On April 6, 2024, defendant was arrested and charged with one count each of Vehicle and Traffic Law ("VTL") §§ 1192 (2) (driving while intoxicated, per se), 1192 (3) (driving while intoxicated) (common law), both misdemeanors, and 1192 (1) (driving while impaired), a violation. Defendant was arraigned on April 7, 2024, and released on her own recognizance.

Defendant moves, inter alia, for an order dismissing the accusatory instrument on statutory speedy trial grounds pursuant to Criminal Procedure Law CPL §§ 170.30 (1) (e) and 30.30. Specifically, defendant contends that where the People have failed to allege facts sufficient to support the charge that she had committed the offense of VTL § 1192 (2), the prosecution cannot properly certify that all counts in the complaint are facially sufficient and, therefore, cannot have filed a statement of readiness ("SoR") valid to toll the People's speedy trial time pursuant to CPL §§ 245.50 (3), 30.30 (5) and 30.30 (5-a).

Upon review and consideration of the submissions, court file and relevant legal authority, the Court finds that the SoR is INVALID, the prosecution was UNTIMELY, and defendant's motion to dismiss is GRANTED.

At the court appearance held on July 15, 2024, the court noted that the People had filed their CoC off calendar on May 24, 2024.^[FN1] At the appearance held on December 18, 2024, the court noted that defendant's newly assigned counsel requested time to review the People's disclosures, and the matter was adjourned to January 22, 2025, at which time defense counsel requested a motion schedule to challenge the prosecution's CoC. The instant motion was filed February 5, 2025, which the People opposed on March 5, 2025, and defendant replied to on [*2]March 24, 2025.

In a motion to dismiss misdemeanor charges pursuant to CPL § 30.30, a defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within ninety days (see CPL § 30.30 [1] [b]); see People v Luperon, 85 NY2d 71, 77-78 [1995]). Generally, a criminal action is commenced by the filing of an accusatory instrument against a defendant, and it is settled law that the date on which the action is commenced is excluded from the CPL § 30.30 computation (see CPL § 1.20 [17]; People v Stiles, 7 NY2d 765, 767 [1987]).

Additionally, the People must also satisfy their statutory obligation pursuant to CPL § 245.50 (3), which provides that "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section" (see People v Kendzia, 64 NY2d 331, 337 [1985] (emphasis added).

To meet the jurisdictional standard for facial sufficiency, a misdemeanor complaint "need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense" (see People v Smalls, 26 NY3d 1064, 1066 [2015]; see also CPL § 100.40 [1] [b]; CPL § 70.10). The accusatory instrument must set forth non-hearsay facts of an evidentiary nature which, if true, establish every element of the offense charged (see People v Suber, 19 NY3d 247 [2012]; People v Dumas, 68 NY2d 729 [1986]). It is well-settled that "mere conclusory allegations are insufficient [ ] and a purported information which fails to meet these requirements is fatally defective" (see People v Pamulo, 48 Misc 3d 1227 [A], 2015 NY Slip Op 51286 [U], **2 (Crim Ct, New York County 2015] [citations omitted] citing People v Alejandro, 70 NY2d 133, 136 [1987]).

Lastly, CPL § 30.30 (5-a) conditions a valid statement of readiness upon the prosecuting attorney's certification that all counts charged in the accusatory instrument meet the requirements of CPL §§ 100.15 and 100.40.

Defendant argues that the top count of the accusatory instrument is not supported by allegations sufficient to prove one of the two elements of VTL § 1192 (2) because the complaint fails to allege any measure blood count alcohol ("BAC") (affirmation of defendant's counsel at 9-10). Thus, defense counsel argues that pursuant to CPL § 30.30 (5-a), the prosecution's SoR is illusory and cannot have tolled the speedy trial clock because the People cannot validly certify that all counts in the accusatory instrument satisfy the requirements of CPL §§ 100.15 and 100.40 (affirmation of defendant's counsel at 18-19). Defendant further asserts that the People's CoC must be stricken because of their purported failure to disclose a police accident report, the name and affiliation of an unidentified officer observable in body-worn camera ("BWC") footage, BWC footage and activity logs/memo books for Police Officer ("Officer") Cabrera and the unidentified officer, and Giglio materials for Officer Angel Estrella (affirmation of defendant's counsel at 10-17). Defense counsel alternatively moves for suppression of defendant's refusal to submit to a chemical breath test, police observations, statements, and prior [*3]convictions and bad acts pursuant to VTL § 1194, Mapp, Dunaway and Sandoval/Ventimiglia et al. (affirmation of defendant's counsel at 9-10).

According to the People, assertions that their CPL § 245.20 disclosures were deficient are farcical because their efforts demonstrate due diligence (People's affirmation at I). Initially, the assigned ADA asserts that "it does not appear that a police report was generated," although she acknowledges that on March 1, 2025, the People received the police accident report (People's affirmation at I). The prosecution further avers that defendant failed to demonstrate that Officer Cabrera played a substantial role in the case, or wore a BWC, although the People alternatively declare that his BWC could not be obtained because he left his command, and that all "required" Giglio disclosures were provided (People's affirmation at I). Next, the People aver that defendant should be estopped from asserting the facial insufficiency of VTL § 1192 (2) where she refused to submit to a breathalyzer test, and that defense counsel has cited no legal authority for the proposition that an insufficiently pled top charge impacts the People's speedy trial time (People's affirmation at ¶¶ I and II). Lastly, the People deny defendant's motion to suppress pursuant to VTL § 1194, Mapp and Dunaway (People's affirmation at ¶¶ III, IV and V).

Defendant's reply reiterates the basis for her motion which further contends that the People did nothing to remedy the facially insufficient top charge, nor has the belated disclosure of a police accident report, filed without a supplemental CoC, demonstrated prosecutorial due diligence (affirmation of defendant's counsel at 3-4, 9-10).

The Complaint provides, in pertinent part, that:

PO MARLYN CAMACHO of 52 PCT, Shield# 30581, states that on or about April 6, 2024 at approximately 2:15 PM in front of 2317 Jerome Avenue, County of the Bronx, State of New York, [ . . . ]

Deponent states that at the above time and place, in that, [sic] deponent observed defendant sitting behind the steering wheel, of a 2009 Red Mercedes Benz, Georgia license plate #S1822158, engine running. Deponent further states she observed said passenger side door to have large dents and scrapes to its exterior.

Deponent further states she observed the defendant to have watery eyes, a strong odor of an alcoholic beverage emanation [sic] from her breath, and further states that defendant's speech was slurred. Deponent further states that the defendant was also unable to stand straight and was swaying back and forth.

Deponent further states that the defendant stated in sum and substance: I WAS COMING OUT OF THE BAR TO PARK MY CAR, BECAUSE I WASN'T ABLE TO DRIVE HOME.

Vehicle and Traffic Law § 1192 (2), per se provides that "[n]o 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 blood as shown by chemical analysis of such person's blood, breath, urine or saliva pursuant to the provisions of section eleven hundred ninety-four of this article" (see VTL § 1192 [2] [emphasis added]). Additionally, the CJI states that "[t]o determine whether the defendant [*4]had .08 of one per centum or more by weight of alcohol in his blood, you may consider the results of any test given to determine the alcohol content of defendant's blood" (see (CJI2d[NY] Vehicle and Traffic Law § 1192 [2], https://nycourts.gov/judges/cji/3-vtl/vtl_1192/1192[2].pdf [last accessed April 12, 2025]).

In this case, the accusatory instrument lacks allegations concerning defendant's BAC because she refused to submit to a breathalyzer. However, the assigned ADA declares that defendant's refusal to submit to a chemical test would be rewarded if she is permitted to challenge the facial insufficiency of the top count. This Court disagrees. Although defendant may be employing a sword/shield tactic in her defense, the prosecution has exclusive dominion to decide what facts are to be alleged in the criminal complaint. Further, it must be axiomatic that the facial sufficiency of a criminal count, a nonwaivable jurisdictional requirement, is not conditioned upon defendant's collaboration (see People v Neftali D., 85 NY2d 631, 637 [1995]). Based upon the four corners of the information, which this Court is constrained to consider, there is no allegation that defendant's BAC was .08 of one per centum or more. Accordingly, the charge of driving while intoxicated, per se, is facially insufficient.

Moreover, where the manifest statutory reading of CPL § 30.30 (5-a) makes clear that an SoR shall not be valid unless the prosecution certifies that all counts of the accusatory instrument meet the requirements of CPL §§ 100.15 and 100.40, the People will not be heard to argue that defendant has failed to proffer legal authority in support of speedy trial dismissal based upon the facial insufficiency of the top count (see CPL § 30.30 [5-a]; see also People v Mercado, 82 Misc 3d 1227[A], 2024 NY Slip Op 50422[U], **2 [Crim Ct, Bronx County 2024] ["(B)ecause this singular insufficiency makes it the case that not all counts charged in the accusatory instrument are facially sufficient, the plain statutory consequence is that the People's statement of readiness shall not be valid"] [emphasis added] [internal quotation marks omitted]). The SoR filed by the prosecution on May 24, 2024, did not toll the People's speedy trial time.^[FN2]

The People's 30.30 calculation commenced on April 8, 2024, the day following defendant's arraignment. On May 24, 2024, the prosecution's CoC and SoR were filed (April 8, 2024 — May 24, 2024 = 46 days chargeable). At the court appearance held on October 3, 2024, the CoC was deemed valid but did not toll the People's speedy trial time because of their illusory SoR (May 25, 2024 — October 3, 2024 = 131 days chargeable). The next court appearance was held on November 22, 2024 (October 4, 2024 — November 22, 2024 = 49 days chargeable).

Defendant agreed to waive the time from November 23, 2024, to December 18, 2024, for discussions concerning possible disposition (November 23, 2024 — December 18, 2024 = 0 days chargeable). At the appearance held on December 18, 2024, newly assigned defense counsel requested time to review discovery, and the matter was adjourned to January 22, 2025 (December 19, 2024 — January 22, 2025 = 34 days chargeable). Finally, at the January 22, 2025, court conference, the instant motion to dismiss was set and the prosecution's speedy trial time tolled.

Where the People have asserted no excludable time pursuant to CPL § 30.30 (4), there [*5]are 260 days chargeable to the prosecution, well beyond the statutorily prescribed time to declare readiness for trial (see CPL § 30.30 [4]; see also CPL § 30.30 [1] [b]).

Upon review and consideration of the submissions, court file and relevant legal authority, the Court adjudicates defendant's motion to dismiss as follows:

The People's SoR, filed and served on May 24, 2024, is INVALID; and

The prosecution, pursuant to CPL § 30.30 (1) and § 170.30 (1) (e), was UNTIMELY and defendant's motion to dismiss the accusatory instrument is GRANTED; and

The remaining branches of defendant's omnibus motion are DENIED as moot.

This constitutes the opinion, decision, and the order of the Court.