People v Fortunato

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[*1] People v Fortunato 2015 NY Slip Op 51831(U) Decided on December 15, 2015 District Court Of Suffolk County, First District Wilutis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2015
District Court of Suffolk County, First District

People of the State of New York,

against

Christine M. Fortunato, Defendant.



2014SU023520



For the Defendant: Matthew J. Hereth

Suffolk County Legal Aid Society

For the people:Angelo J. Macaluso

for Thomas J. Spota, District Attorney of Suffolk County
Karen M. Wilutis, J.

The defendant is charged with operating a motor vehicle while impaired by use of a drug (V & TL §1192(4)) and a traffic infraction. The defendant moves for omnibus relief and the Court will address the defendant's demands ad seriatim.



I)Dismissal of count one -

The defendant's motion to dismiss count one charging a violation of V & TL §1192(4) is granted on sufficiency grounds. The information charging said count is stated to be based both upon complainant Police Officer Richard Jones' personal knowledge and upon information and belief, with the source for same being a Supplementary Report prepared by Police Officer Turner. Initially, the Court notes that the Supplementary Report is unsworn and therefore cannot form the basis of non-hearsay factual allegations in support of the information. With regard to the information itself, the factual allegations state, inter alia, that on June 8, 2014 at approximately 4:13 PM the defendant was operating a motor vehicle that was involved in a reportable accident with a parked vehicle, that the defendant "had bloodshot, glassy eyes, droopy eyelids, difficulty keeping her eyes open, was unsteady on her feet, had slurred speech and field sobriety tests or clues showed indications of impairment." The information further states that the defendant refused to submit to a blood test or to a Drug Recognition Evaluation. The complainant police [*2]officer also alleges that the defendant stated, "I was driving attempting to light a cigarette and the next thing I knew the air bags were in my face. I took Lexapro, Topomax, and Wellburtin [sic] at 9AM. I take morphine also but not now."

One of the elements of Vehicle and Traffic Law §1192(4) is that the defendant ingested a "drug", which term is specifically defined in Vehicle and Traffic Law §114-a as any substance listed in Public Health Law §3306. (See People v. Rose, 8 Misc 3d 184 [Nassau Dist Ct 2005]; People v. Kahn, 160 Misc 2d 594 [Nassau Dist Ct 1994]). None of the three substances that the defendant admits to having taken on the incident date are listed in Public Health Law §3306. Furthermore, there are no allegations that the complainant police officer was trained as a Drug Recognition Expert and no laboratory report was obtained. The information therefore fails to provide a non-hearsay factual basis establishing that the defendant had ingested a qualifying drug that impaired her ability to operate a motor vehicle. As such, it fails to support every element of the offense charged and the information must be dismissed. (CPL 100.40, 100.15).



II)Dismissal of count two -

The defendant's motion to dismiss the simplified traffic information under count two for failure to furnish a supporting deposition is granted. (See CPL 100.40(2); 100.25(2)).

By reason of the foregoing, the remainder of the defendant's omnibus motion is denied as moot. Upon issuance of the accompanying order, the Court shall furnish the defendant with notice pursuant to 22 NYCRR §200.40.

December 15, 2015

J. D. C.



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