Defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03), Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (VTL § 511[1][a]), and Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (VTL § 511[2][a][iv]).

Defendant moves for an order 1) dismissing the accusatory instrument as facially insufficient; 2) precluding the offering of any statements and/or identification evidence for which defendant has not received notice pursuant to CPL § 710.30; 3) suppressing evidence, or in the alternative, granting a Mapp/Huntley/Dunaway hearing; 4) directing the People provide responses to defendant's request for a bill of particulars and demand to produce; 5) precluding the People from introducing at trial any evidence of defendant's prior convictions or bad acts; 6) directing the People to furnish defendant with Brady material; 7) directing that any hearings granted in this case be held at least twenty (20) days prior to the commencement of trial in order to allow sufficient time for the transcription of the minutes; 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 PO Christian Campoverde, read as follows:

Deponent states that, [on or about August 11, 2015 at approximately 1:09 AM at Northeast corner of Melrose Avenue and East 152nd Street, County of the Bronx, State of New York], he observed defendant operating a 2014 Mitsubishi Outlander (PA License PlateNo. JSZ3741), keys in the ignition, engine running and said above-described vehicle was parked on the above-described street, a public highway.

Deponent further states that he obtained and read a teletype printout of the New York State Department of Motor Vehicles, whose computers are tied into our police computer for the purpose of obtaining records, which records were made and obtained in the [*2]regular course of business and which are regularly made in the course of business within a reasonable time after the event or occurrence, and said records show that the defendant's license to operate a motor vehicle was suspended or revoked in that the defendant had in effect ten or more suspensions on at least ten separate dates for failure to answer, appear, or pay a fine.

Deponent is further states that the basis for believing that the defendant knew or had reason to know that her license was suspended or revoked is as follows: The above DMV records revealed that defendant's license was suspended for failure to answer a traffic summons, and all such summons have printed on them "[i]f you do not answer this ticket by mail within fifteen (15) days, your license will be suspended." The suspension occurs automatically (by computer) within 4 weeks of the defendant's failure to answer.

Deponent is further informed by informant that informant's basis for believing that the defendant knew or had reason to know that her license was suspended or revoked is as follows: The Department of Motor Vehicles records revealed that defendant's license was suspended for failure to pay Driver Responsibility Assessment and all such Driver Responsibility Assessment Statements are mailed to the driver's address once per year with an assessment statement due within seventy-five (75) days and all such statements have printed on them, "Your New York State driver license (or privilege to drive in New York State) will be suspended if you do not pay the Minimum Annual Payment amount," and the Department of Motor Vehicles records revealed that defendant was sent a Suspension Order notifying him that his New York State driver license and/or privilege of obtaining a New York State driver license was suspended for failure to pay Driver Responsibility Assessment, the suspension occurs automatically (by computer) on the 75th day of non-payment.

Deponent further states that, he observed defendant to have in her custody and control, inside a purse she was carrying, a clear container containing five (5) rectangular-shape pills with the initial G3722 written on it. The deponent further states that, defendant stated in sum and substance, THIS IS WHAT I HAVE, IT'S XANAX.

Deponent states, that based upon deponent's training and experience, which includes training in the recognition of controlled substance, and its packaging, the aforementioned substance is alleged and believed to be XANAX.

On October 1, 2015, the People filed with the court a certified copy of defendant's Department of Motor Vehicles Abstract of Driving Record ("DMV abstract").

Defendant argues that the information must be dismissed because her arrest was made without probable cause. With respect to the charges of VTL §§ 511(1)(a) and 511(2)(a)(iv), defendant avers that the People cannot establish that she knew or had reason to know that her driver's license was suspended. With respect to the charge of PL § 220.03, defendant argues that this charge should be dismissed since she has a prescription for the medication found in her possession. In support, defendant submits what appears to be a black and white photocopy depicting two medication bottles labeled Alprazolam prescribed to defendant.

In opposition, the People argue that the information is facially sufficient in that it provides 1) adequately detailed facts of an evidentiary nature to support each and every element of the offenses charged and 2) suitable notice to defendant to prepare a defense to the offenses [*3]charged. Citing People v. Brown, 15 Misc 3d 1143(A) (Crim Ct, NY County 2007), the People argue that the complaint alleges sufficient facts to support each element of VTL §§ 511(1)(a) and 511(2)(a)(iv). The People assert that similar to Brown, defendant is charged with aggravated unlicensed operation based upon suspensions arising from the issuances of traffic summonses, defendant's failure to answer said summonses, and defendant's resultant failure to pay the fines associated with said summonses. The People note that defendant had a total of seventeen suspensions on eleven separate dates. Three of the suspensions stemmed from defendant's failure to answer traffic summonses, each with a warning imprinted on its face indicating that the failure to answer said summons would result in a license suspension. The People further assert that the fact that defendant's license was suspended is corroborated by the certified DMV Abstract. Since each element of the offenses of VTL §§ 511(1)(a) and 511(2)(a)(iv) are sufficiently pled, the People argue that defendant's motion should be dismissed. As to the charge of PL § 220.03, the People note that defendant's attempt to raise a defense or a factual dispute is not a proper subject for a motion to dismiss.

Criminal Procedure Law § 170.35 lists, in an all-inclusive manner, the following seven grounds upon which a local criminal court accusatory instrument may be dismissed: 1) it is defective within the meaning of section 170.35; 2) the defendant has received immunity from prosecution for the offense charged; 3) the prosecution is barred by reason of a previous prosecution; 4) the prosecution is untimely; 5) the defendant has been denied the right to a speedy trial; 6) there exists some jurisdictional or legal impediment to conviction of the defendant for the offense charged; or 7) dismissal is required in furtherance of justice. An arrest effectuated without probable cause is not a proper ground upon which a court may dismiss an information.

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 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). "The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefore be sufficiently alleged." People v. Sylla, 7 Misc 3d 8, 10 (App Term, 2d Dept. 2005). As such, [*4]"[s]o 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).

Vehicle and Traffic Law § 511(1)(a) provides that "[a] person is guilty of the offense of aggravated unlicensed operation of a motor vehicle in the third degree when such person operates a motor vehicle upon a public highway while knowing or having reason to know that such person's license or privilege of operating such motor vehicle in this state is suspended, revoked or otherwise withdrawn by the commissioner." Vehicle and Traffic Law § 511(2)(a)(iv) provides that: "[a] person is guilty of the offense of aggravated unlicensed operation of a motor vehicle in the second degree when such person commits the offense of aggravated unlicensed operation of a motor vehicle in the third degree and such person has in effect three or more suspensions, imposed on at least three separate dates, for failure to answer, appear or pay a fine "

Depending on the underlying reason as to why a defendant's license was suspended, proof of knowledge of the suspension can be established in a number of ways. Vehicle and Traffic Law § 214 "creates a statutory presumption that the notice of suspension or revocation of the drivers license was mailed to the defendant if an affidavit of an employee of the Department of Motor Vehicles sets forth the procedure for issuance and mailing of the notice and if a copy of the notice and electronically generated record of entry of suspension or revocation are produced in court." Carrieri, Practice Commentaries, McKinney's Cons Laws of NY, Book 62A; VTL § 214. The statute further provides that "[t]he foregoing procedure shall not preclude the use of an affidavit of service by mail, a certificate of mailing or proof of certified or registered mail as proof of mailing of any such order or notice."

The complaint alleges that Officer Campoverde conducted a search of the official computerized records of the Department of Motor Vehicles and observed that defendant had in effect ten or more suspensions on at least ten separate dates due to defendant's failure to answer, appear, or pay a fine related to traffic summonses. Officer Campoverde next alleges that all traffic summonses have the following warning contained therein: "If you do not answer this ticket by mail within fifteen (15) days, your license will be suspended." Where, as here, "a charge of aggravated unlicensed operation is premised on a suspension arising from a failure to pay a summons, a police officer's allegations as to the warning printed on such summonses is not hearsay, and suffices to establish the element of knowledge." Brown, 15 Misc 3d 1143(A), *5. In addition, the filing of a certified copy of the DMV abstract sufficiently supports and corroborates Officer Campoverde's sworn allegation that defendant's license had been suspended due to a failure to answer a summons. Id. These allegations are sufficient for purposes of pleading to establish reasonable cause to believe that defendant knew or had reason to know that her license had been suspended. See, People v. Crawley, 32 Misc 3d 131(A) (App Term, 1st Dept. 2011); People v. Benitez, 44 Misc 3d 129(A) (App Term, 2d, 11th & 13th Jud Dists 2014); People v. Austin, 34 Misc 3d 136(A) (App Term, 2d, 11th & 13th Jud Dists 2011); People v. Costa, 40 Misc 3d 1232(A) (Crim Ct, Bronx County 2013).

Although the knowledge element of VTL §§ 511(1)(a) and 511(2)(a)(iv) has been sufficiently pled, this court finds that the element of operation common to both charges are insufficient. "[W]here the court detects reasons for facial insufficiency, it may dismiss the [*5]action for those reasons, despite the fact that the defendant did not raise those issues in his motion papers." People v. Rosado, 192 Misc 2d 184, 185 (Crim Ct, NY County 2002), citing People v. Lugo, NYLJ, Dec. 14, 1998, at 30, col 5 (Crim Ct, Bronx County).

"A person operates a motor vehicle within the meaning of the [VTL] 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). In addition, the operation of a motor vehicle can be proved by circumstantial evidence. People v. Booden, 69 NY2d 185 (1997); People v. Blake, 5 NY2d 118 (1958). If a defendant is not observed driving a motor vehicle, the complaint must allege sufficient facts from which to reasonably infer that defendant operated the motor vehicle within the meaning of the VTL. See, Alamo, 34 NY2d at 458 ("operation of [a] vehicle is established on proof that the defendant was merely behind the wheel with the engine running without need for proof that defendant was observed driving the car.").

Here, defendant was observed in a motor vehicle, which was parked on a roadway. The keys were in the ignition and the engine was running. Critically, the information fails to indicate where in the motor vehicle defendant was seated. Simply including the conclusory allegation that defendant was operating a motor vehicle with insufficient factual allegations to support such an inference fails to support the element of operation. "[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 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 defendant was operating a motor vehicle cannot be naturally determined from the fact that defendant was observed in a parked motor vehicle which had its engine running and the keys in the ignition. Defendant could very well have been a passenger in the motor vehicle and the keys were placed in the ignition by the actual driver of the motor vehicle.

Penal Law § 220.03 provides in relevant part that: "[a] person is guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance." "A person acts knowingly with respect to conduct or to a circumstance when he is aware that his conduct is of such nature or that such circumstance exists." PL 15.05(2). The term "possess" is defined as "to have physical possession or otherwise to exercise dominion and control over tangible property." PL § 10.00(8).

Defendant admitted to the arresting officer that she was in possession of Xanax, thereby satisfying the element of knowing possession. Public Health Law § 3306 lists Xanax, a.k.a. Alprazolam, as a schedule IV controlled substance. Pursuant to Public Health Law § 3304(1), it is "unlawful for any person to possess a controlled substance except as expressly allowed by this article." Public Health Law § 3331 permits a practitioner to prescribe substances listed in schedules II, III, and IV to an ultimate user. An "ultimate user" is defined as "a person who lawfully obtains and possesses a controlled substance for his own use . It shall also mean and include a person designated, by a practitioner on a prescription, to obtain such substance on behalf of the patient for whom such substance is intended." Public Health Law § 3302(33).

Defendant's argument that the information should be dismissed because she has a valid prescription for the Xanax is without merit. "The various circumstances identified in the Public [*6]Health Law that might make possession of [a controlled substance] lawful are provisos,' not 'exceptions' and the People need not plead facts to negate each of them in an information charging a violation of PL § 220.03." People v. Fielden, 48 Misc.32 1212(A), *7 (Crim Ct, NY County 2015); see also, People v. Torres, 47 Misc 3d 24 (App Term, 2d, 11th & 13th Dists 2015); People v. Lobianco, 2 Misc 3d 419 (Crim Ct, Kings County 2003). Differentiating between whether a particular statutory element constitutes a proviso or an exception "is critical to facial sufficiency analysis, since the People must plead factual allegations to rebut an exception, while the defendant must affirmatively raise a proviso as a defense at trial." People v. Messina, 32 Misc 3d 318, 323-324 (Crim Ct, Kings County 2011); see also, People v. Davis, 13 NY3d 17 (2009). Therefore, the absence of any allegations indicating that defendant lacked a prescription for Xanax does not render the information facially insufficient.

Finally, as noted above, defendant submitted a black and white photocopy depicting two pill bottles labeled Alprazolam prescribed to defendant. According to the label, one prescription was filled on August 28, 2015, seventeen days after her arrest. It is unclear when the other prescription was filled as the date on the bottle is obscured. First, even if the photocopy was in admissible form, it does not establish that defendant had a valid prescription for Xanax at the time of her arrest. And second, possessing a valid prescription is an affirmative defense to be raised at trial, which has no bearing on the facial sufficiency of an information.

Defendant's motion to preclude the introduction of unnoticed statement 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 moves to suppress any and all physical evidence seized from her person or from an area within her custody and control. Defendant notes that she has yet to receive any discovery and therefore, she lacks access to the information needed to make complete factual assertions in support of suppression. In spite of the foregoing, defendant claims to have been arrested on September 10, 2015 and charged with Criminal Mischief for allegedly breaking a door causing damage in excess of $250.00. Defendant further denies committing any crimes or engaging in any behavior that may have reasonably aroused police suspicion. Since she was arrested without probable cause, defendant argues that all physical evidence seized must be suppressed as the tainted fruit of the poisonous tree.

At the outset, the People argue that this branch of defendant's motion should be summarily denied for her failure to make any sworn allegations of fact as required. The People assert that defendant's denial of any wrongdoing is insufficient to raise an issue to be determined at a hearing.

Notwithstanding defendant's deficient showing, the People assert that there is no question that probable cause existed to arrest defendant. The People aver that the arresting officer was called over to the motor vehicle by a complaining witness. Subsequently, the officer ran defendant's license through the system and learned that her license was suspended. The People maintain that the foregoing provided ample probable cause for defendant's arrest. Thereafter, the officer recovered five rectangular shaped pills of Alprazolam from inside defendant's purse during a search incident to arrest. As defendant's arrest was lawful, the People argue that defendant's motion to suppress physical evidence seized should be denied in its entirety.

A motion to suppress evidence "must state the ground or grounds of the motion and must [*7]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.

Although summary denial of a motion to suppress is disfavored, "[h]earings are not automatic or generally available for the asking by boilerplate allegations." Id. at 422. "It is fundamental that a motion may be decided without a hearing unless the papers submitted raised a factual dispute on a material point which must be resolved before the court can decide the legal issue." People v. Gruden, 42 NY2d 214, 215 (1977). In requesting a hearing, a defendant must "controvert the specific factual averments as to the circumstances of the crime and his arrest." People v. Doyle, 273 AD2d 69, 69 (1st Dept. 2000) quoting People v. Suggs, 268 AD2d 305, 305 (1st Dept. 2000). A motion to suppress supported solely by conclusory allegations is insufficient to satisfy the requirements of CPL § 710.60(1).

In her papers, defendant inexplicably asserts that she has been charged with Criminal Mischief for breaking a door. She has been charged with no such crime. Rather than submitting a motion which is fact specific and germane to her case, defendant has submitted a purely boilerplate motion citing incorrect facts and the general principles for the suppression of evidence when the police lack probable cause. Therefore, this court finds that defendant has failed to allege sufficient facts to controvert the specific allegations as to the circumstances surrounding her arrest so as to raise an issue of fact related to probable cause that must be determined at a hearing.

Defendant moves to suppress the statement for which proper notice was given on the grounds that such evidence was illegally obtained. Defendant argues that 1) the statements were made involuntarily; 2) she was subjected to custodial interrogation prior to being informed of his Miranda rights; and 3) the statement is the product of an unlawful arrest. In the alternative, defendant requests a Huntley/Dunaway hearing in order to determine whether the statements should be suppressed. The People consent to defendant's request for a Huntley hearing solely to determine the voluntariness of her statements.

On a motion to suppress a statement as the fruit of an illegal arrest, a defendant is likely to know, and must allege, circumstances of the arrest. People v. Toxey, 220 AD2d 204 (1st [*8]Dept. 1995). Based upon the accusatory instrument and the statement notice, defendant had sufficient information to rebut the People's position that the police had probable cause to arrest her. Defendant's "bare assertion of innocence and the conclusory allegation that evidence has been illegally recovered are insufficient to warrant a hearing." People v. Marte, 207 AD2d 314, 316 (1st Dept. 1994); see also, People v. Coleman, 191 AD2d 390 (1st Dept. 1993) affd 82 NY2d 415 (1993).

Accordingly, defendant's motion for a Huntley hearing, solely to determine the issue of voluntariness, is granted. Defendant's motion for a Dunaway hearing is denied.

Defendant's motion for an order directing the People to provide discovery as required by CPL § 240.20 and a bill of particulars as required by CPL §§ 200.96 and 100.45(4) is hereby denied as moot as the People responded to defendant's demands on October 23, 2015. The People are further reminded of their continuing obligation to supply all Brady material.

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.

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

Accordingly, defendant's motion to dismiss the information as facially insufficient is granted to the extent that the charges of VTL §§ 511(1)(a) and 511(2)(a)(iv) 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 preclude the introduction of statement and identification evidence for which proper notice was not given 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 motion to suppress physical evidence is denied in its entirety. Defendant's motion for a Huntley hearing, solely upon the issue of voluntariness, is granted on the People's consent. The Huntley hearing shall be held at least twenty (20) days prior to the commencement of trial so that there is sufficient time for the transcription of the hearing minutes. Defendant's motion for an order compelling the People to provide discovery as required by CPL § 240.20 and a bill of particulars as required by CPL §§ 200.96 and 100.45(4) is hereby denied as moot. Defendant's motion for an order precluding the People from introducing evidence of her prior convictions and/or bad acts is respectfully referred to the trial judge. 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.