People v Martinez (Raul)
Annotate this CaseDecided on November 26, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2011-1807 Q CR 2011-1808 Q CR 2011-1809 Q CR 2011-1810 Q CR
The People of the State of New York, Respondent,
against
Raul Martinez, Appellant.
Appeals from four judgments of the Criminal Court of the City of New York, Queens County (Mary R. O'Donoghue, J.), rendered June 24, 2010. The judgments convicted defendant, upon his pleas of guilty, of, respectively, disorderly conduct, driving while ability impaired, and two charges of bail jumping in the third degree.
ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,
ORDERED that the judgments of conviction are affirmed.
Defendant was charged in four separate accusatory instruments. The first instrument (the assault case) charged him with two counts of assault in the third degree (Penal Law § 120.00 [1]), resisting arrest (Penal Law § 205.30), sexual abuse in the third degree (Penal Law § 130.55), and two counts of harassment in the second degree (Penal Law § 240.26 [1]). The second instrument (the DWI case) charged him with driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (common law) (Vehicle and Law § 1192 [3]). The factual portion of that accusatory instrument alleged that a police officer had observed defendant sitting behind the wheel of a 2005 Chevy with the key in the ignition and the motor running. Upon approaching defendant, the officer observed him to be in an intoxicated condition in that he had bloodshot, watery eyes and a strong odor of an alcoholic beverage. According to the instrument, defendant admitted to drinking four or five beers and he was taken to the precinct, where an intoxilyzer test administered in the officer's presence registered defendant's blood alcohol content as being .091%.
The third and fourth instruments each separately charged defendant with bail jumping in the third degree. The factual portions of those accusatory instruments, executed by an employee of the District Attorney's Office, alleged that, based upon an examination of certified printouts from the "CRIMS Computer System," which were annexed to the instruments and which contained the procedural history of defendant's assault and DWI cases, defendant was released from custody by court order and allowed to remain at liberty on his own recognizance upon the condition that he subsequently appear personally in court on July 12, 2005 in connection with those two cases, but failed to do so.
On June 24, 2010, defendant pleaded guilty to disorderly conduct (Penal Law § 240.20) in satisfaction of the assault case charges, to driving while ability impaired (Vehicle and Traffic Law § 1192 [1]) in satisfaction of the DWI case charges, and to each of the bail jumping in the third degree charges. On appeal, defendant contends that the accusatory instruments charging him with driving while intoxicated (per se and common law) and bail jumping in the third degree were jurisdictionally defective because the factual allegations contained therein were insufficient [*2]to establish every element of the offenses charged. Defendant also requests that, in the event that this court dismisses those accusatory instruments as jurisdictionally defective, the assault case accusatory instrument also be dismissed in the interest of justice. For the reasons that follow, the judgments of conviction are affirmed.
At the outset, we note that the arguments concerning the accusatory instruments' facial sufficiency are jurisdictional (see People v Alejandro, 70 NY2d 133 [1987]). Thus, defendant's claims were not forfeited upon his plea of guilty (see People v Dreyden, 15 NY3d 100, 103 [2010]; People v Konieczny, 2 NY3d 569, 573 [2004]) and must be reviewed despite his failure to raise it in the Criminal Court (see Alejandro, 70 NY2d 133). However, as defendant raised no issue in the Criminal Court with respect to the hearsay nature of any of the facts alleged therein, that aspect of the facial sufficiency requirement was waived (People Casey, 95 NY2d 354, 367 [2000]) and, as a consequence of his guilty plea, forfeited (People v Keizer, 100 NY2d 114, 121 [2003]). As defendant did not waive prosecution by information, the facial sufficiency of the accusatory instruments must be reviewed according to the requirements of an information (see CPL 100.10 [1]; 170.65 [1], [3]; People v Kalin, 12 NY3d 225, 228 [2009]; People v Chan, 36 Misc 3d 44, 46 [App Term, 2d, 11th & 13th Jud Dists 2012]). Insofar as is relevant to these appeals, to be facially sufficient, the accusatory instruments herein must contain factual allegations of an evidentiary nature which establish, if true, every element of the offenses charged and must provide reasonable cause to believe that defendant committed the offenses charged (CPL 100.15 [3]; 100.40 [1]; see Casey, 95 NY2d at 360; Alejandro, 70 NY2d at 135-136; People v Dumas, 68 NY2d 729, 731 [1986]). "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" (Casey, 95 NY2d at 360). At the pleading stage, "the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial" (People v Henderson, 92 NY2d 677, 680 [1999]).
With respect to the charge of driving while intoxicated (per se), the police officer stated in that accusatory instrument that defendant had been taken to the precinct where an intoxilyzer test had been administered in the officer's presence, and that the test results showed that defendant registered a .091% blood alcohol content, which was above the .08% limit set forth in Vehicle and Traffic Law § 1192 (2). Despite defendant's contention to the contrary, the two-hour limitation for administering a chemical test, as set forth in Vehicle and Traffic Law § 1194, is an evidentiary rule to be used solely for the purpose of qualifying the results of the test for admission into evidence at trial (see Matter of Viger v Passidomo, 65 NY2d 705, 707 [1985]; Matter of Cook v Adduci, 205 AD2d 903 [1994]; Matter of White v Fisher, 49 AD2d 450 [1975]), and compliance with that requirement need not be pleaded in an accusatory instrument charging a violation of driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]). Therefore, the accusatory instrument was legally sufficient, since it contained allegations establishing, if true, every element of the charge of driving while intoxicated (per se) and defendant's commission thereof (see e.g. People v Granda-Vintmill, 41 Misc 3d 135[A], 2013 NY Slip Op 51879[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; People v Hussain, 40 Misc 3d 132[A], 2013 NY Slip Op 51136[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Thus, we need not address the facial sufficiency of the factual allegations pertaining to the charge of driving while intoxicated (common law).
With respect to the charges of bail jumping in the third degree, the District Attorney's employee alleged in those accusatory instruments that, by court order, defendant was released from custody and allowed to remain at liberty on his own recognizance upon the condition that he subsequently personally appear in court on July 12, 2005 in connection with the assault and DWI cases. The employee further alleged that defendant failed to appear, as required, on that date, or within 30 days thereafter. Thus, since defendant failed to object in the Criminal Court to any perceived hearsay statements that may have been contained in the instruments (see Casey, 95 NY2d at 362-363), based on the complainant's statements alone, the instruments contained [*3]sufficient factual allegations of an evidentiary nature which established, if true, every element of the charges of bail jumping in the third degree and defendant's commission thereof, as they gave defendant sufficient notice to prepare a defense to the charges and were adequately detailed to prevent him from being tried twice for the same offense (see Casey, 95 NY2d at 360).
In view of the foregoing, defendant's request to vacate his plea of disorderly conduct and dismiss the assault case accusatory instrument in the interest of justice is rendered academic.
Accordingly, the judgments of conviction are affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2014
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