Opinion
No. 2012–2260 K CR.
2014-06-18
The PEOPLE of the State of New York, Appellant, v. Dwight PADMORE, Respondent.
Appeal from an order of the Criminal Court of the City of New York, Kings County (Geraldine Pickett, J.), dated September 5, 2012. The order granted defendant's motion to dismiss the information for facial insufficiency.
Present: PESCE, P.J., WESTON and SOLOMON, JJ.
ORDERED that the order is modified, on the law, by providing that the branches of defendant's motion seeking to dismiss the charges of driving while ability impaired and driving while intoxicated are denied, and the information is reinstated with respect to these charges; as so modified, the order is affirmed, and the matter is remitted to the Criminal Court for all further proceedings.
Defendant was charged in an information with driving while ability impaired (Vehicle and Traffic Law § 1192[1] ), common-law driving while intoxicated (Vehicle and Traffic Law § 1192[3] ), and reckless driving (Vehicle and Traffic Law § 1212). In the information, a police officer alleged that she had arrived at a specified location and had observed a parked Toyota vehicle. The driver's side view mirror was broken and had fallen off the vehicle. The officer further alleged that defendant had admitted to her that, while driving his Nissan Maxima, he had hit and sideswiped the parked Toyota, causing damage, and that two passengers had driven defendant's vehicle away from the scene of the accident. In addition, the police officer stated that she had observed that defendant exhibited signs of intoxication—slurred speech, red watery eyes, the odor of an alcoholic beverage on his breath, and an unsteady gait. The Criminal Court granted defendant's motion to dismiss the information on the ground that it was facially insufficient.
To be sufficient on its face, an information must contain factual allegations of an evidentiary character supporting or tending to support the charge, demonstrate reasonable cause to believe that the defendant committed the offense charged, and contain nonhearsay factual allegations “that establish, if true, every element of the offense charged” ( People v. Alejandro, 70 N.Y.2d 133, 137 [1987]; see CPL 100.15[3]; 100.40[1][b], [c]; People v. Kalin, 12 N.Y.3d 225, 228–229 [2009]; People v. Jones, 9 N.Y.3d 259, 262 [2007]; People v. Dumas, 68 N.Y.2d 729, 731 [1986] ). “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] ).
Applying the above standards, the Criminal Court erred in granting the branches of defendant's motion seeking to dismiss the charges of driving while ability impaired and driving while intoxicated ( see People v. Granda–Vintmill, 41 Misc.3d 135[A], 2013 N.Y. Slip Op 51879[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; People v. Asher, 16 Misc.3d 89, 842 N.Y.S.2d 168 [App Term, 9th & 10th Jud Dists 2007]; People v. Lopez, 34 Misc.3d 476, 477, 931 N.Y.S.2d 478 [Crim Ct, Richmond County 2011]; see also People v. Lennon, 10 Misc.3d 130[A], 2005 N.Y. Slip Op 51956[U] [App Term, 1st Dept 2005] ). While the circumstances of the accident in this case “may have been capable of innocent explanation ... they nonetheless supported an inference that a crime had been committed because the vehicle had been driven by a person under the influence of alcohol” ( People v. Booden, 69 N.Y.2d 185, 188 [1987] ). Corroboration of defendant's statements, including his admission that he was driving his car, was not required ( see People v. Suber, 19 N.Y.3d 247 [2012] ). Thus, the Criminal Court erred in dismissing the charges of driving while ability impaired and driving while intoxicated, on the ground that the information did not specify the time that had elapsed between the accident and the officer's observation that defendant exhibited signs of intoxication.
However, the Criminal Court correctly dismissed the charge of reckless driving, as the factual allegations in the information failed to support that charge ( see Vehicle and Traffic Law § 1212; People v. Grogan, 260 N.Y. 138, 149–150 [1932]; People v. Khurshudyan, 34 Misc.3d 152[A], 2012 N.Y. Slip Op 50301[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; People v. Dipoumbi, 23 Misc.3d 1127[A], 2009 N.Y. Slip Op 50974[U] [Crim Ct, N.Y. County 2009]; People v. Orlofsky, 70 Misc.2d 298, 300–301, 332 N.Y.S.2d 778 [Saratoga County Ct 1972]; People v. Garo, 208 Misc. 496, 498, 144 N.Y.S.2d 107 [Broome County Ct 1955]; People v. Sas, 172 Misc. 845, 846, 16 N.Y.S.2d 380 [Chenango County Ct 1939]; cf. People v. McGrantham, 12 N.Y.3d 892, 893–894 [2009]; People v. Armlin, 6 N.Y.2d 231, 233 [1959]; People v. Cooper, 38 A.D.3d 678, 679–680 [2007] ).
Accordingly, the order is modified by providing that the branches of defendant's motion seeking to dismiss the charges of driving while ability impaired and driving while intoxicated are denied, and the information is reinstated with respect to these charges.