The People of
the State of New York,
against
Dwayne Jeffrey, Defendant.
|
2013KN065483
Appearances of Counsel:
For the People: Kenneth P. Thompson, Kings County District Attorney, by
Assistant District Attorney Sarah Kurtz, 350 Jay Street, Brooklyn, New York 11201
Tel: 718-250-2001
For the Defendant: The Legal Aid Society, by Paul Beyder, 111 Livingston
Street, Brooklyn, New York 11201
Tel: 718-243-6356
Laura R. Johnson, J.
By Notice of Motion dated June 11, 2014, defendant seeks dismissal of the
accusatory instrument, on the ground that it is facially insufficient, and that his statutory
right to a speedy trial has been violated by the People's consequent inability to be ready
in timely fashion for trial on a legally sufficient instrument. The People oppose
defendant's motion by Affirmation dated July 17, 2014. For the following reasons,
defendant's motion to dismiss is DENIED.
DISCUSSION
Defendant is charged with one count each of the unclassified misdemeanor
of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (Vehicle
and Traffic Law § 1192[3]), and the traffic infractions of Operating a Motor
Vehicle While Under the Influence of Alcohol or Drugs (Vehicle and Traffic Law §
1192[1]), Leaving the Scene of an Incident Without Reporting (Vehicle and Traffic Law
§ 600[1][a]), and Unlicensed Operator (Vehicle and Traffic Law § 509[1]).
Defendant was initially arraigned on August 23, 2013, on a Criminal Court Complaint
that was based on the hearsay declarations of a civilian witness. Instead of converting
that instrument by filing a corroborating affidavit from the witness, the People filed a
superseding complaint on October 9, 2013, containing only the observations of the
affiant police officer, and requiring no conversion. Since defendant did not admit to
driving, and the superseding information does not allege that anyone saw defendant
behind the wheel, defendant now contends that the information fails to allege facts
supporting the necessary element that he "operated" a vehicle. In addition, he [*2]argues that any allegation that he failed to provide license,
registration and insurance information to the owners of the other cars damaged in the
incident ? an element of the Leaving the Scene charge ? cannot be based on the officer's
firsthand knowledge. For the reasons stated herein, those contentions are rejected.
Pursuant to sections 100.15 and 100.40(1) of the Criminal Procedure Law,
an information is sufficient on its face when the allegations provide reasonable cause to
believe that the defendant committed the offense charged, and when the non-hearsay
allegations establish, if true, every element of the offense charged and the defendant's
commission thereof. In determining whether this "prima facie" requirement has been met,
the court must view the facts alleged in the light most favorable to the People (People
v. Contes, 60 NY2d 620, 621 [1983]); People v. Dreyden (James), 28 Misc 3d 5, 7 [App Term, 2d
Dept], lv denied 15 NY3d 773 [2010]). The requirement of non-hearsay
allegations is a "much more demanding standard" than a showing of reasonable cause
alone (People v. Alejandro, 70 NY2d 133, 138 [1987], quoting 1966
Report of Temp Commn on Revision of Penal Law and Crim Code, Staff Comments).
Nevertheless, the People's prima facie burden "is not the same as the burden of proof
beyond a reasonable doubt required at trial, nor does it rise to the level of legally
sufficient evidence that is necessary to survive a motion to dismiss based on the proof
presented at trial" (People v.
Kalin, 12 NY3d 225, 230 [2009], citing People v. Henderson, 92 NY2d
677, 680 [1999]; see also Preiser, Practice Commentary, McKinney's Cons. Law
of NY, Book 11A, CPL 100.40, at 388). So long as the factual allegations of an
information give the defendant sufficient notice to prepare a defense and prevent the
defendant from being twice tried 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]). And, while conclusory allegations are insufficient (see People v. Dumas,
68 NY2d 729 [1986]), inferences may rationally be drawn (see People v. Bello,
92 NY2d 523, 526 [1998]), and a court "is not required to ignore common sense or the
significance of the conduct alleged" (People v. Gonzalez, 184 Misc 2d 262, 264
[App Term, 1st Dept 2000], lv denied 95 NY2d 835 [2000])). Finally, the failure
to satisfy the requirements of CPL 100.40 (1) (c) is a jurisdictional defect, which may be
raised at any time (People v. Alejandro, 70 NY2d 133; People v. Kalin,
12 NY3d at 229).
The Charging Instrument Sufficiently Alleges that Defendant was the
Operator of the Vehicle.
In this case, all charges against the defendant have as a common element that the
defendant "operated" a motor vehicle. Although the word "driver" is defined in Vehicle
and Traffic Law § 113 to mean "[e]very person who operates or drives or is in
actual physical control of a vehicle," the term "operator" is not separately defined.
Instead, each of the applicable subsections of Vehicle and Traffic Law § 1192
begins with a subtitle that uses the words "Driving while . . ." and continues by using the
word "operate." "Operation" of a motor vehicle has been held to be a broader concept
than driving. See e.g. People v. Alamo, 34 NY2d 453, 458 (1978) ("movement or
motion is not essential to control" of the vehicle). Indeed, Vehicle and Traffic Law
§ 509(1) says that no person shall "operate or drive" a motor vehicle unless
duly licensed (emphasis added); Vehicle and Traffic Law § 600 uses merely the
term "operate." The defendant contends that the accusatory instrument fails to allege
sufficient facts to establish that defendant operated a motor vehicle.
The superseding complaint contains no hearsay and is therefore to be
considered an information. It is sworn to by Police Officer Nicholas Altizermercado of
the 63rd Precinct, and the factual portion alleges, in pertinent part, that:
At approximately 4:05 AM at Schenectady Ave between Ave J & Ave
K County of Kings, State [*3]of New York, . . .
. . . the deponent responded to the scene of a motor vehicle accident, that the
deponent observed the defendant hiding underneath a vehicle near the scene of the motor
vehicle accident, that the defendant had the keys to a 2004 GMC Suburban in the
defendant's hand, that the deponent observed a 2004 Suburban Pennsylvania State
Driver's License No. HTY2090 [FN1]
which was missing a tire and damaged about the vehicle near the scene of said motor
vehicle accident, that the defendant failed to show the defendant's driver's license to
anyone at the scene of the accident, or report the accident to a police officer, and that
there were five damaged cars including [vehicles listed by model and license plate
number].
The deponent further states that the deponent recovered the keys to the
above mentioned 2004 GMC Suburban from the defendant's hand, and that the defendant
had a bump about the defendant's head.
. . . the deponent observed the defendant exhibiting signs of intoxication: to
wit, slurred speech, red watery eyes, odor of alcoholic beverage on breath, and an
unsteady gait.
To be sure, the superseding complaint contains no allegation that defendant
was observed operating the GMC Suburban.[FN2]
However, it is well settled that it is not necessary for someone to see a defendant actually
driving a moving car in order for it to be demonstrated that he is the operator of the
vehicle. For example, where a defendant is behind the wheel of a stationary car with the
keys in the ignition, it is a reasonable inference that he was driving the car before it
stopped. This inference may be drawn at trial to establish a defendant's guilt beyond a
reasonable doubt (People v. Cunningham, 274 AD2d 484 [2d Dept 2000];
People v. Collins, 70 AD2d 986 [3d Dept 1979]), or to establish a prima facie
case at the pleading stage (People v. Williams, 161 Misc 2d 523 [Crim Ct Kings
Cty 1994]).
But, that is not the only scenario in which a defendant may be fairly inferred
to be the operator of a vehicle. "In assessing the facial sufficiency of a misdemeanor
complaint, the court is not required to ignore common sense or the significance of the
conduct alleged.'" People v Gonzalez, 184 Misc 2d 262, 264 (App Term, 1st Dept
2000), quoting People v Abdul, 157 Misc 2d 511, 514 (Crim Ct, New York
County 1993). Rather, a court may look to what has been called "the confluence of
events and circumstances." People v Hitchcock, 98 NY2d 586, 592 (2002),
People [*4]v. Calixto, 29 Misc 2d 350, 352 (Crim
Ct NY County 2010); People v. Byrd, 149 Misc 2d 350, 352 (Crim Ct NY
County 1991).
Where operation of a vehicle is an element, allegations regarding the
position and condition of the vehicle, the position of the defendant, whether or not the
motor is running, and where the keys are located are all factors to be considered in
assessing the facial sufficiency of an accusatory instrument. The parties point to several
Criminal Court cases assessing the sufficiency of pleadings to support an allegation that a
defendant was the operator of a vehicle. These are worth describing, for their similarities
and differences to the case at bar:
In People v. Williams, 161 Misc 2d 523 (Crim Ct. Kings County
1994) the defendant was found asleep behind the wheel of a stalled car, in the middle of
Coney Island Avenue, with the keys in the ignition. The court concluded that "the alleged
facts, although circumstantial, are sufficient to provide reasonable cause to believe that
the defendant was operating the vehicle while in an inebriated condition, thereby
allowing the case to proceed to trial." Id. at 525.
In People v. Ricardo Hernandez, 11/10/2005 NYLJ 19, col 3, 234
NYLJ 92, 2005 NY Misc. LEXIS 3519; 234 N.Y.L.J. 92 (Crim Ct Kings County 2005),
the defendant was not at the scene of the traffic incident when the police arrived.
Although he returned and admitted to being the driver, the court found that corroboration
of that admission was required under the rule set out in CPL 60.50.[FN3]
The court found sufficient corroboration in the allegations that two vehicles had
"matching" damage, and that one of them still had its motor running and keys in the
ignition, suggesting that the collision had occurred "rather recently."
In People v. Whyte, 2002 NY Slip Op 50406U (Crim Ct Bronx
County, 2002) the defendant was observed sitting on the ground "next to" a damaged
vehicle. The accusatory instrument in that case was not sufficient, because although it
described the damage and alleged that the car's headlights were still on, it did not
"contain any allegations as to ownership of the vehicle, the possession or location of the
keys, whether or not the engine was running, or whether or not the driver's side door or
window was open" (id. at 5), all factors that would have served to support a
conclusion that the defendant had recently operated the vehicle.
In People v.
Martinez-Guzman, 36 Misc 3d 598 (Crim Ct Kings County 2012), the
accusatory instrument was held to be sufficient as to the element of "operation" where it
alleged that, at 4:55 a.m., defendant was standing next to the vehicle, which had the keys
in the ignition and the engine running. The court held that "operation [of a vehicle] may
be inferred from the defendant's proximity to . . . a vehicle, even if no witness observes
him driving it." Id. at 600. The court further noted that the information
sufficiently informed the defendant of what he was alleged to have done, "through
non-hearsay allegations of facts that require no special skill or discernment to draw a
conclusion from." Id. at 60.
Finally, in People v Rosa, 38 Misc 3d 1221(A) (Crim Ct Kings
County 2013), the defendant was found "standing directly outside" a damaged vehicle.
The information contained no allegation regarding the location of the car keys or whether
the engine was running. However, because defendant had a bloody injury to his head and
vomit on his person, and there was blood and vomit on the deployed airbag of the
vehicle, those facts pointed to the conclusion that defendant had been inside the
vehicle.
In the case at bar, the defendant was "hiding underneath a vehicle" at
approximately 4:05 a.m., "near the scene" of several damaged vehicles.[FN4]
"In the defendant's hand" were the keys to an out-of-state vehicle evidently involved in
that incident, the damage to which included that it was "missing a tire." Defendant had a
"bump" on his head. These factual allegations collectively support the conclusion that the
defendant had recently "operated" the now inoperable vehicle to which he still was
holding the keys, and that he had sustained injury in the same incident that had caused
damage to the vehicles. Moreover, the allegation that a police officer saw defendant not
standing by the damaged vehicle to which he had the keys, but instead hiding under
another car, tends to show that defendant had left the scene of the traffic incident and
was not intending to report it to the police or the owners of the damaged cars.
To reject these inferences as a matter of law would be to impose an overly
restrictive reading on the complaint (People v. Casey, 95 NY2d at 360), as well
as to ignore all common sense as to the significance of the conduct alleged (People v.
Gonzalez, 184 Misc 2d at 264). Finally, the accusatory instrument need not rule out
all the possible explanations of innocence; those are matters to be resolved at trial.
People v. Williams, 161 Misc 2d 523, 525 (Crim Ct Queens County 1994).
Defendant Has Failed to Carry His Burden on the Speedy Trial
Motion
As discussed above, the Court denies defendant's speedy trial motion on the merits of
his underlying argument. As an additional basis with regard to the three traffic
infractions, the Court denies defendant's motion for failure to carry his burden of
demonstrating a violation of defendant's constitutional right to a speedy trial.
Neither party has laid out the chronology of this case, other than to note that
the case was initially arraigned on August 23, 2013; and that the superseding information
was filed on October 9, 2013, together with a Statement of Readiness. The sole ground
of defendant's motion is that the People's statements of readiness have been consistently
illusory by virtue of the putative unsupported "operator" element.
Defendant is charged with one unclassified misdemeanor, Operating a Motor
Vehicle While Under the Influence of Alcohol or Drugs under Vehicle and Traffic Law
§ 1192 (3). Because the penalty for that offense is imprisonment for not more than
one year (Vehicle and Traffic Law § 1193 [b] [i]), that charge is subject to the
90-day speedy trial requirements of CPL 30.30 (1) (b). The three other counts against the
defendant are all traffic infractions which, since they are not "crimes" (Vehicle and
Traffic Law § 155), are not subject to CPL 30.20 or the time constraints of CPL
30.30.
Defendant thus faces two separate burdens on this motion: With regard to
the misdemeanor, he need allege only that there has been a delay in excess of 90 days,
whereupon the burden of demonstrating sufficient excludable time is placed on the
People (People v. Santos, 68 NY2d 859 [1986]; People v. Berkowitz, 50
NY2d 333, 349 [1980]). This, he has done (Deft Mtn ¶ 8); but, [*5]having rejected defendant's argument that the accusatory
instrument is jurisdictionally defective, the Court finds no other basis for granting the
motion after reviewing the notations of adjournments in this case. With respect to the
traffic infractions, however, defendant's burden is considerably higher. He must
demonstrate that his constitutional right to a speedy trial has been violated to such an
extent as warrants dismissal in the interest of justice. Such a determination lies within the
sound discretion of the court. CPL 170.40 (1). And, since "the People's failure to timely
proceed on one count of an accusatory instrument does not necessarily adhere to the
remaining counts upon which the People could be ready for trial." People v. Graham, 39 Misc 3d
35, 37 (App Term 2d Dept 2013) (citations omitted), defendant must demonstrate
that each of the traffic infractions must be dismissed in furtherance of justice pursuant to
CPL 170.30 (1) (g). Here, the defendant has focused exclusively on the merits of his
legal sufficiency claim, and has addressed none of the CPL 170.40 factors that, under
People v. Taranovich, 37 NY2d 442 (1975), might warrant a dismissal of such a
case on constitutional speedy trial grounds. This Court therefore declines to dismiss any
of the traffic infractions with which defendant is charged.
CONCLUSION
For the reasons set forth above, defendant's motion to dismiss the accusatory
instrument is DENIED.
This constitutes the Decision and Order of the Court.
DATED:September 3, 2014
Brooklyn, New York
.
Laura R. Johnson, J.C.C.
Footnotes
Footnote 1:Defendant has made no
objection to this wording, and the Court reads it to refer to the vehicle's "license plate,"
as vehicles do not have "driver's licenses" and the number is in the form of a license plate
number, with three letters followed by four numbers.
Footnote 2:Mindful that an
information must set forth the required non-hearsay evidentiary allegations within "the
four corners of the instrument itself" or in annexed supporting depositions (People v. Thomas, 4 NY3d
143, 146 [2005]), the Court gives no significance to the allegations in the original
complaint, that an individual, from whom no supporting deposition was obtained, had
witnessed the traffic incident, and saw defendant exit the GMC Suburban and run to hide
under the vehicle where he was found by the police. The cases of People v. Martinez-Guzman,
36 Misc 3d 598 (Crim Ct Kings County 2012); People v. Ricardo
Hernandez, 11/10/2005 NYLJ 19, col 3, 2005 NY Misc. LEXIS 3519; 234 NYLJ 92
(Crim Ct Kings County 2005), and People v. Whyte, 2002 NY Slip Op 50406U
(Crim Ct Bronx County, 2002), discussed herein, all involved similar elimination of
information from civilian witnesses.
Footnote 3:The Court of Appeals
has since stated that this rule does not apply to misdemeanor informations. People v. Suber, 19 NY3d
247 (2012).
Footnote 4:While the language of
the original criminal court complaint contained more detail, stating that the defendant
was found "one block away" from the scene of an incident involving the Suburban and
four "parked" vehicles, this Court will not find that the police officer's allegation in the
superseding information that, upon responding to the scene of the accident, he observed
"five damaged vehicles" and observed the defendant hiding under a vehicle "near" the
scene was insufficient as a matter of law. Just as "[a] determination that a particular item
is open to public view' does not require the exercise of professional skill or experience
on the part of a police officer warranting a specialized explanation" People v. Jackson, 18 NY3d
738, 746 (2012), so the conclusion that one object is "near" another is one that may
readily be drawn by the ordinary observer.