BACKGROUND

The PL § 195.05 charge was dismissed upon the People's motion. Therefore, those aspects of Defendant's motion which address PL § 195.05 are denied as moot.

Pursuant to CPLR § 2221(e), a motion to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and shall contain reasonable justification for the failure to present such facts on the prior motion."

Defendant's motion is utterly lacking in factual allegations either new or old. Furthermore, Defendant has failed to indicate any change in law since the determination of his prior motions. Accordingly, Defendant's motion to renew his prior motions is denied.

At arraignment on October 20, 2014, Suriel was represented by Edward McCarthy, Esq., of the Legal Aid Society, who indicated that Suriel wished to proceed pro se and had an application regarding subject matter jurisdiction. Mr. McCarthy recommended an adjournment to allow Defendant to make his applications and motions. The case was adjourned to allow LAS to determine if Suriel was eligible for its services or, if needed, for Suriel to retain private counsel.

Pursuant to CPL § 30.30(4)(b), "the period of delay resulting from a continuance granted [*2]by the court at the request of, or with the consent of, the defendant or his counsel" is excluded from computations of the time in which the People must be ready.

As the adjournment was at the request of defense counsel, the entire adjournment is excluded from speedy trial calculations.

Defendant filed the first of several motions to dismiss on November 28, 2014.

Defendant's November 28, 2014 motion was still under consideration at the December 1, 2014 appearance. Therefore, this adjournment is not chargeable to the People.

Defendant filed a second motion to dismiss on December 11, 2014.

At the December 18, 2014 court appearance, LAS was reinstated as counsel. An Article 730 examination, to determine Defendant's competency to stand trial, was ordered.

Pursuant to CPL § 30.30(4)(a), delays resulting from "proceedings for the determination of competency" are excluded from speedy trial calculations.

Defendant's motions to dismiss were pending throughout this adjournment. Accordingly, due to both the pending motions and the ordered Article 730 examination, the entire adjournment is excluded from speedy trial calculations.

Defendant filed a third motion to dismiss on February 6, 2015. Defendant's motions to dismiss were denied. The case was adjourned for the court to receive the results of the ordered Article 730 examination.

The People are permitted a reasonable time after hearings are ordered in which to prepare for trial. See People v. Green, 90 AD2d 705 (1st Dep't), appeal denied, 58 NY2d 784 (1982); People v Davis, 80 AD3d 494 (1st Dep't 2011).

Accordingly, both because of the need for the Article 730 examination and because the People have a reasonable time following pre-trial motions in which to prepare for trial, this adjournment is not chargeable to the People.

On March 12, 2015, in accordance with the results of the Article 730 examinations, Defendant was found fit to proceed and his motion to proceed pro se was granted. Defendant was given until April 22, 2015 to file his Omnibus Motion.

Defendant filed his Omnibus Motion on April 22, 2014.

As periods of delay resulting from pre-trial motions are excludable, this adjournment is not charged to the People.

On May 19, 2015, the Penal Law § 195(05) charge was dismissed upon the motion of the People. Furthermore, Huntley, Mapp, Dunaway and Refusal hearings were ordered on the consent of the People. The case was adjourned to July 6, 2015 for a decision on the present motion.

Accordingly, because periods of delay resulting from pre-trial motions are excludable, no portion of this adjournment is chargeable to the People.

As detailed above, a total of zero (0) days are chargeable to the People. This is less than the ninety (90) days required by CPL § 30.30(1)(b) to dismiss the accusatory instrument. Accordingly, that portion of Defendant's motion which seeks to dismiss the accusatory instrument pursuant to CPL § 30.30 is denied.

CPL§ 100.15 provides that every accusatory instrument must contain two elements: 1) an accusatory portion designating the offense charged; and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 NY2d 729 (1986).

Pursuant to CPL § 170.30(1)(g), the court may, upon motion of the defendant, dismiss the accusatory instrument when such is required in furtherance of justice within the meaning of CPL § 170.40. "While the court has the discretion to dismiss an accusatory instrument in the interest of justice, that discretion is neither absolute nor uncontrolled (see, People v Wingard, 33 NY2d 192, 196), and is to be sparingly exercised (see, People v Litman, 99 AD2d 573). In exercising its discretion, the court must maintain a sensitive balance between the interests of the individual and of the State (see, People v Clayton, 41 AD2d 204, 208)." People v. Kelley, 141 AD2d 764, 765 (2d Dep't 1988).

CPL § 170.40 permits the dismissal of an information or any count thereof "when, even though there may be no basis for dismissal as a matter of law such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice. In determining whether such compelling factor, consideration, or circumstance exists, the court must, to the extent applicable, examine and consider, individually and collectively, the following" factors, which [*4]are set forth in CPL § 170.40(1).

As set forth above, driving while intoxicated creates a substantial risk of harm to the public. In the present case, Defendant failed to complete the court ordered alcohol and substance abuse screening. Moreover, while the court recognizes that the case is at the pre-trial stage, dismissal of the case could result in serious harm to the public if Defendant will drive under the influence of alcohol, or not be subjected to the prescribed penalty or penalties — deterrents — if the allegations of the accusatory instrument can be proven at trial. Defendant has not asserted that he will not drive while impaired or intoxicated in the future. Accordingly, there exists a risk of harm to the public if the case is dismissed.

Taking into account all of the above factors, this court does not find any "compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice." [*6]Accordingly, the court is presented with no grounds upon which to exercise discretion to dismiss this matter, and, accordingly, that portion of Defendant's motion which seeks dismissal in the interest of justice is denied.

Defendant seeks dismissal for lack of subject matter jurisdiction. However, pursuant to CPL § 10.30(2), local criminal courts have preliminary jurisdiction of all offenses subject to divestiture thereof in any particular case by the superior courts and their grand juries. Pursuant to CPL § 10.30(1), local criminal courts have trial jurisdiction of all offenses other than felonies. This court, the New York City Criminal Court, is a local criminal court. See CPL § 10.10(3)(b). " Offense' means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state, or by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same." PL § 10.00(1).

Defendant is charged with violating VTL § 1192(3), a misdemeanor offense which carries a maximum sentence of imprisonment up to one (1) year and a minimum fine of $500; and VTL §1192(1), a traffic infraction with a minimum fine of $300 and maximum sentence of imprisonment up to fifteen days. Accordingly, the offenses Defendant is charged with are within the jurisdiction of the court.

Defendant seeks dismissal due to the loss of his "rights" without due process of law. However, Defendant fails to indicate how he was deprived of any rights without due process of law, or even what rights he has lost.

Defendant seeks to have VTL §§ 1192(1) and 1192(3) declared unconstitutional. However, in People v. Cruz, 48 NY2d 419 (1979), appeal dismissed, Cruz v. New York, 446 U.S. 901 (1980), the Court of Appeals considered the issue in a case whose facts closely resemble the case at bar. In Cruz, supra, as in the present case, the defendant was charged with violating VTL §§ 1192(1) and 1192(3) after refusing to take a chemical test to determine blood alcohol content.

The Court of Appeals stated, "the prohibition against driving while the ability to do so is impaired by alcohol (Vehicle and Traffic Law, § 1192, subd 1) is not a vague and indefinite concept." People v. Cruz, 48 NY2d 419, 426 (1979). Regarding VTL §1192(3), the court stated, "A layman, including the defendant and those charged with administering the law, should be able to determine whether the defendant's consumption of alcohol has rendered him incapable of operating a motor vehicle as he should. Thus, even when no chemical test has been made of the driver's blood alcohol content, the statute provides reasonable warning of what is prohibited and [*7]sufficient standards for adjudication." Cruz at 428.

The Court of Appeals concluded by stating "[w]e therefore conclude that subdivisions 1 and 3 of section 1192 of the Vehicle and Traffic Law are not unconstitutionally vague or indefinite when applied to a case where an analysis of the driver's blood alcohol content is unavailable." Cruz at 428.

Accordingly, the statutes at issue are not unconstitutional.

Defendant seeks an order directing all pre-trial hearings to be held at least twenty (20) days before trial. In support of this application, Defendant cites People v. Sanders, 31 NY2d 463 (1973). However, Sanders, supra, does not stand for the position advocated by defendant. The essence of Sanders is, "the defendant shall not only proceed with the requisite reasonable diligence' in making his pretrial suppression motion (CPL 710.40, subd. 1; former Code Crim. Pro., § 813-d, subd. 1) but shall also make his request for a transcript of the minutes of any pretrial hearing prior to its conclusion." People v. Sanders, 31 NY2d 463, 467 (1973).

Defendant has failed to provide any substantive support for his request for an order directing that all hearings be held at least twenty (20) days before trial. Accordingly, that portion of Defendant's motion is denied.

Defendant seeks to prevent ADAs Jessica Wash, Esq. ("ADA Wash") and Jon Junig, Esq. ("ADA Junig"), from proceeding in this or any other matters against Defendant. Defendant points the court to 22 NYCRR § 1200.0, the Rules of Professional Conduct for attorneys, in support of the proposition that neither of these ADAs may continue in the proceeding. However, Defendant fails to point to any specific facts or conduct which would warrant removing either attorney from the case.

Defendant further seeks to rely upon Grucci v Grucci, 20 NY3d 893 (2012) for the proposition that ADA Wash should not be able to proceed in the case. However, Grucci, supra, revolved around the admissibility of certain evidence in a malicious prosecution case. Defendant seems to be implying that prosecution by the District Attorney's office is malicious. However, no evidence has been submitted to support any such conclusion.

Accordingly, this portion of Defendant's motion is denied.

Defendant seeks a hearing in advance of the trial regarding the audibility of any recordings. "An audibility hearing addresses the preliminary issue of whether the utterances on a tape are sufficiently clear and understandable to be admissible into evidence at trial, a determination within the sound discretion of the court." People v. Rivera, 257 AD2d 172, 176 (1st Dep't 1999) aff'd by People v. Rivera, 94 NY2d 908 (2000). "The credibility of the recording, its accuracy and completeness are left to the Trial Judge to determine as preliminary questions of fact (United States v. Bryant, 480 F. 2d 785; United States v. McKeever, 169 F. [*8]Supp. 426)." People v. Gucciardo, 77 Misc 2d 1049, 1050 (Sup. Ct., Kings County 1974). Accordingly, the issue of an audibility hearing is respectfully reserved for the trial court.

Defendant seeks transcripts of any and all audio and/or video recordings the People may introduce at trial.

Defendant seeks to prevent the People from introducing evidence of any prior crimes, bad acts, arrests, criminal prosecutions or uncharged crimes pursuant to People v. Sandoval, 34 NY2d 371 (1974). This issue is respectfully reserved for the trial court.

Defendant seeks an order prohibiting the People from questioning him at trial, even if he should choose to testify. "Every criminal defendant is privileged to testify in his own defense, or to refuse to do so." Harris v. New York, 401 U.S. 222, 225 (1971). Pursuant to CPL § 60.15(1), "both the people and the defendant may as a matter of right call and examine witnesses, and each party may cross-examine every witness called by the other party." However, "[t]he nature and extent of cross-examination have always been subject to the sound discretion of the Trial Judge." People v Sandoval, 34 NY2d 371, 374 (1974)(internal citations omitted). Accordingly, subject to any limitations imposed by the trial judge, Defendant's motion to prohibit the People from cross-examining him is denied.

Defendant moves, pursuant to CPL § 710.30(3), to preclude the People from offering at trial any statements made by or identification of Defendant. CPL § 710.30(1) provides "[w]henever the people intend to offer at a trial (a) evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible upon motion pursuant to subdivision three of section 710.20, or (b) testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such, they must serve upon the defendant a notice of such intention, [*9]specifying the evidence intended to be offered." Pursuant to CPL § 710.30(2), "[s]uch notice must be served within fifteen days after arraignment and before trial." CPL § 710.30(3) provides "[i]n the absence of service of notice upon a defendant as prescribed in this section, no evidence of a kind specified in subdivision one may be received against him upon trial unless he has, despite the lack of such notice, moved to suppress such evidence and such motion has been denied and the evidence thereby rendered admissible as prescribed in subdivision two of section 710.70."

In the present case, the People served statement notice at arraignment. Accordingly, as to those statements covered by such notice, Defendant's motion is denied.

The People have not served identification notice. Pursuant to CPL § 710.30(2), "[s]uch notice must be served within fifteen days after arraignment and before trial." As such, any identification of Defendant should not be admissible. However, an identification by a police officer at a place and time sufficiently connected and contemporaneous to the arrest itself as to constitute the ordinary and proper completion of an integral police procedure does not constitute a previous identification within the meaning of the statute. See People v. Suleman, 262 AD2d 337 (2d Dep't), appeal denied People v. Suleman, 94 NY2d 885 (2000); see also People v. Wharton, 74 NY2d 921 (1989). Accordingly, testimony of observations by officers connected with Defendant's arrest is not hindered by lack of identification notice.

Defendant seeks to suppress all evidence to be used against him. This portion of the motion is effectively granted insofar as Huntley, Mapp, Dunaway and Refusal hearings have already been ordered on May 19, 2015. Disposition of same is respectfully reserved for the trial court.

Defendant moves for an order requiring the People to provide Defendant with any evidence favorable to the defendant. The U.S. Supreme Court has held "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). Accordingly, the People have a duty to disclose exculpatory evidence, and this branch of Defendant's motion should be granted.

Defendant's demand for discovery and a bill of particulars has been responded to through the People's response and VDF.

Defendant seeks to reserve the right to make further and additional motions. However, pursuant to CPL § 255.20(1), "all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment." CPL § 255.20(3) [*10]requires the court to entertain and decide on the merits any "pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified in subdivision one of this section or included within the single set of motion papers as required by subdivision two. Any other pre-trial motion made after the forty-five day period may be summarily denied, but the court, in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose of the motion on the merits." Defendant has not presented any grounds that could invoke the provisions enabling the late filing of pre-trial motions. Accordingly, any further motions by Defendant would be unauthorized. His ungrounded request to make further motions is, thus, denied.

The People move, pursuant to CPL § 250.10(2), to preclude Defendant from introducing at trial evidence of mental disease or defect in connection with the affirmative defense of lack of criminal responsibility by reason of mental disease or defect, the affirmative defense of extreme emotional disturbance, or any other defense. CPL § 250.10(2) provides, "[p]sychiatric evidence is not admissible upon a trial unless the defendant serves upon the people and files with the court a written notice of his intention to present psychiatric evidence. Such notice must be served and filed before trial and not more than thirty days after entry of the plea of not guilty to the indictment. [Despite reference to "indictment" in the preceding statutory sentence, CPL § 340.30 applies this statute to "prosecution of an information in a local criminal court," as well.] In the interest of justice and for good cause shown, however, the court may permit such service and filing to be made at any later time prior to the close of the evidence." The People affirm that more than thirty (30) days have passed since the Defendant pled not guilty. Indeed, arraignment in this case occurred as far back as October 2014. Defendant has not served notice of any intention to present psychiatric evidence, nor has he requested permission to do so at this late date. Accordingly, the People's motion is granted.

ORDERED that Defendant's motion to dismiss the accusatory instrument, in whole or in part, and to dismiss this action, is denied; and it is further

ORDERED that Defendant's motion for renewal of his prior motions is denied; and it is further

This constitutes the decision and order of the Court.

July 2, 2015