People v Watson

[*1] People v Watson 2006 NY Slip Op 52290(U) [13 Misc 3d 1242(A)] Decided on November 30, 2006 Criminal Court Of The City Of New York, New York County Coin, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2006
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Troy Watson, Defendant



2006NY030719

Ellen M. Coin, J.

Defendant is charge with Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (in violation of Vehicle and Traffic Law § 511(2)(a)(i)), Driving While Impaired by Drugs (in violation of VTL § 1192.4), Operating a Motor Vehicle While Impaired (in violation of VTL § 1192.1) and Unlicensed Driving (in violation of VTL § 509(1)). He moves this Court for an order, inter alia, dismissing the charge of Driving While Ability Impaired by Drugs on the ground of facial insufficiency.

Criminal Procedure Law Sections 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. Defendant contends that the accusatory instrument fails to establish such a prima facie case of a violation of VTL § 1192.4 in the absence of factual allegations that defendant ingested a drug proscribed by Public Health Law § 3306, a necessary element of the offense.

The complaint alleges that at the intersection of 73rd Street and Broadway, New York County, defendant was behind the wheel of a black 1998 Honda Accord 4-door sedan, with the key in the ignition and the engine running. It further alleges that defendant had watery and bloodshot eyes, had the odor of an alcoholic beverage on his breath, was unsteady on his feet and was operating the vehicle in an unsteady and abrupt manner. In addition, the complaint alleges that when the affiant police officer drove defendant's vehicle to the 007 Precinct he observed the odor of marijuana in defendant's vehicle. The complaint further alleges facts to establish the officer's expertise in the identification of drugs.

The non-hearsay allegations included in the factual part of the accusatory instrument charging defendant with the crime of Driving While Ability Impaired by Drugs (VTL § 1192(4)) should provide reasonable cause to believe that : 1) the defendant ingested a drug; 2) the drug ingested by the defendant is one proscribed by Public Health Law §3306 (VTL §114-a); 3) after ingesting the drug, the defendant operated a motor vehicle (VTL § 125); and 4) while operating his motor vehicle the defendant's ability to operate the motor vehicle was impaired by the ingestion of the drug. People v. Kahn, 160 Misc 2d 594, 597.

The instant complaint alleges that defendant had watery and bloodshot eyes, was unsteady on his feet and was operating a motor vehicle in an unsteady and abrupt manner. In addition, the [*2]complaint alleges that the affiant observed the odor of marijuana in the vehicle while driving it to the police precinct. These allegations circumstantially make out each of the elements of a violation of VTL § 1192(4). See, e.g,. People v. Dwyer, 8 Misc 3d 1017(A). Accordingly, defendant's motion to dismiss the charge of VTL § 1192.4 for facial insufficiency is denied.

Motion To Suppress Evidence of Refusal to Submit to Chemical Test

A hearing shall be held to determine whether defendant was timely and properly advised about the consequences of his refusal to submit to a blood and/or urine test.

SANDOVAL

Defendant's Sandoval motion is granted to the extent that a hearing shall be held by the trial judge.

This constitutes the decision and order of the Court.

Dated: November 30, 2006

JCC

New York, New York