Opinion
No. 2015NY024027.
08-31-2015
The PEOPLE of the State of New York v. Craig PAMULO, Defendant.
ADA Hannah Yu, District Attorney's Office, New York County, New York, NY. Steven Z. Legon, for Defendant.
ADA Hannah Yu, District Attorney's Office, New York County, New York, NY.
Steven Z. Legon, for Defendant.
LISA A. SOKOLOFF, J.
Defendant, CRAIG PAMULO, is charged with and one count of Driving While Intoxicated, per se (VTL § 1192[2] ), one count of Driving While Intoxicated (VTL § 1192[3] ), and one count of Driving While Impaired (VTL § 1192[1] ). In his omnibus motion, he moves (1) to dismiss the accusatory instrument for facial insufficiency (CPL § 170.30[1] ), (2) to suppress statement evidence (Dunaway/Huntley hearing); (3) for a hearing to determine the legitimacy of the stop of Defendant's vehicle by police officers (Ingle/Huntley hearing) (3) to suppress evidence of any intoxilyzer/breathalyzer test that was performed on Defendant (Johnston hearing); (4) to preclude the People from introducing evidence of Defendant's prior criminal record and/or misconduct at trial (Sandoval hearing); and (5) for an order for a bill of particulars and discovery.
The court DENIES Defendant's motion for dismissal for facial insufficiency, and grants his motion for pre-trial hearings as discussed below.
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] ).
VTL § 1192 provides, in relevant part, the following:
1. Driving while ability impaired. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.
2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.
3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.
The accusatory instrument alleges that on April 17, 2015 at about 2:05 a.m., Defendant was driving a motor vehicle while intoxicated. The Complaint, sworn to by Police Officer Eric Demery, states, in relevant part:
I know the defendant was intoxicated because I observed the defendant had watery and bloodshot eyes, had the odor of an alcoholic beverage on his breath, and was unsteady on his feet. I am informed by Police Officer Daniel Mensing, that Police Officer Mensing administered a test to determine the defendant's blood alcohol content and the test indicated that the defendant had a blood alcohol content of .14% by weight of alcohol in his blood.
The charge of driving while intoxicated per se, is supported by sufficient evidence given the allegation that Defendant's blood alcohol content was .14 percent as shown by the chemical analysis of his breath as this percentage is nearly double the .08% limit set forth in VTL § 1192(2).
Intoxication is a greater degree of impairment which is reached when the driver has voluntarily consumed alcohol to the extent that he is incapable of employing 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, 428 [1979] ).Because there is no chemical test involved in VTL § 1192(3), known as common law intoxication, the charge of driving while intoxicated must be proved by evidence that Defendant had imbibed alcoholic beverages to the extent that the consumption of alcohol rendered him incapable of giving that attention and care to the operation of his automobile that a man of prudence and reasonable intelligence would give (People v. Miller, 83 Misc.2d 118 [Webster Town Ct., Monroe Cty 1975] ).
Allegations that Defendant smelled from the odor of alcohol, had watery and bloodshot eyes, was unsteady on his feet and operated a motor vehicle while having a blood alcohol concentration of .14% all tend to show that Defendant was in an intoxicated condition while driving (People v. Garbowski, 2002 WL 1967807 [NY Justice Ct, Monroe Co 2002] ; People v. Reynolds, 133 A.D.2d 499 [3rd Dept 1987], appeal denied 70 N.Y.2d 803 [1987] ; People v. Herzog, 75 Misc.2d 631 [District Court of Nassau Co, 1st Dist 1973] ). Thus, the charge of Driving While Intoxicated is also facially sufficient.
With respect to the charge of Driving While Impaired by Alcohol, the question in each case is whether, by voluntarily consuming alcohol, 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, 427 [1979] ). In People v.. Lizzio, 178 A.D.2d 741 (3rd Dept.1991), appeal denied 79 N.Y.2d 921 (1992), the Court found the defendant guilty of driving while ability impaired. In affirming, the Appellate Division pointed out that a conviction of driving while impaired does not require proof of intoxication, but only that defendant's driving ability was impaired to any extent. The defendant, pulled over for speeding, smelled of alcohol, his eyes were bloodshot, his speech was slurred and he exhibited poor coordination.
Compared to proof of intoxication, the quantum of proof necessary to support a conviction of driving while impaired, and, by implication, the proof required for an arrest therefor, is also "far less rigorous" (People v. Reding, 167 A.D.2d 716, 717 [3rd Dept 1990] ). A defendant awoken in the back seat of her running car, who exhibited several indicia of intoxication, coupled with her admissions, sufficed to establish probable cause to arrest defendant for, at the very least, driving while impaired (People v. Sieber, 40 Misc.3d 133(A) [App Term 2nd, 9th & 10th Jud Dists 2013] ). Similarly, a defendant awoken in the driver's seat of his parked car, who exhibited signs of intoxication, coupled with a strong odor of alcohol, sufficed to establish probable cause to arrest defendant for driving while impaired (People v. Cosimano, 40 Misc.3d 132(A) [App Term 9th & 10th Jud Dists 2013] ).
Finally, Driving While Impaired is a lesser included offense of Driving While Intoxicated. A lesser included offense is one which must by definition be concomitantly committed in the commission of the greater offense. 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] ). Consequently, the accusatory instrument is sufficient on its face as to all three charges.
Motion to Suppress Evidence, Statements, Breath Test
Defendant's motions to suppress the breath test, other examinations for quantifying levels of sobriety, police observations, Defendant's statements and any physical evidence recovered as fruits of an illegal arrest, are granted to the extent of ordering a Dunaway/Mapp/Huntley/Johnson/Scott hearing on these issues (see Dunaway v. New York, 442 U.S. 200 (1979)Mapp v. Ohio, 367 U.S. 643 (1961) ; People v. Huntley, 15 N.Y.2d 72 (1965) ; People v. Johnson, 134 Misc.2d 474 (Crim Ct, Qns Cty, 1987) ; People v. Scott, 63 N.Y.2d 518 (1984).
Sandoval Hearing
Defendant's motion to preclude the prosecutor from using at trial evidence of Defendant's prior criminal convictions, arrests or bad acts pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974) is reserved for the trial court.
Discovery and Bill of Particulars
Defendant's motion for pretrial discovery and a bill of particulars is granted to the extent provided by the People in their Voluntary Disclosure Form. CPL § 240.20 delineates the items discoverable from the prosecutor and CPL § 240.20(2) provides for the defendant's securing by subpoena any of these items not in the possession of the prosecutor. The People's cross-motion for reciprocal discovery pursuant to CPL § 240.30 is granted.
The People are reminded of their continuing obligations under Brady v. Maryland, 373 U.S. 83 (1963) and People v. Rosario, 9 N.Y.2d 286 (1961), cert. denied, 368 U.S. 866 (1961).
Reservation Of Rights
Defendant's application seeking the right to make further motions is granted to the extent provided for by CPL § 255.20(3).
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.