People v Gomez
Annotate this CaseDecided on September 14, 2023
Criminal Court of the City of New York, Bronx County
The People of the State of New York,
against
Victor Gomez, Defendant.
Docket No. CR-003362-23BX
For the People:
Darcel D. Clark, District Attorney, Bronx County
(by: ADA Joshua A. Fitterman)
For the Defendant: Peter M. Frankel, Esq.
Yadhira Gonz¡lez-Taylor, J.
Defendant Victor Gomez moves for dismissal of the accusatory instrument for facial insufficiency pursuant to Criminal Procedure Law ("CPL") § 100.40 (1) (c) and § 100.15 (3); or in the alternative, for an Order suppressing evidence, or alternatively granting a Mapp, Dunaway and Johnson hearing; for an Order suppressing evidence pursuant to CPL §710.20 (3) and (4), § 710.40 and § 60.45, or alternatively granting a Huntley hearing; for an Order precluding evidence relating to identification pursuant to CPL § 710.30 (3); for an Order suppressing the results of any Intoxilyzer 9000 and horizontal gaze nystagmus and/or physical tests; for an Order precluding evidence of defendant's prior criminal history or bad acts pursuant to People v Sandoval and requiring the prosecution to disclose evidence of bad acts which the People intend to introduce at trial pursuant to People v Ventimiglia; for an Order pursuant to CPL § 245.20 directing the prosecution to disclose evidence of prior alleged uncharged criminal acts; for an Order reserving defendant's to file additional motions, including pursuant to CPL § 255.20 (3).
Upon review and consideration of the submissions, court file and relevant legal authority, the Court:
DENIES defendant's motion for dismissal for facial insufficiency.
GRANTS defendant's motion for Mapp, Dunaway, Johnson, Huntley pre-trial hearings;
DENIES defendant's request or an Order suppressing evidence pursuant to CPL § 710.20 (3) and (4), § 710.40 and § 60.45;
GRANTS defendant's application seeking the right to make further motions to the extent provided by CPL § 255.20 (3);
REFERS defendant's request for an Order precluding evidence or, in the alternative, granting Sandoval/Ventimiglia hearings to the trial court; and
DIRECTS the People to comply with their continuing discovery obligations pursuant to CPL § 245, including Brady and Rosario disclosures.
PROCEDURAL BACKGROUND
On February 12, 2023, defendant Victor Gomez was arrested and charged with operating a motor vehicle under the influence of alcohol or drugs, in violation of Vehicle and Traffic Law ("VTL") § 1192 (1) (driving while impaired), a violation, and § 1192 (2) (driving while intoxicated; per se), and § 1192 (3) (driving while intoxicated), Class A misdemeanors.
In pertinent part, the complaint provides that at approximately 1:10 a.m. at the Northeast corner of White Plains Road and Bruckner Expressway, County of the Bronx, State of New York, the deponent, P.O. Roberts ("PO Roberts"), observed that the:
Defendant did operate on [sic] a motor vehicle while such person has [sic] .08 of one 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 []; operate[d] a motor vehicle while in an intoxicated condition and operate[d] a motor vehicle while the person's ability to operate such motor vehicle is [sic] impaired by the consumption of alcohol.Deponent states that [] he observed defendant seated behind the steering wheel and operating a White 2012 Mercedes Benz sedan [] with the keys in the ignition and engine running, while said vehicle was traveling at the above location, a public roadway.Deponent further states that he observed defendant to have a strong odor of an alcoholic beverage emanating from his breath. Deponent further states that defendant had red watery eyes, slurred speech and was unsteady on his feet. Deponent further states that he asked defendant have you had any drinks and defendant responded in sum and substance "I HAD TWO BEERS."Deponent further states that he was present during the administered chemical test analysis of defendant's breath and that defendant's blood alcohol content as displayed on the breath analysis machine was 0.157 of one per centum by weight.Defendant was arraigned on February 13, 2023, and released on his own recognizance. On April 28, 2023, the People filed their CoC and Statement of Readiness ("SoR"). Defendant filed the instant omnibus motion on June 1, 2023. The People opposed the motion in its entirety on July 11, 2023.
DISCUSSION
I. Applicable Standard for Facial Sufficiency Challenge
To meet the jurisdictional standard for facial sufficiency, a misdemeanor complaint "need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense" (see People v Smalls, 26 NY3d 1064, 1066 [2015]; see also CPL § 100.40 [1] [b]; § 70.10). The accusatory instrument must set forth non-hearsay facts of an evidentiary nature which, if true, establish every element of the offense charged (see People v Suber, 19 NY3d 247 [2012]; People v Dumas, 68 NY2d 729 [1986]). It is well-settled that "mere conclusory allegations are insufficient [ ] and a purported information which fails to meet these requirements is fatally defective" (see People v Pamulo, 48 Misc 3d 1227 [A], 2015 NY Slip Op 51286 [U], **2 (Crim Ct, New York County 2015] [citations omitted] citing People v Alejandro, 70 NY2d 133, 136 [1987]).
II. The Parties' Arguments
Defense counsel asserts, inter alia, that "it is submitted that there are no reliable indicators set forth in the Criminal Court Complaint which support the conclusion that Mr. Gomez was at all intoxicated or impaired on February 12, 2023, when he was arrested and charged in the matter" (affirmation of defendant's counsel at 11). Specifically, defendant denies that the Criminal Complaint's four enumerated indicia of physical conditions, "strong odor of an alcoholic beverage," "red watery eyes," "slurred speech," and "unsteady on his feet," together with a purported blood alcohol content ("BAC") of 0.157, satisfies the People's burden of setting forth facts of an evidentiary character demonstrating reasonable cause to believe defendant committed the crimes alleged (affirmation of defendant's counsel at 11). Lastly, counsel requests an order granting suppression and preclusion of evidence or, alternatively, hearings; an order directing the People to disclose defendant's alleged bad acts; and an order granting defendant leave to reserve to file additional motions (affirmation of defendant's counsel at 11-19).
Counsel argues that 1) the smell of alcohol is not an indicator that someone has imbibed a sufficient quantity to become intoxicated or impaired, 2) red, watery eyes are symptomatic of a range of conditions which have nothing to do with alcohol, 3) unlike the complaint, PO Roberts's report makes no mention of defendant having slurred speech or an unsteady gait, and 4) the BAC reading was administered improperly (affirmation of defendant's counsel at 8-9).
The People maintain that their prima facie requirement for purposes of the misdemeanor information should not be confused with the burden of proof beyond a reasonable doubt required at trial (People's affirmation at 6). Further, the prosecution argues that prima facie evidence does not mean conclusive evidence but, rather, evidence which creates a rebuttable presumption (People's affirmation at 5). The People further aver that the Appellate Court has held that "odor of alcohol," "slurred speech," "unsteady gait" and "red, watery eyes," are indicia of intoxication (Id.). The prosecution asserts that a chemical breath test is not required to determine the facial sufficiency of the information (Id.). Lastly, the People oppose defendant's request for an order to preclude and/or suppress evidence, or for hearings to decide preclusion and suppression, as well as defendant's reservation of rights to file additional motions (People's affirmation at 6-16).
III. The Court's Analysis
It is settled that although the allegations in a criminal complaint must give rise to a prima facie case, courts have declined to give an accusatory instrument an overly technical reading (see People v Konieczny, 2 NY3d 569, 575 [2004]).
A. Driving While Impaired
Vehicle and Traffic Law § 1192 (1) provides that "[n]o person shall operate a motor vehicle while the person's ability to operate such vehicle is impaired by the consumption of alcohol" (see VTL § 1192 [1] [emphasis added]). New York Criminal Jury Instructions ("CJI") further provides, in pertinent part, that "[t]he law does not require any particular chemical or physical test to prove that a person's ability to operate a motor vehicle was impaired by the consumption of alcohol," and listed among the "surrounding facts and circumstances" a jury may consider are: "the defendant's physical condition and appearance, balance and coordination, and manner of speech," as well as "the presence or absence of alcohol" (see (CJI2d[NY] Vehicle and Traffic Law § 1192 [1], https://nycourts.gov/judges/cji/3-vtl/vtl_1192/1192[1].pdf [last [*2]accessed September 12, 2023]).
The accusatory instrument alleges that the deponent, a police officer, observed defendant operating a vehicle and that defendant had a strong odor of an alcoholic beverage emanating from his breath, red, watery eyes, slurred speech and was unsteady on his feet. Deponent further reported that defendant admitted to having had two beers. Viewed in the light most favorable to the People, these factual allegations, considered with defendant's own admissions that he had imbibed beer, suffice to establish probable cause to believe that defendant operated the motor vehicle in question while impaired, which precipitated his arrest and subsequent charge of driving while impaired (see People v Sieber, 40 Misc 3d 133 [A], 2013 NY Slip Op 51143 [U] [App Term 2nd]).
B. Driving While Intoxicated, per se
Vehicle and Traffic Law § 1192 (2), per se provides that "[n]o person shall operate a motor vehicle while such person has .08 of one 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 pursuant to the provisions of section eleven hundred ninety-four of this article" (see VTL § 1192 [2] [emphasis added]). Additionally, the CJI states that "[t]o determine whether the defendant had .08 of one per centum or more by weight of alcohol in his blood, you may consider the results of any test given to determine the alcohol content of defendant's blood" (see (CJI2d[NY] Vehicle and Traffic Law § 1192 [2], https://nycourts.gov/judges/cji/3-vtl/vtl_1192/1192[2].pdf [last accessed September 12, 2023]). In the case at bar, the instant accusatory instrument alleges that defendant's BAC as displayed on the breath analysis machine was 0.157 of one per centum by weight. At trial, defense counsel may successfully impugn the efficacy of the Intoxilyzer 9000 device, or the way it was administered, but this argument is unavailing for the threshold determination of whether the People have established a prima facie case of VTL § 1192 (2), per se.
Accordingly, the charge of driving while intoxicated, per se, is facially sufficient.
C. Driving While Intoxicated (Common Law), VTL § 1192 (3)
Vehicle and Traffic Law § 1192 (3) provides that "[n]o person shall operate a motor vehicle while in an intoxicated condition (see VTL § 1192 [3]). Known as common law intoxication, the prosecution must prove the charge with evidence that defendant imbibed alcohol "to the extent that he or she is incapable, to a substantial extent, of employing the physical and mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver" (see (CJI2d[NY] Vehicle and Traffic Law § 1192 [3], https://nycourts.gov/judges/cji/3-vtl/vtl_1192/1192[3].pdf [last accessed September 12, 2023]).; see also People v Cruz, 48 NY2d 419, 428 [1979]).
While VTL § 1192 (3) does not require evidentiary proof of a chemical test, considered cumulatively, the allegations here that defendant's breath smelled of alcohol, that he had red, watery eyes, slurred speech and was unsteady on his feet, and that he operated a motor vehicle while having a BAC of 0.157 tend to demonstrate that defendant was incapable of operating his vehicle as a reasonable and prudent driver.
This Court finds that pursuant to CPL § 100.40 (1) (c) and § 100.15 (3), and the factual [*3]allegations provided within the four corners of the complaint, that the accusatory instrument is deemed facially sufficient on all three charges.
IV. Defendant's Request for an Order to Suppress and Preclude Evidence
Defendant moves alternatively for an Order suppressing evidence pursuant to § 710.20 (3) and (4), § 710.40 and § 60.45 or, alternatively granting Mapp, Dunaway, Johnson, Huntley pre-trial hearings, and for an Order precluding evidence pursuant to CPL § 710.30 (3) and precluding evidence at trial of defendant's prior convictions or, alternatively, for Sandoval/Ventimiglia hearings.
This Court denies defendant's request for an Order suppressing evidence. However, the Court grants defendant's request for Mapp, Dunaway, Johnson, Huntley pre-trial hearings, and respectfully refers the issue of Sandoval/Ventimiglia preclusion to the trial court.
V. Defendant's Request for an Order Granting Other Relief
Defendant further seeks an Order granting his request to file additional motions and directing the prosecution to disclose evidence of defendant's prior criminal or bad acts. The Court grants defendant's application to make further motions to the extent provided by CPL § 255.20 (3) and directs the People to comply with their continuing discovery obligations pursuant to CPL § 245, including Brady and Rosario disclosures.
CONCLUSION
Based upon the foregoing, defendant's motion for dismissal for facial insufficiency is DENIED.
The Court further DENIES defendant's request for an Order suppressing evidence pursuant to CPL § 710.20 (3) and (4), § 710.40 and § 60.45 and respectfully refers defendant's request for an Order precluding evidence or, in the alternative, granting a Sandoval/Ventimiglia hearings to the trial court.
However, the Court GRANTS defendant's motion for Mapp, Dunaway, Johnson, Huntley pre-trial hearings and GRANTS defendant's application to file additional motions to the extent provided by CPL § 255.20 (3).
Lastly, the People are reminded of the continuing obligations pursuant to CPL § 245, including Brady/Rosario disclosures.
This constitutes the opinion, decision, and the order of the Court.
Dated: September 14, 2023Bronx, New York
Hon. Yadhira Gonz¡lez-Taylor, J.C.C.
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