People v Lekram

[*1] People v Lekram 2017 NY Slip Op 51562(U) Decided on November 20, 2017 City Court Of Mount Vernon Armstrong, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2017
City Court of Mount Vernon

The People of the State of New York, Plaintiff,

against

Balram Lekram, Defendant.



17-1124



Westchester County District Attorney

Mount Vernon Branch

Jason A. Steinberger, Esq.

Attorney for Defendant

888 Grand Concourse, Suite 1H

Bronx, New York 10451
Adrian N. Armstrong, J.

The defendant is charged by Superseding Misdemeanor Information with one (1) count of Driving While Intoxicated, in violation of VTL § 1192(3); one (1) count of Circumvention of an Interlock Device in violation of VTL § 1198(9)(d); and one (1) count of Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree, in violation of VTL § 511(2).

Defendant now moves for an order 1) dismissing the accusatory instrument on the ground of facial insufficiency; 2) suppressing physical evidence on the grounds that such evidence was unlawfully seized, or in the alternative, granting a Mapp/Dunaway hearing to determine the admissibility of tangible evidence; 3) suppressing evidence of any statements to police, or in the alternative a Huntley hearing to determine the admissibility of statements made to the police; 4) precluding the People from introducing at trial evidence of his prior criminal convictions, any underlying bad acts, and all prior uncharged criminal, or wrongful conduct; 5) for the disclosure of "Brady" material; 6) directing the People to provide the defendant with any discovery that he is entitled to; 7) granting him the right to make additional pretrial motions.

It is alleged that on May 5, 2017 at approximately 12:36 a.m., at Cortlandt Street, in the City of Mount Vernon, State of New York, the defendant, Balram Lekram was observed by a Mount Vernon Police Officer, intoxicated while in the driver's seat of a motor vehicle bearing New Jersey License Plate Number GUG6002. When the defendant exited the vehicle, Police Officer Burts detected an odor of alcohol coming from the defendant's person. P.O. Burts also [*2]noticed the defendant was unsteady on his feet and had glassy eyes. When P.O. Burts asked the defendant if he had been drinking, the defendant responded that he had a couple of alcoholic beverages. The defendant was then asked to perform field sobriety tests, to which he failed each of said tests. The defendant was then placed under arrest.

After the defendant was placed under arrest, he was transported to the MVPD Headquarters. While at the MVPD Headquarters, the defendant was read his Miranda Rights and DWI Warnings. The defendant refused to take a chemical test to determine his blood alcohol content.

Defendant seeks to dismiss the Superseding Misdemeanor Information based on facial insufficiency.

Vehicle and Traffic Law 1192(3) states that "[n]o person shall operate a motor vehicle while in an intoxicated condition." Intoxication is the degree of impairment "which is reached when the driver has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver." People v Cruz, 48 NY2d 419 (1979).

The factual allegations in the superseding misdemeanor information sworn to by the deponent, P.O. Burts, read as follows:

The defendant at the above date, time and place, did operate a grey 2014 Honda motor vehicle bearing New Jersey license plate GUG6002, on the above public road in an intoxicated condition, and while the defendant's license and privilege to operate a motor vehicle in the State of New York was revoked on October 11, 2013 based on a conviction of Driving While Intoxicated in Bronx County, State of New York in violation of Vehicle and Traffic Law Section 1192(2)(2-a). Additionally, said motor vehicle did not have an ignition interlock device installed. On October 11, 2013, the defendant was sentenced to 5 years probation. As part of the conditions of the sentence, the defendant was ordered not to operate a motor vehicle that did not have an ignition interlock device installed.

Deponent further stated in the DWI Supporting Deposition and Bill of Particulars that vehicle operation was shown by his observation of the defendant at the wheel with a remote key in his pocket.

Defendant argues that the accusatory instrument is facially insufficient and should be dismissed in its entirety as it fails to adequately establish the elements of intoxication and operation of a motor vehicle. In opposition, the People aver that the accusatory instrument 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.

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 [*3]committed and that such person committed it." CPL § 70.10. "In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged." People v. Hightower, 18 NY3d 249, 254 (2011).

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 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 Information in its entirety on the grounds of facial insufficiency, he only challenges the facial sufficiency of count one, to wit: VTL § 1192(3). Defendant makes no arguments or references as to count two and three, to wit: VTL §§ 1198(9)(d) and 511(2). Therefore, this Court will only consider the factual allegations as to the drunk driving charge.

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 sole allegations pertinent to the element of operation are that the defendant was seen sitting behind the wheel of his car in an intoxicated condition with a remote key in his pocket. 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 offense 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 (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 with a remote key in his [*4]pocket. 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, a prima facie case has not been established as to that count.

Further, there are no factual allegations regarding the position or location of the car or other surrounding circumstances that would allow the Court to reasonably infer the defendant operated his car while he was intoxicated.

Based on the foregoing, defendant's motion to dismiss the driving while intoxicated count as facially insufficient is granted, and is 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.

The People consent to the defendant's motion for a Mapp/Dunaway hearing. The People also consent to defendant's request for a Huntley hearing solely upon the defendant's Fifth Amendment claims. In a motion to suppress a statement, all that is required to warrant a Huntley hearing is the mere claim that the defendant's statement was involuntary. People v. Weaver, 49 NY2d 1012 (1980); People v. Bingham, 144 AD2d 682 (2d Dept. 1988); Matter of Brian E., 206 AD2d 665 (3d Dept. 1994). Therefore, defendant's motion for a Huntley hearing is granted.

The Sandoval motion is granted on consent, and shall be renewed before the trial judge. Since the People have not indicated that they plan to introduce any evidence of defendant's prior bad acts on their direct case, the motion for a Ventimiglia hearing is denied as premature at this time. In the event the People later indicate they plan to introduce such evidence, the defendant may renew the motion before trial.

Since the People have consented to open file discovery and to providing the defendant with Brady material as it becomes available, those portions of the defendant's motion are denied. Defendant is, however, granted leave to renew his application for Brady material before the trial Judge (see CPL § 240.45; People v White, 178 AD2d 674 [2nd Dept 1991]; People v Goins, 73 NY2d 989 [1989]). This Court recognizes that the People are under a preexisting duty to disclose any material or exculpatory evidence to an accused where there is a general request or no request, and no additional order of the court in respect thereto is necessary (People v McCann, 115 Misc 2d 1025 [Sup. Ct. Qns. Co. 1982]; People v Hvizd, 70 Misc 2d 654 [Westchester Co. Ct. 1972]). This duty is not limited to what tends to demonstrate the defendant's innocence, but includes information that affects the credibility of a key prosecution witness. People v. Harris, 35AD3d 1197 (4th Dept 2006).

Defendant's reservation of his 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 count one,VTL § 1192(3), is 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 for a [*5]Huntley/Dunaway/Mapp hearing is granted. Defendant's motion for a Sandoval hearing is respectfully referred to the trial judge. That branch of defendant's motion for a Ventimiglia hearing is denied as premature. 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. The People are reminded of their continuing obligation to supply all Brady and Rosario material.

This constitutes the Decision and Order of this Court.

Dated: November 20, 2017

Mount Vernon, New York

__________________________

HON. ADRIAN N. ARMSTRONG

City Judge of Mount Vernon