The defendant is charged with one count each of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs in violation of VTL §§ 1192(1), 1192(2) and 1192(3), respectively. By motion filed on January 4, 2017, the defendant moves to dismiss the accusatory instrument for facial insufficiency and on the ground that his statutory and constitutional speedy trial rights were violated. On February 8, 2017, the People filed a response. For the reasons stated below, defendant's motion to dismiss all of the charges as facially insufficient is GRANTED, and defendant's motion to dismiss the VTL §§ 1192(2) and (3) charges on speedy trial grounds is GRANTED.

A. Legal Sufficiency Standard

Section 100.40 (1) of the Criminal Procedure Law states that an information is sufficient on its face when it substantially conforms with the requirements of CPL § 100.15, 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. "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, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]; People v Kalin, 12 NY3d 225 [2009]). While this "prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial" (People v Henderson, 92 NY2d 677, 680 [1999]), the failure to satisfy the requirements of CPL § 100.40 (1) (c) creates a jurisdictional defect to the criminal action (see People v Alejandro, 70 NY2d 133, 137 [1987]; Kalin, 12 NY3d at 229).

When analyzing whether the factual allegations of an information provide reasonable cause to believe that the defendant committed the charged offense, it is important to keep in [*2]mind the definition of reasonable cause provided by the Legislature in Criminal Procedure Law § 70.10 (2):

" 'Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL § 70.10 (2)).

B. Factual Allegations

The complaint alleges that on or about July 11, 2016 at approximately 5:20 a.m. at "Flabush [sic] Avenue and Woodruff Avenue" in Kings County, a police officer observed the defendant "sitting in the driver's seat" of a 2012 Honda Civic and then saw him exit the vehicle and stand by the driver's side door. A second officer also observed the defendant standing outside the car. Neither officer saw any other person inside the car or standing next to, or nearby the vehicle. The defendant told the officer that the car was his, a fact verified by the car's registration in the defendant's name.

The complaint further alleges that defendant's vehicle had scratches to the front driver's side panel. A black 2016 Nissan parked next to defendant's vehicle had scratches to the rear passenger panel. One of the officers asserted that the observed scratches to both cars were "consistent with an accident." The defendant "exhibit[ed] signs of intoxication," namely, slurred speech, red watery eyes, unsteady gait and an odor of alcoholic beverage on his breath, and a subsequent chemical test yielded the result of .158% of blood alcohol concentration.

C. VTL §§ 1192(1), (2), and (3)

Defendant argues that the complaint is facially insufficient because there are no factual allegations that provide reasonable cause that the defendant operated a motor vehicle. VTL §§ 1192(1), (2), and (3) prohibit operation of a motor vehicle while either impaired or intoxicated by alcohol. The definition of "operation" is broader than that of "driving" (see People v Prescott, 95 NY2d 655, 662 [2001]). A person operates a motor vehicle when "he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle" (id. quoting People v Alamo, 34 NY2d 453, 459 [1974]. See also People v Page, 266 AD2d 733, 775-76 [3d Dept 1999]; People v Dymond, 158 Misc 2d 677, 678 [County Ct Green County 1993] (definition of "operation" includes a mental state, namely, the intention to move a vehicle)). Under this standard, merely sitting behind the wheel with the engine running is not sufficient for operation (see People v O'Connor, 159 Misc 2d 1072, 1073-1075 [Dist Ct Nassau County 1994]). Where, as here, there is no witness to the defendant's driving nor admission of the same by the defendant, the element of operation can be inferred through circumstantial evidence (see People v Salerno, 36 Misc 3d 151(A), *4 [App Term 2d Dept 2012]).

Here, the sole allegations pertinent to the element of operation are that the defendant was seen sitting alone in the driver's seat of his car while intoxicated. There are no allegations that the engine was running, that the key was in the ignition, nor even that the defendant was in possession of the keys to his car. Standing alone, the facts alleged are insufficient to find it reasonably likely that the defendant was operating his car at the time of the charged offenses (see People v Persaud, 49 Misc 3d 1206(A), *7 [Crim Ct Bronx County 2015] (mere allegation that defendant was seated behind the steering wheel insufficient to infer operation); People v [*3]Kaminiski, 143 Misc 2d 1089, 1093-94 [Crim Ct New York County 1989] (observation that defendant was standing next to car while intoxicated insufficient to corroborate defendant's admission that he had been driving)).

Further, there are no factual allegations regarding the position or location of the car or other surrounding circumstances that would allow the Court to reasonably infer the defendant operated his car while he was intoxicated. All that is known from the complaint is that a second car was "parked next to" the defendant's car, and both cars had scratches on their side panels allegedly "consistent with an accident." There are no allegations, for instance, that the defendant's car was positioned in the middle of the road, or against traffic, that the airbag was deployed or skid marks were evident on the road, or that the officers were responding to a call about a car accident. In the absence of additional allegations, even if the scratches observed are consistent with a collision between the two cars, there is no factual basis to infer that the collision occurred while the defendant was operating his car, or while he was intoxicated (see People v Armenta, 27 Misc 3d 1218(A), *6-7 [Crim Ct Kings County 2010] (front-end dents on van did not tend to establish that driver of van, who was observed standing near it, caused those dents at the time and place of the charged VTL offenses)).

The factual allegations of the instant complaint fall far short of the circumstantial evidence other courts have relied upon to infer the element of operation where there was no witness to the defendant driving. For instance, in People v Salerno, the court held that allegations that the arresting officer responded to a call of erratic driving and an accident caused by a tractor-trailer, that the officer found the defendant shortly afterwards "slumped over" behind the wheel of the tractor-trailer, alone and with the engine running, on a service road a mile away, and that defendant exhibited strong signs of intoxication were sufficient to establish that the defendant operated a vehicle (id. at *4). In People v Dolan, the allegations that the defendant was found seated in the driver's seat of a vehicle with its airbag deployed moments after a collision, as well as the defendant's admission that he was driving, gave reasonable cause to believe that the defendant operated the vehicle (see Dolan, 1 Misc 3d 32 [App Term 1st Dept 2003]). In People v Booden, the court held that the element of operation was made out by allegations that the defendant was found standing next to his father's car which was in a ditch facing against traffic, and where the defendant admitted to officers that he had been driving (see Booden, 69 NY2d 185, 187-188 [1987]).

None of these additional factors are present in this case. The mere fact that the defendant was sitting in the driver's seat of his car while intoxicated and parked next to another vehicle with scratches consistent with an accident, does not provide the Court with a basis to reasonably infer that the defendant was "operating" a motor vehicle prior to the officers' arrival (accord Persaud, at *7; Kaminiski, at 1093-1094). Accordingly, defendant's motion to dismiss the VTL §§ 1191(1), (2) and (3) charges as facially insufficient is GRANTED.

Defendant also moves to dismiss the charges pursuant to CPL § 30.30. Defendant's motion to dismiss the VTL 1192(3) and (3) charges on speedy trial grounds is GRANTED.

Where, as here, the top count charged in the information is an unclassified misdemeanor punishable by up to one year in jail, the People are required to be ready for trial within ninety days of the defendant's arraignment, less any excludable time (CPL § 30.30(1)(b); VTL § 1193(1)(b); PL § 55.10(2)(c). The ninety-day period commences with the filing of the accusatory instrument (see CPL § 1.20 (17); People v Stirrup, 91 NY2d 434, 438 [1998]). The day on which [*4]the accusatory instrument is filed is excluded (see People v Stiles, 70 NY2d 765 [1987]). VTL § 1192(1), a traffic infraction, is not subject to dismissal pursuant to CPL § 30.30(1)(b) (see People v Thompson, 49 Misc 3d 141(A) [App Term 1st Dept 2015], lv. denied 26 NY3d 1112 [2016]; People v Polite, 16 Misc 3d 18, lv. denied 9 NY3d 849 [2007]; People v Gonzalez, 168 Misc 2d 136 [App Term 1st Dept], lv. denied 88 NY2d 936 [1996]).

Before answering ready for trial, the People must have "done all that is required of them to bring the case to a point where it may be tried" (People v England, 84 NY2d 1, 4 [1994]). Present readiness for trial requires a valid accusatory instrument (People v Weaver, 34 AD3d 1047, 1049 [3d Dept 2006], lv denied, 8 NY3d 928 [2007]). A jurisdictionally defective accusatory instrument renders any statement of readiness made by the People illusory (see People v Kerins, 26 Misc 3d 127[A] (App Term 2d Dept 2009]; People v Reyes, 24 Misc 3d 51, 54 [App Term 2d Dept 2009]).

Defendant was arraigned on July 12, 2016 on the original accusatory instrument. The People were not ready and the case was adjourned to September 19, 2016, at which time the People filed the operative superseding information with two supporting depositions and answered ready for trial. Since the superseding information is facially insufficient, it is jurisdictionally defective and the People's statement of readiness on September 19, 2016 was illusory (see Kerins and Reyes, supra).

As the People have not been ready for trial since arraignment, well over 90 days have elapsed and defendant's motion to dismiss the VTL §§ 1192(2) and (3) charges on speedy trial grounds is GRANTED.

As the Court has granted the motion to dismiss the traffic infraction of VTL § 1192(1) for facial insufficiency, and as CPL § 30.30 does not apply to traffic infractions, the People may file and serve a superseding information with regard the VTL § 1192(1) charge to cure any jurisdictional defects in the accusatory instrument.

The foregoing constitutes the opinion, decision and order of the Court.