People v Lauchner

[*1] People v Lauchner 2009 NY Slip Op 52617(U) [26 Misc 3d 1201(A)] Decided on December 17, 2009 Suffolk Dist Ct, First District Alamia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2009
Suffolk Dist Ct, First District

The People of the State of New York,

against

Dean G. Lauchner, Defendant.



2009SU51937



Thomas M. Spota, III

Suffolk County District Atty.

400 Carleton Avenue

Central Islip, NY 11722

By: Eric W. Hannas,

Assistant District Attorney

Steven M. Burton

P.O. Box 697

Central Islip, NY 11722

Salvatore A. Alamia, J.

ORDERED that this motion by the defendant for omnibus relief is decided as follows:

Defendant's request for an order pursuant to CPL 170.30(1)(a) and 170.35(1)(a) dismissing the first and second counts of the information charging him with the violation of VTL 1192(3) and VTL 1194(1)(b) for facial insufficiency is granted.

The statutory requirements for the factual part of an information are that it state facts of an evidentiary character supporting or tending to support the charges (CPL 100.15[3], 100.40[1][a]), that the allegations of the factual part and any supporting depositions provide reasonable cause to believe that the defendant committed the offenses charged (CPL 100.40[1][b]), and that the non-hearsay allegations establish, if true, every element of the offenses charged and the defendant's commission thereof (CPL 100.40[1][c], 100.15[3]). People v. Casey, 95 NY2d 354, 360 (2000). While the factual allegations of an information should be given a "fair and not overly restrictive or technical reading" (People v. Casey, supra, 95 NY2d at 360), the non-hearsay allegations still must be sufficient to establish a prima facie case. See, People v. Henderson, 92 NY2d 677 (1999); People v. Alejandro, 70 NY2d 133, 138 (1987).

The non-hearsay factual allegations that the defendant was asleep in the driver's seat of his vehicle at a gas station while in an intoxicated condition, that there was vomit on his jacket, in the vehicle, on the driver's side door and on the ground in front of the driver's side door, and that he stated [*2]"I'm coming from a friends [sic] house in Hauppauge, I drove here because I was thirsty," are insufficient to establish that the defendant was intoxicated at the time that he operated the vehicle. There is no allegation that the motor was running or that the keys were in the ignition, and the People's CPL 710.30 notice refers to the defendant's admission that he drove to the gas station and threw the keys in the back seat. In the absence of non-hearsay allegations establishing that the vehicle was in operation or that the defendant was intoxicated when he drove to the location where he was found, the information is facially insufficient. Both counts are dismissed accordingly.

The remainder of defendant's omnibus motion is rendered moot in light of the foregoing.

Dated:

J.D.C.