Opinion
No. 2011KN085800.
2013-01-29
The PEOPLE of the State of New York v. Ariel ROSA, Defendant.
Mark A. Bederow, Esq., Law Offices of Mark A. Bederow, PC., New York, for defendant. ADA Michael Chessa, Kings County District Attorney's Office, Brooklyn, for The People Of the State of New York.
Mark A. Bederow, Esq., Law Offices of Mark A. Bederow, PC., New York, for defendant. ADA Michael Chessa, Kings County District Attorney's Office, Brooklyn, for The People Of the State of New York.
EVELYN J. LAPORTE, J.
The defendant, ARIEL ROSA, is charged with one count of Driving While Impaired (VTL § 1192.1) and one count of Driving While Intoxicated (VTL § 1192.3). He moves, inter alia, to dismiss the accusatory instrument for facial insufficiency ( seeC.P.L. § 170.30[1] ). For the reasons that follow, the defendant's motion to dismiss for facial insufficiency is denied.
BACKGROUND
It is alleged that on October 28, 2011 the defendant was driving a motor vehicle while intoxicated. Although Sergeant John Flynn did not see the defendant driving, he did observe the defendant to be outside of his vehicle in an apparent state of intoxication with a bloody injury to his head. The defendant was also covered in vomit. Blood and vomit were also observed to be inside the defendant's damaged vehicle and on the vehicle's deployed airbag. A chemical test revealed that the defendant blood alcohol level was .16%. When asked what had happened, the defendant responded that he had fallen asleep. Based upon this, Sergeant Flynn deduced that the defendant had been operating a motor vehicle while intoxicated and had thereby been involved in a collision with a parked vehicle. The defendant argues that these facts are not sufficient to support the charges because there is no indication that the defendant was operating the vehicle at the time in question.
DISCUSSION
To be sufficient on its face, an information must provide reasonable cause to believe that the defendant committed the offense, and the non-hearsay allegations must establish, if true, every element of the offense charged ( see People v. McNamara, 78 N.Y.2d 626, 629 [1991], citing C.P.L. 100.40[1] [b],[c]; People v. Alejandro, 70 N.Y.2d 133, 136–137 [1987] ). Mere conclusory allegations are insufficient ( see People v. Dumas, 68 N.Y.2d 729 [1986] ) and a purported information which fails to meet these requirements is fatally defective ( see People v. Alejandro, supra at 136, 517 N.Y.S.2d 927, 511 N.E.2d 71). An information should be given a non-technical reading so long as it gives the defendant sufficient notice to prepare a defense and will prevent him from being tried twice for the same crime ( see People v. Casey, 95 N.Y.2d 354, 360 [2000] ).
The original complaint, in pertinent part, reads as follows:
The deponent is informed by Sergeant John Flynn that, [on or about October 28, 2011 at approximately 3:50 a.m. at 272 Moffat Street in Kings County, New York State], a public highway, the informed [sic] observed the defendant standing directly outside of Defendant's vehicle, 2009 Acura bearing a New York license number EXZ6088, and that said vehicle sustained severe damage along with a parked vehicle which was at the above mentioned location.
The deponent is further informed by Informant that upon arrival the informant observed a substantial amount of blood inside of Defendant's vehicle.
The deponent is further informed by the informant that when Informant asked the defendant what happened, the defendant stated, in sum and substance, I fell asleep.
The deponent is further informed by Defendant's own statements that the above-mentioned 2009 Acura is registered to the defendant.
Deponent further states that at the approximate above time and place, Informant observed the defendant exhibit signs of intoxication: to wit, red watery eyes, odor of alcoholic beverage on breath, and an unsteady gait.
Deponent further states that Deponent is informed by the attached chemical test analysis that at the time indicated, the defendant submitted to a chemical test to determine the defendant's blood alcohol concentration.
The complaint is accompanied by a supporting deposition from Sergeant John Flynn and the report of the above-referenced chemical test showing that the defendant had a blood alcohol concentration of .16%
On February 27, 2012, the defendant filed the instant motion to dismiss. On March 30, 2012 the People filed papers in opposition to the defendant's motion. They also simultaneously filed a superseding complaint. The superseding information reads in pertinent part:
The deponent is informed by Sergeant John Flynn that, [on or about October 28, 2011 at approximately 3:50 a.m. at 272 Moffat Street in Kings County, New York State], a public highway, the informed [sic] observed the defendant standing directly outside of Defendant's vehicle, 2009 Acura bearing a New York license number EXZ6088, and that said vehicle sustained severe damage along with a parked vehicle which was at the above mentioned location.
The deponent is further informed by Informant that, at the above time and place, the informant observed that there were no other individuals present at said location and that said location was a desolate street.
The deponent is further informed by Informant that upon arrival the informant observed a substantial amount of blood on the defendant's head and face, vomit on the defendant's person, and a substantial amount of blood and vomit inside of Defendant's vehicle.
The deponent is further informed by the informant that the informant observed the airbag in defendant's vehicle to be deployed and that there was blood on said airbag.
The deponent is further informed by Informant that when Informant asked the defendant what happened, the defendant stated, in sum and substance, I fell asleep.
The deponent is further informed by Defendant's own statements that the above-mentioned 2009 Acura is registered to the defendant.
Deponent further states that at the approximate above time and place, Informant observed the defendant exhibit signs of intoxication: to wit, red watery eyes, odor of alcoholic beverage on breath, and an unsteady gait.
Deponent further states that Deponent is informed by the attached chemical test analysis that at the time indicated, the defendant submitted to a blood test to determine the defendant's blood alcohol concentration with a result of .16% alcohol content.
The key difference in the superseding complaint is that it sets forth more detailed facts connecting the defendant to the accident. It adds that the accident scene was on “a desolate street” with no other person around; that there was blood and vomit on the defendant's person and vomit inside the vehicle; and that the airbag was deployed and there was blood on the airbag as well.
New York Vehicle and Traffic Law § 1192 defines Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs as follows:
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 defendant asserts that the allegations in the complaint are insufficient to establish that he was operating a motor vehicle because the complaint does not state whether anyone else was present or had been seen in the vehicle and there is no allegation that any car keys were recovered from the defendant. He asserts that because the defendant was not observed behind the wheel, the facts in the complaint are insufficient because they do not rule out another driver. The defendant concludes that the complaint is insufficient because each of the crimes charged include an element of “operating” a motor vehicle and that the allegations in the complaint do not establish that he was operating a motor vehicle.
To support his position, the defendant cites cases which review the standard of proof at trial, not at the pleading stage. In People v. Stover, 38 Misc.2d 668, 240 N.Y.S.2d 94 (1963) the Court of Appeals reviewed testimony from a police officer to determine whether the prosecution had proven beyond a reasonable doubt that no one else had been actual driving the vehicle in question. In People v. White, 173 A.D.2d 897, 569 N.Y.S.2d 816 (3rd Dept.1991) the court focused on the fact that the defendant was in possession of the keys to a vehicle in their assessment of whether proof at trial excluded the possibility of the defendant's innocence. And in People v. Mathison, 175 A.D.2d 966, 573 N.Y.S.2d 771 (3rd Dept.1991) The court assessed the credibility of witnesses at trial in placing the defendant at the scene of a vehicular incident. None of these cases apply to the facts and law here.
To be sufficient on its face, an information must only provide reasonable cause to believe that the defendant committed the offense, and the non-hearsay allegations must establish, if true, every element of the offense charged ( see People v. McNamara, supra; People v. Alejandro, supra. The information need only give the defendant sufficient notice to prepare a defense and will prevent him from being tried twice for the same crime ( see People v. Casey, supra). The law requires that in determining facial sufficiency, the court view the accusatory instrument in the light most favorable to the People. People v. Gonzalez, 184 Misc.2d 262, 708 N.Y.S.2d 564 (App.Term. 1st Dept.2000)lv denied95 N.Y.2d 835, 713 N.Y.S.2d 142, 735 N.E.2d 422.
An accusatory instrument is facially sufficient when it contains an accusatory part designating the offense or offenses charged and a factual part alleging facts of an evidentiary character that tend to support the charges. C.P.L. §§ 100.15(2), (3); People v. Dumas, 68 N.Y.2d 729, 731 [1986] ). In addition, the non-hearsay allegations must provide “reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information.” (C.P.L. § 100.40[1][b] ). Reasonable cause exists “when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.” (C.P.L. § 70.10[2] ). The accusatory instrument must also provide “[n]on-hearsay allegations of the factual part of the information and/or of any supporting deposition [which] establish, if true, every element of the offense charged and the defendant's commission thereof.” Id. at § 100.40[1][c] ). To be facially sufficient, however, an accusatory instrument need only make out a prima facie case against the defendant; it need not establish guilt beyond a reasonable doubt. (People v. Henderson, 92 N.Y.2d 677, 680 [1999];People v. Ensley, 183 Misc.2d 141, 142, 702 N.Y.S.2d 752 [Crim. Ct., N.Y. County 1999] (citations omitted)). Prima facie evidence is evidence which, if uncontradicted, is sufficient to establish a fact. Prima facie evidence does not mean conclusive evidence, but rather evidence which creates a rebuttable presumption. See, People v. Gristina, 186 Misc.2d 877, 721 N.Y.S.2d 491, (2001).
This court will not suspend judgment and common sense in order to assume that the defendant was only coincidentally was covered in blood and vomit while standing next to his own damaged vehicle which contained a bloody deployed airbag that was covered in vomit. These facts coupled with the defendant's apparent intoxication (confirmed by a blood alcohol test) and his own explanation that he had fallen asleep, support the inference that the defendant had been operating the vehicle at the time of the accident and had been doing so while under the influence of alcohol. Although the facts as alleged do not state that defendant was actually seen behind the wheel of the car and operating it, the court finds that the defendant's condition, the condition of his car, and the fact that there was no one else near the vehicle, collectively describe a scenario of facts that are facially sufficient for the purposes of this accusatory instrument. As the Court of Appeals observed in People v. Dordal (55 N.Y.2d 954, 956, 449 N.Y.S.2d 179, 434 N.E.2d 248): “[t]hat competing inferences could be drawn from the evidence does not defeat the People's prima facie case (see People v. Barnes, 50 N.Y.2d 375, 381, 429 N.Y.S.2d 178, 406 N.E.2d 1071;People v. Gerard, 50 N.Y.2d 392, 397, 429 N.Y.S.2d 406, 406 N.E.2d 1343).”
In People v. Booden, 69 N.Y.2d 195 (1987) a police officer arriving at the scene of an accident at 3:00 a.m. found a vehicle in a ditch facing in the wrong direction and three persons standing alongside. The highway was dry and there was no indication of what might have caused the accident. Upon inquiry, the defendant stated that he had been driving, that he swerved to avoid hitting a deer and that the vehicle belonged to his father. Further investigation revealed defendant was intoxicated. The Court held that the circumstances of the accident were sufficient to show that the vehicle had been driven by a person under the influence of alcohol and, accordingly to establish that the offense had actually been committed.
While the original compliant was admittedly somewhat weaker, albeit arguably sufficient, the facts and inferences in the superseding complaint case clearly and logically support the charges and allow a finder of fact to rationally draw the conclusion that the defendant was operating his vehicle at the time of the accident and doing so in an intoxicated condition. People v. Bello, 92 N.Y.2d 523, 683 N.Y.S.2d 168, 705 N.E.2d 1209 (1998); People v. Dreyden, (2nd Dept.2010).
Viewing the facts in the light most favorable to the People, it is clear from the circumstances, defendant's condition and the condition of his car, coupled with his statement that he had fallen asleep, a jury could circumstantially conclude that the defendant operated his vehicle while intoxicated, thereby causing an accident. Therefore, the accusatory instrument properly describes a crime which the defendant allegedly committed. People v. Burton, supra.
The factual allegations in the information give the defendant sufficient notice to prepare a defense and protect the defendant from being twice tried for the same offense (Casey, 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233). For the foregoing reasons, Defendant's motion to dismiss the information for facial insufficiency is denied.
The defendant's motion to reserve the right to make further motions is granted to the xtent indicated in C.P.L. § 255.20.
This opinion constitutes the decision and order of this Court.