Opinion
2005KN045680.
Decided January 12, 2006.
Defendant is charged with two counts of Operating a Motor Vehicle While Under the Influence of Alcohol (VTL Sec. 1192.2 and 1192.3), Operation While Registration or Privilege is Suspended or Revoked (VTL Sec. 512), and Reckless Driving (VTL Sec. 1212), all unclassified misdemeanors, as well as Operating a Motor Vehicle While Under the Influence of Alcohol (VTL Sec. 1192.1), Failure to Comply with a Traffic Control Sign (VTL Sec. 1110) and Unsafe Backing up of a Motor Vehicle (VTL Sec. 1211(b)), all traffic infractions.
As part of his omnibus motion dated November 14, 2005, Defendant has moved to dismiss the Criminal Court Complaint, asserting 1) pursuant to CPL Sec. 140.45, that the People's complaint is facially insufficient, and 2) pursuant to CPL Sec. 30.30 that the People have failed to comply with the time limitations imposed upon the prosecution of misdemeanors by that section.
In opposition to Defendant's motion, the People filed a response dated November 6, 2005 asserting that the above-enumerated charges were sufficiently plead, and that the People's time to prosecute this matter has not yet expired.
Defendant's motion is granted in part and denied in part for the reasons stated below.
FACTUAL STATEMENT
Pursuant to the Criminal Court Complaint, on July 16, 2005, at approximately 3:14 AM, Police Officer Michael Melbourne asserts that he observed the defendant behind the wheel of a 2002 Mercury Sable, driving in reverse, against the flow of traffic, within the Toll Plaza of the Brooklyn Battery Tunnel, County of Kings, City and State of New York.
The Officer further alleges that "the Defendant (was) exhibiting signs of intoxication: to wit, red watery eyes, odor of alcoholic beverage on breath, and an unsteady gait."
The Criminal Court Complaint also asserts that the Defendant submitted to the breathalyzer test, and the result was .194%.
SPEEDY TRIAL
At the outset, although Operating a Motor Vehicle While Intoxicated pursuant to either VTL Sec. 1192.2 or VTL Sec. 1192.3 is an unclassified misdemeanor, these charges are subject to the 90 day time limitation of CPL Sec. 30.30(1)(b). See, People v. Condarco, 166 Misc 2d 470, 633 NYS2d 930 (Crim.Ct., Queens Cty, 1995); People v. Matute, 141 Misc 2d 988, 990, 535 NYS2d 524 (Crim Ct., Bx Cty, 1988).
Further, though any analysis of speedy trial "must, as a matter of course, often involve distinct consideration with respect to individual counts of a single accusatory instrument," ( People v. Minor, 144 Misc 2d 846, 848 (2nd Dept., 1989)), by the same token, the "People's readiness obligation was fixed by the nature of the accusations at the commencement of the action." See, People v. Matute, 141 Misc 2d 988, 990, 535 NYS2d 524 (Crim Ct., Bx Cty, 1988); People v. Fisher, 167 Misc 2d 850, 635 NYS2d 1002 (Crim.Ct., Richmond Cty, 1995).
Since both VTL Sec. 1192.2 and 1192.3 are the top counts of the Criminal Court Complaint herein, there is no dispute that 90 days is the time limit applicable to the entire docket. See, People v. Mahmood, NYLJ, 9/29/05, p. 19, col. 3 ; People v. Lang, 5 Misc 2d 1021(a), 799 NYS2d 163 (Crim, Ct., Kings Cty 2004).
Defendant was arraigned on this matter on July 17, 2005. At that time, the People required the corroborating affidavit of PO Melbourne and a certified copy of the breathalyzer results. Defendant was released on his own recognizance, and the matter was adjourned to August 16, 2005 for conversion.
On August 16, 2005, the People failed to file the necessary supporting documents, and the matter was adjourned to September 28, 2005 for conversion.
Before the next court date, on or about August 22, 2005, the People filed a Statement of Readiness with the supporting deposition of Officer Melbourne. However, since the People failed to file the certified copy of the breathalyzer results, on September 28, 2005, the Court deemed the People's Statement or Readiness to be a nullity. The matter was then adjourned to October 21, 2005 for conversion, and marked final.
On September 29, 2005, the People filed with the Court a second Statement of Readiness with a certified copy of the breathalyzer results attached. Defendant indicates that the People did not actually serve said Statement of Readiness until October 3, 2005, as is evidenced by the dated postage marking on the envelope received by Defendant's counsel.
Thereafter, on October 21, 2005, Defendant requested a motion schedule, and filed the instant omnibus motion.
Pursuant to CPL Sec. 30.30(4)(a), all time subsequent to October 21, 2005 is excluded for motion practice.
There is no dispute that the time from July 17, 2005, the date of Defendant's arraignment, until August 22, 2005, the date the original Statement of Readiness was filed, is charged in its entirety to the People as to all charges. Excluding the day of arraignment from our calculations (See, People v. Stiles, 70 NY2d 765 (1987); People v. Eckert, 117 Misc 2d 504 (City Ct., Syracuse, 1983)), the People are charged with 35 days for this period of time.
In their response, the People assert their readiness for trial as of August 22, 2005, the date the People's initial Statement of Readiness was filed and served. However, the People also admit that they were not ready for trial on all charges. In particular, the People concede that they would have been obligated to dismiss the VTL Sec. 1192.2 charge if they had been sent out to trial subsequent to their August 22, 2005 Statement of Readiness.
Since "it is well settled that each count contained in an accusatory instrument is deemed as a matter of law a separate and distinct accusatory instrument," ( People ex rel Mack v. Warden, 145 Misc 2d 1016, 1017 (S. Ct., Kings Cty 1989)), it is entirely possible for the People to have been ready for trial on all but the VTL Sec. 1192.2 charge. This was the only charge that required the certified chemical test analysis for conversion. The corroborating affidavit of Officer Melbourne was all that was necessary to convert the other charges of the docket.
This analysis excludes the VTL Sec. 512 charge, since, as will be discussed below, there is no language in the complaint which would support this charge. Hence, there are no allegations which would require conversion.
Therefore, as to all charges except VTL Sec. 1192.2, the People's Statement of Readiness dated August 22, 2005 was sufficient to "stop the clock."
While it is noted that this Court deemed the August 22, 2005 Statement of Readiness to be a nullity since the People had not filed the certified Chemical Test Analysis, at this time, this Court clarifies its ruling to apply only to the VTL Sec. 1192.2 charge.
Subsequent to the adjourn date of September 28, 2005, the People filed another Statement of Readiness dated September 29, 2005, with a copy of the certified Chemical Test Analysis attached. As stated above, this documentation would be sufficient to convert the VTL Sec. 1192.2 charge, and establish the People's readiness to proceed to trial on that charge. However, Defendant has provided the Court with evidence that the People did not actually serve this second Statement of Readiness until October 3, 2005.
For their part, the People do not offer any contradiction of Defendant's contention regarding the mailing date of their second Statement of Readiness.
In this context, under CPLR Sec. 2103(b)(2), it is the date the People sent the notice, and not the date defense counsel received the notice which is controlling. However, the question remains — is the 5 day period between September 29, 2005 and October 3, 2005 charged to the People?
Though CPLR Sec. 2103(b)(2) does provide for a five day period to be added to any mailing, this period does not apply to statements of readiness. See, People v. Cenat, 176 Misc 2d 39, 44, 671 NYS2d 578 Crim. Ct., Kings Cty 1997) and cases cited therein.
In People v. Kendzia, 64 NY2d 331, 337 (1985), the Court of Appeals stated that under CPL Sec. 30.30(1), "ready for trial" means "a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk, or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk." In the event that the statement of readiness is made in the absence of defense counsel, which would encompass the off-calendar written statement under consideration herein, "the prosecutor would have to promptly notify (defense counsel) of the statement of readiness." Id. at 337 (emphasis added).
The issue of what would constitute "prompt" notice of an off-calendar statement of readiness was explored in People v. Todd, 184, Misc 2d 381, 382, 708 NYS2d 574 (Crim.Ct., Kings Cty, 2000). There the court acknowledged "that there is no requirement of immediate notice to defense counsel." However, the court held that "a twenty-seven day lapse" in serving the statement of readiness "was far in excess of what is sanctioned by statute or case law." See, also, People v. Collins, 186 Misc 2d 818, 821, 720 NYS2d 885 (Crim.Ct., Richmond Cty, 2000), aff., 190 Misc 2d 72, 735 NYS2d 912 (App. Term, 2nd Dept., 2001) ("notification must be made as soon as possible to satisfy the promptness requirement."); People v. Chittumuri, 189 Misc 2d 743, 748, 736 NYS2d 581 (Crim.Ct., Queens Cty, 2001) (28 day delay charged to People.)
This Court has found no authority which would allow the People, after serving the Court with their Statement of Readiness, to inexplicably wait for approximately 5 days before forwarding the same statement to defense counsel. Therefore, the People will be charged with the time from August 22, 2005 to October 3, 2005 (42 days), however, as discussed above, this time is only charged to the count of VTL Sec. 1192.2.
Thus, as to the VTL Sec. 1192.2 charge, the People are charged with a total of 77 days, that is, the time from July 17, 2005 to October 3, 2005. As to all other charges, the People are only charged with 35 days to date, that being the time from July 17, 2005 to August 22, 2005.
On this basis, Defendant's motion to dismiss on the grounds of a violation of CPL Sec. 30.30 is denied.
FACIAL SUFFICIENCY
CPL Sec. 100.15 provides that every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986).
Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish; 1) each and every element of the offense charged, and 2) the Defendant's commission of said crime. If both these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987).
On a motion to dismiss for facial insufficiency, this Court's review is limited to whether or not the People's allegations, as stated in the Criminal Court Complaint, are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 NY2d 103, 115, 512 NYS2d 652 (1986).
Applying these principles to the instant matter, there can be no dispute that the factual allegations contained in the misdemeanor information before this Court clearly do not support the charges of Failure to Comply with a Traffic Control Sign and Operation While Registration or Privilege is Suspended or Revoked.
Under VTL Sec. 1110(a), "every person shall obey the instructions of any official traffic-control device applicable to him placed in accordance with the provisions of this chapter." As noted by Defendant in his omnibus motion, there are no facts stated anywhere in the Criminal Court Complaint to indicate what, if any, traffic control device the Defendant disobeyed.
Likewise, under VTL Sec. 512, "any person who operates any motor vehicle upon a public highway while the certificate of registration of such motor vehicle or privilege of operation of such motor vehicle . . . is suspended or revoked shall be guilty of a misdemeanor . . ." There are no facts stated anywhere in the Criminal Court Complaint that could even arguably support this charge.
Hence, these charges are dismissed.
All other charges, however, are sufficiently plead on their face.
Officer Michael Melbourne asserts that he observed the defendant behind the wheel of a motor vehicle, driving in reverse, against the flow of traffic, within the Toll Plaza of the Brooklyn Battery Tunnel. He further alleges that at the time of his arrest, "the Defendant (was) exhibiting signs of intoxication: to wit, red watery eyes, odor of alcoholic beverage on breath, and an unsteady gait."
The Criminal Court Complaint also asserts that the Defendant submitted to the breathalyzer test, and the result was .194%. As noted above, a copy of the Certified Chemical Test Analysis was filed with the court.
These allegations are more than sufficient to support the remaining charges of the docket.
Therefore, Defendant's motion to dismiss the charges of Driving While Intoxicated (VTL Sec. 1192.2 and 1192.3), Driving While Impaired (VTL Sec. 1192.1), Unsafe Backing Up of a Motor Vehicle (VTL Sec. 1211(b)), and Reckless Driving (VTL Sec. 1212) is denied.
OTHER RELIEF REQUESTED
Defendant has moved for suppression of any statements he allegedly made to law enforcement personnel, or any other public servant. This motion is granted to the extent of ordering a pretrial hearing at which the admissibility of Defendant's statements will be considered.
Defendant also seeks to suppress the results of the breathalyzer examination. This motion is granted to the extent of ordering a pretrial hearing at which the issue of whether or not there was probable cause for the Defendant's arrest, and whether or not he was adequately apprised of his rights prior to taking the breathalyzer examination will be considered.
Said hearings, as well as a hearing to determine the admissibility of any of Defendant's prior criminal history, prior bad acts or immoral conduct will be conducted by the trial court prior to any trial of this matter.
People are directed to provide pre-trial disclosure of all materials subject to CPL Sec. 240.20, as well as all exculpatory materials, at the appropriate time prior to trial of this action.
All other arguments advanced by Defendant in his omnibus motion dated November 14, 2005 have been reviewed and rejected by this court as being without merit.
This shall constitute the opinion, decision, and order of the Court.