Opinion
Docket No. CR-012363-22BX
02-08-2023
The People of The State of New York, v. Javier Cortes, Defendant.
For the People: Darcel D. Clark, District Attorney, Bronx County (by Erik Love, Esq.) For the Defense: Twyla Carter, The Legal Aid Society (by Jamie Kang, Esq.)
Unpublished Opinion
For the People: Darcel D. Clark, District Attorney, Bronx County (by Erik Love, Esq.)
For the Defense: Twyla Carter, The Legal Aid Society (by Jamie Kang, Esq.)
Christopher Chin, J.
Upon review and consideration of the submissions, court file and relevant law, defendant's motion to dismiss the accusatory instrument on speedy trial grounds pursuant to CPL §§ 30.30 and 170.30 (1)(e), and the People's motion to amend its superseding accusatory instrument pursuant to CPL §100.45 (3) are denied. The reasons for the court's decisions are explained below.
Procedural History
On July 13, 2022, defendant Javier Cortes was arrested and charged with Vehicle and Traffic Law ("VTL") § 509 (1) (unlicensed operation of a motor vehicle), § 511 (1)(a) (aggravated unlicensed operation of a motor vehicle in the third degree), § 511 (2)(a)(iv) (aggravated unlicensed operation of a motor vehicle in the second degree), and §1192 (3) (operating a motor vehicle while under the influence of alcohol).
On July 14, 2022, defendant was arraigned and released on his own recognizance. The matter was adjourned to September 1, 2022, for the conversion of the complaint to an information and the People to file a certificate of compliance ("COC") with their discovery obligations.
At the September 1, 2022 court appearance, the complaint remained unconverted because, inter alia, the People had not filed a supporting deposition by witness Ruben Reyes (named in the complaint); nor had the People filed a COC. The matter was therefore adjourned to October 19, 2022, for conversion and the filing of a COC.
On October 7, 2022, the People served and filed (off calendar) a superseding accusatory instrument, supporting deposition by Elba Arrango (Assistant Director of Forensic Toxicology for the Office of Chief Medical Examiner, who examined defendant's blood sample), certified Department of Motor Vehicle ("DMV") abstract, toxicology report, COC and statement of readiness.
The October 7, 2022 superseding instrument charged defendant with the same violations initially charged in the misdemeanor complaint (VTL §§ 509 [1], 511 [1][a], 511 [2][iv] and 1192 [3]), in addition to a felony charge, VTL § 1192 (2); contained an "(F)" marking, next to the listing of the new felony charge; included the felony statutory language for that charge (that defendant operated a motor vehicle with a blood alcohol of.08 or more, as shown by a chemical test, and that defendant was previously convicted of violating one of the enumerated sections of the VTL, twice within the preceding ten (10) years [VTL § 1193 (1) (c)(ii)]); and omitted the allegations contained in the initial complaint as to informant Ruben Reyes (see Exh. 3, People's Affirmation in Support of Motion to Amend the Information and in Opposition to the Motion).
At the October 19, 2022 court appearance, a schedule was set for the filing of a motion to dismiss by defendant and the matter was adjourned for decision.
By notice of motion dated October 21, 2022, defendant moved for an order, inter alia, dismissing the accusatory instrument on speedy trial grounds pursuant to CPL §§30.30 and 170.30 (1)(e). Defendant argued that the superseding accusatory instrument was a nullity and required dismissal because it was not an information, but rather a felony complaint which charged defendant with a class D felony. Defendant urged that therefore, the People never validly stated ready for trial, should be charged at least 97 days, and therefore this motion to dismiss should be granted.
By affirmation dated November 14, 2022, the People opposed the defense's motion and "moved" (without a notice of motion), to amend the accusatory portion of the superseding instrument pursuant to CPL § 100.45 (3), to: "[d]owngrade count I: (F) V.T.L. § 1192 (2) to (M) V.T.L. § 1192 (2)" and "[a]dd count VI: V.T.L. 1192 (1)"; strike the language "and having been convicted of a violation of subdivision twice within the preceding ten years;" and add the language "and operate impaired by the consumption of alcohol" (People's Affirmation in Support, ¶19). The People argued that the motion to dismiss should be denied because (1) the accusatory instrument filed at arraignment was a facially sufficient information at the onset or, alternatively, was converted to an information with the filing of the DMV abstract on October 7, 2022; (2) in response to defendant's motion and in support of their motion to amend, the People filed a facially sufficient superseding information; and (3) the People complied with CPL § 30.30, and they should be charged only 84 days.
The amended superseding information was annexed to the People's papers (see Exh. 8, People's Affirmation in Support of Motion to Amend the Information and in Opposition to the Motion). It was the same accusatory instrument that was served on October 7, 2022, except with the noted changes and redactions; the signature of the deponent and date however remained unchanged.
Reply papers were filed by the defense on November 16, 2022 in which it argued that (1) the accusatory instrument filed on the day of defendant's arraignment was not a facially sufficient information because it contained hearsay; (2) the original accusatory instrument was not converted on October 7, 2022 because the People never filed a supporting deposition by witness Rueben Reyes (named in the complaint); and (3) the People were barred from amending their October 7, 2022 superseding instrument because speedy trial time had elapsed.
On December 15, 2022, the parties appeared before this court for oral argument on the matter.
Discussion
Motion to Dismiss
Pursuant to CPL § 30.30 (1), a motion to dismiss must be granted when the prosecution is not ready for trial within the time period set forth by the relevant speedy trial provision.
To satisfy the initial burden under CPL § 30.30, a defendant need allege "only that the prosecution failed to declare readiness within the statutorily prescribed time period" (People v Luperon, 85 N.Y.2d 71, 77-78 [1995]). Once a defendant has alleged that more than the statutorily prescribed time period has elapsed since the commencement of the action without a declaration of readiness, the prosecution bears the burden of establishing sufficient excludable delay (see People v Berkowitz, 50 N.Y.2d 333, 349 [1980]). The time within which the prosecution must be ready is computed by subtracting any periods of delay that are excludable under the statute (see People v Cortes, 80 N.Y.2d 201, 208 [1992]).
In this case, it is undisputed that the prosecution must be ready for trial within ninety (90) days of the commencement of the action.
Trial readiness means that the prosecutors must have "done all that is required of them to bring the case to a point where it may be tried" (People v England, 84 N.Y.2d 1, 4 [1994]). To be ready for trial for section 30.30 (1) purposes, the People must first communicate their readiness either by stating that they are ready for trial in open court on a record transcribed by a stenographer or by a statement of readiness served upon defense counsel by the People and filing it with the court to be placed in the original record (see People v Kendzia, 64 N.Y.2d 331, 337 [1985]).
The People cannot be ready for trial until a misdemeanor complaint has been converted or replaced by an information (see CPL §170.65 [1]).
A misdemeanor complaint is deemed to have been converted if it "is supplemented by a supporting deposition and such instruments taken together satisfy the requirements for a valid information" (id.).
CPL § 100.15(3) requires that "[t]he factual part of such instrument [complaint] must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges." It also states that "[t]he factual allegations may be based either upon personal knowledge of the complainant or upon information and belief." CPL § 100.40(4) requires that in addition to complying with the requirements of CPL § 100.15, the "factual part of such accusatory instrument and/or supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory instrument."
An information is considered valid "when: (a) [i]t substantially conforms to the requirements prescribed in section 100.15 [of the CPL]; and (b) [t]he allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and (c) [n]on-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL § 100.40 [1]).
"[R]easonable 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 and judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL § 70.10 [2]).
A court reviewing the sufficiency of an information must assume that the factual allegations contained therein are true and must consider all reasonable inferences that may be drawn from the allegations in the light most favorable to the People (see People v Alejandro, 70 N.Y.2d 133, 137 [1988]). "So long as the factual allegations 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 N.Y.2d 354, 360 [2000]). "[T]his prima facie case requirement for facial sufficiency '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 on the proof presented at trial" (People v Smalls, 26 N.Y.3d 1064, 1066 [2015] [citations omitted]).
Here the court finds that the original misdemeanor complaint - without considering any hearsay contained therein by informant Reyes - contained sufficient factual allegations as to the VTL §§ 509 (1), 511 (1)(a) and 1192 (3) charges, and the complaint was converted to an information on October 7, 2022, when the DMV abstract was filed (to establish the VTL § 511 [2][iv] charge). Since the COC and statement of readiness were filed on that same date, which was within the 90 statutory time period, and the People were deemed ready for trial as of that date, the defense's motion to dismiss is denied.
The court notes that it is not bound by any prior determinations made at the parties' court appearances regarding conversion of the complaint to an information based upon the "law of the case" doctrine. The arguments presented here were never put in writing and the parties were not previously given "a 'full and fair' opportunity to litigate" the prior determinations (People v Evans, 94 N.Y.2d 499, 502 [2000] [citations omitted]; see also People v Valera, 58 Misc.3d 369, 379 [Crim Ct, Bronx County 2017] [other judges' previous determinations to adjourn the case for conversion not binding on the issue of facial sufficiency where arguments never put in writing]).
VTL § 1192 (3)
VTL §1192 (3) provides that a "[n]o person shall operate a motor vehicle while in an intoxicated condition." The elements for this charge are: (1) operation of a motor vehicle; (2) on a public roadway; and (3) an intoxicated condition (see People v Valera, 58 Misc.3d 369 [Crim Ct, Bronx County 2017]).
The relevant factual portion of the initial complaint included the following:
[d]eponent [APO Abiola Browne] state[d] that at the above time and place [at the Northeast corner of Bruckner Expressway and Sheridan Expressway, County of Bronx], she responded to a radio run from a motor vehicle accident. Deponent further state[d] that she observed the defendant to have a faint odor of alcohol, watery eyes, flushed face, and excessively talkative when she requested defendant to produce a driver's license and asked what happened[,] defendant stated in sum and substance, I TRIED TO AVOID HITTING ANOTHER CAR, SO, I SWERVED, and I HAVE A SUSPENDED LICENSE. Deponent further state[d] that defendant stated in sum and substance[,] I HAD 4 OR 5 CORONAS AND SMOKED WEED
This factual narrative was sufficient to establish reasonable cause that defendant was operating a motor vehicle on a public roadway and was intoxicated by the consumption of alcohol. Specifically, in alleging operation, the narrative provided that when the deponent asked what happened, defendant stated to her that he "tried to avoid hitting another car, so [he] swerved" (see People v Suber, 19 N.Y.3d 247 [2012] [corroboration of a defendant's admission is not a component of the prima facie requirement for an information]; People v Dolan, 1 Misc.3d 32 [App Term 1st Dept 2003] [driving element of the operating while intoxicated offense established by, inter alia, defendant's own non-hearsay statement concerning events preceding the accident that "I was driving and the guy in front of me slammed on his brakes"]). Further, in alleging intoxication by the consumption of alcohol, the deponent provided her observations that defendant exhibited commonly recognized signs of intoxication at the scene of the motor vehicle accident and defendant admitted to having "4 or 5 Coronas" (see People v Blair, 98 N.Y.2d 722, 724 [2002] [accusatory instrument sufficient to establish reasonable cause that defendant violated VTL 1192 (3), where facts included the arresting officers observations of the defendant and the defendant admitted to drinking five (5) to six (6) beers]; People v Arroyo, 48 Misc.3d 1202 [A], *2 [Crim Ct, Bronx County 2015] [accusatory instrument established element of intoxication by deponent's observations of defendant and defendant's admission to drinking alcohol]).
Additionally, the court takes judicial notice that Bruckner Expressway and Sheridan Expressway in Bronx County - where the defendant was observed by the deponent - are public roadways (see Dollas v W.R. Grace and Co., 225 A.D.2d 319, 320 [1st Dept 1996] ["[a] court may apply judicial notice to matters 'of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof'"] [citation omitted]; People v Sowle, 68 Misc.2d 569 [County Ct, Fulton County 1971] [judicial notice may be taken of geographical facts and streets]).
VTL §§ 511 (1)(a), 511 (2)(a)(iv) and 509 (1)
VTL § 511 (1)(a) provides that, "a person is guilty of the offense of aggravated unlicensed operation of a motor vehicle in the third degree when such person operates a motor vehicle upon a public highway while knowing or having reason to know that such person's license to operate such motor vehicle in this state or privilege of obtaining a license to operate such motor vehicle issued by the commissioner is suspended, revoked or otherwise withdrawn by the commissioner." The elements of aggravated unlicensed operation of a motor vehicle in the third degree (VTL § 511 [1][a]) are: (1) operating a motor vehicle on a public highway; (2) with actual or imputed knowledge that one's license was suspended or revoked.
VTL § 511 (2)(a) provides, in relevant part, that "[a] person is guilty of the offense of aggravated unlicensed operation of a motor vehicle in the second degree when such person commits the offense of aggravated unlicensed operation of a motor vehicle in the third degree and (iv) such person has in effect three or more suspensions, imposed on at least three separate dates, for failure to answer, appear or pay a fine ". The elements of aggravated unlicensed operation of a motor vehicle in the second degree (VTL § 511 [2][a][iv]) are the same as those for VTL § 511 (1)(a), with the addition that, at the time, there were in effect three (3) or more suspension orders issued by the Commissioner of Motor Vehicles on three (3) different dates.
VTL § 509 (1) of provides that "no person shall operate or drive a motor vehicle upon a public highway of [the State of New York] unless he or she is duly licensed".
As discussed above, the allegations are sufficient as to provide reasonable cause that defendant was operating a motor vehicle on a public highway.
Moreover, the complaint included the following:
Deponent [APO Browne} further state[d] that she obtained and read a teletype printout of the New York State Department of Motor Vehicles, whose computers are tied into the New York City Police Department computer for the purpose of obtaining records, which records were made and obtained in the regular course of business and which are regularly made in the course of business within a reasonable time after the event or occurrence, and said records show that defendant's license to operate a motor vehicle was suspended or revoked, in that defendant had in effect at least three (3) suspension on at least three (3) dates for failure to answer a summons.
These allegations set forth non-hearsay allegations to support the fact that defendant's license was suspended (see People v Etienne, 192 Misc.2d 90, 91 [Dist Ct, Nassau County 2002] [DMV computer check performed by police officer to substantiate her knowledge of a defendant's driving status is an exception to the hearsay rule and may be used to sustain a criminal information]).
Additionally, the filing of the certified DMV abstract on October 7, 2022 reflecting that defendant had in effect at least three suspensions imposed on separate dates, for failure to answer, appear or pay a fine, sufficiently supported the VTL § 511 (2)(a)(iv) charge, and converted the misdemeanor complaint to an information (see Exh. 2, People's Affirmation in Support of Motion to Amend and in Opposition to Motion to Dismiss; CPL §§ 100.40 [1]; 170.65).
The complaint also included a statement by defendant in which he admitted that his license was suspended, which was sufficient to establish his knowledge of the suspension (see People v Casey, 95 N.Y.2d 354, 361 [2000] [admission by defendant provided a hearsay rule exception]; People v Rivera, 32 Misc.3d 1209 [A], *2 [Crim Ct, New York County 2011] [defendant's alleged admission, which was part of the complaint, sufficient to show that he had reason to know that his license was suspended and he did not have the privilege to operate a motor vehicle]).
Speedy Trial
Since the complaint was converted to an information on October 7, 2022, the People's statement of readiness also filed on that day, stopped the speedy trial clock under CPL § 30.30 (see People v Carter, 91 N.Y.2d 795, 798 [1998] [statement of readiness stops the speedy trial clock]). The court finds a total of 85 days are chargeable to the prosecution for the time period from arraignment (July 14, 2022), through the People's filing of their COC (October 7, 2022). Since the prosecution was ready for trial within 90 days of commencement of this criminal action, defendant's motion to dismiss pursuant to CPL § 30.30 is denied.
The court's calculation of the chargeable time is as follows:
July 14, 2022 to September 1, 2022 (49 days charged): On July 14, 2022, the accusatory instrument was filed, and defendant was arraigned. The People were not ready for trial and the matter was adjourned to September 1, 2022.
September 1, 2022 to October 7, 2022 (36 days charged): At the September 1, 2022 court appearance, the People were not ready for trial and the matter was adjourned to October 19, 2022. On October 7, 2022, the People filed their statement of readiness which stopped the speedy trial clock.
The People's Motion to Amend
The People's motion to amend the purported superseding information filed on October 7, 2022 to, inter alia, add a charge of VTL § 1192 (2) is denied. The court finds that the October 7, 2022 instrument was not an information, but rather a felony complaint because it charged defendant with a class D felony (see CPL §§ 1.20 (8); 100.10 [5] ["A 'felony complaint' is a verified written accusation by a person, filed with a local criminal court charging one or more other persons with the commission of one or more felonies"). In contrast, an information is defined as "a verified written accusation charging the commission of one or more offenses, none of which is a felony" (CPL § 100.10 [1] [emphasis supplied]). Since there is no statutory authority to supersede a misdemeanor complaint with a felony complaint, the court deems the October 7, 2022 accusatory instrument a nullity, not subject to amendment (see CPL § 100.50 [3] ["misdemeanor complaint must or may be replaced and superseded by an information "]; CPL § 170.65). The original misdemeanor complaint, which - as explained above - was converted to an information on October 7, 2022, is restored (see People v Severino, 47 Misc.3d 1229 [A], *2, *4 [Crim Ct, New York County 2015] [where a court dismisses a superseding instrument, the original accusatory instrument, if otherwise valid, may be restored]).
During oral argument, the People admitted that their listing of a felony charge in the superseding information was done in error. The People explained that when instruments are drafted, it's done through a program that gives an option of clicking one charge or the other, but the buttons are not labeled and, in this instance, a wrong button was pressed.
The court notes that at oral argument, the People admitted to altering the October 7, 2022 superseding accusatory instrument by blacking out some of the statutory language, changing the "F" letter to a "M" on the VTL § 1192 (2) charge, and adding a sixth count, for violation VTL § 1192 (1), and keeping the original signature and date (see Transcript, December 15, 2022, at 21, lines 21 - 25; 22, lines 1-2; Exh. 8, People's Affirmation in Support of Motion to Amend and in Opposition to Defendant's Motion).
This ruling does not preclude the People from making a further application - as permitted by the CPL, where appropriate, including under CPL § 100.45 (3) - which provides for the amendment of accusatory instruments.
Subsequent Motions
Defendant's application for leave to make additional motions is denied at this time, subject to rights under CPL § 255.20(3), to move for further leave, upon good cause shown.