Opinion
2015BX013676
06-11-2015
The People of the State of New York, Plaintiff, v. Natasha Arroyo, Defendant.
Appearances of Counsel The People — Robert T. Johnson, District Attorney, Bronx County by Ryan J. LeGrady, Assistant District Attorney Defendant — The Bronx Defenders by Renagh O'Leary
Appearances of Counsel
The People — Robert T. Johnson, District Attorney, Bronx County by Ryan J. LeGrady, Assistant District Attorney
Defendant — The Bronx Defenders by Renagh O'Leary
Mary V. Rosado, J.
Defendant is charged with Driving while Intoxicated (VTL § 1192 [3]) and Driving while Ability Impaired (VTL § 1192 [1]). By Affirmation dated April 15, 2015, Defendant moves to dismiss the charge of Driving While Intoxicated, on the ground that the accusatory instrument is facially insufficient and for other relief. By Affirmation in Opposition dated May 11, 2015, the People oppose dismissal arguing that the accusatory instrument is facially sufficient. In rendering a decision, this court has reviewed Defendant's Affirmation dated April 15, 2015, the People's Affirmation in Opposition dated May 11, 2015, the court file, and relevant statutes and case law.
Defendant's motion to dismiss the charge of Driving While Intoxicated for facial insufficiency is denied.
Factual Allegations
The information alleges that on or about March 22, 2015, at approximately 3:43 AM, at the southeast corner of Quincy Avenue and Cross Bronx Expressway, the following occurred:
Deponent states that, at the above time and place, he observed defendant seated behind the steering wheel and operating a 2013 gray Volkswagen, (New York License Plate Number GAK1056), in that said engine was running and the car was moving on a public street. Deponent further states that he observed defendant operating said vehicle in the left lane of a two-lane street, from which defendant turned right onto another street through the intersection without changing lanes. Deponent further states that he observed defendant to have a strong odor of an alcoholic beverage emanating from her breath.
Deponent further states that he observed the administration of a chemical test of defendant's breath and that the defendant's blood alcohol content as displayed on the breath analysis machine was .06 of one percentum by weight. Deponent further states that defendant stated in sum and substance, I had two drinks.
Facial Sufficiency
To be facially sufficient, an accusatory instrument "must designate the offense or offenses charged" (CPL § 100.15 [2]) and "must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges" (CPL § 100.15 [3]). More specifically, an information must provide "reasonable cause to believe that the defendant committed the offense" and must contain "nonhearsay allegations . . . [that] establish, if true, every element of the offense charged and the defendant's commission thereof" (People v Henderson, 92 NY2d 677, 679 [1999]; See CPL § 100.40 [1]).
The Court of Appeals has stated that CPL § 100.40 (1) places "the burden on the People to make out their prima facie case for the offense charged in the text of the information" (People v Jones, 9 NY3d 259, 261 [2007]). It should be noted that the "prima facie case requirement is not the same as the burden required at trial of proof beyond a reasonable doubt, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at the trial" (People v Kalin, 12 NY3d 225, 230 [2009]). Rather, what is required is that the factual allegations in the 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" (Id. at 230 [internal citations and quotations omitted]). Ultimately, the information "should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]).
Driving While Intoxicated
Vehicle and Traffic Law § 1192 (3) states that, "no person shall operate a motor vehicle while in an intoxicated condition." "Intoxication is reached when the driver has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver" (People v Cruz, 48 NY2d 419, 428 [1979]).
The accusatory instrument alleges that Deponent, Police Officer Daniel Lonergan, observed Defendant seated behind the steering wheel of a 2013 Volkswagen, with keys in the ignition, the engine running, and moving along a public street. "A person operates a motor vehicle when such person is sitting behind the wheel of a motor vehicle for the purpose of placing the vehicle in motion, and when the motor vehicle is moving, or even if it is not moving, the engine is running" (CJI2d [NY] Vehicle and Traffic Law § 1192 [3]). Based on Deponent's actual observation, the accusatory instrument establishes that Defendant was operating a motor vehicle.
The crux of Defendant's argument is that the chemical breath test result, indicating her blood alcohol content was .06%, is prima facie evidence of non-intoxication requiring dismissal of the charge. Vehicle and Traffic Law § 1195 (2) (b) provides that:
Evidence that there was more than .05 of one per centum but less than .07 of one per centum by weight of alcohol in such person's blood shall be prima facie evidence that such person was not in an intoxicated condition, but such evidence shall be relevant evidence, but shall not be given prima facie effect, in determining whether the ability of such person to operate a motor vehicle was impaired by the consumption of alcohol .
Defendant, however, misinterprets the scope and purpose of VTL § 1195. That section is a rule of evidence, and is only applicable at trial. In no unclear words, subsection one states, "Admissibility. Upon the trial of any action or proceeding arising out of actions alleged for a violation of any subdivision of section eleven hundred ninety-two of this article, the court shall admit evidence of the amount of alcohol or drugs in the defendant's blood as shown by a test administered pursuant to the provisions of section eleven hundred ninety-four of this article" (Emphasis added).
Therefore, it is inappropriate to dismiss a charge of Driving While Intoxicated merely because a defendant qualifies for prima facie evidence of non-intoxication. "Prima facie evidence does not mean conclusive evidence; it is evidence which creates a rebuttable presumption" (People v Gristina, 186 Misc 2d 877, 878-879, 721 NYS2d 491 [Crim Ct, New York County 2001]).
The Court of Appeals has provided guidance regarding the application of VTL § 1195 to accusatory instruments. When a defendant qualifies for a rebuttable presumption of non-intoxication under VTL § 1195 (2) (c), an accusatory instrument is still facially sufficient if it contains factual allegations to provide reasonable cause that a defendant violated VTL § 1192 (3) (People v Blair, 98 NY2d 722, 724 [2002]). In Blair, the Court of Appeals found that even when defendant's .08% result on a Breathalyzer constituted prima facie evidence of non-intoxication , the People must be given an opportunity to rebut that presumption at trial upon a showing that the accusatory otherwise establishes the offense. In that case, the accusatory instrument established the element of intoxication by the deponent's observations that the defendant had glassy eyes, smelled of alcohol, and exhibited impaired speech and motor control. Furthermore, the defendant failed several field sobriety tests, and even admitted to drinking alcohol earlier (Id.). Even though Blair discusses VTL § 1195 (2) (c) specifically, its rationale extends to VTL § 1195 (2) (b) (People v Cavana, 16 Misc 3d 1120[A], 2007 NY Slip Op 51518[U] [Sullivan County Ct 2007]). In addition, this court has previously upheld facial sufficiency by observations when a Breathalyzer result did not support the charge (See People v Veras, 40 Misc 3d 1235[A], 975 NYS2d 711, Wilson, J. [Crim Ct, Bronx County 2013]).
People v. Blair examined a former version of VTL § 1195 (2) (c) that read "[e]vidence that there was more than .07 of one per centum but less than .10 of one of one percentum by weight of alcohol in such person's blood shall be prima facie evidence that such person was not in an intoxicated condition, but such evidence shall be given prima facie effect in determining whether the ability of such person to operate a motor vehicle was impaired by the consumption of alcohol" (as added by L 1988, ch 47, § 18).
None of Defendant's offered cases persuade this court to the contrary. In People v. Coutard, (115 Misc 2d 630 [Nassau Dist Ct 1982]), the court considered the facial sufficiency of three accusatory instruments in a consolidated prosecution of Driving While Intoxicated cases. Each defendant submitted to a chemical breath test, and qualified for prima facie evidence of non-intoxication pursuant to VTL § 1195 (2). Instead of evaluating whether factual allegations in the supporting depositions, by themselves, established intoxication, the court attempted to rebut the VTL § 1195 (2) presumptions of non-intoxication with said supporting depositions. "It would appear to this court that before a proper charge for the misdemeanor crime of Driving While Intoxicated can be sufficiently laid in face of a blood alcohol content of less than .1%, a police officer must be able to provide something more than the usual supporting depositions" (Coutard at 645). While Coutard's call for supporting depositions of satisfactory depth and detail to rebut VTL § 1195 presumptions of non-intoxication may have been good law for a time, that is no longer the case. Any precedential or persuasive value Coutard possessed was vitiated by the holding of Blair that made clear the independence of facial sufficiency from prima facie evidence of non-intoxication. Therefore, it is improper for this court to weigh factual allegations of intoxication against rebuttable presumptions of non-intoxication.
Nor does Grennon (36 Misc 3d 33 [App Term, 2d Dept, 9th and 10th Jud Dists 2011]) support Defendant's contention that the strong odor of alcohol on her breath cannot, by itself, show intoxication. In Grennon, the defendant's conviction of Driving While Intoxicated was reversed because the People's evidence of intoxication was insufficient to support a jury verdict. That court noted that operating a vehicle at excessive speed, admission of consuming beer, exhibiting glassy eyes, and having an odor of alcohol was insufficient to prove the defendant was unable to physically operate a motor vehicle as a reasonable and prudent person (Id. at 35).
The evidence of intoxication in Grennon was insufficient to prove that defendant was intoxicated beyond a reasonable doubt. In the instant matter, Defendant is challenging the facial sufficiency of an accusatory instrument. The People are not required to prove intoxication beyond a reasonable doubt. Instead, they are only required to present a prima facie showing of the charges of the accusatory instrument (Kalin, supra).
This court finds that the People have met their immediate burden. Defendant stated she consumed "two drinks" (Complaint at p. 2). Deponent averred that the Defendant had a strong smell of alcohol on her breath. The odor of alcohol on one's breath is an accepted indicium of intoxication that may support the element of intoxication (See People v Santos, 43 Misc 3d 136[A], 988 NYS2d 524 [App Term, 1st Dept 2014]; People v Van De Cruze, 36 Misc 3d 1217[A], 959 NYS2d 91 [Crim Ct, Kings County 2012]). Deponent further stated that he observed Defendant make a right turn from the left lane of a two-lane road. Such conduct is a violation of VTL § 1160 (a). Reasonable and prudent drivers abide by all the provisions of the Vehicle and Traffic Law. Taken together the factual allegations support a reasonable inference that Defendant lacked the physical and mental ability to drive as a reasonable and prudent driver due to alcohol consumption.
The accusatory instrument is facially sufficient as to the charge of Driving While Intoxicated. The factual allegations provide reasonable cause to believe that Defendant committed the offense by establishing every required element.
Mapp/Johnson/Ingle/Dunaway
Defendant's request for a Mapp/Johnson/Ingle/Dunaway hearing is granted.
Huntley
Defendant's request for a Huntley hearing is granted.
Sandoval/Ventimiglia
Defendant's request for a Sandoval/Ventimiglia hearing is referred to the trial judge.
For the foregoing reasons, Defendant's motion to dismiss the charge of Driving While Intoxicated for facial insufficiency is denied.
This constitutes the decision and order of the court.
Dated: June 11, 2015
Bronx, New York
_______________________
Mary V. Rosado, J.C.C.
Rebuttable Presumption of Nonintoxication under Vehicle and Traffic Law § 1195 (2) (c)