People v Lupinetti (2014 NY Slip Op 50570(U))

People v Lupinetti

2014 NY Slip Op 50570(U) [43 Misc 3d 1210(A)]

Decided on April 9, 2014

Just Ct Town Of Webster, Monroe County

DiSalvo, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Thomas J. DiSalvo, J. The defendant was charged with moving from lane unsafely, VTL§1128 (A), common law driving while intoxicated, VTL § 1192(3), leaving the scene of a property damage accident, VTL § 600 (1) (a), and failure to take the roadside breath test, VTL § 1194 (1) (B). The charges stemmed from an investigation of a motor vehicle accident by Webster Police Officer Michael J. Wilder on July 13, 2013 just after midnight. Defense counsel filed omnibus motions with the court requesting, among other things, suppression of statements made by the defendant and for suppression of the stop and arrest of the defendant.^[FN1] The defendant did not object in his motions to the sufficiency of the accusatory instruments pursuant to CPL §170.30 or § 170.35. Instead the motions set out the defendant's objections to be prosecuted by a misdemeanor complaint pursuant to CPL Sections 170.10 (4) and 170.65 (1). After a hearing the court denied the defendant's motions for suppression of the stop and the arrest. The court further found their was no basis to suppress any statements of the defendant.

The matter was then set down for a bench trial on March 14, 2014. At the conclusion of the People's case, the defendant moved for a trial order of dismissal pursuant to CPL § 290.10 (1) (a). It was during said motion argument that defense counsel raised the issue the sufficiency of the accusatory instruments. Specifically he pointed to the fact that the supporting deposition executed by the arresting officer does not allege that the defendant operated any motor vehicle. The court reserved decision and the trial was concluded. The defense did not present any witnesses.

Were the accusatory instruments charging the defendant with common law driving while intoxicated defective? Did the defendant fail to timely raise the sufficiency defense? Should the [*2]defendant's motion for a trial order of dismissal be granted?

The evidence presented at trial indicates that when Officer Wilder arrived on the scene of a motor vehicle accident on Salt Road in the Town of Webster he found a Green SUV in a ditch facing southbound. The officer observed that liquid was leaking from the front of the vehicle. Upon inquiry the officer determined that no one was injured. The defendant identified himself to the officer only as "Vince". Officer Wilder testified that during that initial contact he observed various indicia of intoxication, to wit: strong odor of alcoholic beverage, slurred, mumbled speech. The defendant was also observed to be unsteady on his feet and swayed as he walked. The keys to the SUV were not in the ignition, but were in the defendant's waistband. The defendant further refused to engage in any roadside tests. At one point the defendant asked the officer "Can't you just tow my vehicle and let me go home with my friend." It was soon thereafter that the defendant was arrested for driving while intoxicated. The defendant subsequently refused to take the chemical breath test at the police department.

The officer further testified to having followed a trail of radiator fluid from the scene of the accident to a parking lot of a town park on Schlegel Road, where he discovered multiple broken wooden fence posts and dividers. He also found a license plate belonging to the defendant's vehicle next to the fence posts.

The accusatory instruments consisted of simplified traffic informations and a supporting deposition. The supporting deposition in pertinent part states as follows:

instrument filed or to be filed with this court, against the above named defendant,

Sufficiency of Accusatory Instrument. Defense counsel contends that it was the failure to allege in the supporting deposition the operation of the vehicle in question by the defendant while being intoxicated that rendered the supporting deposition defective. In making a determination it is important to determine what type of accusatory instrument is before the court. First of all CPL § 1.20 (1) provides the definition of an accusatory instrument. A simplified information is included in the list of various accusatory instruments in that section.

CPL Section 5 (b) defines a simplified traffic information in pertinent part as follows:

" Simplified traffic information' means a written accusation by a police officer,

or other public servant authorized by law to issue same ... filed with a local criminal [*3]

court, which, being in a brief or simplified form prescribed by the commissioner

criminal action for such offense and as a basis for the prosecution thereof." Similarly, CPL 100.15 (2) (a) states as follows:

or other public servant authorized by law to issue same, filed with a local criminal

court, which charges a person with the commission of one or more traffic infractions and/or misdemeanors relating to traffic, and which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges. It serves as a basis for commencement of a criminal action for such traffic offenses, alternative to the charging thereof by a regular information, and, under circumstances prescribed in section 100.25, it may serve, either in whole or in part,

It is interesting to note that a simplified traffic information charging someone with a misdemeanor need not contain "factual allegations of an evidentiary nature", which is the basis of a misdemeanor information. [See CPL § 100.25 (1) and §100.40 (1).] "A simplified information is sufficient on its face when, as provided by subdivision one of section 100.25, it substantially conforms to the requirement therefor prescribed by or pursuant to law...." [CPL 100.40 (2)] Thus unless demanded by the defendant, the People could proceed to trial in a Vehicle and Traffic Ticket solely on the basis of the simplified traffic information. Nevertheless, CPL 100.20 sets out the requirements for a valid supporting deposition as follows:

therein." CPL §100.25 (2) mandates further that a supporting deposition must contain "... allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged." Thus once provided, a supporting deposition together with a simplified traffic information, form an accusatory instrument similar to, but not the same as, a misdemeanor complaint. In fact the Court of Appeals held as follows:

"A simplified traffic information, to be sufficient on its face, need only comply with

( CPL 100.25, 100.40, subd 2). But if defendant requests a supporting deposition, [*4]

to which he has a statutory right, it must provide reasonable cause ( CPL 100.25,

subd 2). The People's tender of such a deposition voluntarily, rather than waiting

for defendant's request, should not obviate the need for the deposition to provide reasonable cause." (People v. Key, 45 NY2d 111, 115-116, 408 N.Y.S.2d 16, 19

A simplified traffic information and supporting deposition used to charge a defendant with common law driving while intoxicated need only establish reasonable cause to believe the defendant is guilty of the charge in order to be sufficient.^[FN4] Such accusatory instruments are not held to the higher standard of a misdemeanor information as established by CPL 100.40 (1). In particular there need not be non-hearsay allegation of the factual part of the information and/or any supporting deposition that establish, if true every element of the offense charged and the defendant's commission thereof. (See CPL § 100.40 [1] [c].) The non-hearsay requirements of People v. Alejandro, 70 NY2d 133, 517 N.Y.S.2d 927 [1987] do not apply to a simplified traffic information and a supporting deposition.

Nevertheless, the Court of Appeals has held that failure to allege in a supporting deposition the operation of a vehicle or that the engine was running was a fatal flaw. In People v. Key, 45 NY2d 111,116, 408 N.Y.S.2d 16,19 the court stated that "...there was no allegation that defendant was operating his automobile or even that the engine was running, an allegation necessary to establish commission of the crime. Hence as both courts below have held, the information was insufficient."^[FN5] Therefore, it would normally be the case that failure to allege operation of a vehicle in a supporting deposition charging a defendant with driving while intoxicated is in itself a failure to establish reasonable cause of the defendant's guilt, which would render the accusatory instruments defective.

Timeliness. Although the defendant's omnibus motions set out his objection to not being prosecuted by an information pursuant to CPL §170.10 (4) and § 170.65 (1), his motions did not raise the issue of the sufficiency of the accusatory instruments, to wit: the simplified traffic information and supporting deposition pursuant to CPL §§ 170.30, 170.35 [1] and 170.45. CPL § 255.20 (1) requires that the pre-trial motions be "... served or filed within forty-five days after arraignment and before commencement of the trial ...." Thus such a motion made at the end of the People's case would not be timely. The only exception would be if the court decides "... in the interest of justice, and for good cause shown, ... in its discretion, at any time before sentence, [to] entertain and dispose of the motion on the merits." (CPL § 255.20 [3]) [*5]

"As a general rule, [a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution' People v. Harper, 37 NY2d 96, 99, 371 N.Y.S.2d 467, 469, 332 N.E.2d 336 (1975)" Gerstenzang, Handling the DWI Case in New York, Section 16:27 at 502 [2013 -2014 Ed.]. However, the general rule does not apply to a simplified traffic information accompanied by a supporting deposition. A defect in such a set of accusatory instruments has been held to be waivable. "Since a simplified traffic information can proceed to trial without any supporting deposition at all, and hence without any facts providing reasonable cause, it is unacceptable that absence of a factual allegation in the deposition is nonwaivable." (People v. Key, 45 NY2d 111, 116-117, 408 N.Y.S.2d 16,19 [1978]). The objection to the sufficiency of the accusatory instruments are hereby deemed waived.

Trial Order of Dismissal. CPL Section 290.10 (1) permits the court upon a motion by the defendant to dismiss a charge after the end of the people's case "... upon the ground that the trial evidence is not legally sufficient to establish the offense charged therein or any lesser included offense...." It is uncontested that the People's case is almost entirely circumstantial. The incident involved only the defendant's vehicle. When the officer arrived on the scene on Salt Road the defendant's car was already in the ditch on the side of the road. The vehicle was leaking fluid that was eventually traced back to a parking lot of a town park around the corner off of Schlegel Road. The officer did not observe the defendant in the vehicle. The defendant was walking around the accident scene when Officer Wilder arrived. The officer made initial inquiries as to the defendant's name and whether there were any personal injuries. He also asked if there were any other individuals in the vehicle at the time of the accident. The defendant indicated that he was the only occupant at that time. There were no keys in the ignition. Instead the keys were observed to be in the defendant's waistband. The defendant refused to perform any roadside tests. When the officer followed the trail of what appeared to be radiator fluid back to the town park around the corner, he observed damaged wooden fence posts and dividers, along with a license plate belonging to the defendant's vehicle near said damaged fence. During the conversations with the defendant, Officer Wilder observed various indicia of intoxication, such as flushed face, strong odor of alcoholic beverage, glassy bloodshot watery eyes and slurred mumbled speech. The defendant's balance was observed to be unsteady evidenced by the fact that he swayed. As previously indicated he also refused to submit to a chemical breath test at the police department.

A court must deny a motion for a trial order of dismissal pursuant to CPL Section 290.10 (1), when the circumstantial evidence presented excludes to a moral certainty every other reasonable hypothesis of what took place. (People v. Ainsworth, 106 AD2d 357, 483 N.Y.S.2d 287 [1st Dept. 1984]). That certainly is the case herein. The evidence presented points to the fact that the defendant was operating his vehicle while intoxicated. The evidence further indicates that during said operation he was involved in a property damage accident in a town park off of Schegel Road and that he drove his car off the road into a ditch on Salt Road.

There was also the admission of the defendant that no one else had been in the vehicle. The fact that CPL § 60.50 forbids the use of a defendant's statement as the sole basis for a conviction is not any help to this defendant. That provision states "A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed." However "The Court of appeals has eased this burden by interpreting CPL § 60.50 to require only slight evidence that the crime [*6]alleged has occurred." (Gerstenzang, Handling the DWI Case in New York § 25:11at 745 2013- 2014 Ed]) The controlling case is People v. Booden, 69 NY2d 185, 513 N.Y.S.2d 87 (1987). In that case the defendant's conviction in Walworth Town Court was overturned by the Wayne County Court. However, the Court of Appeals reversed the County Court and reinstated the conviction. The facts of that case were similar in nature to the facts in the instant case. The facts in Booden were that when the officer arrived a the scene he found a vehicle in a ditch and three individuals standing next to said vehicle. The defendant identified himself and told the officer that he had driven off the road when he swerved to avoid a deer. During the conversation the defendant exhibited certain indicia of intoxication. The defendant also submitted to a roadside field sobriety test and later blew a .08 upon being administered a breathalyzer test.^[FN6] Nevertheless, the court held that "Defendant's admission was the key' that explained those circumstances and established defendant's connection to the criminal act...."^[FN7] The court relied on the circumstances as a whole to corroborate the statement of the defendant. (See also two subsequent Appellate Division, Fourth Department decisions which are consistent with the Booden decision, i.e. People v. Hennigan,135 AD2d 1082 523 N.Y.S.2d 302 [4th Dep't 1987] and People v. Cook, 191 AD2d 993, 595 N.Y.S.2d 163 [4th Dep't 1993].) In this case the evidence presented excludes to a moral certainty every other reasonable hypothesis of what took place, which "... is the standard applicable where all the proof against a defendant is but circumstantial ...." (Ainsworth, at 358, 288)

Accordingly, the motion to dismiss the accusatory instrument as defective is denied. The defendant's motion for a trial order of dismissal is also denied. The matter is returned to the trial calender for return of the verdict. This constitutes the decision and order of this court.

Dated: April 9, 2014