People v Veras

[*1] People v Veras 2013 NY Slip Op 51314(U) Decided on August 12, 2013 Criminal Court Of The City Of New York, Bronx County Wilson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2013
Criminal Court of the City of New York, Bronx County

The People of the State of New York,

against

Deily Veras, Defendant



2013BX014446



For the People, Robert T. Johnson, District Attorney, Bronx County, by Michael J. Weiss, Esq., Assistant District Attorney.

For the Defendant, Angelo Petrigh, Esq., the Bronx Defenders.

John H. Wilson, J.

Defendant is charged with one count of Operating a Motor Vehicle Under the Influence of Alcohol or Drugs pursuant to VTL Sec. VTL Sec. 1192.3, an Unclassified Misdemeanor, and one count of Operating a Motor Vehicle Under the Influence of Alcohol or Drugs pursuant to VTL Sec. 1192.1, a traffic violation.[FN1]

By motion dated March 30, 2013 Defendant seeks dismissal of all charges, asserting that the People's complaint is facially insufficient, rendering said complaint jurisdictionally deficient. Defendant also seeks suppression of all physical evidence seized and statements made to law enforcement personnel, as well as evidence of any prior bad acts.

The Court has reviewed the Court file, Defendant's motion, and the People's Response dated May 2, 2013. For the reasons stated below, the motion to dismiss is denied. [*2]

The motions for pre-trial hearings are granted, to the extent of ordering a hearing to determine if there was probable cause for Defendant's arrest and whether or not statements were taken in violation of defendant's rights under the United States and New York Constitutions.

Whether or not the People can use any prior bad acts or immoral conduct against the Defendant is referred to the trial court.

STATEMENT OF THE FACTS

Pursuant to the Criminal Court complaint, on or about March 11, 2013, at approximately 4:40 AM, Defendant was observed by Police Officer Mateusz Sajduk(deponent) "seated behind the steering wheel and operating a black 2007 BMW...with the keys in the ignition, engine running, while said vehicle was traveling (on) a public roadway." These observations are alleged to have occurred at East Tremont Avenue and Prospect Avenue, Bronx, New York. See, Criminal Court complaint dated March 11, 2013, p 1.

The deponent also asserts that "he observed the defendant make a right turn, without utilizing his right turn signal and to swerve on numerous occasions, in that he observed defendant's vehicle cross the double yellow line and drive in the oncoming traffic lane and then back into his lane." See, Criminal Court complaint dated March 11, 2013, p 1. Upon stopping the vehicle, the officer observed defendant "to have an odor of alcoholic beverage emanating from his breath, slurred speech, watery eyes, and was swaying on his feet." See, Criminal Court complaint dated March 11, 2013, p 1.

The deponent further states that "the defendant stated in sum and substance, I had a few Coronas at two (2) AM." See, Criminal Court complaint dated March 11, 2013, p 1. The officer also states that defendant submitted to a chemical test to determine the Defendant's blood alcohol concentration with a result of .04% alcohol content. See, Criminal Court complaint dated March 11, 2013, p 1-2.

LEGAL ANALYSIS RE: FACIAL SUFFICIENCY

CPL Sec. 100.15 provides that every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986).

Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. [*3]Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987).

On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court information are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 NY2d 103, 115, 512 NYS2d 652 (1986).

Applying these principles to the instant matter, the factual allegations contained in the superceding information before this Court are facially sufficient.

The People's complaint asserts that on or about March 11, 2013, at approximately 4:40 AM, Defendant was observed by Police Officer Mateusz Sajduk(deponent) "seated behind the steering wheel and operating a black 2007 BMW...with the keys in the ignition, engine running, while said vehicle was traveling (on) a public roadway." These observations are alleged to have occurred at East Tremont Avenue and Prospect Avenue, Bronx, New York. See, Criminal Court complaint dated March 11, 2013, p 1.

The officer further asserts that "he observed the defendant make a right turn, without utilizing his right turn signal and to swerve on numerous occasions, in that he observed defendant's vehicle cross the double yellow line and drive in the oncoming traffic lane and then back into his lane." See, Criminal Court complaint dated March 11, 2013, p 1. Upon stopping the vehicle, the officer observed defendant "to have an odor of alcoholic beverage emanating from his breath, slurred speech, watery eyes, and was swaying on his feet." See, Criminal Court complaint dated March 11, 2013, p 1.

The allegations regarding the officer's observations of the defendant's driving "afforded a sufficient basis for the police to make an investigative stop." See, People v. Saplin, 122 AD2d 498, 499, 505 NYS2d 460 (3d Dept, 1986), citing Berkemer v. McCarty, 468 US 420, 439-440, 104 S Ct 3138, 82 L Ed2d 317 (1984). When coupled with the officer's observations of Defendant's physical condition at the time of his arrest, "a reasonable inference could be drawn that defendant had been driving while intoxicated." People v. Spencer, 289 AD2d 877, 879, 736 NYS2d 428 (3d Dept, 2001).

Defendant contends that the breath test results do not support the charge under VTL Sec. 1192.3. asserting that " evidence that there was .05 of one per centum or less by weight of alcohol in (the defendant's) blood shall be prima facie evidence that the ability of such person to operate a motor vehicle was not impaired by the consumption of alcohol." VTL Sec. 1195(2)(a) (emphasis added). This presumption is applicable at the pleading stage." See, Defendant's motion dated March 30, 2013, p 7, para 14.

Though there is much sense in Defendant's position, the allegations made in the instant complaint are facially sufficient under People v. Gristina, 186 Misc 2d 877 (Crim Ct, NY Cty, [*4]2001). There a court of concurrent jurisdiction held that an information charging VTL Sec. 1192.3 was sufficient, despite a breath test result of .07 %. The court reasoned that "the indices of common law intoxication...are sufficient to rebut the breathalyzer test result....the allegations provide reasonable cause to believe that defendant was incapable of employing the physical and mental abilities needed to operate a car as a reasonable and prudent driver." See, People's Response dated May 2, 2013, p 4.

This understanding of the facial sufficiency of an information charging intoxicated driving offenses, even when the breath test results do not indicate intoxication, has been upheld by the Appellate Term, and applied by other courts of concurrent jurisdiction. See, People v. McConnell, 11 Misc 3d 57, 812 NYS2d 742 (App Term, 9th and 10th Jud. Dist., 2006); People v. Van De Cruze, 2012 NY Slip Op 51378(U), 2012 WL 3029693 (Crim Ct, Kings Cty, 2012).

Here the People assert that their "information contains sufficient facts to provide reasonable cause to believe the defendant was incapable of employing the physical and mental abilities needed to operate a car as a reasonable and prudent driver." See, People's Response dated May 2, 2013, p 4. This statement is correct. The allegations regarding Defendant's driving, coupled with the officer's observations of the his physical condition when stopped are sufficient to establish in inability to operate a motor vehicle.

Therefore, despite the breath results of .04%, this Court finds the People's complaint to be facially sufficient. Defendant's motion to dismiss is hereby denied.

OTHER RELIEF REQUESTED

Defendant has moved for suppression of any physical evidence seized at the time of his arrest and suppression of any statements made at the time of his arrest.

These motions are granted to the extent of ordering a pre-trial hearing at which the issue of whether or not said physical evidence and statements made are admissible. See, Mapp v. Ohio, 367 US 643, 81 S Ct 1684, 6 L Ed2d 1081 (1961); People v. Huntley, 15 NY2d 72, 255 NYS2d 838 (1965); People v. Johnson, 134 Misc 2d 474, 511 NYS2d 773 (Crim Ct, Qns Cty, 1987).

Defendant is also granted a pre-trial hearing at which the issue of whether or not there was probable cause for Defendant's arrest will be considered. See, People v. Dunaway, 442 US 200, 99 S Ct 2248, 60 L Ed2d 824 (1979)

Defendant seeks suppression of any prior bad acts or immoral conduct. A hearing to determine whether or not any evidence of prior bad acts or immoral conduct by the Defendant may be used against Defendant will be conducted by the trial judge, prior to any trial of this matter. [*5]

All other arguments advanced by Defendant have been reviewed and rejected by this Court as being without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Bronx, New YorkAugust 12, 2013

_______________________________Hon. John H. Wilson, JCC Footnotes

Footnote 1: Defendant was initially charged with only the traffic infraction under VTL Sec. 1192.1, however, at the Defendant's arraignment, the People were permitted to add the unclassified misdemeanor charge under VTL Sec. 1192.3 to the docket.