Opinion
2013-333 S CR
04-03-2015
The People of the State of New York, Appellant, v. Ladrice Thomas, Respondent.
PRESENT: : , MARANO and GARGUILO, JJ.
Appeal from an order of the District Court of Suffolk County, First District (William G. Ford, J.), dated January 16, 2013. The order, insofar as appealed from, granted the branches of defendant's motion seeking to dismiss the informations charging her with driving while intoxicated (per se) and driving while intoxicated (common law), respectively.
After defendant was arraigned on July 16, 2012, defense counsel moved to, among other things, dismiss the informations charging defendant with driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]), respectively, as facially insufficient, and the People opposed the motion. The District Court granted these branches of defendant's motion and dismissed the informations, finding that they failed to specifically identify defendant and noting that the instrument charging defendant with a violation of Vehicle and Traffic Law § 1192 (2) failed to reference any documentary proof of a chemical test result having been administered to defendant.
In order to be facially sufficient, the factual part of an information and/or of any supporting deposition must allege nonhearsay facts of an evidentiary nature establishing, if true, every element of the charged offense and the defendant's commission thereof (CPL 100.40 [1] [c]; see People v Kalin, 12 NY3d 225, 228—229 [2009]; People v Jones, 9 NY3d 259, 261 [2007]; People v Dumas, 68 NY2d 729, 731 [1986]). Here, the factual allegations considered within the four corners of each information, and the annexed supporting deposition (see People v Thomas, 4 NY3d 143, 146 [2005]), afforded the requisite "fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]), sufficiently set forth defendant's identity (see generally People v Vonancken, 27 Misc 3d 132[A], 2010 NY Slip Op 50695[U] [App Term, 9th & 10th Jud Dists 2010]; People v Bridgelal, 9 Misc 3d 127[A], 2005 NY Slip Op 51473[U] [App Term, 9th & 10th Jud Dists 2005]) as the driver who was allegedly operating a motor vehicle with a blood alcohol content (BAC) of .08 of one per centum or more (to wit, .17 of one per centum) (Vehicle and Traffic Law § 1192 [2]), and while in an intoxicated condition (Vehicle and Traffic Law § 1192 [3]).
Since defendant failed to raise a hearsay objection in her motion, and since such an objection is waivable ( see Casey, 95 NY2d at 364), the issue of whether it was necessary for the information charging her with driving while intoxicated (per se), in violation of Vehicle and Traffic Law § 1192 (2), to have referenced or included documentary proof of the chemical test result was not properly before the District Court ( see People v Lemma, 37 Misc 3d 143[A], 2012 NY Slip Op 52289[U] [App Term, 9th & 10th Jud Dists 2012]). In any event, the information charging this offense set forth that, based on the complainant state trooper's personal knowledge, defendant, after having failed field sobriety tests, was transported to the police station where she had provided a positive breath sample of .17 of one per centum BAC. "[T]he source or validity of the complainant's knowledge is a matter to be raised as an evidentiary defense at trial, and such facts need not be specified in the information" ( People v Sikorsky, 195 Misc 2d 534, 536 [App Term, 9th & 10th Jud Dists 2002]; see also Casey, 95 NY2d at 360).
Accordingly, the order, insofar as appealed from, is reversed, the branches of defendant's motion seeking to dismiss the informations charging her with driving while intoxicated (per se) and driving while intoxicated (common law), respectively, are denied, these informations are reinstated, and the matter is remitted to the District Court for all further proceedings.
Tolbert, J.P., Marano and Garguilo, JJ., concur.
Decision Date: April 03, 2015