Appellate Advocates (Sam Feldman of counsel), for appellant. Kings County District Attorney (Leonard Joblove and Julian Joiris of counsel), for respondent.

Appeals from a judgment of the Criminal Court of the City of New York, Kings County (Elizabeth N. Warin, J.), rendered September 22, 2021, and from an amended judgment of that court (Adam D. Perlmutter, J.) rendered January 27, 2022. The judgment convicted defendant, upon his plea of guilty, of common-law driving while intoxicated, and imposed sentence. The amended judgment resentenced defendant to three years' probation. The appeal brings up for review an order of that court (Elizabeth N. Warin, J.) dated September 17, 2021 denying defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds.

ORDERED that the matter is remitted to the Criminal Court to report on the branch of defendant's motion seeking to dismiss the accusatory instrument on the ground that he was denied his statutory right to a speedy trial because the People failed to timely certify, pursuant to CPL 30.30 (5-a), that the charges in the accusatory instrument were facially sufficient, after affording the People the opportunity to respond to that branch of the motion, and after a hearing, if necessary, and the appeals are held in abeyance in the interim. The Criminal Court is to file its report with all convenient speed.

On November 8, 2020, defendant was charged in a misdemeanor complaint with common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), obstructing governmental administration [*2](Penal Law § 195.05) and resisting arrest (Penal Law § 205.30), and arraigned thereon. On February 5, 2021, the People replaced the complaint with an information charging defendant with the aforesaid offenses. The factual portion of the information, as alleged by the complainant, Police Officer Kathryn Ellison, provides as follows:

"The deponent states that, at [about 3:00 a.m., on November 7, 2020, at 790 Willoughby Avenue, Kings County], the deponent observed a White 2019 Nissan Sentra, bearing New York License Plate Number JHJ5567 with damage to the front quarter panel and front tire on the street [alongside] a parked vehicle with no occupants and scratches and dents to its left side.

The deponent further states that the deponent observed the defendant standing next [to] the above vehicles looking at said damage, the engine of said Nissan Sentra running and the vehicle in drive with the keys in the ignition, the driver's seat unoccupied, and a female individual sitting in the passenger seat.

The deponent further states that the deponent observed the defendant exhibiting signs of intoxication: to wit, slurred speech, watery eyes, odor of alcoholic beverage on breath, and an unsteady gait.

Deponent further states that the defendant did refuse to submit to a chemical test analysis to determine the defendant's blood alcohol concentration.

The deponent further states that the defendant did resist a lawful arrest by attempting to push deponent, flailing defendant's arms and kicking defendant's legs while deponent attempted to place defendant in handcuffs.

The deponent further states that the deponent observed the defendant kick Police Officer Angelo DiGennaro, Shield No. 27678 of 081 Command, while deponent and Police Officer Angelo DiGennaro attempted to place the defendant in handcuffs."

On February 5, 2021, the People also filed and served a statement of readiness ("SoR") along with a certificate of compliance ("CoC") (see CPL 30.30 [5]) but without a certification under CPL 30.30 (5-a) that all the counts in the accusatory instrument were facially sufficient. On March 2, 2021, defendant filed a motion challenging the People's certificate of compliance. On March 9, 2021, the People filed an SoR with a CoC and with a statement that "[t]he People certify that all counts in the accusatory instrument filed in the above action meet the requirements of [CPL 100.15 and 100.40]" (see CPL 30.30 [5-a]). On March 30, 2021, the Criminal Court found the People's CoC valid and denied defendant's motion.

Thereafter, on September 17, 2021, defendant was arraigned on the information. After the case was sent to a trial part to begin pretrial hearings, defendant filed and served a motion to dismiss the accusatory instrument on statutory speedy trial grounds, arguing that the People violated his statutory speedy trial rights because (1) the People never filed a facially sufficient accusatory instrument, and (2) the People, in any event, failed to certify that the charges were facially sufficient under CPL 30.30 (5-a) within 90 days after the commencement of the action on November 8, 2020. The People did not object to the motion's lack of reasonable notice. That same day, after hearing argument that only addressed the first branch of the motion, the Criminal Court orally denied the motion in its entirety.

On September 22, 2021, defendant waived prosecution by information, pleaded guilty to the charged offense of common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) in satisfaction of the accusatory instrument, and received a sentence of a one-year conditional discharge. One of the conditions required defendant to abide by an ignition interlock device program. On October 21, 2021, defendant received a traffic ticket while driving a car without an ignition interlock device. On January 27, 2022, the Criminal Court found that defendant had violated the conditional discharge and resentenced defendant to three-years' probation with the conditions, as relevant to this appeal, that he "[s]upport dependents and meet other family responsibilities," and that he "consent to a search, conducted by a Probation Officer or a Probation Officer and his/her agent, of his/her person, vehicle and place of abode (when such place of abode is legally under his/her control), and the seizure of any illegal drugs, drug paraphernalia, gun/ firearm or other weapon or contraband found."

On appeal, defendant argues that the charge of common-law driving while intoxicated as alleged in the accusatory instrument was jurisdictionally defective because it failed to provide reasonable cause to believe that he had operated the vehicle; that the court improperly denied his motion to dismiss the accusatory instrument on statutory speedy trial grounds; that the court lacked the authority to impose the conditions of probation listed above because they are unrelated to his rehabilitation or crime; that the family support provision is unconstitutionally vague; and, finally, that his amended sentence to a three-year term of probation was excessive.

"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" (People v Case, 42 NY2d 98, 99 [1977]; see People v Dumay, 23 NY3d 518, 522 [2014]; People v Dreyden, 15 NY3d 100, 103 [2010]). Thus, the facial insufficiency of an accusatory instrument constitutes a jurisdictional defect which is not forfeited by a defendant's guilty plea (see People v Dreyden, 15 NY3d at 103; People v Konieczny, 2 NY3d 569, 573 [2004]). Here, since defendant expressly waived the right to be prosecuted by information, the relevant count of the accusatory instrument to which he pleaded guilty (see People v Mason, 62 Misc 3d 75, 78 n 2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; People v Toro, 61 Misc 3d 26, 28 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018])must be evaluated under the standards that govern a misdemeanor complaint (see People v Aragon, 28 NY3d 125, 127 [2016]; Dumay, 23 NY3d at 524; see also CPL 100.15, 100.40 [4]; People v Dumas, 68 NY2d 729, 731 [1986]). While the law does not require that the accusatory instrument contain the most precise words or phrases most clearly expressing the charge, the offense and factual bases therefor must be sufficiently alleged (see People v Konieczny, 2 NY3d at 575).

Vehicle and Traffic Law § 1192 (3) provides that "[n]o person shall operate a motor vehicle while in an intoxicated condition." The salient facts set forth in the accusatory instrument with respect to defendant's operation of the vehicle are that defendant was found at 3:00 a.m. standing next to a white Nissan, exhibiting signs of intoxication while looking at the damage the Nissan inflicted on the parked car that it had collided with. Taken together with the facts that the Nissan remained in drive with the keys in the ignition and the engine running, that there was a female sitting in the passenger seat but with no one in the driver's seat, and that defendant refused to submit to a chemical test analysis of his blood, the "factual allegations in the accusatory instrument were sufficient to support the inference that defendant was the operator of [*3]the vehicle involved in the accident" (People v Esposito, 33 NY3d 1016, 1017 [2019]; see People v Alma, 72 Misc 3d 140[A], 2021 NY Slip Op 50831[U], *2-3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021] ["we may adopt all reasonable inferences that may be drawn from the facts, and we need not require that the facts negate all possible defenses or make assertions responsive to every interpretation of facts potentially favorable to the defendant" (internal quotation marks and citations omitted)]). Consequently, we find that the sole basis for defendant's challenge to the facial sufficiency of the count of common-law driving while intoxicated lacks merit, as the factual allegations in the accusatory instrument provide reasonable cause to believe (see CPL 100.40 [4] [b]) that defendant was the operator of the vehicle involved in the accident.

CPL 30.30 (5-a) provides that, "[u]pon a local criminal court accusatory instrument, a statement of readiness shall not be valid unless the prosecuting attorney certifies that all [remaining] counts charged in the accusatory instrument" are facially sufficient (emphasis added) (see also People v Ward, 79 Misc 3d 129[A], 2023 NY Slip Op 50688[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]). "[T]he plain language of the subsection conditions the validity of an SoR on the People's certification of the facial sufficiency of the accusatory instrument and, thus, that failure to so certify renders the SoR invalid and incapable of stopping the speedy trial clock" (id. at *3). "Once a defendant sufficiently alleges that the People were not ready within the statutory period, 'the People [have] the burden of showing their entitlement to a statutory exclusion' " (People v Brown, 28 NY3d 392, 403 [2016], quoting People v Luperon, 85 NY2d 71, 81 [1995]). The failure to file a CPL 30.30 (5-a) certification within the time prescribed by the statute, after taking into consideration any applicable statutory exclusions, will result in the dismissal of the accusatory instrument (see Ward, 2023 NY Slip Op 50688[U], *4).

Because the top charge in the accusatory instrument was a misdemeanor that could result in a sentence of up to a year of incarceration (see Vehicle and Traffic Law § 1193 [1] [b]; see also Penal Law §§ 195.05, 205.30), defendant's allegation that the People failed to state ready with a CPL 30.30 (5-a) certification within 90 days of November 8, 2020, the date the action commenced (see CPL 30.30 [1] [b]), effectively shifted the burden to the People to establish that they were entitled to statutory exclusions (see Brown,28 NY3d at 403; Ward, 2023 NY Slip Op 50688[U]). "[S]ince the People did not have an opportunity to respond to the motion prior to the court's decision, there is an insufficient record for appellate review" (People v Chin, 63 Misc 3d 130[A], 2019 NY Slip Op 51558[U], *1 [App Term 1st Dept 2019]).

The People's contention that defendant's motion was untimely because he filed it on the day trial was scheduled to start after the matter was sent to a trial part is without merit (see CPL 170.30 [1] [e]; [2]; cf. People v Ford, 17 AD3d 143, 143-144 [2005]; People v Gaillard, 252 AD2d 357, 358 [1998]; People v M. Santulli, LLC, 29 Misc 3d 37, 39 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]). Moreover, the People waived their right to challenge defendant's failure to give reasonable notice under CPL 210.45 (1) by failing to timely object and then orally responding to the merits of the first branch of defendant's motion (see People v Mezon, 80 NY2d 155, 159-160 [1992]; People v Jennings, 69 NY2d 103, 113 [1986]; People v Headley, 100 AD3d 775, 775 [2012]; People v Frederick, 46 Misc 3d 33, 37 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). We find the People's argument that defendant abandoned his CPL 30.30 (5-a) claim to be meritless.

Accordingly, as a proper review is not possible on the present record, the matter must be [*4]remitted to the Criminal Court to report on the branch of defendant's motion pursuant to CPL 30.30 seeking to dismiss the accusatory instrument on the ground that he was denied his statutory right to a speedy trial because the People failed to timely certify, pursuant to CPL 30.30 (5-a), that the charges were facially sufficient, after affording the People the opportunity to respond to that branch of the motion, and after a hearing, if necessary (see People v Perkins, 175 AD3d 1327, 1328 [2019]; People v Silke, 79 Misc 3d 128[A], 2023 NY Slip Op 50679[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2023]; Chin, 2019 NY Slip Op 51558[U]). We hold the appeals in abeyance in the interim without deciding any other issues at this juncture.

OTTLEY, J.P., BUGGS and HOM, JJ., concur.