Opinion
No. 2015NY010820.
08-25-2015
The PEOPLE of the State of New York, v. Augustin MOREL, Defendant.
ADA Casey Conzatti, District Attorney's Office, New York. Lenore B. Furlong, The Legal Aid Society, New York.
ADA Casey Conzatti, District Attorney's Office, New York.
Lenore B. Furlong, The Legal Aid Society, New York.
LISA A. SOKOLOFF, J.
Defendant, AUGUSTIN MOREL, is charged with one count of Operating a Vehicle While Ability Impaired by Drugs (VTL § 1192[4] ) and now moves to dismiss the accusatory instrument for facial insufficiency pursuant to CPL §§ 170.30 and 170.35. For the reasons discussed below, the court DENIES Defendant's motion for dismissal.
To be facially sufficient, the factual part of a misdemeanor complaint must allege "facts of an evidentiary character" (CPL 100 .15[3] ) demonstrating "reasonable cause" to believe the defendant committed the crime charged (CPL 100.40[4][b] ) and contain non-hearsay factual allegations which, if true, establish every element of the offense charged and the defendant's commission thereof (CPL § 100.40[1][c] ; People v. Suber, 19 NY3d 247 [2012] ; People v. Dumas, 68 N.Y.2d 729, 731 [1986] ).
Mere conclusory allegations are insufficient (see Dumas, 68 N.Y.2d at 731 ) and a purported information which fails to meet these requirements is fatally defective (People v. Alejandro, 70 N.Y.2d 133, 136 [1987] ). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v. Casey, 95 N.Y.2d 354, 360 [2000] ).
Under VTL § 1192.4, "[n]o person shall operate a motor vehicle while the person's ability to operate such a motor vehicle is impaired by the use of a drug"
As set forth in People v. Kahn, 160 Misc.2d 594, 598 [Dist Ct, Nassau Co 1994] ), in order to prove that a defendant violated VTL 1192(4) the People must show the following elements of the crime:
(1) The defendant ingested a drug.
(2) The drug ingested by the defendant is one proscribed by Public Health Law § 3306.
(3) After ingesting the drug, the defendant operated a motor vehicle.
(4) While operating his motor vehicle the defendant's ability to operate the motor vehicle was impaired by the ingestion of the drug.
In the instant case, the accusatory instrument, sworn to by Police Officer David Mencarelli, alleges, in relevant part:
I observed the defendant driving a car at the above-mentioned location I know the defendant was under the influence of drugs because I smelled an odor of marijuana coming from the defendant's clothing, I observed that the defendant had watery and bloodshot eyes, and I observed that the defendant had ash containing marijuana on his pants. The defendant stated in substance: I had two puffs of marijuana before you stopped me.
I know that the ash I recovered contains marijuana based on my professional training as a police officer in the identification of marijuana, my prior experience as a police officer making marijuana arrests, and the odor emanating from the substance.
I advised the defendant of his rights regarding the taking of a test to determine the presence of drugs in his urine and the defendant refused to take the test.
The allegations that Defendant was under the influence of drugs, that Officer Mencarelli believed the substance was marijuana based upon his professional training as a police officer in the identification of drugs, his prior experience in drug arrests, the odor emanating from Defendant's clothing, and the statement by Defendant in the officer's presence, "I had two puffs of marijuana before you stopped me possession of marijuana," were sufficient, for pleading purposes, to provide reasonable cause to believe that Defendant had ingested marijuana, a substance listed in Public Health Law § 3306, and had operated the motor vehicle under the influence of marijuana.
Defense counsel argues that the complaint contains no allegations that Defendant's driving was erratic, reckless or otherwise unlawful and dangerous to demonstrate he was not operating the car reasonably and prudently.
Although the legislation has not defined the term "impaired," the Court of Appeals has held that a person's ability to operate such a motor vehicle is impaired when "this particular defendant has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver" (People v. Cruz, 48 N.Y.2d 419 [1979] ).
While it is true that the complaint contains bare-bone allegations with respect to Defendant's driving, the Appellate Division, First Department has held that not all classic symptoms of impairment or intoxication need be exhibited to establish that the defendant was incapable of operating the vehicle as a reasonable and prudent driver. For instance, there is no requirement that the information allege erratic driving or that the defendant's vehicle was involved in an accident (People v. Fiumara, 116 AD3d 421 [1st Dept 2014] ).
This court can find no way to distinguish the intoxication from alcohol in Cruz from the impairment by marijuana in this case. When viewed in the light most favorable to the People (People v. Contes, 60 N.Y.2d 620 [1983] ), the information is legally sufficient to establish that Defendant operated the vehicle while his ability was impaired by drugs (People v. Guglielmo, 13 Misc.3d 138(A) [App Term, New York, 9th & 10th Jud Dists 2006] ).
Accordingly, the information is facially sufficient and Defendant AUGUSTIN MOREL's motion is denied. This opinion constitutes the Decision and Order of the Court. A copy of the decision will be mailed to the parties and placed in the court file.