[*1]
| People v Rosa |
| 2013 NY Slip Op 50214(U) [38 Misc 3d 1221(A)] |
| Decided on January 29, 2013 |
| Criminal Court Of The City Of New York, Kings County |
| Laporte, 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| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Criminal Court of the City of New York, Kings
County
The People of
the State of New York
against
Ariel Rosa, Defendant.
|
2011KN085800
The defendant was represented by
Mark A. Bederow, Esq.
Law Offices of Mark A. Bederow, PC.
260 Madison Avenue
New York, NY 10016
(212) 803-1293
The People were represented by
ADA Michael Chessa
Kings County District Attorney's Office
350 Jay Street
Brooklyn, NY 11201
(718) 250-3724
Evelyn J. Laporte, J.
The defendant, ARIEL ROSA, is charged with one count of Driving
While Impaired (VTL § 1192.1) and one count of Driving While Intoxicated (VTL
§ 1192.3). He moves, inter alia, to dismiss the accusatory instrument for
facial insufficiency (see C.P.L. § 170.30 [1]). For the reasons that follow,
the defendant's motion to dismiss for facial insufficiency is denied.
BACKGROUND
It is
alleged that on October 28, 2011 the defendant was driving a motor vehicle while
intoxicated. Although Sergeant John Flynn did not see the defendant driving, he did
observe the defendant to be outside of his vehicle in an apparent state of intoxication
with a bloody injury to his head. The defendant was also covered in vomit. Blood and
vomit were also observed to be inside the defendant's damaged vehicle and on the
vehicle's deployed airbag. A chemical test revealed that the defendant blood alcohol level
was .16%. When asked what had happened, the defendant responded that he had fallen
asleep. Based upon this, Sergeant Flynn deduced that the [*2]defendant had been operating a motor vehicle while
intoxicated and had thereby been involved in a collision with a parked vehicle. The
defendant argues that these facts are not sufficient to support the charges because there is
no indication that the defendant was operating the vehicle at the time in question.
DISCUSSION
To be
sufficient on its face, an information must provide reasonable cause to believe that the
defendant committed the offense, and the non-hearsay allegations must establish, if true,
every element of the offense charged (see People v McNamara, 78 NY2d 626,
629 [1991], citing C.P.L. 100.40[1][b],[c]; People v Alejandro, 70 NY2d 133,
136-137 [1987]). Mere conclusory allegations are insufficient (see People v
Dumas, 68 NY2d 729 [1986]) and a purported information which fails to meet these
requirements is fatally defective (see People v Alejandro, supra at 136).
An information should be given a non-technical reading so long as it gives the defendant
sufficient notice to prepare a defense and will prevent him from being tried twice for the
same crime (see People v Casey, 95 NY2d 354, 360 [2000]).
The original complaint, in pertinent part, reads as follows:
The deponent is informed by Sergeant John Flynn that, [on or about October
28, 2011 at approximately 3:50 a.m. at 272 Moffat Street in Kings County, New York
State], a public highway, the informed [sic] observed the defendant standing directly
outside of Defendant's vehicle, 2009 Acura bearing a New York license number
EXZ6088, and that said vehicle sustained severe damage along with a parked vehicle
which was at the above mentioned location.
The deponent is further informed by Informant that upon arrival the
informant observed a substantial amount of blood inside of Defendant's vehicle.
The deponent is further informed by the informant that when Informant
asked the defendant what happened, the defendant stated, in sum and substance, I fell
asleep.
The deponent is further informed by Defendant's own statements that the
above-mentioned 2009 Acura is registered to the defendant.
Deponent further states that at the approximate above time and place,
Informant observed the defendant exhibit signs of intoxication: to wit, red watery eyes,
odor of alcoholic beverage on breath, and an unsteady gait.
Deponent further states that Deponent is informed by the attached chemical
test analysis that at the time indicated, the defendant submitted to a chemical test to
determine the defendant's blood alcohol concentration.
The complaint is accompanied by a supporting deposition from Sergeant
John Flynn and the report of the above-referenced chemical test showing that the
defendant had a blood alcohol concentration of .16%
On February 27, 2012, the defendant filed the instant motion to dismiss. On
March 30, 2012 the People filed papers in opposition to the defendant's motion. They
also simultaneously [*3]filed a superseding complaint.
The superseding information reads in pertinent part:
The deponent is informed by Sergeant John Flynn that, [on or about October
28, 2011 at approximately 3:50 a.m. at 272 Moffat Street in Kings County, New York
State], a public highway, the informed [sic] observed the defendant standing directly
outside of Defendant's vehicle, 2009 Acura bearing a New York license number
EXZ6088, and that said vehicle sustained severe damage along with a parked vehicle
which was at the above mentioned location.
The deponent is further informed by Informant that, at the above time and
place, the informant observed that there were no other individuals present at said location
and that said location was a desolate street.
The deponent is further informed by Informant that upon arrival the
informant observed a substantial amount of blood on the defendant's head and face,
vomit on the defendant's person, and a substantial amount of blood and vomit inside of
Defendant's vehicle.
The deponent is further informed by the informant that the informant
observed the airbag in defendant's vehicle to be deployed and that there was blood on
said airbag.
The deponent is further informed by Informant that when Informant asked
the defendant what happened, the defendant stated, in sum and substance, I fell asleep.
The deponent is further informed by Defendant's own statements that the
above-mentioned 2009 Acura is registered to the defendant.
Deponent further states that at the approximate above time and place,
Informant observed the defendant exhibit signs of intoxication: to wit, red watery eyes,
odor of alcoholic beverage on breath, and an unsteady gait.
Deponent further states that Deponent is informed by the attached chemical
test analysis that at the time indicated, the defendant submitted to a blood test to
determine the defendant's blood alcohol concentration with a result of .16% alcohol
content.
The key difference in the superseding complaint is that it sets forth more
detailed facts connecting the defendant to the accident. It adds that the accident scene
was on "a desolate street" with no other person around; that there was blood and vomit
on the defendant's person and vomit inside the vehicle; and that the airbag was deployed
and there was blood on the airbag as well.
New York Vehicle and Traffic Law § 1192 defines Operating a Motor
Vehicle While Under the Influence of Alcohol or Drugs as follows:
1. Driving while ability impaired. No person shall operate a motor vehicle
while the person's ability [*4]to operate such motor
vehicle is impaired by the consumption of alcohol.
2. Driving while intoxicated; per se. No 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, made
pursuant to the provisions of section eleven hundred ninety-four of this article.
3. Driving while intoxicated. No person shall operate a motor vehicle while
in an intoxicated condition.
The defendant asserts that the allegations in the complaint are insufficient to
establish that he was operating a motor vehicle because the complaint does not state
whether anyone else was present or had been seen in the vehicle and there is no
allegation that any car keys were recovered from the defendant. He asserts that because
the defendant was not observed behind the wheel, the facts in the complaint are
insufficient because they do not rule out another driver. The defendant concludes that the
complaint is insufficient because each of the crimes charged include an element of
"operating" a motor vehicle and that the allegations in the complaint do not establish that
he was operating a motor vehicle.
To support his position, the defendant cites cases which review the standard
of proof at trial, not at the pleading stage. In People v. Stover, 30 Misc 2d 668
(1963) the Court of Appeals reviewed testimony from a police officer to determine
whether the prosecution had proven beyond a reasonable doubt that no one else had been
actual driving the vehicle in question. In People v. White, 173 AD2d 897 (3rd
Dept. 1991) the court focused on the fact that the defendant was in possession of the keys
to a vehicle in their assessment of whether proof at trial excluded the possibility of the
defendant's innocence. And in People v. Mathison, 175 AD2d 966 (3rd Dept.
1991) The court assessed the credibility of witnesses at trial in placing the defendant at
the scene of a vehicular incident. None of these cases apply to the facts and law here.
To be sufficient on its face, an information must only provide reasonable
cause to believe that the defendant committed the offense, and the non-hearsay
allegations must establish, if true, every element of the offense charged (see People v
McNamara, supra; People v Alejandro, supra. The information need only
give the defendant sufficient notice to prepare a defense and will prevent him from being
tried twice for the same crime (see People v Casey, supra). The law requires that
in determining facial sufficiency, the court view the accusatory instrument in the light
most favorable to the People. People v. Gonzalez, 184 Misc 2d 262 (App. Term.
1st Dept. 2000) lv denied 95 NY2d 835.
An accusatory instrument is facially sufficient when it contains an accusatory
part designating the offense or offenses charged and a factual part alleging facts of an
evidentiary character that tend to support the charges. C.P.L. §§ 100.15 (2),
(3); People v. Dumas, 68 NY2d 729, 731 [1986]). In addition, the non-hearsay
allegations must provide "reasonable cause to believe that the defendant committed the
offense charged in the accusatory part of the information." (C.P.L. § 100.40 [1][b]).
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." (C.P.L.
§ 70.10 [2]). The accusatory instrument must also provide "[n]on-hearsay
allegations of the [*5]factual part of the information
and/or of any supporting deposition [which] establish, if true, every element of the
offense charged and the defendant's commission thereof." Id. at § 100.40[1][c]). To
be facially sufficient, however, an accusatory instrument need only make out a prima
facie case against the defendant; it need not establish guilt beyond a reasonable
doubt. (People v. Henderson, 92 NY2d 677, 680 [1999]; People v.
Ensley, 183 Misc 2d 141, 142 [Crim. Ct., NY County 1999] (citations omitted)).
Prima facie evidence is evidence which, if uncontradicted, is sufficient to
establish a fact. Prima facie evidence does not mean conclusive evidence, but
rather evidence which creates a rebuttable presumption. See, People v. Gristina,
186 Misc 2d 877, (2001).
This court will not suspend judgment and common sense in order to assume
that the defendant was only coincidentally was covered in blood and vomit while
standing next to his own damaged vehicle which contained a bloody deployed airbag that
was covered in vomit. These facts coupled with the defendant's apparent intoxication
(confirmed by a blood alcohol test) and his own explanation that he had fallen asleep,
support the inference that the defendant had been operating the vehicle at the time of the
accident and had been doing so while under the influence of alcohol. Although the facts
as alleged do not state that defendant was actually seen behind the wheel of the car and
operating it, the court finds that the defendant's condition, the condition of his car, and
the fact that there was no one else near the vehicle, collectively describe a scenario of
facts that are facially sufficient for the purposes of this accusatory instrument. As the
Court of Appeals observed in People v. Dordal (55 NY2d 954, 956): "[t]hat
competing inferences could be drawn from the evidence does not defeat the People's
prima facie case (see People v Barnes, 50 NY2d 375, 381; People v Gerard, 50
NY2d 392, 397)."
In People v. Booden, 69 NY2d 195 (1987) a police officer arriving
at the scene of an accident at 3:00 a.m. found a vehicle in a ditch facing in the wrong
direction and three persons standing alongside. The highway was dry and there was no
indication of what might have caused the accident. Upon inquiry, the defendant stated
that he had been driving, that he swerved to avoid hitting a deer and that the vehicle
belonged to his father. Further investigation revealed defendant was intoxicated. The
Court held that the circumstances of the accident were sufficient to show that the vehicle
had been driven by a person under the influence of alcohol and, accordingly to establish
that the offense had actually been committed.
While the original compliant was admittedly somewhat weaker, albeit
arguably sufficient, the facts and inferences in the superseding complaint case clearly and
logically support the charges and allow a finder of fact to rationally draw the conclusion
that the defendant was operating his vehicle at the time of the accident and doing so in an
intoxicated condition. People v. Bello, 92 NY2d 523 (1998); People v.
Dreyden, (2nd Dept. 2010).
Viewing the facts in the light most favorable to the People, it is clear from
the circumstances, defendant's condition and the condition of his car, coupled with his
statement that he had fallen asleep, a jury could circumstantially conclude that the
defendant operated his vehicle while intoxicated, thereby causing an accident. Therefore,
the accusatory instrument properly describes a crime which the defendant allegedly
committed. People v. Burton, supra.
The factual allegations in the information give the defendant sufficient
notice to prepare a defense and protect the defendant from being twice tried for the same
offense (Casey, 95 NY2d at 360). For the foregoing reasons, Defendant's motion
to dismiss the information for facial insufficiency is denied.
The defendant's motion to reserve the right to make further motions is
granted to the [*6]extent indicated in C.P.L. §
255.20.
This opinion constitutes the decision and order of this Court.
Dated: January 29, 2013__________________________________New
York, New York
EVELYN J. LAPORTEJudge of the Criminal Court