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People v. Hernandez

Supreme Court, Appellate Term, First Department, New York.
Mar 9, 2015
9 N.Y.S.3d 594 (N.Y. App. Term 2015)

Opinion

No. 570166/11.

03-09-2015

PEOPLE of the State of New York, Respondent, v. Aristides HERNANDEZ, Defendant–Appellant.


Opinion

Judgment of conviction (Neil E. Ross, J.), rendered February 1, 2011, affirmed.

In view of the defendant's knowing waiver of his right to prosecution by information, the facial insufficiency of the accusatory instrument must be assessed under the standard required of a misdemeanor complaint (see People v. Dumay, 23 NY3d 51 [2014). So viewed, the accusatory instrument was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of aggravated driving while intoxicated (see Vehicle and Traffic Law § 1192[2–a] ), the offense to which defendant ultimately pleaded guilty. In this connection, the factual portion of the accusatory instrument alleged, inter alia, that defendant was observed behind the wheel of his vehicle in an “intoxicated condition,” exhibiting “watery and bloodshot eyes” and “the odor of an alcoholic beverage on his breath”; and that the results of defendant's breath test showed his blood alcohol level to be .19% (see People v. Collucci, 36 Misc.3d 145[A], 2012 N.Y. Slip Op 51618[U] [App Term, 1st Dept 2012] ; see also People v. Colburn, 123 AD3d 1292 [2014] ). Contrary to defendant's claim, the accusatory instrument was not required to allege that the chemical analysis of his breath was made within two hours of his arrest, in accordance with Vehicle and Traffic Law § 1194, or with his consent, as such factors are “solely for the purpose of qualifying the results of the test for admission into evidence” (Matter of Cook v. Adducci, 205 A.D.2d 903 [1994], lv denied 84 N.Y.2d 811 [1994] ; see also People v. Atkins, 85 N.Y.2d 1007 [1995] ), rather than elements of the underlying aggravated driving while intoxicated charge that the People must plead and prove (see generally People v. Thomas, 70 N.Y.2d 823, 825 [1987] ).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


Summaries of

People v. Hernandez

Supreme Court, Appellate Term, First Department, New York.
Mar 9, 2015
9 N.Y.S.3d 594 (N.Y. App. Term 2015)
Case details for

People v. Hernandez

Case Details

Full title:PEOPLE of the State of New York, Respondent, v. Aristides HERNANDEZ…

Court:Supreme Court, Appellate Term, First Department, New York.

Date published: Mar 9, 2015

Citations

9 N.Y.S.3d 594 (N.Y. App. Term 2015)