The Defendant, Cynthia A. Davis, by her attorney, Daniel J. Hogan, Esq., of counsel, to McPhillips, Fitzgerald & Cullum, L.L.P., having moved this Court for an order pursuant to CPL §§ 30.30, 60.45, 100.40 and 170.30 for an order dismissing the charge of Driving While Ability Impaired by Drugs, in violation of VTL § 1192(4), and upon reading and filing of the Notice of Motion, dated March 5, 2015, together with the affirmation of Daniel J. Hogan, Esq., dated March 5, 5015, and all supporting documents annexed thereto, and the People having responded to said motion by Affirmation of Benjamin R. Smith, Esq., Assistant District Attorney, dated March 19, 2015, and upon due deliberation, this Court issues the following Decision and Order.

The Defendant was arrested on September 2, 2014, at approximately 3:09 pm, on the charges of Driving While Ability Impaired by Drugs [VTL § 1192(4)], Failure to Keep Right [VTL § 1120(a)] and Unsafe Backing [VTL § 1211(a)]. The filed misdemeanor complaint alleges that:

A September 2, 2014 supporting deposition by Patrol Officer Bradley Hamilton affirms that, on the date of the incident, the road conditions were "dry," the traffic was "light" and the weather "clear." The reason for the stop was an accident with property damage. A CPL 710.30 Notice annexed to the supporting deposition asserts that, at approximately 3:00 p.m., while at the arrest scene, the defendant allegedly admitted to operating the vehicle, indicating that she was driving from the hospital. The defendant allegedly stated to officer Hamilton, "I hadtoday [sic]. I think I've had 6 since 10 am."

The supporting deposition further affirms that the defendant allegedly had glassy eyes, impaired speech, impaired motor coordination, and that she failed field sobriety tests consisting of horizontal gaze nystagmus, walk and turn and the one leg stand. A pre-screening test of the defendant was negative for the presence of alcohol.

The defendant was allegedly read her Miranda warnings by officer Hamilton on September 2, 2014, at 3:23 pm, at the Glens Falls Police Department. At approximately 3:56 pm, while at the Glens Falls Hospital, the defendant allegedly stated to officer Hamilton that she had operated the motor vehicle, she was driving to her home and she was driving from the hospital. The defendant allegedly further stated, "Now, I know I shouldn't be driving, but nobody said I shouldn't. I was arrested in June for DWI."

A blood sample was obtained from the defendant at the Glens Falls Hospital by nurse Reuther for subsequent testing. On March 18, 2015, the People filed the certified toxicology report, dated March 9, 2015, from the New York State Police Forensic Investigation Center, which indicates that the drug "Lorazepam," was present in the defendant's blood.

At the time of the defendant's arrest, she was issued an appearance ticket directing her to appear in this Court on September 16, 2014. The defendant failed to appear on September 16, 2014, and an arrest warrant was directed to be issued to secure the defendant's appearance in Court. On September 18, 2014, the defendant appeared in Court and was arraigned on the charges. A "not guilty" plea was entered by the Court on the defendant's behalf.

The defendant was released in her own recognizance and directed to return to court with counsel on September 25, 2014. By letter dated September 23, 2014 from attorney Hogan, the defendant requested "a short adjournment . . . in hopes that we might be able to best find out her needs for alcohol/drug treatment and be able to report same to the District Attorney's Office." Since there was no requested adjourned date, this Court contacted attorney Hogan's office to determine the length of the requested adjournment. By letter dated September 26, 2014 from attorney Hogan, the defendant requested an adjournment to October, 30, 2014, and the matter was adjourned, at the defendant's request, until October 30, 2014. On October 30, 2014, the matter was again adjourned, at the defendant's request, until December 16, 2014. By letter dated December 16, 2014, the defendant requested a further adjournment "to late January so that we can conference this matter with the District Attorney's Office." The matter was adjourned at the defendant's request until January 29, 2015.

On January 29, 2015, counsel failed to appear at court, and the matter was adjourned by the court to February 5, 2015 to allow counsel to appear. A letter was sent to counsel by this Court concerning the February 5, 2015 adjourned date.

On February 5, 2015, defendant and counsel appeared in court and a scheduling order was placed on the record with defendant's omnibus motions due by March 5, 2015, the People's response due by March 26, 2015 and a subsequent court appearance on April 2, 2015. In the March 19, 2015 Affirmation of Benjamin R. Smith, Esq., the People announced their readiness for trial.

The Defendant has timely filed her motions seeking an order: a) dismissing the charge of DWAI Drugs on the grounds that the factual allegations of the Misdemeanor Complaint and [*2]supporting deposition is legally insufficient to support that charge; b) suppressing the defendant's alleged statements made to the police; c) suppressing evidence obtained against the defendant based on an alleged lack of probable cause and d) dismissing the charge of DWAI Drugs on the grounds that the defendant has been denied her speedy trial rights.

In order to be sufficient, the factual portion of an information "must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges." CPL § 100.15 [3]. In addition, under CPL 100.40 (1) an information is sufficient on its face when: "(a) It substantially conforms to the requirements prescribed in section 100.15"; and "(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and "(c) non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof."

Paragraphs (b) and (c) of CPL § 100.40 (1), when read in conjunction, places the burden on the People to make out their prima facie case for the offense charged in the text of the criminal information. People v. Jones, 9 NY3d 259, 261 (2007). The failure to assert sufficient non-hearsay factual allegations in the Information is a jurisdictional defect. People v Alejandro, 70 NY2d 133, 134-135 (1987). Thus, unless the accusatory instrument alleges or is based upon reasonable cause to believe defendant committed the offense, the court has no authority to enter an order that restrains defendant's liberty, as this is a basic constitutional prerequisite. McKinney's CPL § 100.40, Practice Commentaries, Professor Peter Preiser, (2012), citing, People v. Dumas, 68 NY2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986]; County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991).

However, so long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, the information should be given a fair and not overly restrictive or technical reading. See: People v. Konieczny, 2 NY3d 569, 780 N.Y.S.2d 546, 813 N.E.2d 626 (2004); People v. Casey, 95 NY2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000).

The requirement of non-hearsay factual allegations is satisfied by either a deponent's direct, firsthand observations, or by hearsay evidence that would be admissible at trial under some exception to the rule against hearsay. See: People v. Casey, 95 NY2d 354, 361, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000]; New York Pretrial Criminal Procedure § 3.7, at 109 [7 West's NY Prac. Series 1996]; People v. Belcher, 302 NY 529, 534—535, 99 N.E.2d 874 [1951]). Examples of various hearsay allegations that fall under exceptions to the rule against hearsay, and have been held to provide legally sufficient support for an information charging a misdemeanor offense include a police detective's allegation that an order of protection was served on a defendant based on a certified copy of the order with defendant's signature acknowledging service, which is admissible under the public documents or official entry exception (People v. Casey, 95 NY2d at 361—362, 717 N.Y.S.2d 88, 740 N.E.2d 233) and a defendant's admission to an officer that he had been served with the order of protection (Id. at 362, 717 N.Y.S.2d 88, 740 N.E.2d 233); and the police department records documenting car theft, which is admissible as business records (People v. Fields, 74 Misc 2d 109, 344 N.Y.S.2d 413 [Dist. Ct., Nassau County, [*3]1973]; and a copy of a temporary order of protection along with subscribed, certified stenographic transcripts of the proceeding at which the order was issued, which is admissible as business records and public documents (People v. Henry, 167 Misc 2d 1027, 641 N.Y.S.2d 1003 [Dist. Ct., Nassau County, 1996]); and the defendant's own self-incriminating oral statements made to a deponent officer, admissible as an admission of a party (People v. Alvarez, 141 Misc 2d 686, 688, 534 N.Y.S.2d 90 [Crim. Ct., NY County 1988]); and a complainant's statement made at the scene of the crime to a police officer, which was admissible as excited utterance (People v. Solomon, 2002 NY Slip Op. 50712[U], 2002 WL 32157170 [Crim. Ct., Kings County, 2002]).

Thus, a defendant's admission or confession, as an exception to the evidentiary rule excluding hearsay, may be sufficient to meet the requirements under CPL § 100.15 and 100.40. People v. McKinney, 145 Misc 2d 460, 546 N.Y.S.2d 927 (NY City Crim. Ct.,1989), citing, People v. Polito, 128 Misc 2d 71, 488 N.Y.S.2d 593 (Rochester City Court, 1985).

In the present case, the misdemeanor complaint, when read together with the filed supporting deposition, the defendant's alleged admissions to Officer Hamilton and the certified lab test results, satisfies the requirements of CPL §§ 100.15 and 100.40. See: People v. Konieczny, 2 NY3d 569, 780 N.Y.S.2d 546, 813 N.E.2d 626 (2004); People v. Casey, 95 NY2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000).

While the People must still meet their burden of proof at trial, their much lower burden at the pleading stage has been met. The defendant's motion to dismiss for facial insufficiency is, therefore, denied.

Contrary to the People's position, the defendant has set forth sufficient allegations to warrant a Huntley hearing. In contrast to a motion to suppress tangible evidence (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081) or evidence obtained as the fruit of an unlawful seizure (Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824), where a suppression hearing will be conducted only if the motion is supported by sufficient factual allegations (CPL 710.60[3][b]), this Court must conduct a Huntley hearing upon a defendant's mere claim that his or her statement was involuntary. People v. Weaver, 49 NY2d 1012, 429 N.Y.S.2d 399, 406 N.E.2d 1335 (1980); People v. Knights, 124 AD2d 935, 508 N.Y.S.2d 679 (3d Dept. 1986); People v. Mendoza, 82 NY2d 415, 421—422, 604 N.Y.S.2d 922, 624 N.E.2d 1017 (1993).

In paragraphs 17 and 18 of attorney Hogan's affirmation, the defendant asserts that her statements to Officer Hamilton were obtained in violation of her Miranda warnings, which allegation is sufficient to warrant a Huntley hearing. The defendant's motion to suppress her statement on the ground that it was involuntary obtained or obtained in violation of the defendant's constitutional rights is GRANTED to the extent that a Huntley Hearing shall be held prior to the trial of this action on a date an time as selected by this Court to determine the voluntariness of the Defendant's statements, including whether or not she was apprised of and made a knowing and voluntary waiver of her Miranda rights.

A Dunaway hearing must be held if the Court refuses to summarily grant or deny a defendant's motion to suppress evidence obtained from an arrest on the grounds that the arrest [*4]was without probable cause. See: People v. Mendoza, 82 NY2d 415 (1993). A defendant's request for a Dunaway hearing will be granted if the defendant's motion papers raise an issue of fact as to probable cause for the arrest. See: People v. Toro, 300 AD2d 86 (1st Dept. 2002), appeal denied, 100 NY2d 543 (2003).

This Court has reviewed the defendant's motion to suppress for lack of probable cause and finds that the affirmation of attorney Hogan contains sufficient factual basis to warrant a Mapp/Dunaway hearing. See: Mapp v. Ohio, 367 U.S. 643 (1961), Dunaway v. New York, 442 U.S. 200 (1979). Thus, the defendant's motion seeking a Mapp/Dunaway hearing is granted to the extent that a hearing shall be held regarding the reasonable basis for the stop of the Defendant's vehicle, the probable cause for the Defendant's arrest and the subsequent search and seizure conducted of the defendant.

The charge of Driving While Ability Impaired by Drugs [VTL § 1192(4)] is a Class A misdemeanors. Pursuant to CPL 30.30(1)(b), the People are allowed 90 days to be ready for trial. Once a defendant has shown a delay greater than the applicable speedy trial period, the burden of proving that certain periods within that time should be excluded falls on the People. People v. Berkowitz, 50 NY2d 333, 428 N.Y.S.2d 927 (1980).

In cases involving an appearance or traffic ticket, the time period begins to run on the date a defendant first appears in court to answer the ticket. CPL § 30.30(5)(b). The defendant first appeared in this Court on September 18, 2014.

Here, the People announced readiness for the first time on March 19, 2015 in the affirmation of Assistant District Attorney Smith. Thus, absent some exclusionary period of time, all of the time delays from September 18, 2014 to March 19, 2015 are chargeable to the People. CPL § 30.30(1)(b).

Excluded from the speedy trial time calculation are periods of delay due to a continuance at the request of a defendant or with his or her consent, the time during which pre-trial motions, discovery and production demands are pending, time for plea negotiations, time to prepare for trial after unsuccessful plea bargaining, delays due to legitimate court scheduling beyond the control of either party, delays due to the unavailability of transcribed minutes furnished by a court reporter. See: CPL §§ 30.30(4)(a), (b); People v. Stiles, 70 NY2d 765 [1987]; People v. Delvalle, 265 AD2d 174 (1st Dept. 1999); People v. Holden, 260 AD2d 233 (1st Dept. 1999).

In the present case, the following periods are excluded from the speedy trial calculation:

Based on the foregoing, the time delays above are chargeable to the defendant, and the defendant's speedy trial rights under CPL § 30.30 have not been violated. The defendant's motion to dismiss is denied.

Based on the foregoing, the defendant is directed to appear in this Court on April 2, 2015 at 9:00 a.m. for the scheduling of pre-trial hearings or further proceedings.