Defendant is charged with Driving While Intoxicated (VTL §§ 1192[2] and [3]), Aggravated Unlicensed Operation of a Motor Vehicle (VTL § 511[1][a]), and Unlicensed Operation (VTL § 509[1]).

Defendant moves for an order 1) dismissing the indictment as defective within the meaning of CPL §§ 210.35(1), (2), and 200.50(7); 2) precluding the People from introducing at trial evidence not supplied in response to defendant's request for a bill of particulars and demand to produce; 3) suppressing any and all physical evidence seized from defendant; 4) statements made by and/or elicited from defendant; 5) suppressing the in-court and any out of court identifications of defendant; 6) precluding the People from introducing at trial any evidence of defendant's prior convictions or bad acts; and 7) granting defendant the right to make additional pretrial motions and the right to amend and/or supplement this motion if made necessary or appropriate by the People's future disclosure.

The factual allegations in the accusatory instrument, sworn to by PO Jorman Castillo, read as follows:

Deponent states that, [on or about May 16, 2015 at approximately 4:27 AM at the southwest corner of East Tremont Avenue and Baisley Avenue, County of the Bronx, State of New York], he observed defendant seated behind the steering wheel, keys in the ignition, engine running, of a black 2016 Acura, Florida License No.EIJD40 while said vehicle was moving that the above location, a public roadway. Deponent further states that she observed defendant traveling at [*2]a high rate of speed and drive through a steady red light.

Deponent further states that he observed defendant's eyes to be watery and observed the odor of an alcoholic beverage emanating from defendant's breath. Deponent further states that defendant stated, in sum and substance YES, I HAD TWO DRINKS.

Deponent further states that he was present for the administration of a chemical test of the defendant's breath and while taking the test deponent observed the defendant to be unable to blow a sufficient sample in that defendant could not blow for a long enough time and the machine was registering an insufficient breath sample. Deponent further states that although defendant was providing an insufficient breath sample, defendant's blood alcohol content registered .09 of one per centum by weight.

Deponent further states that he obtained and read a teletype printout of the New York State Department of Motor Vehicles, whose computers are tied into our police computer for the purpose of obtaining records, which records were made and obtained in the regular course of business and which are regularly made in the court of business within a reasonable time after the event or occurrence, and said records show that the defendant's license to operate a motor vehicle was suspended or revoked in that the defendant had in effect at least one suspension on at least one date for failure to pay driver responsibility assessment[.]

Deponent is further informed by informant that informant's basis for believing that the defendant knew or had reason to know that his/her license was suspended or revoked is as follows: The defendant was unable to produce a valid license.

Deponent is further informed by informant that informant's basis for believing that the defendant knew or had reason to know that his/her license was suspended or revoked is as follows: The Department of Motor Vehicles records revealed that defendant's license was suspended for failure to pay driver responsibility assessment and all such assessments are mailed to the driver's address once per year with an assessment statement due within seventy-five (75) days and all such statements have printed on them, "Your New York State driver license (or privilege to drive in New York State) will be suspended if you do not pay the Minimum Annual Payment amount," and the Department of Motor Vehicles records revealed that defendant was sent a Suspension Order notifying him that his New York State driver license and/or privilege of obtaining a New York State driver license was suspended for failure to pay Driver Responsibility Assessment, the suspension occurs automatically (by computer) on the 75th day of non-payment.

On December 15, 2014, the People filed with the court a certified copy of defendant's Department of Motor Vehicles Abstract of Driving Record ("DMV Abstract").

Defendant argues that the indictment must be dismissed as jurisdictionally defective within the meaning of CPL §§ 210.35(1), (2) and 200.50(7). Defendant asserts that it is impossible from reading the indictment to know specifically what acts she is accused of committing which constitute the proscribed acts. As a result, defendant contends that she is unable to prepare a defense for the offenses charged.

In opposition, the People argue that defendant's motion to dismiss should be denied summarily since defendant has failed to cite any grounds for dismissal set forth in CPL § 170.30 and instead relies on CPL § 210.35(1) and (2), which relates to grand jury proceedings. As a misdemeanor information, the People assert that the instant case was not presented to a grand jury.

Additionally, the People aver that based upon a fair reading of the complaint, the factual allegations contained therein sufficiently establishes all of the offenses charged. With respect to counts one and two, VTL §§ 1192(2) and (3), respectively, the People note that the complaint alleges that defendant was observed driving a 2016 black Acura and she exhibited signs of intoxication, to wit: watery eyes and an odor of an alcoholic beverage emanating from her breath. A chemical test analysis of her breath further indicated that she had a blood alcohol content of .09.

As to counts three and four, VTL §§ 511(1)(a) and 509(1), respectively, the People aver that the complaint sufficiently alleges that defendant was observed driving a motor vehicle, defendant's license was suspended for failure to pay her drivers responsibility assessment, and that defendant knew of that her license was suspended because the Department of Motor Vehicles ("DMV") sent her an order notifying her of the suspension.

Criminal Procedure Law § 170.35 lists, in an all-inclusive manner, the following seven grounds upon which a local criminal court accusatory instrument may be dismissed: 1) it is defective within the meaning of section 170.35; 2) the defendant has received immunity from prosecution for the offense charged; 3) the prosecution is barred by reason of a previous prosecution; 4) the prosecution is untimely; 5) the defendant has been denied the right to a speedy trial; 6) there exists some jurisdictional or legal impediment to conviction of the defendant for the offense charged; or 7) dismissal is required in furtherance of justice.

In moving to dismiss, defendant incorrectly cites to CPL §§ 210.35(1) and (2), which relates to grand jury proceedings, and CPL § 200.50(7), which relates to the form and content of a felony indictment. If defendant had made any cogent arguments which could be construed as a ground constituting a legal basis for dismissal, then this court could have overlooked the fact that defendant referred to the misdemeanor complaint as an indictment and cited the wrong sections of the CPL. But, critically, defendant has failed to demonstrate how the misdemeanor complaint is defective within the meaning of CPL § 170.35. Therefore, defendant's motion to dismiss the indictment as defective within the meaning of CPL §§ 210.35(1), (2), and 200.50(7) is denied.

Assuming arguendo that this court deemed the instant motion as one to dismiss on the grounds of facial insufficiency, this court would still deny the motion to dismiss.

An accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15[3]; People v. Dumas, 68 NY2d 729 [1986]) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40[1][c]). "The failure to comply with this requirement is a nonwaivable [*3]jurisdictional defect with the exception of the nonhearsay requirement which is deemed waived absent a pre-trial motion or upon a plea of guilty." People v. McConnell, 11 Misc 3d 57 (App Term, 9th and 10th Jud Dists 2006) (internal citations omitted); see also, People v. Casey, 95 NY2d 354 (2000); People v. Alejandro, 70 NY2d 133 (1987).

In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15; People v. Mellish, 4 Misc 3d 1013(A) (Crim Ct, NY County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103 (1986). "The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefore be sufficiently alleged." People v. Sylla, 7 Misc 3d 8, 10 (App Term, 2d Dept. 2005). As such, "[s]o 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, they should be given a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354, 360 (2000).

Upon review of the instant complaint, this court finds that the last paragraph of the factual portion consists entirely of uncorroborated hearsay and therefore the accusatory instrument fails to satisfy the requirements of CPL § 100.40(c) as to count three, VTL § 511(1)(a). The remaining charges have been sufficiently pled.

Vehicle and Traffic Law § 511(1)(a) provides that "[a] person is guilty of the offense of aggravated unlicensed operation of a motor vehicle in the third degree when such person operates a motor vehicle upon a public highway while knowing or having reason to know that such person's license or privilege of operating such motor vehicle in this state is suspended, revoked or otherwise withdrawn by the commissioner."

Here, the complaint alleges that Officer Castillo conducted a search of the computerized records of the DMV and observed that defendant's license was suspended due to her failure to pay her driver responsibility assessment. The complaint further alleges that all assessment statements, indicating that a failure to pay the assessment within seventy-five (75) days, are mailed to the driver's address annually. Officer Castillo also alleges that the DMV records revealed that a Suspension Order notifying defendant that her license had been suspended was mailed to her address.

Depending on the underlying reason as to why a defendant's license was suspended, proof of knowledge of the suspension can be established in a number of ways. Vehicle and Traffic Law § 214 "creates a statutory presumption that the notice of suspension or revocation of the drivers license was mailed to the defendant if an affidavit of an employee of the Department of Motor Vehicles sets forth the procedure for issuance and mailing of the notice and if a copy of the notice and electronically generated record of entry of suspension or revocation are produced in court." Carrieri, Practice Commentaries, McKinney's Cons Laws of NY, Book 62A; VTL § 214. The statute further provides that "[t]he foregoing procedure shall not preclude the use of an affidavit of service by mail, a certificate of mailing or proof of certified or registered mail as proof of mailing of any such order or notice."

Although the People filed a certified copy of defendant's DMV Abstract on June 4, 2015, there is no indication that the People filed proof that the Suspension Order was mailed to defendant. The element that defendant knew or had reason to know that her license was [*4]suspended "is based solely on allegations by a police officer as to the content of notices issued by the Department of Motor Vehicles and the Department's procedures for mailing those notices to affected drivers — facts of which the officer, as an employee of the New York City Police Department, not the State Department of Motor Vehicles, could not have personal knowledge." People v. Brown, 15 Misc 3d 1143(A), *3 (Crim Ct, NY County 2007).

Nonetheless, as stated above, since hearsay pleading violations are nonjurisdictional and waived unless timely raised in a pre-trial motion to dismiss, defendant's failure to raise this issue in her moving papers constitutes a waiver of the hearsay defect.

Defendant argues that all evidence obtained as a result of her unlawful stop should be suppressed as such evidence was obtained in violation of her constitutional rights. Defendant denies engaging in any conduct indicative of criminal behavior prior to the stop. Defendant asserts that the police lacked both 1) reasonable suspicion to believe that she had committed, was committing, or was about to commit a crime and 2) probable cause to arrest. In the alternative, defendant requests a hearing to determine whether the physical evidence seized should be suppressed.

The People oppose defendant's motion to suppress physical evidence in its entirety and refuse to consent to a Mapp/Dunaway/Johnson hearing as defendant has failed to raise any proper grounds for suppression as required under CPL § 710.60. The People further note that no physical evidence was seized and as a result, defendant is not entitled to a Mapp hearing. The People note that defendant merely denies any wrongdoing and posits in a wholly conclusory fashion that the police lacked probable cause.

Notwithstanding defendant's deficient showing, the People aver that the police had ample probable cause based upon the personal observations of the arresting officer. The People aver that defendant was observed by Officer Castillo driving through a steady red light. After defendant was stopped, Officer Castillo observed defendant to have an odor of an alcoholic beverage emanating from her breath and watery eyes. At that point, the People argue that the officer had ample probable cause to believe that defendant was operating a motor vehicle while under the influence of alcohol. With respect to the videotape of defendant's Breathalyzer test and coordination tests taken at the 45th precinct, the People argue that such evidence is not subject to exclusion as they are merely the recorded products of an officer's observations.

A motion to suppress evidence "must state the ground or grounds of the motion and must contain sworn allegations of fact." CPL § 710.60(1). A motion to suppress must be summarily granted where the defendant alleges a legal ground warranting suppression and the People concede the truth of the factual allegations. CPL § 710.60(2)(a). A Court may summarily deny a motion to suppress if the defendant fails to allege a proper legal basis for suppression or if the "sworn allegations of fact do not as a matter of law support the ground alleged." CPL § 710.60(3)(b). "[T]he sufficiency of [the] defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) [the] defendant's access to information." People v. Mendoza, 82 NY2d 415, 426 (1993). However, even if the defendant's factual allegations are deficient, summarily denying a motion to suppress is disfavored. In Mendoza, supra, the Court of Appeals explained:

The CPL does not mandate summary denial of defendant's motion even if the factual allegations are deficient .If the Court orders a Huntley or Wade hearing, and defendant's Mapp motion is grounded in the same facts involving the same [*5]police witnesses, the court may deem it appropriate in the exercise of discretion to consider the Mapp motion despite a perceived pleading deficiency. Indeed, considerations of judicial economy militate in favor of this procedure; an appellate court might conclude that summary denial of the Mapp motion as improper, requiring the parties and witnesses to reassemble for a new hearing, often months or years later.

This court finds that defendant's moving papers are "minimally sufficient" to warrant a hearing on the issue of suppression. See, People v. Harris, 160 AD2d 515, 515 (1st Dept. 1990). A stop of a motor vehicle without probable cause constitutes a legal basis for the suppression of physical evidence. Defendant was arrested based upon the purported personal observations of criminality by the arresting officer. Defendant's denial of any wrongdoing challenges the facts relied upon by the arresting officer to establish probable cause. "When the validity of a warrantless arrest is challenged, the presumption of probable cause disappears and the People bear the burden of coming forward with evidence showing that it was supported by probable cause." People v. Chaney, 253 AD2d 562, 564 (3d Dept. 1998). Where material facts are in issue, a hearing must be held in order for the court to determine whether evidence was obtained lawfully ^[FN1] . People v. Burton, 6 NY3d 584 (2006). Therefore, defendant's motion for a Mapp/Dunaway/Johnson hearing is granted.

Defendant moves to suppress her statements for which proper notice was given should be suppressed on the grounds that such statements were made "through the compromise of [her] rights under the state and federal constitutions." Affirmation of defendant's counsel at 13.

The People contend that defendant has failed to explain how her statements were involuntarily made or elicited in violation of her constitutional rights. Again, due to defendant's deficient showing, the People ask this court to summarily deny this branch of defendant's motion in its entirety. However, should a Huntley hearing be ordered, the People request the scope of the hearing to be limited, since there is no probable cause issue with respect to defendant's statements and defendant has failed to raise an issue of fact regarding the issue of probable cause.

One exception to a court's authority to summarily deny a pretrial suppression motion for inadequate factual allegations relates to motions to suppress involuntarily made statements. People v. Huntley, 259 AD2d 843 (3d Dept. 1999). Where, as here, defendant claims that her statements were made involuntarily, a Huntley hearing must be held to determine the admissibility of said statements. Therefore, defendant's motion for a Huntley hearing is granted.

As stated above, summary denial of suppression motion is disfavored. In the interest of judicial economy and in light of the fact that the branch of defendant's motion seeking a Dunaway hearing "is grounded in the same set of facts and involve[es] the same police witnesses" as the Mapp/Johnson hearing (Mendoza, 82 NY.2d at 429), defendant's motion for a Dunaway hearing to determine whether there was probable cause to effectuate his arrest is granted. Therefore, defendant's motion for a Dunaway hearing is granted.

Defendant's motion to suppress identification evidence is denied since no identification procedure was used or required in the instant case.

The People have already responded to defendant's request for a bill of particulars and demand to produce. Therefore, defendant's motion for an order precluding the People from introducing certain evidence for failure to comply with the request for a bill of particulars and demand to produce is hereby deemed moot. The People are also reminded of their continuing obligation to supply all Brady material and Rosario material.

Defendant's motion for an order precluding the People from introducing evidence of her prior convictions and/or bad acts is respectfully referred to the trial judge.

Defendant's reservation of right to file further motions is unauthorized pursuant to CPL § 255.20(3). Any future motions shall be summarily denied absent a showing of good cause.

Accordingly, defendant's motion to dismiss the indictment as defective within the meaning of CPL §§ 210.35(1), (2), and 200.50(7) is denied. Defendant's motion for an order precluding the People from introducing certain evidence for failure to comply with the request for a bill of particulars and demand to produce is hereby deemed moot. Defendant's motion for a Mapp/Dunaway/Johnson hearing is granted. Defendant's motion for a Huntley/Dunaway hearing is granted. Defendant's motion to suppress identification evidence is denied. Defendant's motion for a Sandoval/Molineaux/Ventimiglia hearing is respectfully referred to the trial judge. Defendant's request to file additional motions is denied subject to rights under CPL § 255.20(3) to move for further leave upon good cause shown.

This constitutes the decision and order of this court.