Opinion
09-17-2015
The PEOPLE of the State of New York, Respondent, v. Jose L. GARCIA, Appellant.
Scott A. Rosenberg, The Legal Aid Society, New York City (Susan Epstein of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove, Lori Glachman and Daniel Berman of counsel), for respondent. PRESENT: WESTON, J.P., ALIOTTA and ELLIOT, JJ.
Scott A. Rosenberg, The Legal Aid Society, New York City (Susan Epstein of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove, Lori Glachman and Daniel Berman of counsel), for respondent.
PRESENT: WESTON, J.P., ALIOTTA and ELLIOT, JJ.
Opinion
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Herbert J. Adlerberg, J.H.O.), rendered January 7, 2013. The judgment convicted defendant, upon his plea of guilty, of common-law driving while intoxicated.
ORDERED that the judgment is reversed, on the law, the guilty plea is vacated, the counts of the accusatory instrument that had been dismissed are reinstated, and the matter is remitted to the Criminal Court for all further proceedings.
Defendant was charged in a single accusatory instrument with driving while intoxicated (common law) (Vehicle and Traffic Law § 1192[3] ), driving while impaired (Vehicle and Traffic Law § 1192[1] ), uninspected motor vehicle (Vehicle and Traffic Law § 301), failure to have proof of financial security (Vehicle and Traffic Law § 319[1] ), unregistered motor vehicle (Vehicle and Traffic Law § 401[1][a] ), and displaying improper number plates (Vehicle and Traffic Law § 402[4] ). The factual portion of the information alleged, among other things, that a police officer had observed defendant at the scene of an accident to be in an intoxicated condition in that defendant had “red watery eyes, slurred speech, [a] strong odor of alcoholic beverage” emanating from his breath, and “messed clothing,” and he was “unsteady” and “stumbling.” In addition, it was alleged that defendant admitted that he had been “drinking” and that his vehicle had been in a rear-end collision with another vehicle.
On January 7, 2013, defendant appeared with counsel before Judicial Hearing Officer (J.H.O.) Adlerberg for a TASC (Treatment Alternatives for Safer Communities) evaluation. However, defendant instead entered into a negotiated plea agreement and pleaded guilty to the count of common-law driving while intoxicated (Vehicle and Traffic Law § 1192[3] ) in satisfaction of the accusatory instrument. At the plea proceeding before J.H.O. Adlerberg, the court simply asked defendant if he waived “formal allocution” and proceeded to sentence defendant to a conditional discharge.
On appeal, defendant contends that the information is jurisdictionally defective on the ground that it fails to contain factual allegations of an evidentiary nature which establish, if true, every element of the offense charging him with common-law driving while intoxicated.
At the outset, we note that the argument concerning the accusatory instrument's facial sufficiency is jurisdictional (see People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ). Thus, defendant's claim is not forfeited upon his plea of guilty (see People v. Dreyden, 15 N.Y.3d 100, 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010]; People v. Konieczny, 2 N.Y.3d 569, 573, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ) and must be reviewed despite his failure to raise it in the Criminal Court (see Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71). However, any hearsay defect in the accusatory instrument has been forfeited by his guilty plea (People v. Keizer, 100 N.Y.2d 114, 760 N.Y.S.2d 720, 790 N.E.2d 1149 [2003] ).
As is relevant to this appeal, to be facially sufficient, the information had to contain factual allegations of an evidentiary nature which establish, if true, every element of the offense of common-law driving while intoxicated and provide reasonable cause to believe that defendant committed the offense (CPL 100.15[3]; 100.40[1]; see People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000]; Alejandro, 70 N.Y.2d at 135–136, 517 N.Y.S.2d 927, 511 N.E.2d 71; People v. Dumas, 68 N.Y.2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ). “So long as the factual allegations of an 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, they should be given a fair and not overly restrictive or technical reading” (Casey, 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233). At the pleading stage, “the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial” (People v. Henderson, 92 N.Y.2d 677, 680, 685 N.Y.S.2d 409, 708 N.E.2d 165 [1999] ).
Applying the above standards, we find that the count charging defendant with driving while intoxicated was properly supported in the information since it set forth facts alleging defendant's physical manifestations of intoxication, i.e., “red watery eyes, slurred speech [and a] strong odor of alcoholic beverage” emanating from his breath (see e.g. People v. Lopez, 170 Misc.2d 278, 648 N.Y.S.2d 231 [Crim.Ct., Kings County 1996] ), and that he had admitted to “drinking” (see e.g. People v. Bowers, 201 A.D.2d 830, 608 N.Y.S.2d 347 [1994] ) and to having been involved in a rear-end automobile accident. As these allegations support the conclusion that defendant was incapable of operating a motor vehicle in a reasonable and prudent manner by reason of intoxication (see People v. Cruz, 48 N.Y.2d 419, 428, 423 N.Y.S.2d 625, 399 N.E.2d 513 [1979] ), the information was jurisdictionally sufficient to allege a violation of Vehicle and Traffic Law § 1192(3).
Next, defendant contends, in effect, that the judicial hearing officer was not authorized to accept the guilty plea. Although the issue was not raised by defendant in the Criminal Court, the assignment of a criminal case to a J.H.O. “affects the organization of the court or the mode of proceedings prescribed by law” (People v. Holt, 182 Misc.2d 919, 920, 705 N.Y.S.2d 164 [App.Term, 1st Dept.1999] [internal quotation marks and citations omitted] ), and defendant's failure to raise the issue in the Criminal Court does not preclude him from raising the issue on appeal (id.). Since the information charges defendant with driving while intoxicated (Vehicle and Law § 1192 [3] ), a class A misdemeanor (see Vehicle and Law § 1193[1][b][i]; Penal Law § 55.10[2][b] ), the case could not be assigned to a J.H.O. for purposes of the entry of a guilty plea, which is the functional equivalent of a trial (see CPL 350.20[4]; Vehicle and Traffic Law § 1807[1]; People v. Jones, 44 N.Y.2d 76, 404 N.Y.S.2d 85, 375 N.E.2d 41 [1978]; People v. Riser, 22 Misc.3d 88, 90, 875 N.Y.S.2d 740 [App.Term, 2d, 11th & 13th Jud.Dists.2009] ). Accordingly, the judgment convicting defendant of driving while intoxicated is reversed, the guilty plea is vacated, the counts of the accusatory instrument that had been dismissed are reinstated, and the matter is remitted to the Criminal Court for all further proceedings.
In view of the foregoing, we do not reach defendant's other contention regarding the propriety of the plea allocution.