Opinion
No. 2010NA007392.
2010-08-4
The PEOPLE of the State of New York, v. Wilber VELASQUEZ, Defendant.
Annexed to the information is the supporting deposition of Sinkia Carson, which alleges that:
ANDREW M. ENGEL, J.
The Defendant is charged with violating Local Law 13–2007, Section 64–4(a), the “Social Host Law.” He now moves for an order dismissing the information as facially insufficient, pursuant to CPL §§ 170.30, 170.35, 100.15 and 100.40, and additionally seeks dismissal pursuant to CPL §§ 30.30 and 170.30. The People oppose the motion.
FACIAL SUFFICIENCY
An information will be found facially sufficient where, in conformity with CPL §§ 100.15 and 100.40, it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereof, People v. Hall, 48 N.Y.2d 927, 425 N.Y.S.2d 56 (1979), and a factual part containing “a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]” CPL § 100.15(3) based upon either the complainant's personal knowledge or upon information and belief. CPL § 100.15(3) The factual part, taken together with any supporting depositions, must contain non-hearsay allegations which, if true, establish every element of the offence charged, People v. Moore, 5 NY3d 725, 800 N.Y.S.2d 49 (2005); People v. Thomas, 4 NY3d 143, 791 N.Y.S.2d 68 (2005) “provid[ing] reasonable cause to believe that the defendant committed the offense[.]” People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927 (1987); CPL § 100.40(4)(b) “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 .20
The sufficiency of the information will rise or fall with the “allegations within the four corners of the instrument itself[.]' “ People v. Thomas, 4 NY3d 143, 791 N.Y.S.2d 68 (2005); See also: People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88 (2000) [“Whether the allegation of an element of an offense is hearsay, rendering the information defective, is to be determined on a facial reading of the accusatory instrument (citations omitted).”] The factual allegations should be viewed in a light most favorable to the People, People v. Martinez, 16 Misc.3d 1111(A), 847 N.Y.S.2d 898 (Table), (Dist.Ct. Nassau Co.2007); People v. Delmonaco, 16 Misc.3d 526, 837 N.Y.S.2d 869 (Dist.Ct. Nassau Co.2007); People v.. Mendelson, 15 Misc.3d 925, 834 N.Y.S.2d 445 (Dist.Ct. Nassau Co.2007) and should not be given an overly restrictive or technical reading, People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88 (2000); People v. Baumann & Sons Buses, Inc., 6 NY3d 404, 813 N.Y.S.2d 27 (2006). They must be sufficient to serve the purpose of providing the Defendant with notice enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from again being tried for the same offense. People v. McDermott, 69 N.Y.2d 889, 515 N.Y.S.2d 225 (1987); People v. McGuire, 5 N.Y.2d 523, 186 N.Y.S.2d 250 (1959) “Paragraphs (b) and (c) of CPL 100.40(1), read in conjunction, place 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, 848 N.Y.S.2d 600 (2007); See also: People v. Henderson, 92 N.Y.2d 677, 685 N.Y.S.2d 409 (1999); People v. Alejandro, supra. Such a showing is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Swamp, 84 N.Y.2d 725, 622 N.Y.S.2d 472 (1995)
The Social Host Law provides, in pertinent part:
It shall be unlawful for any person over the age of eighteen who owns, rents, or otherwise controls a private residence, to knowingly allow the consumption of alcohol or alcoholic beverages by any minor on such premises or to fail to take reasonable corrective action upon learning of the consumption of alcohol or alcoholic beverages by any minor on such premises. Reasonable corrective action shall include, but not be limited to: 1) making a prompt demand that such minor either forfeit and refrain from further consumption of the alcoholic beverages or depart from the premises; and 2) if such minor does not comply with such request, either promptly reporting such underage consumption of alcohol i) to the local law enforcement agency or ii) to any other person having a greater degree of authority over the conduct of such minor.
As can be seen, to be sustained as facially sufficient, the information must contain non-hearsay allegations which, if true, establish each of the following elements: (1) that the Defendant is over the age of eighteen years; (2) that the Defendant either owned, rented or otherwise controlled a private residence; (3) that the Defendant knowingly allowed the consumption of alcohol or alcoholic beverages by minors on the subject premises; or, (4) failed to take reasonable corrective action upon learning of such consumption.
The factual allegations of Police Officer John J. Anderson contained in the information in support of this charge aver:
On [April 4, 2009, at about 1:00 a.m. at 677 Riverside Avenue, Baldwin] ... during the course of an investigation, I responded to a 911 call for a disturbance on Riverside Avenue, Baldwin. Your deponent encountered Sinkia Carson and observed that Sinkia Carson had glassy, bloodshot eyes, slurred speech, and an odor of alcoholic beverage on his breath. Based upon my observations of Sinkia Carson and my professional training and experience, your deponent determined that he was intoxicated. Subsequently, Sinkia Carson handed your deponent a high school identification card which contained a photograph. I compared the physical characteristics on this photograph with my personal observations of Sinkia Carson and determined that the photograph on this school identification card depicted Sinkia Carson. Your deponent learned that Sinkia Carson's date of birth was November 1, 1991 after I observed that this date of birth was listed on the school identification card provided by him to your deponent. Afterwards, your deponent was permitted to enter the private residence located at 677 Riverside Avenue, Baldwin. The defendant, who was present inside of this residence, stated to your deponent, “I don't know why the police are here, I was just drinking in my own house.” Your deponent observed that there were numerous twelve-ounce Heineken beer bottles and a few empty vodka bottles inside this location. While your deponent took pedigree information from the defendant, the defendant provided to your deponent that his legal residence is 677 Riverside Avenue, Baldwin and also provided that his date of birth was December 20, 1976.”
Annexed to the information is the supporting deposition of Sinkia Carson, which alleges that:
On the 4TH day of APRIL 2009 at about 12:00 AM I MET MY FRIEND ANTHONY BEN ORELLANA AT HIS HOUSE 677 RIVERSIDE AVE BLD ( sic ) TO HANG OUT AROUND 1:00 A.M. ANTHONY OFFERED ME A HEINEKEN 12 oz bottle BEER. THIS WAS DONE IN THE PRESENCE OF HIS FATHER, VELASQUEZ, WILBER. I ACCEPTED THE BEER AND DRANK IT.
This is not the first time the Defendant has moved to dismiss a facially insufficient information charging him with a violation of the Social Host Law for the very same alleged incident before this court. The previous prosecution, under Docket No. 2009 NA08933, was dismissed by Hon. Susan T. Kluewer who, on January 26, 2010, found the prior information facially insufficient. Thereafter, the People served and filed a new information, curing some, but not all, of the defects noted by Judge Kluewer.
Contrary to the Defendant's argument, there are sufficient non-hearsay allegations in the supporting deposition of Sinkia Carson which would allow for the reasonable inference that the Defendant knew Mr. Carson was a minor and that the Defendant permitted him to consume alcohol in his presence. As Judge Kluewer previously noted on this very point, “It may also be that Mr. Carson's attestation that his friend offered him a beer in Defendant's presence, there might also be support for a reasonable inference that Defendant was knowingly permitting the consumption of alcohol.” ( Order Kluewer, J. 1/26/10)
The Defendant correctly argues, however, that the information and the supporting deposition fail to provide a prima facie demonstration that the Defendant owned, rented, or otherwise controlled the premises in question. The only allegation in the information or supporting deposition regarding the Defendant's connection to the residence in question is that he allegedly stated to Officer Anderson, “I don't know why the police are here, I was just drinking in my own house.” He later identified the premises as his “legal residence.” While the Defendant may reside at this house and consider it his home, this is a far cry from demonstrating the Defendant's ownership, lease or control of same. Conspicuously absent is an authenticated deed or lease for the premises in the Defendant's name, or any other evidentiary proof of his ownership, rental or control of the residence. Merely residing at the premises is not enough.
Based upon the foregoing, the information must be dismissed as facially insufficient.
SPEEDY TRIAL
The Defendant posits that, having been charged with what has been labeled an unclassified misdemeanor, the People are required to declare their readiness within ninety (90) days of the commencement of the prosecution against him. The Defendant alleges that the People's declaration of readiness on April 6, 2010 was illusory, due to the facial insufficiency of the information filed in this matter. Additionally, the Defendant alleges that, since the date of his arraignment on April 20, 2009, the People are to be charged with a total of one hundred seventy five (175) days through May 17, 2010.
In opposition to this branch of the Defendant's motion, the People initially argue that the “motion should be summarily denied due to insufficient allegations showing that the periods of excludable delay were in fact excluded in the Defendant's calculation of delay beyond the statutory period.” ( Lutinger Affirmation 6/24/10, ¶ 24) Alternatively, the People argue that they are to be charged with only sixty four (64) days, with the remaining time being excludable due to adjournments for discovery, motion practice and the absence of the Defendant.
CPL § 30.30(6) provides that “[t]he procedural rules prescribed in subdivisions one through seven of section 210.45 with respect to a motion to dismiss an indictment are also applicable to a motion made pursuant to subdivision two.” CPL § 210.45(5) permits the denial of the Defendant's motion, without a hearing, if “[t]he moving papers do not allege any ground constituting legal basis for the motion pursuant to subdivision one of section 210.20; or ... the moving papers do not contain sworn allegations supporting all the essential facts; or [any such fact] is conclusively refuted by unquestionable documentary proof.” The court finds that the Defendant's motion papers sufficiently allege facts and a legal basis for the relief requested; and, these allegations have not been refuted by any documentary proof, unquestionable or otherwise. Contrary to the People's position, under these circumstances, summary denial of this branch of the Defendant's motion is not permitted.
Conversely, CPL § 210.45(4) mandates the granting of the Defendant's motion, without a hearing, if his moving papers “allege a ground constituting legal basis for the motion pursuant to subdivision one of section 210.20; and ... if based upon the existence or occurrence of facts, is supported by sworn allegations of all facts essential to support the motion; and [such facts] are either conceded by the people to be true or are conclusively substantiated by unquestionable documentary proof.” Such is the case in the matter before the court.
While there is disagreement between the parties as to who is to be charged with the time from April 20, 2009 to June 23, 2009, from March 23, 2010 to March 29, 2010 and from April 6, 2010 to May 17, 2010, the court need not resolve these issues.
The parties erroneously believe that the People must have declared their readiness in this matter within ninety (90) days of the commencement of this prosecution. In making this argument, the People quote CPL § 30.30(1)(b) as follows:
Except as otherwise provided in subdivision three, a motion made pursuant to paragraph (e) of subdivision 1 of section 170.30.must (sic) be granted where the people are not ready for trial within:
ninety days of the commencement of a criminal action where the Defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony.
In so doing, the People apparently focus on the language which refers to “at least one of which is a misdemeanor” and ignore the phrase which follows, providing “punishable by a sentence of imprisonment of more than three months[.]”
While the Social Host Law has been designated an unclassified misdemeanor, neither a first nor second offense thereof is punishable by any sentence of imprisonment. In fact, the only punishment for a first offense is a fine of two hundred fifty ($250.00) dollars, Local Law 13–2007, Section 5(a); and, the only punishment for a second offense is a fine of five hundred ($500.00) dollars, Local Law 13–2007, Section 5(b). Moreover, Penal Law § 55.10(3)(a) expressly states: “Any offense defined outside this chapter which is not expressly designated a violation shall be deemed a violation if: (a) Notwithstanding any other designation specified in the law or ordinance defining it, a sentence to a term of imprisonment which is not in excess of fifteen days is provided therein, or the only sentence provided therein is a fine[.]” Clearly, under the circumstances presented herein, while Local Law 13–2007, Section 64–4A designates the offense as a misdemeanor, clearly it is not; it is a violation. See: People v. L.A. Witherill, Inc., 29 N.Y.2d 446, 328 N.Y.S.2d 668 (1972); People v. Niosi, 73 Misc.2d 604, 342 N.Y.S.2d 864 (Dist. Ct. Suffolk Co.1973); Town of Starkey v. Hill, 57 Misc.2d 719, 293 N.Y.S.2d 471 (Co. Ct. Yates Co.1968);
Under these circumstances, CPL § 30.30(1)(d), which provides that the motion “must be granted where the people are not ready for trial within: thirty days of the commencement of a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a violation and none of which is a crime[,]” controls. As previously indicated, the People concede that they are to be charged with no less than sixty four (64) days. Accordingly, the matter must be dismissed on speedy trial grounds.
Based upon all of the foregoing, the Defendant's motion to dismiss is granted; and, it is hereby
ORDERED, that this matter is dismissed.
This constitutes the decision and order of the court.