People v Persaud

[*1] People v Persaud 2015 NY Slip Op 51494(U) Decided on October 1, 2015 Criminal Court Of The City Of New York, Bronx County Montano, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2015
Criminal Court of the City of New York, Bronx County

The People of the State of New York,

against

David Persaud, Defendant.



2015BX015408



The People — Robert T. Johnson, District Attorney, Bronx County by George K. Gomez, Assistant District Attorney

Defendant — Jason A. Steinberger, Esq.
Armando Montano, J.

Defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03), Driving While Intoxicated (VTL §§ 1192[2] and [3]), and Driving While Ability Impaired by Alcohol (VTL § 1192[1]).

Defendant moves for an order 1) dismissing the accusatory instrument as facially insufficient; 2) suppressing the results of the chemical breath test, or in the alternative, granting a Mapp/Dunaway/Johnson hearing; 3) suppressing the videotape and the results of horizontal gaze nystagmus tests, field sobriety tests, and psycho-physical tests, or in the alternative, granting a hearing to determine the admissibility of such evidence; 4) suppressing statements for which proper notice has been given pursuant to CPL § 710.30, or in the alternative, granting a Huntley/Dunaway hearing to determine the admissibility of said statements; 5) suppressing any and all physical evidence recovered from defendant and any other tangible or testimonial fruits of the illegal seizure and search of defendant, or in the alternative, granting a Mapp/Dunaway hearing; 6) precluding the People from introducing at trial evidence of defendant's prior criminal convictions, any underlying bad acts, and all prior uncharged criminal, vicious, or immoral conduct; 7) precluding the introduction of statement and/or identification evidence not noticed pursuant to CPL § 710.30(3); and 8) granting defendant the right to make additional pretrial motions and the right to amend and/or supplement this motion if made necessary or appropriate by the People's future disclosure.

The factual allegations in the accusatory instrument sworn to by the deponent, PO Khan Pollock, read as follows:

Deponent states that [on or about April 2, 2015 at approximately 3:45 AM at 138th Street and Park Avenue, County of Bronx, State of New York], he observed defendant seated behind the steering wheel of a 2015 Cadillac license plate No. GMEN that was operating on the above mentioned location, a public roadway.Deponent further states that, he observed defendant to have a strong odor of alcohol emanating from his breath as well as slurred speech and to be unsteady on his feet. Deponent further states that, he was present at the administration of a chemical analysis of defendant's breath, and that defendant's blood alcohol content displayed on the breath analysis machine was .187 of one per centum by weight. Deponent further states that, he observed the defendant to have in his custody and control, on the driver's seat of the above mentioned vehicle, one (1) glassine containing a white powdery substance. Deponent further states that, based upon his training and experience which includes training in the recognition of controlled substances, the above mentioned substance is alleged and believed to be cocaine.

Motion to Dismiss

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Defendant argues that the complaint is facially insufficient and should be dismissed in its entirety as it fails to adequately establish the element of operation of a motor vehicle. Citing People v. Kahn, 168 Misc 2d 192 (Crim Ct, Kings County 1995), defendant asserts that the term operation is broader than the ordinary meaning of driving.

In opposition, the People aver that the complaint sufficiently alleges that defendant was observed operating a motor vehicle on a public roadway and that he was operating the motor vehicle while under the influence of alcohol, as evidenced by the fact that a chemical analysis of his breath showed that his blood alcohol content was .187 of one percentum by weight. The People note that Kahn, supra, as cited in defendant's moving papers, was overruled by the Appellate Term, Second Department and it did not deal with the element of operation in the context of a facial insufficiency motion. The People assert that the fact that the term operation is broader than the ordinary meaning of driving has no bearing on whether the instant complaint satisfies the requirements of CPL §§ 100.15(3) and 100.40(1)(c).

It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15[3]; People v. Dumas, 68 NY2d 729 [1986]) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40[1][c]). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b); Dumas, 68 NY2d 729. Reasonable cause to believe that a defendant committed the crimes charged "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70.10.

In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15; People v. Mellish, 4 Misc 3d 1013(A) (Crim Ct, NY County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103 (1986). "So long as the factual allegations of an information give an accused notice sufficient to [*2]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." People v. Casey, 95 NY2d 354, 360 (2000). Moreover, "the Court is not required to ignore common sense or the significance of the conduct alleged." People v. Gonzalez, 184 Misc 2d 262, 264 (App Term, 1st Dept. 2000) quoting People v. Abdul, 157 Misc 2d 511, 514 (Crim Ct, NY County 1993).

Although defendant moves to dismiss the complaint in its entirety on the grounds of facial insufficiency, he only challenges the facial sufficiency of counts two, three, and four, to wit: VTL §§ 1192(3), (2), and (1), respectively. Defendant makes no arguments or references as to count one, PL § 220.03. Therefore, this court will only consider the factual allegations as to the drunk driving charges.

This court further notes that defendant makes no specific arguments as to why the factual allegations in the accusatory instrument are facially insufficient. Defendant explains the general requirements of a facially sufficient accusatory instrument and then asserts that the term "operates" is broader than the ordinary definition of driving.

The term "operation" has a very specific meaning under the Vehicle and Traffic Law. It is undisputed that the definition of the term "operate" as defined in DWI statutes is broader than that of driving and that "[a] person operates a motor vehicle within the meaning of the [statute] when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle." People v. Alamo, 34 NY2d 453, 459 (1974) quoting Matter of Prudhomme v. Hults, 27 AD2d 234, 237 (3d Dept. 1967). Therefore, "criminal liability under section 1192 can attach to conduct dangerously close' to driving, as long as that conduct occurs upon locations covered by the statute." People v. Prescott, 95 NY2d 655, 662 (2001).

Here, the accusatory instrument alleges that defendant was observed seated behind the steering wheel of a motor vehicle that was operating on a public roadway. This court finds that the allegation that the motor vehicle was operating is conclusory and therefore is not "a fact[ ] of an evidentiary character" (CPL § 100.15[3]; see also, People v. Dreyden, 15 NY3d 100 [2010]; Dumas, 68 NY2d 729) which supports an element of the offenses charged, namely vehicular operation. "The phrase factual allegations of an evidentiary character' means nonconclusory descriptions of what the deponent personally observed, heard or experienced." People v. Concepcion, 36 Misc 3d 551, 553 (Crim Ct, NY County 2012) citing Dumas, supra. "[W]here the fact at issue is a conclusion that derives solely from another fact or facts that have not been alleged, that fact is a conclusory allegation ..' But where the fact at issue derives directly from the deponent's own experience, or can naturally be determined from other facts alleged, it is not." People v. Washington, 46 Misc 3d 1210(A), at *3 (Crim Ct, NY County 2015).

The allegation that the motor vehicle was operating cannot be naturally determined from the mere fact that defendant was seated behind the steering wheel. Since defendant need not be observed driving a motor vehicle and the operation of a motor vehicle can be proven by circumstantial evidence (People v. Booden, 69 NY2d 185 [1997]; People v. Blake, 5 NY2d 118 [1958]), the complaint requires additional factual allegations which demonstrate that defendant performed some physical act with the intent of setting the motor vehicle in motion, such as the keys were in the ignition or the engine was running. As the accusatory instrument fails to allege sufficient facts to support the essential element of operation of a motor vehicle common to counts two, three, and four, a prima facie case has not been established as to those counts.

Based on the foregoing, defendant's motion to dismiss the accusatory instrument as facially insufficient is granted to the extent that counts two, three, and four, VTL §§ 1192(3), (2), and (1), are hereby dismissed. The People are granted leave to move to amend or otherwise cure the defects in the accusatory instrument consistent with CPL §§ 30.30 and 170.30.

Motion to Suppress Physical Evidence

Defendant moves pursuant to CPL § 710.20(1) to suppress all physical evidence and observations of the police obtained as a result of his unlawful arrest. Specifically, defendant seeks suppression of the results of any field chemical tests, horizontal gaze nystagmus tests, and psycho-physical tests, any videotape of defendant, any observations made by the police, and any other tangible fruits of his seizure and search. Defendant denies the factual allegations set forth in the complaint and denies engaging in any unlawful or criminal behavior prior to his warrantless seizure and arrest. Therefore, defendant argues that the police lacked probable cause to stop and seize him. Consequently, defendant avers that all evidence obtained by the police must be suppressed. Defendant also moves to suppress the results of the chemical analysis of his blood alcohol content because the test was administered in violation of VTL § 1194 and Department of Health Rules and Regulations. In the alternative, defendant moves for a Mapp/Dunaway/Johnson hearing.

The People oppose defendant's motion to suppress as he has failed to allege sworn allegations of fact in support as required under CPL § 710.60. The People assert that defendant merely denies the allegations contained in the accusatory instrument and posits in a conclusory fashion that the police lacked probable cause. Notwithstanding defendant's deficient showing, the People maintain that the police had ample probable cause based upon the personal observations of the arresting officer.

A motion to suppress evidence "must state the ground or grounds of the motion and must contain sworn allegations of fact." CPL § 710.60(1). A motion to suppress must be summarily granted where the defendant alleges a legal ground warranting suppression and the People concede the truth of the factual allegations. CPL § 710.60(2)(a). A court may summarily deny a motion to suppress if the defendant fails to allege a proper legal basis for suppression or if the "sworn allegations of fact do not as a matter of law support the ground alleged." CPL § 710.60(3)(b). "[T]he sufficiency of [the] defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) [the] defendant's access to information." People v. Mendoza, 82 NY2d 415, 426 (1993). However, even if the defendant's factual allegations are deficient, summarily denying a motion to suppress is disfavored. In Mendoza, supra, the Court of Appeals explained:

The CPL does not mandate summary denial of defendant's motion even if the factual allegations are deficient .If the Court orders a Huntley or Wade hearing, and defendant's Mapp motion is grounded in the same facts involving the same police witnesses, the court may deem it appropriate in the exercise of discretion to consider the Mapp motion despite a perceived pleading deficiency. Indeed, considerations of judicial economy militate in favor of this procedure; an appellate court might conclude that summary denial of the Mapp motion as improper, requiring the parties and witnesses to reassemble for a new hearing, often months or years later.

In light of the dismissal of counts two, three, and four, defendant's motion to suppress physical evidence related to the VTL charges are hereby deemed moot.

As to defendant's motion to suppress the physical evidence related to count one, PL § 220.03, to wit: one glassine containing a white powdery substance, this court finds that defendant's moving papers are "minimally sufficient" to warrant a hearing on the issue of suppression. See, People v. Harris, 160 AD2d 515, 515 (1st Dept. 1990). A stop of a motor vehicle without probable cause constitutes a legal basis for the suppression of physical evidence. Here, defendant was arrested based upon the purported personal observations of criminality by the arresting officer. Defendant's denial of any wrongdoing challenges the facts relied upon by the arresting officer to establish probable cause. "When the validity of a warrantless arrest is challenged, the presumption of probable cause disappears and the People bear the burden of coming forward with evidence showing that it was supported by probable cause." People v. Chaney, 253 AD2d 562, 564 (3d Dept. 1998). Where, as here, material facts are in issue, a hearing must be held in order for the Court to determine whether evidence was obtained lawfully [FN1] . People v. Burton, 6 NY3d 584 (2006). Therefore, defendant's motion for a Mapp/Dunaway hearing to determine the admissibility of one glassine containing a white powdery substance is granted.

Motion to Suppress Statements

Defendant claims that his statements for which notice was given should be suppressed on the grounds that such statements were made involuntarily pursuant to CPL § 60.45. Defendant further argues that such statements were obtained in violation of his constitutional rights.

Due to defendant's deficient showing, the People ask this court to summarily deny this branch of defendant's motion in its entirety. However, should a Huntley hearing be ordered, the People request the scope of the hearing to be limited, since there is no probable cause issue with respect to defendant's arrest and defendant has failed to raise an issue of fact regarding the issue of probable cause.

One exception to a court's authority to summarily deny a pretrial suppression motion for inadequate factual allegations relates to motions to suppress involuntarily made statements. People v. Huntley, 259 AD2d 843 (3d Dept. 1999). Where, as here, defendant claims that his statements were made involuntarily pursuant to CPL § 60.45, a Huntley hearing must be held to determine the admissibility of said statements. Therefore, defendant's motion for a Huntley hearing is granted.

As stated above, summary denial of suppression motion is disfavored. In the interest of judicial economy and in light of the fact that the branch of defendant's motion seeking a Dunaway hearing "is grounded in the same set of facts and involve[es] the same police witnesses" as the Mapp hearing (Mendoza, 82 NY.2d at 429), defendant's motion for a Dunaway hearing to determine whether there was probable cause to effectuate his arrest is granted. Therefore, defendant's motion for a Dunaway hearing is granted.

Sandoval/Molineaux/Ventimiglia

Defendant moves for an order compelling the People to provide a list of his past criminal history and/or prior bad or immoral acts which the People intend to use at trial pursuant to People v. Sandoval, 34 NY2d 371 (1974), People v. Molineaux, 168 NY 265 (1901), and People v. Ventimiglia, 52 NY2d 350 (1981). Defendant also moves for an order precluding the People [*3]from cross-examining him as to his prior convictions, criminal and immoral acts.

The People consent to disclosure of defendant's prior charged and uncharged criminal, vicious, or immoral conduct which they intend to use at trial pursuant to People v. Sandoval, 34 NY2d 371 (1974). The People oppose defendant's application pursuant to People v. Molineaux, 168 NY 265 (1901) and People v. Ventimiglia, 52 NY2d 350 (1981) and request that the issue be deferred to the trial judge.

Based on the foregoing, defendant's motion for an order precluding the People from introducing evidence of his prior convictions and/or bad acts is respectfully referred to the trial judge.

Motion to Preclude Statement or Identification Evidence

Defendant's motion to preclude the introduction of unnoticed statements or identification evidence is denied, with leave granted for defendant to renew this branch of the motion upon learning that the People intend to introduce any such evidence at trial.

Future Motions

Defendant's reservation of right to file further motions is unauthorized pursuant to CPL § 255.20(3). Any other motions shall be summarily denied absent a showing of good cause.

Accordingly, defendant's motion to dismiss the accusatory instrument as facially insufficient is granted to the extent that counts two, three, and four, VTL §§ 1192(3), (2), and (1), are hereby dismissed. The People are granted leave to move to amend or otherwise cure the defects in the accusatory instrument consistent with CPL §§ 30.30 and 170.30. Defendant's motion to suppress physical evidence related to the VTL charges is hereby deemed moot. Defendant's motion for a Mapp/Dunaway hearing to determine the admissibility of one glassine containing a white powdery substance is granted. Defendant's motion for a Huntley/Dunaway hearing is granted. Defendant's motion for a Sandoval/Molineaux/Ventimiglia hearing is respectfully referred to the trial judge. Defendant's motion to preclude the introduction of unnoticed statements or identification evidence is denied, with leave granted for defendant to renew this branch of the motion upon learning that the People intend to introduce any such evidence at trial. Defendant's request to file additional motions is denied subject to rights under CPL § 255.20(3) to move for further leave upon good cause shown.

This constitutes the decision and order of this court.

Dated: October 1, 2015

Bronx, New York

_______________________________

Hon. Armando Montano Footnotes

Footnote 1:All evidence gathered by way of an unlawful search and seizure is inadmissible. Mapp v. Ohio, 367 U.S. 643 (1961).