Opinion
2015QN006547
05-15-2017
The People of the State of New York, Plaintiff, v. Jarrell J. Black, Defendant.
For the People: Queens County District Attorney's Office by ADA Aaron Spurlock, Esq. For the Defendant: Queens Law Associates by Timothy Shields, Esq.
For the People: Queens County District Attorney's Office by ADA Aaron Spurlock, Esq. For the Defendant: Queens Law Associates by Timothy Shields, Esq. John Zoll, J.
On April 26, 2017, the defendant filed a motion requesting leave to re-argue this Court's decision denying the defendant's motion to dismiss the count of operating a motor vehicle while under the influence of alcohol for facial insufficiency. The Court grants the defendant's motion to re-argue, and finds that the accusatory instrument is facially sufficient.
The accusatory instrument alleges, in relevant part, that on February 11, 2015, between 3:50 am and 3:58 am, at the intersection of 135 Place and Rockaway Boulevard, Police Officer Adolfo Berrios observed the defendant, Jarrell J. Black, "behind the wheel of a 2009 Black Hyundai with the keys in the ignition, in front of a fire hydrant." Police Officer Berrios averred that "upon approaching the defendant's vehicle, he observed the defendant to have bloodshot watery eyes, slurred speech, a strong odor of an alcoholic beverage on his breath and the defendant was swaying upon exiting said vehicle." Police Officer Berrios further stated that "he recovered an open container of an alcoholic beverage: to wit 200 mL bottle of Vodka from the center console."
The issue before this Court is whether a complaint, that does not include the allegation that the engine was running, but otherwise alleges that there was a key in the ignition of a car parked in front of a fire hydrant is sufficient to establish the element of operation for pleading purposes.
At the outset, an accusatory instrument "must set forth the required nonhearsay evidentiary allegations within the four corners of the instrument itself." (People v Thomas, 4 NY3d 143, 146 [2005].) The factual portion of the instrument must therefore contain "nonhearsay" factual allegations of an "evidentiary character" that demonstrates "reasonable cause" and a "prima facie case" that the defendant committed "every element" of the charged offense(s). (See CPL 100.15[3], 100.40[1]; People v Jones, 9 NY3d 259, 261-262 [2007].) Otherwise known as the "prima facie requirement," it does not insist that the information allege facts that would prove the defendant's guilt beyond a reasonable doubt. (People v Kalin, 12 NY3d 225, 229 [2009]; People v Jennings, 69 NY2d 103, 115 [1986].) On the contrary, 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].) With that understanding, a court reviewing the facial sufficiency of an information must subject the allegations in the information to a "fair and not overly restrictive or technical reading, assume those allegations are true, and consider all reasonable inferences that may be drawn from them." (Casey at 360; People v Jackson, 18 NY3d 738, 747 [2012].)
The defendant contends that this Court misapplied the Court's holding in People v Jackson (18 NY3d 738), in that "making a determination as to what is in public view is different than making the determination as to operation under the law," and that the two cases are otherwise factually distinguishable. (Def. Resp., Para 12). The defendant further argues that "there is no testimony that anyone saw the defendant drive the vehicle and no layman's inference to be taken that the defendant did or had the intent to operate the vehicle." (Id.) However, the defendant misapprehends this Court's reliance on the Jacksondecision. The only purpose for citing to the Jackson case was for the proposition that the Court may draw reasonable inferences from the facts alleged in the complaint. The facts in Jackson have no bearing on the facts in the instant case.
The defendant next argues that the accusatory instrument is defective because it does not sufficiently allege the "operation" element of driving while intoxicated. The facts in the complaint merely allege that the keys were in the ignition, but does not allege that the engine was running or that the officer ever saw the vehicle in motion with the defendant driving. In New York, "operation" is given a "broad meaning," and is defined as where the defendant "intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle." (Matter of Prudhomme v Holts, 27 AD2d 234, 236-37 [3d Dept 1967]; People v Prescott, 95 NY2d 655, 662 [2001])(citations omitted)(emphasis added).
There are instances where a complaint establishes that the officer did not in fact observe the defendant driving. Under those circumstances, the complaint must otherwise allege sufficient facts to establish the inference that the defendant was operating the motor vehicle. Indeed, operation may be established "on proof that the defendant was merely behind the wheel with the engine running without need for proof that defendant was observed driving the car, i.e., operating it so as to put it in motion." (People v Alamo, 34 NY2d 453, 458-459 [1974]; People v Cunningham, 274 AD2d 484, 484 [2d Dept 2000]; People v David, 83 AD2d 690 [3d Dept 1981]; People v Lloyd, 2002 NY Slip Op 50624[U] [App Term, 9th & 10th Jud Dist [2002].)
It is here that the defendant disagrees with this Court's decision that the facts contained in the complaint allege operation. First, the defendant contends that the inference in this case is not as strong as the inferences in People v Blake, Tomasello v Tofany, and People v Booden. The defendant argues that a set of keys merely resting in an ignition is not strong enough of an allegation to infer operation.
In People v Blake (5 NY2d 118 [1958]), the defendant was alleged to have been found "seated alone in a drunken state in his automobile" which was "damaged and halted against a guardrail, with the engine running." The complaint further alleged that the defendant admitted that he was returning home from a party. (Id.) The Court held that the defendant did operate the car, saying "the facts established point logically to the defendant's operation of the automobile while intoxicated, even though there is no direct proof that he drove into the guardrail." (Id. at 120.) In People v Booden (69 NY2d 185, 186 [1987]), the complaint alleged that the officers found the defendant, along with two other individuals, standing beside a vehicle that had come "to rest in a ditch on the north side of the highway facing east." When asked who had been driving, the defendant admitted to being the driver. (Id.) The Court held that the facts alleged provided an inference that the defendant operated the car, noting that "the circumstances of the accident may have been capable of innocent explanation, but they nonetheless supported an inference that a crime had been committed because the vehicle had been driven by a person under the influence of alcohol." (Id. at 188). Finally, in Matter of Tomasello v Tofany (32 AD2d 962, 963 [2d Dept 1969]), the officer was alleged to have observed the defendant turn the key in the ignition in an attempt to start the motor. The Court likewise held that the officer's observation was enough to sufficiently allege operation. (Id.)
In relying on the three cases above, the defendant suggests that the combination of an admission and circumstantial evidence of an accident, or the defendant's proximity to the vehicle or an officer's observation of the defendant turning a key in the ignition (as opposed to keys merely resting in the ignition) are necessary to sufficiently allege operation. This Court disagrees. The lone fact that the key was in the ignition still falls within the very broad definition of beginning the mechanical sequence of starting the engine for the purpose of placing the vehicle in motion. Any further challenges to that allegation are evidentiary and not part of a facial sufficiency analysis. Clearly, the defendant has a strong defense at trial that he did not operate the vehicle and that the key was in the ignition for some purpose other than starting the car so as to drive it, which, if accepted by the finder of fact, would provide the basis for an acquittal of that count. Indeed, the defendant argues that "observing a defendant actually turn the keys in an attempt to start the vehicle creates a much stronger inference than keys merely resting in the ignition." (Def. Mot., Para 14). Nevertheless, the Court's standard is not whether the facts create a stronger (or weaker) inference of operation; but only if the facts alleged allow the Court to draw a reasonable inference that the defendant operated the vehicle.
The Court's reference to VTL 1202[b][1], which provides that a car cannot be parked in front of a fire hydrant unless occupied by a licensed driver who can move the car in case of an emergency, is not nullified. The fact that the statute is limited by NYCRR 4.08[e][2] does not somehow take away from the reasonable inference that a car parked in front of a fire hydrant was not recently operated or about to be operated by the individual seated behind the wheel of the car. Indeed, the content of both statutes merely goes towards the reasonable inference that the defendant, seated behind the wheel of the car, intended to operate the vehicle. This Court again emphasizes that a facial sufficiency analysis is not meant to be an overly restrictive or technical reading of the information. As the Court noted in Booden, while the circumstances by which this defendant, seated in the car in front of the fire hydrant with an open container of Vodka in the center console, may be capable of an innocent explanation, those facts nonetheless support an inference that a crime had been committed.
Second, the defendant argues that this Court failed to apply the Court's holding in People v Key. In People v Key (45 NY2d 111 [1978]), the Court addressed whether a simplified traffic information sufficiently established the element of operation. In Key, the information alleged that the officer observed the defendant "lying unconscious on the driver's side of the front seat of his automobile." (Id.) The officer did not otherwise observe the defendant driving his vehicle, nor did the traffic ticket allege that the defendant was operating the automobile or that the engine was running. (Id.) The Court held that the information failed to allege operation, and stated that "[i]n this case, there was no allegation that defendant was operating his automobile or even that the engine was running, an allegation necessary to establish commission of the crime." (Id. at 116.) The defendant thus contends that any complaint alleging operation must include the allegation that the engine was running in order to be facially sufficient.
This Court does not interpret the Court of Appeals' holding in Key to the extent that the allegation "engine running" must be alleged in an information. First, this Court notes that the Prescott decision, giving a broad definition to operation, was decided in 2001, and for the purposes of deciding the defendant's motion, is more applicable than the Key decision. The Key decision did not define the term "operation" but only held that it had to be plead and how it might be plead by the People. Prescott, however, specifically defined operation and set forth the definition that trial courts must apply in determining operation. Second, this Court interprets Key to stand for the proposition that operation can be factually established, in the absence of direct observations of driving by the deponent, in either one of two ways: (1) evidentiary facts to support the inference that the defendant was operating a car (such as an admission, eyewitness account, key in the ignition, location of the car); or (2) an allegation that the engine was running. Indeed, in Key, the only allegation was that the defendant was lying unconscious on the driver's side of the front seat of his automobile. Without more, the Court could not reasonably infer whether or not the defendant had recently operated the car in which he was found or if the defendant had any intent to make use of any mechanical or electrical agency which would set in motion the motive power of the vehicle.
Indeed, as the defendant points out, there are a line of cases where the courts have inferred operation in the absence of the allegation, "engine running." In People v Byrd, (NYLJ, March 26, 1992 at 2, col 6 [Crim Ct, Queens County, Kron, J.]), the court found that operation was sufficiently established where the defendant was found "seated behind the wheel of a vehicle located in the middle of the street with the key found in the unengaged ignition." In People v Saplin, (122 AD2d 498 [3d Dept 1986]), the court found that operation was sufficiently established where the defendant's car was found in a remote, unsettled area of Cortland County, parked in and blocking the southbound lane of a public road, with the defendant asleep in the driver's seat, and the defendant admitted to driving. In both cases, the location of the vehicle provided the reasonable inference that the car must have been in operated recently.
In People v Rockwell, (2003 NY Slip Op 50572[U] [City Court, Rochester County 2003]), the Court found that operation was sufficiently established wherein the defendant was found slumped over the wheel of a car parked at the curb, unconscious, alone, with the key in the ignition. The car was otherwise legally parked. Significantly, the court noted that "[n]o one except defendant knows with certainty what his purpose was in placing the key in the ignition, but it is reasonable to believe that his purpose was to drive the car." Likewise, the decision in People v Khan, (168 Misc 2d 192 [Crim Ct, Kings County 1995]), is clearly not supported by the appellate case law. In Khan, suppression was granted based on a finding by the hearing court that the defendant could not be found to have operated the car. Although the engine was running, the court reasoned that the car was legally parked, as opposed to being found on the shoulder of the road or in the middle of an intersection, and based on that, held that the defendant did not operate the vehicle.
In this case, the complaint alleges that the defendant was observed (1) behind the wheel of a car, (2) with the keys in the ignition, (3) in front of a fire hydrant, with (4) an open container of an alcoholic beverage in the center console. The allegation that the keys were in the ignition falls within New York's broad definition of "operation," albeit at the threshold of the definition.
For those reasons, the Court finds that the accusatory instrument is facially sufficient. The foregoing constitutes the opinion, decision and order of the court. Dated: May 15, 2017 Queens, New York John Zoll, A.J.S.C.