430, 432, 470 NYS2d 110, 111, 458 NE2d 351, 352), a prerequisite to its admissibility is foundational evidence establishing that "the expert [is] possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable. ( McCormick, Evidence (2d ed.), § 13; see, generally, § 10; Wigmore, Evidence, vol. 2, §§ 555-567; vol. 7, §§ 1917-1929; Richardson, Evidence (10th ed. Prince), §§ 366-368)" ( Matott v. Ward, 48 NY2d 455, 459, 423 NYS2d 645, 647, 399 NE2d 532, 534). Thus, the opinion testimony of Rodriguez and Jerzak was inadmissible since neither their qualifications as experts nor the evidentiary foundations for their opinion testimony were laid upon the record before the grand jury, and its introduction improperly usurped the grand jury's fact-finding function.
The totality of the admissible, circumstantial evidence before the grand jury, even when viewed in the light most favorable to the prosecution, does not supply "legally sufficient evidence" ( CPL § 70.10[1] ) of the requisite element of operation on the part of the defendant. Evidence of a motor vehicle accident in the vicinity of an intoxicated and injured owner, without more, is legally insufficient to support criminal charges against such person founded upon operation of the vehicle. These limited facts, and "the inferences that logically flow from those facts" ( People v. Deegan, supra at 979, 516 NYS2d at 509 NE2d at 346), even if accepted as true, are insufficient to allow the grand jury to "rationally have drawn the guilty inference" ( id.) or to "warrant conviction by a trial jury"( People v. Pelchat, supra at 105, 476 NYS2d at 83, 464 NE2d at 451) without speculation. "Surmise, suspicion or speculation is no substitute for evidence" ( People v. Mayo, 36 NY2d 1002, 1006, 374 NYS2d 609, 611, 337 NE2d 124, 125).
As there are no lesser included offenses which may be charged for any count of the indictment based upon the underlying facts, the defendant's motion to dismiss all counts of the indictment must be and is granted, subject to the right of the People to resubmit the charges to a grand jury within forty-five (45) days hereof ( CPL § 210.45[9]). The defendant remains released on his own recognizance pending such resubmission pursuant to the accompanying securing order ( id.). The defendant's remaining contentions need not be reached.
IT IS SO ORDERED .