Opinion
01-03-2022
The People of the State of New York v. Jerry L. Dorsey, Defendant.
Sandra Doorley, District Attorney, Monroe County (Elizabeth D. Buckley and Ryan R. Mulcahy [awaiting admission] of Counsel), for plaintiff. Melchor E. Castro, for defendant
Unpublished Opinion
Sandra Doorley, District Attorney, Monroe County (Elizabeth D. Buckley and Ryan R. Mulcahy [awaiting admission] of Counsel), for plaintiff.
Melchor E. Castro, for defendant
Thomas J. DiSalvo, J.
History of the Case.
The defendant was charged with speed not reasonable and prudent, VTL § 1180(a) and common law driving while intoxicated, VTL § 1192(3) on August 21, 2021. He was issued e-ticket uniform traffic informations for both charges by Officer Timothy J.Brewer of the Webster Police Department. In addition the defendant was provided with an electronic "Supporting Deposition / CPL 710.30 Notice to Support Simplified Traffic Information Local Criminal Court", relative to the speeding charge. Finally, the defendant was provided with a "Supporting Deposition/Bill of Particulars", which was directed toward the charge of driving while intoxicated. The defendant was arraigned on September 15, 2021. A blood draw was taken by a registered nurse at the Strong Memorial Hospital. Results of same are pending. Omnibus motions were subsequently filed by defense counsel, which requested that the simplified informations be dismissed as defective on their face and that evidence obtained by the police be suppressed.
Facts of the Case.
Officer Timothy J. Brewer of the Webster Police Department responded to Webster Road for a reported motor vehicle crash on August 21, 2021 at 1:30 A.M. The officer's written un-sworn narrative indicates that upon arriving at the scene he found a damaged black 2009 Chevrolet Avalanche facing in a westerly direction in a yard on the east side of Webster Road. The officer discovered the defendant in the driver's seat with his seatbelt on. He further observed that the defendant's vehicle appeared to have left the eastern shoulder of the road striking a number of mailboxes before hitting a driveway and overturning. It appeared to the officer that the defendant had been operating at a speed not reasonable and prudent. The officer approached the car and engaged the defendant in conversation. During that time the officer indicated that he observed various indicia of intoxication and a strong odor of an alcoholic beverage emanating from the vehicle. The defendant did tell the officer that he was not injured. Webster Fire Department eventually arrived on the scene. Their efforts to remove the defendant from his vehicle were not successful allegedly because of the alleged lack of cooperation by the defendant. Eventually, the defendant extricated himself from the vehicle. But according to the officers's written narrative the defendant appeared unsteady on his feet and leaned on the back of his vehicle with both forearms. While speaking to the defendant the officer observed a strong odor of an alcoholic beverage emanating from his breath. Webster Ambulance then arrived on the scene. The EMT's then put the defendant on a stretcher and his neck in a brace. The defendant advised the officer that he was coming from the Coach Sports Bar and was heading home. The officer's narrative described the defendant as having poor divided attention ability while engaging in conversations and displayed varying emotions. He was then transported by ambulance to Strong Memorial Hospital. The officer followed the ambulance to the hospital in his police car. After arriving at the hospital the defendant indicated that he had consumed three to four IPA's at the said bar. At 3:06 A.M. the defendant was arrested for driving while intoxicated. The defendant's blood was drawn by registered nurse at 3:31 A.M. The above listed uniform traffic informations were then issued to the defendant.
The officer's un-sworn narrative is not a part of the accusatory instruments. Thus it cannot be used to establish the facial sufficiency of said documents. The sufficiency of an accusatory instrument must be determined based on the allegations set forth 'within the four corners of the instrument itself or in annexed supporting depositions' (People v Thomas, 4 N.Y.3d 143, 146 [2005] [internal quotation marks omitted]; see also People v Casey, 95 N.Y.2d 354, 361 [2000]; People v Lamendola, 57 Misc.3d 153 [A], 2017 NY Slip Op 51598[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]) (People v. Carpenter, 65 Misc.3d 132 [A], 2019 NY Slip Op. 51605[U]. *1)
Issues Presented
Should the uniform traffic informations be dismissed as being facially insufficient? Should the results of the blood draw be suppressed?
Legal Analysis
Speed Not Reasonable and Prudent.
VTL § 1180(a) states that "No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing." The electronically issued uniform traffic information was accompanied by the said electronically generated supporting deposition and CPL 710.30 Notice. The supporting deposition set out among other things the date, time and place of the alleged violation. In addition, under the section labeled "Additional information", it stated "Vehicle was traveling in a Northerly direction on Webster Road around a curve in the highway. Vehicle operator was operating in [sic] a speed not reasonable and prudent for the highway." It is important to determine what is necessary for a uniform traffic information to be sufficient on its face.
"A simplified traffic information, to be sufficient on its face, need only comply with the requirements of the Commissioner of Motor Vehicles; it need not provide on its face reasonable cause to believe defendant committed the offense charged (CPL 100.25, 100.40, subd. 2). But if defendant requests a supporting deposition, to which he has a statutory right, it must provide reasonable cause (CPL 100.25, subd. 2). The People's tender of such a deposition voluntarily, rather than waiting for defendant's request, should not obviate the need for the deposition to provide reasonable cause." (People v. Key, 45 N.Y.2d 111, 115-116, 408 N.Y.S.2d 16, 19 [1978])The defendant argues in his motions that the uniform traffic information charging the defendant with a violation of VTL § 1180 (a) is insufficient on its face.
(See CPL §§ 100.25[1] and 100.40[2])
The issuance of a supporting deposition raises the standard that must be reached in order for the accusatory instruments to be sufficient on their face. CPL § 100.20 requires that a supporting deposition must contain "factual allegations of an evidentiary character". In addition "... a supporting deposition of the complainant police officer or public servant, [must contain] allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged." The law defines reasonable cause as follows:"' 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. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay."
(See People v. Colburn, 48 Misc.3d 971, 974, 8 N.Y.S.3d 898, 900 (Webster J.Ct., DiSalvo, J. [2015])
(CPL § 100.25[2])
(CPL § 70.10[2])
In the instant case the first part of the supporting deposition does nothing more than restate the factual information already set out in the uniform traffic information. In addition, the section designated "additional information" merely restates the language of the statute, i.e. VTL 1180(a). Said language does not indicate how the officer knew the defendant was traveling at an improper speed. Did the vehicle leave the road? Was there an accident? Did the vehicle leave the road because of weather conditions? Did the vehicle leave the road because of the severity of the curve in the road? The reader is left to conjecture as to basis of the charge. In fact the supporting deposition does not provide any facts or circumstances to support the charge. Nor, as previously indicated, can one rely on the unsworn and separate document labeled the officer's "Narrative". The supporting deposition indicates that the source of the officers's knowledge is on the officer's "Information and belief". CPL § 100.25(2) does in fact permit a supporting deposition of a police officer to be "based either upon personal knowledge or upon information and belief". However, "In addition 'the deposition supporting a simplified traffic information, to the extent that it is based on information and belief, must contain a statement of the source of that information and belief if it is to be sufficient on its face.'" (Gerstenzang, Handling the DWI Case in New York § 17.15 at 694 [2019-2020 ed]) No source of the officer's information and belief was provided in the said supporting deposition. Finally, the "Supporting Deposition/Bill of Particulars relative to the charge of driving while intoxicated indicates in the section entitled "Reasons for Stop / Description of Violations" states that the "Vehicle operator was traveling around a curve before crashing and rolling vehicle." However, there is no indication as to how the officer became aware of the alleged facts or the alleged reason for the crash and rolling of the vehicle. In any event, that supporting deposition is only applicable to the driving while intoxicated charge.
(Colburn, at 974, 900)
Common Law Driving While Intoxicated.
The defendant was charged with common law driving while intoxicated pursuant to VTL § 1192(3) by means of a uniform traffic information and a supporting deposition. Defense counsel's motion demands that said accusatory instruments be dismissed as facially insufficient as defined by CPL §§ 170.35 (1)(a) and 170.30 (1)(a). The supporting deposition in question is a two page check box style supporting deposition. It alleges that on August 21, 2021 at about 1:30 A.M. the defendant operated a black 2009 Chevrolet motor vehicle in a northerly direction on Webster Road in the Town of Webster while in an "intoxicated condition/and/or impaired by drugs and/or alcohol". It went on to indicate the reason for the approach and detention of the defendant was that there was a crash, property damage, and an injury. The deposition stated that there had been a civilian complaint and that the "Vehicle operator was traveling around a curve before crashing and rolling vehicle". The deposition went on to state that operation was shown by the defendant at the wheel; that the keys were in the ignition; that engine was warm and that the defendant was injured in the crash. The deposition stated that the defendant admitted to having consumed "three to four IPA's." There was also the description of various indicia of intoxication set out in the supporting deposition, to wit: glassy eyes, impaired speech, impaired motor coordination and poor divided attention. The officer went on to state that the defendant was only able to perform the horizontal and vertical gaze nystagmus tests. Other than the statement relative to the crash and rollover of the vehicle, it is apparent that the supporting deposition was based on the direct knowledge and observations of the arresting officer.It is well settled that...
The check box category labels that section "Reason for Stop / Description of Violations.
"An accusatory instrument charging a defendant with violating NY Veh. & Traf. Law § 1192 (3) (i.e. common law DWI) must, inter alia, provide reasonable cause to believe; (a) That the defendant operated the vehicle. See e.g., People v. Key, 45 N.Y.2d 111, 116, 408 N.Y.S.2d 16,, 19, 379 N.E.2d 1147 (1978)... (b) That the Defendant was intoxicated. See e.g. People v. Hust, 74 Misc.2d 887, 890, 346 N.Y.S.2d 303, 307 9County Ct. 1973)... That the Operation and the intoxication occurred simultaneously. See People v Mertz, 68 N.Y.2d 135, 139, 506 N.Y.S.2d 290, 291, 497N.E.2d 657 (1986)"
Gerstenzang at 662 -663.
Defense counsel contends that accusatory instruments relative to the charge of driving while intoxicated are facially insufficient since the officer did not allege personally seeing the defendant operate a motor vehicle. Nor did the officer set out the allegation of operation to be on information and belief. First of all it can be reasonably inferred from the facts presented above in the check box supporting deposition that the defendant had been operating the vehicle.
"In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15; People v. Mellish, 4 Misc.3d 1013 (A) (Crim Ct, NY County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103 (1986)." (People v. Lekram, 57 Misc.3d 1220 (A), 2017 NY Slip Op. 51562[U], *3)Second, the factual portion of the supporting deposition does in fact allege that the defendant was operating a motor vehicle "in an intoxicated condition/and/or impaired... by alcohol". The allegations set out in the supporting deposition provide "... reasonable cause to believe that the defendant committed the offense or offenses charged." Third, as to the requirement that the supporting deposition specifically allege that the defendant was driving his vehicle while intoxicated, it can be said that a reasonable reading of the uniform traffic information and the supporting deposition satisfies that requirement. In this case the officer did not see the defendant driving his vehicle. The officer came to the scene after the accident. Nevertheless, he set out in detail in the supporting deposition what he observed. The facts as he described them and the conclusion he reached set out the required prima facie case. In upholding a decision of a trial court relative to the sufficiency of a supporting depositionthe Appellate Division held that
(CPL § 100.25 [2])
"The accusatory instrument was not jurisdictionally defective. Giving the misdemeanor information 'a fair and not overly restrictive or technical reading' (People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000]), we find 'as a matter of common sense and reasonable pleading' (People v. Davis, 13 N.Y.3d 17, 31, 884 N.Y.S.2d 665, 912 N.E.2d 1044 [2009]) that it was legally sufficient to charge defendant with violating Vehicle and Traffic Law § 1192(3). The arresting officer alleged that defendant operated a motor vehicle, that he had bloodshot, watery eyes, slurred speech, and a strong odor of alcohol on his breath, that he was unsteady on his feet, and that he admitted to the officer that he had been drinking, but refused to submit to a breath test (see e.g. People v. Spencer, 289 A.D.2d 877, 879, 736 N.Y.S.2d 428 [3rd Dept. 2001], lv. denied 98 N.Y.2d 655, 745 N.Y.S.2d 514, 772 N.E.2d 617 [2002])." (People v. Fiumara, 116 A.D.3d 421, 982 N.Y.S.3d 482, 483 [1st Dept 2014]) Suppression of Blood Draw. The basis of the defendant's motion to suppress the results of the blood draw is twofold. First, defendant through his attorney, states that he has no recollection of being asked to consent to a blood draw. In addition, the defendant argues that the said test was not conducted within two hours of the defendant's arrest as required by VTL § 1194(2)(a)(1).
"Under that implied consent provision, any person who operates a motor vehicle in this state is deemed to have consented to a chemical blood alcohol test conducted at the direction of a police officer possessing reasonable grounds to believe such person to have been operating a motor vehicle in violation of Vehicle and Traffic Law § 1192, provided the test is administered 'within two hours after such person has been placed under arrest for any such violation' (Vehicle and Traffic Law § 1194[2] [a][1]; see People v. Goodell, 79 N.Y.2d 869, 870, 581 N.Y.S.2d 157, 589 N.E.2d 380 [1992]; People v. Morrisey, 21 A.D.3d 597, 598, 799 N.Y.S.2d 642 [2005])." (People v. Centerbar, 80 A.D.3d 1008, 1009, 914 N.Y.S.2d 784, 786 [2nd Dept 2011]). Despite the statutory implied consent law as set out in VTL § 1994(2)(a)(1), which requires a driver to take a breath, blood, urine or saliva test, drivers do in fact refuse to permit a blood draw. "Upon refusal by any person to submit to a chemical test or any portion thereof as described above, the test shall not be given unless a police officer or a district attorney... requests and obtains a court order to compel a person to submit to a chemical test to determine the alcoholic or drug content of the person's blood...."
(VTL § 1194[3][b])
Therefore, if the defendant refused to consent to a blood test a court order would have to be required. On the other hand if the defendant's blood was taken, upon the instruction of a police officer, without any objection by the defendant, who at the time was in a position to object, the defendant could be said to have given constructive consent to the blood draw. Nevertheless, the burden is on the People to establish that the defendant voluntarily consented to the blood draw. That issue would have to be addressed at a suppression hearing. In any event, the supporting deposition indicates that the arrest took place on August 21, 2021 at 3:06 hours and the blood draw was at 3:31 hours, which would be well within the two hour rule set out in VTL § 1194(2)(1).
(See People v. Verdile, 119 A.D.2d 891, 892, 500 N.Y.S.2d 846, 848 [1986]).
Gerstenzang at 1198.
Conclusion
The defendant's motion to dismiss the simplified traffic information charging the defendant with speed not reasonable and prudent, VTL 1180(a), as being facially insufficient, is hereby granted. The defendant's motion to dismiss the simplified traffic information charging the defendant with common law driving while intoxicated, VTL § 1192(3), as being facially insufficient, is hereby denied. The court will reserve on the defendant's motion to suppress the results of the blood draw pending a suppression hearing to be conducted at a time subject to the availability of counsel. This constitutes the decision and order of this court. Dated: Webster, New York