By notice of motion and supporting affirmation from Kenneth S. Rones, Esq., dated March 15, 2022, the defendant moves to dismiss the accusatory instrument for facial insufficiency, in the "Interest of Justice" and other forms of relief.

By an affirmation in opposition and memorandum of law submitted by Jennifer L. Fluck, Esq., dated March 30, 2022, the People oppose the defendant's motion to dismiss the accusatory instrument and address the defendant's other arguments.

To be sufficient on its face, an information must contain an accusatory section and a factual section. (CPL 100.15[1]). The accusatory section must specify the offenses charged. (CPL 100.15[2]). The factual section must contain a statement from the complainant "alleging facts of an evidentiary character supporting or tending to support the charges." (CPL 100.15[3]). The factual section, along with any supporting deposition, must "provide reasonable cause to believe that the defendant committed the offenses charged." (CPL 100.40[1][b]).

The prima facie case requirement does not insist that the information allege facts that would prove defendant's guilt beyond a reasonable doubt (People v. Jennings, 69 NY2d 103, 115 [1986]). Rather, the information need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense" (People v Casey, 95 NY2d 354, 360 [2000]). A court reviewing for facial insufficiency must subject the allegations in the information to a "fair and not overly restrictive or technical reading" id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them (CPL 100.40, 100.15, People v. Jackson, 18 NY3d 738, 747 [2012]).

In this case, the Defendant is charged with violating New York Vehicle and Traffic Law ("VTL") § 1192.3 (Driving while Intoxicated), 1192.4 (Driving while Ability Impaired by Drugs), 1212 (Reckless Driving), New York Penal Law § 220.03 (Criminal Possession of a Controlled Substance in the 7th Degree) and other charges.

At the onset, in the People's answer to the Defendant's motion, they move to dismiss the charges of VTL § 1192.3 and PL § 220.03. Therefore, the complaint charging PL § 220.03 and the simplified information charging VTL § 1192.3 (#BC13DFXCDG) are hereby dismissed.

Defense argues that "as there are no blood test results regarding the existence of any drugs in Ms. Jones' system," the charge of VTL § 1192.4 should be dismissed as facially insufficient. However, People note in their motion that a supplemental toxicology report was [*2]served on defense counsel. This supplemental toxicology report is attached as "Exhibit D" in their motion and indicates a positive result for both alprazolam and hydrocodone.Both substances are listed in New York Public Health Law § 3306. In addition, a supporting deposition was served on August 30, 2021. This supporting deposition, when combined with the simplified information, make out a prima facie case that Ms. Jones was driving while her ability was impaired by drugs. Specifically, the supporting deposition contains allegations of impaired speech, the recovery of controlled substances as well as an admission of recent consumption of a controlled substance listed under NY Public Health Law § 3306. For these reasons, the Defense motion to dismiss VTL § 1192.4 as facially insufficient is denied.

Defense also argues that all other charges, except for the charge of violating § 3345 of New York Public Health Law, should be dismissed as supporting depositions have never been filed. However, defense fails to state when or how a demand for the supporting deposition was made. NY CPL § 100.25(2) does require a Court to dismiss a simplified information after thirty days if a supporting deposition is not served but it requires "a timely request" for the supporting deposition. Defense does not present any evidence of a timely request and the Court does not find any evidence of such a request being made. Obviously, Defense could move for dismissal of these charges as being beyond the time limits permitted by CPL § 30.30. However, Defense does not appear to be making such an application. Therefore, Defense application to dismiss these charges is denied.

Defense also moves to dismiss all charges in the interest of justice. Before addressing the legal merits of this argument, the Court expresses sympathy for the significant and traumatic medical challenges that Ms. Jones has experienced.

CPL § 170.40 expressly outlines the criteria to be applied when a Court is asked to consider dismissing a complaint in the interest of justice.

1. Seriousness and Circumstances of the Offense

Allegations of operating a motor vehicle under the influence of drugs are quite serious. Specifically, a motor vehicle can, in an instant, cause death or significant injury if not operated safely. Similarly, taking prescription drugs, while often medically necessary, requires the patient to be fully aware of any side effects of such drugs. In this case, Ms. Jones is alleged to have admitted to taking Vicodin^[FN1] before operating her vehicle.

2. Extent of Harm

The driver of the vehicle that Ms. Jones allegedly collided with suffered a broken rib and all the passengers of that vehicle went to the hospital.

3. Evidence of Guilt

Evidence of guilt includes an alleged admission, narcotics recovered from Ms. Jones and blood test results.

4. History, Character and Condition of the Defendant

Ms. Jones is a 63-year old woman with no criminal record who is dealing with significant health issues. Specifically, beyond diabetes and high blood pressure, Ms. Jones has [*3]recently been hospitalized with acute renal failure and subsequent cardiac arrest.

5. Police Misconduct

None

6. Purpose and Effect of Imposing Authorized Sentence

In this case, the offer from the People is a conditional discharge along with the other statutory requirements of the VTL for any 1192.4 plea. The People are not requesting jail time, probation or community service which might be challenging for Ms. Jones given her medical issues.

7. Impact of a Dismissal on the Safety or Welfare of the Community

The New York VTL has been designed to address the seriousness of driving while under the influence of drugs. Specifically, it envisions instructional classes, fines and license suspensions to educate the driver of the dangers of operating a vehicle under the influence of drugs, deter the behavior and prevent the defendant from driving for some time. A dismissal circumvents this statutory scheme and, therefore, could negatively impact the safety and welfare of the community.

8. Impact of Dismissal Upon Confidence in Criminal Justice System

Dismissal of this matter could decrease confidence in the criminal justice system by suggesting that a driver who did not exercise care in combining their prescription drugs with driving could escape justice by citing the very medical condition that required those prescription drugs.

9. Attitude of Complaining Victim

No Information was provided on the perspective of the complaining witness on this motion.

10. Other Factors

None

Appling the above factors, the Court finds that there is a lack of compelling factors or circumstances to dismiss this matter in the interest of justice. Specifically, while clearly Ms. Jones has dealt with and continues to deal with very serious medical challenges, Defense does not describe a nexus between those medical issues and the alleged criminal behavior. In addition, as the People are not recommending jail time, probation or community service, any sentence will not adversely implicate her medical issues. Lastly, Defense does not present any evidence that any mandatory license suspensions would be problematic for Ms. Jones.

The foregoing is the decision and order of the court.