People v Hernandez (Aristides)

[*1] People v Hernandez (Aristides) 2015 NY Slip Op 50293(U) Decided on March 9, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 9, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570166/11

The People of the State of New York, Respondent,

against

Aristides Hernandez, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Neil E. Ross, J.), rendered February 1, 2011, convicting him, upon a plea of guilty, of aggravated driving while intoxicated, and imposing sentence.

Per Curiam.

Judgment of conviction (Neil E. Ross, J.), rendered February 1, 2011, affirmed.

In view of the defendant's knowing waiver of his right to prosecution by information, the facial insufficiency of the accusatory instrument must be assessed under the standard required of a misdemeanor complaint (see People v Dumay, 23 NY3d 51 [2014). So viewed, the accusatory instrument was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of aggravated driving while intoxicated (see Vehicle and Traffic Law § 1192[2-a]), the offense to which defendant ultimately pleaded guilty. In this connection, the factual portion of the accusatory instrument alleged, inter alia, that defendant was observed behind the wheel of his vehicle in an "intoxicated condition," exhibiting "watery and bloodshot eyes" and "the odor of an alcoholic beverage on his breath"; and that the results of defendant's breath test showed his blood alcohol level to be .19% (see People v Collucci, 36 Misc 3d 145[A], 2012 NY Slip Op 51618[U] [App Term, 1st Dept 2012]; see also People v Colburn, 123 AD3d 1292 [2014]). Contrary to defendant's claim, the accusatory instrument was not required to allege that the chemical analysis of his breath was made within two hours of his arrest, in accordance with Vehicle and Traffic Law § 1194, or with his consent, as such factors are "solely for the purpose of qualifying the results of the test for admission into evidence" (Matter of Cook v Adducci, 205 AD2d 903 [1994], lv denied 84 NY2d 811 [1994]; see also People v Atkins, 85 NY2d 1007 [1995]), rather than elements of the underlying aggravated driving while intoxicated charge that the People must plead and prove (see generally People v Thomas, 70 NY2d 823, 825 [1987]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 09, 2015