People v Baranes
Annotate this CaseDecided on May 19, 2005
Criminal Court, New York County
THE PEOPLE OF THE STATE OF NEW YORK
against
NETANEL BARANES, Defendant.
2005NY004082
Assistant District Attorney Steven Cohn represented the People of the State of New York. Michael Elbaz, Esq., of Michael Elbaz P.C. represented the defendant.
Ellen M. Coin, J.
Defendant is charged with one count of Operating a Motor Vehicle While Intoxicated (in violation of Vehicle and Traffic Law §1192.3) and one count of Operating a Motor Vehicle While Impaired (in violation of Vehicle and Traffic Law §1192.1). Defendant moves for an order dismissing the information as facially insufficient and for other forms of relief.
CPL §§100.15 and 100.40 require that factual allegations of an evidentiary character provide reasonable cause to believe that defendant committed the offenses charged in the information and that non-hearsay factual allegations provide a prima facie case that defendant is guilty. While an information must state the crime with which defendant is charged and the facts which support those charges, the allegations need not establish guilt beyond a reasonable doubt. People v Henderson, 92 NY2d 677 (1999). Where the factual allegations 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, those allegations should be given a fair and not overly restrictive or technical reading. People v Casey, 95 NY2d 354 (2000).
In order to establish the charge of Operating a Motor Vehicle While Impaired, the People must show that defendant's consumption of alcohol "has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver." People v Cruz, 48 NY2d 419, 427 (1979). For the charge of Driving While Intoxicated, the People must establish that defendant's consumption of alcohol has rendered him "incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver." Id.,48 NY2d at 428.
The information recites the relevant statutory language for each count and alleges in non-hearsay language the facts which support those counts. A fair reading of the accusatory instrument provides defendant with notice that he must defend against charges that at a specified date, time and location, he drove out of a garage and into traffic at a high rate of speed, that he had the odor of alcohol on his breath, that he stated, "I was drinking but I was not driving" and that after being advised of his rights, he refused to take a blood-alcohol test.
Evidence that a person has consumed alcohol and has the odor of alcohol on his breath is not conclusive proof of intoxication. Senn v Sudieri, 165 AD2d 346 (1st Dep't 1991); People on [*2]the Complaint of Mulrean v Fox, 256 AD 578 (1st Dep't 1939). While intoxication cannot be inferred solely from defendant's driving at a high rate of speed (People v Weaver, 188 AD 395 [3rd Dep't 1919]), here there is evidence that defendant also refused a chemical test after being sufficiently warned of the consequences of refusal. Vehicle Traffic Law § 1194(2)(f). Such refusal is evidence of consciousness of guilt. People v O'Rama, 78 NY2d 270 (1991); People v Thomas, 46 NY2d 100, 108, 109 n2 (1978). Thus, defendant's refusal, together with the allegations of his having the odor of alcohol on his breath, his driving into traffic at a high rate of speed, and his admission that he had been drinking, satisfy the prima facie and reasonable cause requirements of the Criminal Procedure Law. At the pleading stage, nothing more is required. People v Allen, 92 NY2d 378 (1998).
Defendant's motion to dismiss the information as facially insufficient is denied.
Defendant's motion to suppress evidence of his refusal to take a chemical test, evidence of the observations of law enforcement officers, and statements as the fruits of an unlawful arrest is granted to the extent of ordering a Dunaway/Huntley/refusal hearing.
Defendant's motion to suppress statements on the basis of involuntariness is granted to the extent of ordering a Huntley hearing.
All Molineux and Sandoval issues are referred to the trial Court.
Defendant's discovery demands are granted to the extent indicated in the People's response and VDF.
The People are reminded of their Brady, Rosario and related obligations.
Defendant retains all rights to which he is entitled pursuant to CPL § 255.20.
This constitutes the decision and order of the Court.
Dated: NEW YORK, NEW YORK______________________________
MAY 19, 2005 Judge of the Criminal Court
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