Defendant moves for an order of dismissal on speedy trial grounds alleging that the accusatory instrument is facially insufficient, and the Statement of Readiness (SOR) was illusory. Defendant also moves for a Mapp/Johnson hearing and a pre-trial voluntariness hearing to address her own statements to be used on cross-examination.

The Prosecution opposes dismissal, but consents to the Mapp/Johnson hearing.

Defendant's motion for a Mapp/Johnson hearing is GRANTED on consent. Defendant's motion for a pre-trial voluntariness hearing is DENIED with leave to renew, as the issue should be left to the sound discretion of the trial judge. For the reasons explained more fully herein, the remainer of Defendant's motion is DENIED.

Defendant was arraigned on a misdemeanor complaint on January 2, 2024, and charged with Operating a Vehicle While Under the Influence of Drugs or Alcohol and related charges (VTL §1192[1]). On February 7, the Prosecution served and filed a superseding information (SSI) containing identical charges. On February 27, the parties appeared in Part DWI, where the Prosecution stated not ready for trial. On March 11, the Prosecution served and filed a Certificate of Compliance (COC) and SOR. On March 21, the Prosecution served and filed a Supplemental Certificate of Compliance (SCOC) with additional discovery. On April 15, the case was called in Part DWI, but Defendant failed to appear. On April 30, the parties appeared in Part DWI; the parties were ordered to confer about missing discovery and Defendant was to file any motions challenging the COC by July 16. On July 16, the parties appeared in Part DWI, where the Prosecution consented to a Huntley/Dunaway hearing. On October 7, the parties appeared in Part TP2; Defendant filed the instant motion on October 9.

Defendant argues that the accusatory instrument is facially insufficient as to all charges related to operating a vehicle while under the influence because the factual allegations do not establish reasonable cause to believe she operated the vehicle. Absent this key detail in the pleading, Defendant asserts that the Prosecution could not validly state ready for trial. Defendant [*2]also argues that the Prosecution should be charged speedy trial time for belatedly filing their response to the instant motion. After Defendant filed the motion, the Court set a motion schedule requiring the Prosecution to file their response by November 5. However, the Prosecution did not file until November 10. Defendant explains that, although the Court ordered motions challenging the COC to be filed by July 16, she was not able to file until October 9 because defense counsel experienced a family emergency that kept her away from work for several weeks. Defendant also argues that the Prosecution should be charged for the period between filing their COC and SCOC because the materials belatedly disclosed were necessary for a valid SOR.

The Prosecution argues that the accusatory instrument is facially sufficient as to all counts and their COC is valid under CPL §245.50. Even if the Court determines the accusatory instrument is insufficient, the Prosecution argues their CPL §30.30(5-a) certification and SOR were made in good faith and should be upheld. As to Defendant's request for hearings, the Prosecution consents. The Prosecution argues the SCOC should not affect the validity of the COC because the related discovery did not exist when they filed their COC.

To be deemed facially sufficient, a misdemeanor information must contain non-hearsay allegations of an evidentiary nature that provide reasonable cause to believe that the defendant committed the offenses charged and, if true, the allegations must establish every element of each offense (see People v Alejandro, 70 NY2d 133, 137 [1987]; CPL §100.40[1]). Reasonable cause 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]). Facial sufficiency is determined by reviewing the factual portion of the accusatory instrument in conjunction with any supporting depositions. However, the prima facie requirement for the facial sufficiency of an information "is not the same as the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based upon the proof presented at trial" (People v. Smalls, 26 NY3d 1064, 1066 [2015]). "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]). The court must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from the allegations (CPL §100.15; Alejandro, 70 NY2d at 135; People v Henderson, 92 NY2d 677 [1999]). The court need not negate every other plausible theory when a reasonable view of the facts establishes the offense charged (People v Dumay, 23 NY3d 518, 525-526 [2014]).

VTL §1192(1), Driving While Ability Impaired, provides that "no person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol."

VTL §1192(2), Driving While Intoxicated, provides that "no person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's body as shown by chemical analysis of such person's blood, breath, urine or saliva . . . "

VTL §1192(2-a)(a), Driving While Intoxicated Per Se, provides that "no person shall [*3]operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in the person's body as shown by chemical analysis of such person's blood, breath, urine or saliva . . . "

VTL §1193(3), Driving While Intoxicated, provides that "no person shall operate a motor vehicle while in an intoxicated condition."

Pursuant to the automatic discovery provisions of CPL §245.20(1), the prosecution is required to disclose to the defendant, without motion, a list of enumerated items. Disclosure under this section is limited to "all items and information that relate to the subject matter of the case and are in possession, custody or control of the prosecution or persons under the prosecution's direction and control" (CPL §245.20[1]).

Once such disclosure is made, the prosecution must certify compliance with these discovery obligations by the service and filing of a COC (CPL §245.50[1]). The statute further provides that "[n]o adverse consequences to the prosecution . . . shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances; but the court may grant a remedy or sanction for a discovery violation as provided in 245.80 of this Article" (Id.).

A statement of readiness is valid only if the prosecution certifies that all counts in the accusatory instrument meet the requirements of CPL §§ 100.15 and 100.40, and those that do not have been dismissed (CPL §30.30[5-a]).

If the prosecution provides additional discovery after filing their COC but prior to trial, they must file a SCOC, detailing the additional materials (CPL §245.50[1]). In the SCOC, the prosecution must also detail the basis for the delayed disclosure so the court may evaluate whether the late disclosure affects the validity of the original COC (CPL §245.50[1-a]; see also People v Bay, 41 NY3d 200 [2023]). The filing of a SCOC shall not affect the validity of the original COC if the COC was filed in good faith after exercising due diligence (id.).

Pursuant to CPL §30.30[1][b], the prosecution must declare trial readiness within ninety days from the date of commencement of a misdemeanor criminal action. To properly announce trial readiness, the prosecution must certify in good faith compliance with their discovery obligations pursuant to CPL §245.20 (CPL §30.30[5]). "Absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial . . . until it has filed a proper certificate [of compliance]" (CPL §245.50[3]). A defendant seeking dismissal pursuant to CPL §30.30 meets their initial burden by alleging that the prosecution has failed to declare readiness within the statutorily prescribed period (People v Beasley, 16 NY3d 289, 292 [2011]).

Once the defendant has shown that there is more than ninety days of delay, the burden of proving the existence of excludable periods falls upon the prosecution (People v Berkowitz, 50 NY2d 333, 349 [1980]). The prosecution must demonstrate that the disputed adjournments are excludable by reference to a statutory provision (People v. Luperon, 85 NY2d 71, 77-78 [1995]; People v. Cortes, 80 NY2d 201 [1992]; People v. Santos, 68 NY2d 859 [1986]; Berkowitz, 50 NY2d at 348-350). The prosecution also bears the burden to clarify, on the record, the basis for an adjournment so that the motion court can determine to whom the adjournment should be charged (Cortes, 80 NY2d at 215-216; People v Liotta, 79 NY2d 841 [1992]; Berkowitz).

Although Defendant faces four different counts related to operating a vehicle while under [*4]the influence of alcohol, she challenges each on the same basis: that the accusatory instrument fails to allege operation. As it is the only element at issue, the Court will discuss only the question of operation as it pertains to all four charges.

The factual portion of the SSI states the following allegations: on January 1, 2024, at approximately 7:47 a.m. at the Flushing Avenue exit of the Brooklyn Queens Expressway, "a public roadway, the informant responded to the scene of a motor vehicle accident of a red 2015 Chrysler 200 . . . and that the informant observed the vehicle with the vehicle's airbags deployed, that the informant observed the defendant in possession of the keys belonging to said vehicle, that the informant observed the defendant get in the vehicle, sit down in the driver's seat, and exit the vehicle through the driver's side door while speaking with first responders, and that the informant observed the defendant exhibiting signs of intoxication: to wit, slurred speech, watery eyes, and the odor of alcoholic beverage on breath. Deponent is further informed by the defendant's own statements in sum and substance I didn't crash, someone crashed into me, my passport is in the car."^[FN1]

Defendant correctly argues that her own admissions, without more cannot sustain the element of operation for pleading purposes, pursuant to CPL §60.50. However, this rule is irrelevant to the case at hand, where the accusatory instrument does not state that Defendant admitted to operation. Rather, Defendant is alleged to have said merely that she did not crash, but that someone else crashed into her, and that her passport was inside the vehicle. As such, this argument is misplaced.

The Court is unpersuaded by Defendant's argument that the allegations fail to state facts from which operation may be reasonably inferred. The defendant need not be observed driving the vehicle; rather, operation can be proven by circumstantial evidence (People v Cardillo (Frank), 64 Misc 3d 25 [2019]). First, Defendant had the keys to the vehicle and got in and out of the driver's seat in the presence of police. She also stated that her identification was inside the vehicle. In explaining the circumstances, Defendant said someone crashed into me, implying her own involvement in the collision. These facts, if true, are circumstantial evidence that Defendant controlled the vehicle. Second, the police were responding to the scene of an accident; during the interaction, Defendant confirmed there had indeed been an accident, denying her own culpability. The airbags were deployed. These facts create a strong inference that there had been a traffic accident in which Defendant and the vehicle she controlled were involved. Third, the scene of the accident was an exit from a major thoroughfare, not a place where motorists ordinarily stop or park their vehicles for any extended period; from this fact, the Court may reasonably infer that the vehicle was driven to the location immediately prior to the accident. Given the circumstantial evidence that Defendant was in control of the vehicle when it was driven to the scene of the crash, there exists a reasonable inference that Defendant operated the vehicle. Accordingly, the Court finds that the accusatory instrument is facially sufficient and does not undermine the Prosecution's SOR.

The Court agrees with Defendant that the period between when the Prosecution filed their COC and SCOC is chargeable. The subject of the SCOC was calibration reports, which are subject to automatic discovery (CPL §245.20[1][j]). The Prosecution explains the delayed disclosure by saying that the materials did not exist at the time they filed their COC, but this is undermined by the documents themselves. As Defendant points out, the documents are dated from February 2024, the month prior to the Prosecution's COC and SCOC. As such, the Prosecution's explanation for the delay is insufficient to validate the original COC (CPL §245.50[1]). They are charged until March 21, 2024, when they filed their SCOC.

Finally, the Court is unpersuaded by Defendant's argument that the Prosecution should be penalized for filing their response five days late. Ordinarily the Court may find such time chargeable to the Prosecution, but the circumstances here call for more balanced enforcement. At the appearance on April 30, the Court adjourned the case to July 16 for Defendant to file any motions challenging the Prosecution's COC. Defendant did not file her motion until October 9, eighty-five days past the deadline. In her motion, Defendant explains that defense counsel was unavailable for an extended period in June and July, which caused her to miss the filing deadline. She does not account for the additional two months between counsel's return to work and the filing date, August and September. Although the Court does not see fit to penalize Defendant for the delinquent filing, it cannot in good conscience penalize the Prosecution for their subsequent five-day delay. To do so would be fundamentally unequitable and unreasonable.

This case commenced with the filing of an accusatory instrument on January 2, 2024. The Prosecution filed a valid SOR on March 21, 2024. They are charged seventy-nine days of speedy trial time. Accordingly, Defendant's motion to dismiss is denied (CPL §30.30[1][b]).

This constitutes the decision and order of the Court.