People v Zernitsky

[*1] People v Zernitsky 2018 NY Slip Op 50026(U) Decided on January 11, 2018 Criminal Court Of The City Of New York, Bronx County Rosenblueth, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 11, 2018
Criminal Court of the City of New York, Bronx County

The People of the State of New York, Plaintiff,

against

Igor Zernitsky, Defendant.



2017BX033767



For the Motion: Jason A. Steinberger, Esq.

Attorney for Defendant

888 Grand Concourse, Suite 1H

Bronx, New York 10451

Opposed: ADA Amanda Iannuzzi

Bronx District Attorney's Office

198 East 161st

Bronx, New York 10451
Jeffrey Rosenblueth, J.

The defendant's omnibus motion for pre-trial relief is decided as follows:

MOTION TO DISMISS - FACIAL INSUFFICIENCY:

Defendant is charged in the misdemeanor information with three separate counts of operating a motor vehicle while under the influence of alcohol [VTL §1192(3), VTL §1192(2) and VTL§1192(1)]. The misdemeanor information reads, in pertinent part, that on or about August 25, 2017 at approximately 7:00 p.m. at the southwest corner of Hudson Parkway and West 246th Street in the county of the Bronx, P. O. Adrian Prodan of HWY 01 observed:

"Defendant operating a 2014 Nissan, NJ plate Z61FKT, in that defendant was seated behind the steering wheel in the driver's seat and said vehicle was stopped in an active lane of traffic on a public street with its right blinker on. Deponent observed said vehicle to be a push start and observed the push start key to be in the center console next to the defendant. Deponent further observed defendant to be reclined and sleeping in the driver's seat. Deponent states that he observed defendant to have watery eyes, slightly slurred speech, and a strong odor of alcoholic beverage on his breath. Deponent further states that he was present at the administration of a chemical test analysis of defendant's breath and the defendant's blood alcohol content as displayed on the breath analysis machine was .17 of one per centum by weight. Deponent further states the defendant stated in sum and [*2]substance: I'M GOING HOME. I HAD TWO BEERS. I HAD FIVE BEERS IN HUDSON TERRACE. IS THERE ANYTHING I CAN DO. CAN I JUST PAY A BIG FINE INSTEAD OF GETTING ARRESTED."

Defendant moves to dismiss the accusatory instrument pursuant to CPL §170.35, CPL §100.25 and CPL §100.40 claiming that it fails to contain factual allegations sufficient to provide reasonable cause that defendant committed the offenses charged. Specifically, defendant contends that the information fails to establish that defendant was operating a motor vehicle under VTL §1192.

The People, in opposition to defendant's motion, contend that the information is facially sufficient in that it provides adequately detailed facts that support the charges and suitable notice for defendant to prepare a defense to the charges alleged in the information. The People submit that the officer's observations coupled with defendant's statements establish that defendant was operating a motor vehicle while he was intoxicated.

Defendant's motion to dismiss the accusatory instrument for facial insufficiency is decided as follows:

In order for a misdemeanor information to be sufficient on its face it must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe that defendant committed the offenses charged (CPL §100.15(3); CPL§ 100.40(1)[b]; CPL §70.10). These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses charged (see CPL §100.40(1)(c); People v. Henderson, 92 NY2d 677). Reasonable cause 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 (2)]. An information which fails to satisfy these requirements is jurisdictionally defective (see CPL §170.35); People v. Alejandro, 70 NY2d 133; People v. Dumas, 68 NY2d 729).

The People bear the burden of satisfying the facial sufficiency requirements by doing so within the "four corners" of the accusatory instrument [see People v. Jones, 9 NY3d 259; People v. Thomas, 4 NY3d 143; People v. Liranzo, 46 Misc 3d 140(A)]. In evaluating whether the pleaded allegations establish reasonable cause to believe that a person has committed an offense, the court must do so in the light most favorable to the People and consider all favorable inferences drawn therein [see People v Williams, 84 NY2d 925; People v Contes, 60 NY2d 620; People v Barona, 19 Misc 3d 1122[A]; People v. Mellish, 4 Misc 3d 1013(A)].

Although, mere conclusory allegations are insufficient (see People v. Dumas, supra) an information sufficient on its face need not articulate every fact necessary to prove the charged allegations (see People v. Mills, 1 NY3d 268; People v. Bello, 92 NY2d 523; People v. Mayo, 36 NY2d 1002). So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (see People v. Kasse, 22 NY3d 1142; People v Kalin, 12 NY3d 225; People v. Casey, 95 NY2d 354). Further, the facts alleged need only establish the existence of a prima facie case, even if it those facts would be insufficient to establish guilt beyond a reasonable doubt (see [*3]People v. Jennings, 69 NY2d 103). Moreover, in assessing the facial sufficiency of an information, the court " 'is not required to ignore common sense or the significance of the conduct alleged' ", People v. Gonzalez, 184 Misc 2d 262, 264 quoting People v. Abdul, 157 Misc 2d 511.

Vehicle and Traffic Law §1192(3) provides that:

"No person shall operate a motor vehicle while in an intoxicated condition."

Vehicle and Traffic Law §1192(2) provides that:

"No person shall operate a motor vehicle while such person has .08 of one per per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article."

Vehicle and Traffic Law §1192(1) provides that:

"No person shall operate a motor vehicle while that person's ability to operate such motor vehicle is impaired by the consumption of alcohol."

The definition of "operation" of a motor vehicle under VTL §1192 is broader than the ordinary definition of driving (see People v. Prescott, 95 NY2d 655; People v. Alamo, 34 NY2d 453). Under VTL §1192, a person operates a motor vehicle when that individual "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 a vehicle", People v. Alamo, supra quoting Matter of Prudhomme v. Hults, 27 AD2d 234). Significantly, the observation of a person actually driving a moving motor vehicle is not required; instead, operation of a vehicle can be inferred and sufficiently proven by circumstantial evidence [see People v. Booden, 69 NY2d 185; People v. Alamo, supra; People v. Blake, 5 NY2d 118; People v. Cunningham, 274 AD2d 484; People v. Salerno, 36 Misc 3d 151(A); People v, Martinez- Guzman, 36 Misc 3d 598; People v. Turner, 34 Misc 3d 159 (A)].

Rather than look for a particular fact or circumstance to establish operation, a court may look at the "confluence of events and circumstances", People v. Hitchcock, 98 NY2d 586. In determining whether a person was operating a motor vehicle the court may consider (1) the position and location of the vehicle; (2) the position of defendant in relation to the vehicle; (3) any statements made by the defendant, whether or not the engine is running and (4) where the keys of the vehicle are located (see People v. Blake, supra; People v. Fenger, 68 AD3d 1441; People v. Saplin, 122 AD2d 498; People v. Ramlall, 47 Misc 3d 141(A); People v. Jeffrey, 44 Misc 3d 1229(A); People v. Martinez-Guzman, supra; People v. Salerno, supra; People v. Dolan, 1 Misc 3d 32; People v. Williams, 161 Misc 2d 523)

Here, the following allegations in the accusatory instrument, when viewed in the light most favorable to the People, sufficiently establish reasonable cause that defendant was "operating" a motor vehicle: (1) the 2014 Nissan was stationary in an active lane of traffic on a public street, specifically, the southwest corner of Hudson Parkway and West 246th Street; (2) defendant was seated in the drivers seat behind the steering wheel of the vehicle; (3) the push-start key was in the center console immediately next to defendant; (4) the blinker of the vehicle [*4]was activated and (5) defendant stated to the arresting officer that he was "going home". Such circumstances "point logically to the defendant's operation of the automobile..., even though there is no direct proof that he drove [the vehicle]", People v. Blake, supra; (see also People v. Fenger, supra; People v. Ramlall, supra).

Moreover, when considering the reasonable inferences from all the allegations contained in the accusatory instrument, there is "no other rationale explanation than that defendant had driven the vehicle to the location where he had stopped and had done so while [he was under the influence of alcohol] ", People v. Ramlall, id.; (see also People v. Booden, supra; People v. Blake, supra; People v. Fenger, supra; People v. Saplin, supra; People v. Jeffrey, supra; People v. Seiber, 40 Misc 3d 133[A]; People v. Martinez-Guzman, supra; People v. Salerno, supra; People v. Dolan, supra; People v. Williams, supra).

Accordingly, defendant's motion to dismiss the information for facial insufficiency pursuant to CPL 170.35 is denied.

DEFENDANTS REMAINING MOTIONS

The branch of defendant's motion for suppression of chemical test results, or in the alternative, for a Mapp/Dunaway/Johnson/Atkins hearing is granted to the extent that a Mapp/Dunaway/Johnson/Atkins hearing is to be held prior to trial.

The branch of defendant's motion for suppression of physical evidence, or in the alternative, for a Mapp/Dunaway hearing is granted to the extent that a Mapp/Dunaway hearing is to be held prior to trial.

The branch of defendant's motion for suppression of statements, or in the alternative, for a Huntley/Dunaway hearing is granted to the extent that a Huntley/Dunaway hearing is to be held prior to trial.

The branch of defendant's motion to preclude the People from introducing at trial statements of defendant for which proper notice was not given pursuant to CPL§ 710.30(1)(a) is granted.

The branch of defendant's motion to preclude the People from introducing at trial evidence or identification testimony for which proper notice was not given pursuant to CPL §710.30(1)(b) is granted.

A Sandoval hearing is to be held immediately prior to trial, if applicable. At or prior to that hearing, the People are to discharge their duty under CPL §240.43. Additionally, the People are directed to disclose to the defendant the nature of any prior vicious or immoral criminal acts which they intend to introduce against defendant at trial pursuant to CPL §240.43.

The branch of the motion requesting leave to make further motions, if necessary, after the People provide discovery, is granted. All motions should be made within the time prescribed by the rules of the Court.

Dated: January 11, 2018

________________________

Judge of Criminal Court