People v Santos (2014 NY Slip Op 50672(U))

People v Santos (Modesto)

2014 NY Slip Op 50672(U) [43 Misc 3d 136(A)]

Decided on April 24, 2014

Appellate Term, First Department

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This opinion is uncorrected and will not be published in the printed Official Reports.

The People of the State of New York, Respondent,

against

Modesto Santos, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Jennifer G. Schecter, J.), rendered March 15, 2012, convicting him, upon his plea of guilty, of driving while intoxicated (Vehicle & Traffic Law 1192[3]), and imposing sentence.

Judgment of conviction (Jennifer G. Schecter, J.), rendered March 15, 2012, affirmed.

The accusatory instrument was not jurisdictionally defective. The information alleged, inter alia, that defendant, just past midnight on February 27, 2012, was observed "excessively speeding" and driving in an "unsteady and abrupt manner" on the Henry Hudson Parkway; that he exhibited watery and bloodshot eyes, a "flushed" face, and the odor of alcohol on his breath; and that the results of defendant's blood alcohol test indicated a blood alcohol level of .07%. These factual allegations, "given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]), are sufficient for pleading purposes to establish reasonable cause to believe and a prima facie case that defendant was guilty of common-law driving while intoxicated (Vehicle and Traffic Law § 1192[3] see People v Blair, 98 NY2d 722 [2002] People v Hohmeyer, 70 NY2d 41, 43-44 [1987]). While Vehicle and Traffic Law § 1195(2)(c) provides that "[e]vidence that there was .07 of one per centum or more but less than .08 of one per centum by weight of alcohol in such person's blood shall be prima facie evidence that such person was not in an intoxicated condition," the section establishes a rebuttable, not a mandatory presumption (see People v Blair, 98 NY2d at 723). Inasmuch as the information herein otherwise contained factual allegations that were "sufficiently evidentiary in character" (People v Allen, 92 NY2d 378, 385 [1998]) bearing on defendant's prearrest appearance, deportment and erratic driving behavior, all suggestive of intoxication, "[t]he People were ... entitled to an opportunity to rebut the
section 1195(2)(c) presumption at trial" (People v Blair at 724).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 24, 2014