Opinion
No. 2013KN065483.
09-03-2014
The PEOPLE of the State of New York, v. Dwayne JEFFREY, Defendant.
For the People: Kenneth P. Thompson, Kings County District Attorney, by Assistant District Attorney Sarah Kurtz, Brooklyn. For the Defendant: The Legal Aid Society, by Paul Beyder, Brooklyn.
For the People: Kenneth P. Thompson, Kings County District Attorney, by Assistant District Attorney Sarah Kurtz, Brooklyn.
For the Defendant: The Legal Aid Society, by Paul Beyder, Brooklyn.
Opinion
LAURA R. JOHNSON, J.
By Notice of Motion dated June 11, 2014, defendant seeks dismissal of the accusatory instrument, on the ground that it is facially insufficient, and that his statutory right to a speedy trial has been violated by the People's consequent inability to be ready in timely fashion for trial on a legally sufficient instrument. The People oppose defendant's motion by Affirmation dated July 17, 2014. For the following reasons, defendant's motion to dismiss is DENIED.
DISCUSSION
Defendant is charged with one count each of the unclassified misdemeanor of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (Vehicle and Traffic Law § 1192[3] ), and the traffic infractions of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (Vehicle and Traffic Law § 1192[1] ), Leaving the Scene of an Incident Without Reporting (Vehicle and Traffic Law § 600[1][a] ), and Unlicensed Operator (Vehicle and Traffic Law § 509[1] ). Defendant was initially arraigned on August 23, 2013, on a Criminal Court Complaint that was based on the hearsay declarations of a civilian witness. Instead of converting that instrument by filing a corroborating affidavit from the witness, the People filed a superseding complaint on October 9, 2013, containing only the observations of the affiant police officer, and requiring no conversion. Since defendant did not admit to driving, and the superseding information does not allege that anyone saw defendant behind the wheel, defendant now contends that the information fails to allege facts supporting the necessary element that he “operated” a vehicle. In addition, he argues that any allegation that he failed to provide license, registration and insurance information to the owners of the other cars damaged in the incident ? an element of the Leaving the Scene charge ? cannot be based on the officer's firsthand knowledge. For the reasons stated herein, those contentions are rejected.
Pursuant to sections 100.15 and 100.40(1) of the Criminal Procedure Law, an information is sufficient on its face when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof. In determining whether this “prima facie” requirement has been met, the court must view the facts alleged in the light most favorable to the People (People v. Contes, 60 N.Y.2d 620, 621 [1983] ); People v. Dreyden (James), 28 Misc.3d 5, 7 [App Term, 2d Dept], lv denied 15 NY3d 773 [2010] ). The requirement of non-hearsay allegations is a “much more demanding standard” than a showing of reasonable cause alone (People v. Alejandro, 70 N.Y.2d 133, 138 [1987], quoting 1966 Report of Temp Commn on Revision of Penal Law and Crim Code, Staff Comments). Nevertheless, the People's prima facie burden “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. Kalin, 12 NY3d 225, 230 [2009], citing People v. Henderson, 92 N.Y.2d 677, 680 [1999] ; see also Preiser, Practice Commentary, McKinney's Cons.Law of NY, Book 11A, CPL 100.40, at 388). So long as the factual allegations of an information give the defendant sufficient notice to prepare a defense and prevent the defendant from being twice tried 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] ). And, while conclusory allegations are insufficient (see People v. Dumas, 68 N.Y.2d 729 [1986] ), inferences may rationally be drawn (see People v. Bello, 92 N.Y.2d 523, 526 [1998] ), and a court “is not required to ignore common sense or the significance of the conduct alleged” (People v. Gonzalez, 184 Misc.2d 262, 264 [App Term, 1st Dept 2000], lv denied 95 N.Y.2d 835 [2000] )). Finally, the failure to satisfy the requirements of CPL 100.40(1)(c) is a jurisdictional defect, which may be raised at any time (People v. Alejandro, 70 N.Y.2d 133 ; People v. Kalin, 12 NY3d at 229 ).
The Charging Instrument Sufficiently Alleges that Defendant was the Operator of the Vehicle.
In this case, all charges against the defendant have as a common element that the defendant “operated” a motor vehicle. Although the word “driver” is defined in Vehicle and Traffic Law § 113 to mean “[e]very person who operates or drives or is in actual physical control of a vehicle,” the term “operator” is not separately defined. Instead, each of the applicable subsections of Vehicle and Traffic Law § 1192 begins with a subtitle that uses the words “Driving while ...” and continues by using the word “operate.” “Operation” of a motor vehicle has been held to be a broader concept than driving. See e.g. People v. Alamo, 34 N.Y.2d 453, 458 (1978) (“movement or motion is not essential to control” of the vehicle). Indeed, Vehicle and Traffic Law § 509(1) says that no person shall “operate or drive” a motor vehicle unless duly licensed (emphasis added); Vehicle and Traffic Law § 600 uses merely the term “operate.” The defendant contends that the accusatory instrument fails to allege sufficient facts to establish that defendant operated a motor vehicle.
The superseding complaint contains no hearsay and is therefore to be considered an information. It is sworn to by Police Officer Nicholas Altizermercado of the 63rd Precinct, and the factual portion alleges, in pertinent part, that:
At approximately 4:05 AM at Schenectady Ave between Ave J & Ave K County of Kings, State of New York, ...
... the deponent responded to the scene of a motor vehicle accident, that the deponent observed the defendant hiding underneath a vehicle near the scene of the motor vehicle accident, that the defendant had the keys to a 2004 GMC Suburban in the defendant's hand, that the deponent observed a 2004 Suburban Pennsylvania State Driver's License No. HTY2090 which was missing a tire and damaged about the vehicle near the scene of said motor vehicle accident, that the defendant failed to show the defendant's driver's license to anyone at the scene of the accident, or report the accident to a police officer, and that there were five damaged cars including [vehicles listed by model and license plate number].
Defendant has made no objection to this wording, and the Court reads it to refer to the vehicle's “license plate,” as vehicles do not have “driver's licenses” and the number is in the form of a license plate number, with three letters followed by four numbers.
The deponent further states that the deponent recovered the keys to the above mentioned 2004 GMC Suburban from the defendant's hand, and that the defendant had a bump about the defendant's head.
... the deponent observed the defendant exhibiting signs of intoxication: to wit, slurred speech, red watery eyes, odor of alcoholic beverage on breath, and an unsteady gait.
To be sure, the superseding complaint contains no allegation that defendant was observed operating the GMC Suburban. However, it is well settled that it is not necessary for someone to see a defendant actually driving a moving car in order for it to be demonstrated that he is the operator of the vehicle. For example, where a defendant is behind the wheel of a stationary car with the keys in the ignition, it is a reasonable inference that he was driving the car before it stopped. This inference may be drawn at trial to establish a defendant's guilt beyond a reasonable doubt (People v. Cunningham, 274 A.D.2d 484 [2d Dept 2000] ; People v. Collins, 70 A.D.2d 986 [3d Dept 1979] ), or to establish a prima facie case at the pleading stage (People v. Williams, 161 Misc.2d 523 [Crim Ct Kings Cty 1994] ).
Mindful that an information must set forth the required non-hearsay evidentiary allegations within “the four corners of the instrument itself” or in annexed supporting depositions (People v.. Thomas, 4 NY3d 143, 146 [2005] ), the Court gives no significance to the allegations in the original complaint, that an individual, from whom no supporting deposition was obtained, had witnessed the traffic incident, and saw defendant exit the GMC Suburban and run to hide under the vehicle where he was found by the police. The cases of People v. Martinez–Guzman, 36 Misc.3d 598 (Crim Ct Kings County 2012) ; People v. Ricardo Hernandez, 11/10/2005 NYLJ 19, col 3, 2005 N.Y. Misc. LEXIS 3519; 234 NYLJ 92 (Crim Ct Kings County 2005), and People v. Whyte, 2002 N.Y. Slip Op 50406U (Crim Ct Bronx County, 2002), discussed herein, all involved similar elimination of information from civilian witnesses.
But, that is not the only scenario in which a defendant may be fairly inferred to be the operator of a vehicle. “In assessing the facial sufficiency of a misdemeanor complaint, the court is not required to ignore common sense or the significance of the conduct alleged.' “ facial sufficiency of a misdemeanor complaint, People v. Gonzalez, 184 Misc.2d 262, 264 (App Term, 1st Dept 2000), quoting People v. Abdul, 157 Misc.2d 511, 514 (Crim Ct, New York County 1993). Rather, a court may look to what has been called “the confluence of events and circumstances.” People v. Hitchcock, 98 N.Y.2d 586, 592 (2002), People v. Calixto, 29 Misc.2d 350, 352 (Crim Ct N.Y. County 2010) ; People v. Byrd, 149 Misc.2d 350, 352 (Crim Ct N.Y. County 1991).
Where operation of a vehicle is an element, allegations regarding the position and condition of the vehicle, the position of the defendant, whether or not the motor is running, and where the keys are located are all factors to be considered in assessing the facial sufficiency of an accusatory instrument. The parties point to several Criminal Court cases assessing the sufficiency of pleadings to support an allegation that a defendant was the operator of a vehicle. These are worth describing, for their similarities and differences to the case at bar:
In People v. Williams, 161 Misc.2d 523 (Crim Ct. Kings County 1994) the defendant was found asleep behind the wheel of a stalled car, in the middle of Coney Island Avenue, with the keys in the ignition. The court concluded that “the alleged facts, although circumstantial, are sufficient to provide reasonable cause to believe that the defendant was operating the vehicle while in an inebriated condition, thereby allowing the case to proceed to trial.” Id. at 525.
In People v. Ricardo Hernandez, 11/10/2005 NYLJ 19, col 3, 234 NYLJ 92, 2005 N.Y. Misc. LEXIS 3519; 234 N.Y.L.J. 92 (Crim Ct Kings County 2005), the defendant was not at the scene of the traffic incident when the police arrived. Although he returned and admitted to being the driver, the court found that corroboration of that admission was required under the rule set out in CPL 60.50. The court found sufficient corroboration in the allegations that two vehicles had “matching” damage, and that one of them still had its motor running and keys in the ignition, suggesting that the collision had occurred “rather recently.”
The Court of Appeals has since stated that this rule does not apply to misdemeanor informations. People v. Suber, 19 NY3d 247 (2012).
In People v. Whyte, 2002 N.Y. Slip Op 50406U (Crim Ct Bronx County, 2002) the defendant was observed sitting on the ground “next to” a damaged vehicle. The accusatory instrument in that case was not sufficient, because although it described the damage and alleged that the car's headlights were still on, it did not “contain any allegations as to ownership of the vehicle, the possession or location of the keys, whether or not the engine was running, or whether or not the driver's side door or window was open” (id. at 5), all factors that would have served to support a conclusion that the defendant had recently operated the vehicle.
In People v. Martinez–Guzman, 36 Misc.3d 598 (Crim Ct Kings County 2012), the accusatory instrument was held to be sufficient as to the element of “operation” where it alleged that, at 4:55 a.m., defendant was standing next to the vehicle, which had the keys in the ignition and the engine running. The court held that “operation [of a vehicle] may be inferred from the defendant's proximity to ... a vehicle, even if no witness observes him driving it.” Id. at 600. The court further noted that the information sufficiently informed the defendant of what he was alleged to have done, “through non-hearsay allegations of facts that require no special skill or discernment to draw a conclusion from.” Id. at 60.
Finally, in People v. Rosa, 38 Misc.3d 1221(A) (Crim Ct Kings County 2013), the defendant was found “standing directly outside” a damaged vehicle. The information contained no allegation regarding the location of the car keys or whether the engine was running. However, because defendant had a bloody injury to his head and vomit on his person, and there was blood and vomit on the deployed airbag of the vehicle, those facts pointed to the conclusion that defendant had been inside the vehicle.
In the case at bar, the defendant was “hiding underneath a vehicle” at approximately 4:05 a.m., “near the scene” of several damaged vehicles. “In the defendant's hand” were the keys to an out-of-state vehicle evidently involved in that incident, the damage to which included that it was “missing a tire.” Defendant had a “bump” on his head. These factual allegations collectively support the conclusion that the defendant had recently “operated” the now inoperable vehicle to which he still was holding the keys, and that he had sustained injury in the same incident that had caused damage to the vehicles. Moreover, the allegation that a police officer saw defendant not standing by the damaged vehicle to which he had the keys, but instead hiding under another car, tends to show that defendant had left the scene of the traffic incident and was not intending to report it to the police or the owners of the damaged cars.
While the language of the original criminal court complaint contained more detail, stating that the defendant was found “one block away” from the scene of an incident involving the Suburban and four “parked” vehicles, this Court will not find that the police officer's allegation in the superseding information that, upon responding to the scene of the accident, he observed “five damaged vehicles” and observed the defendant hiding under a vehicle “near” the scene was insufficient as a matter of law. Just as “[a] determination that a particular item is open to public view' does not require the exercise of professional skill or experience on the part of a police officer warranting a specialized explanation” People v. Jackson, 18 NY3d 738, 746 (2012), so the conclusion that one object is “near” another is one that may readily be drawn by the ordinary observer.
To reject these inferences as a matter of law would be to impose an overly restrictive reading on the complaint (People v. Casey, 95 N.Y.2d at 360 ), as well as to ignore all common sense as to the significance of the conduct alleged (People v. Gonzalez, 184 Misc.2d at 264 ). Finally, the accusatory instrument need not rule out all the possible explanations of innocence; those are matters to be resolved at trial. People v. Williams, 161 Misc.2d 523, 525 (Crim Ct Queens County 1994).
Defendant Has Failed to Carry His Burden on the Speedy Trial Motion
As discussed above, the Court denies defendant's speedy trial motion on the merits of his underlying argument. As an additional basis with regard to the three traffic infractions, the Court denies defendant's motion for failure to carry his burden of demonstrating a violation of defendant's constitutional right to a speedy trial.
Neither party has laid out the chronology of this case, other than to note that the case was initially arraigned on August 23, 2013; and that the superseding information was filed on October 9, 2013, together with a Statement of Readiness. The sole ground of defendant's motion is that the People's statements of readiness have been consistently illusory by virtue of the putative unsupported “operator” element.
Defendant is charged with one unclassified misdemeanor, Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs under Vehicle and Traffic Law § 1192(3). Because the penalty for that offense is imprisonment for not more than one year (Vehicle and Traffic Law § 1193[b][i] ), that charge is subject to the 90–day speedy trial requirements of CPL 30.30(1)(b). The three other counts against the defendant are all traffic infractions which, since they are not “crimes” (Vehicle and Traffic Law § 155 ), are not subject to CPL 30.20 or the time constraints of CPL 30.30.
Defendant thus faces two separate burdens on this motion: With regard to the misdemeanor, he need allege only that there has been a delay in excess of 90 days, whereupon the burden of demonstrating sufficient excludable time is placed on the People (People v. Santos, 68 N.Y.2d 859 [1986] ; People v. Berkowitz, 50 N.Y.2d 333, 349 [1980] ). This, he has done (Deft Mtn ¶ 8); but, having rejected defendant's argument that the accusatory instrument is jurisdictionally defective, the Court finds no other basis for granting the motion after reviewing the notations of adjournments in this case. With respect to the traffic infractions, however, defendant's burden is considerably higher. He must demonstrate that his constitutional right to a speedy trial has been violated to such an extent as warrants dismissal in the interest of justice. Such a determination lies within the sound discretion of the court. CPL 170.40(1). And, since “the People's failure to timely proceed on one count of an accusatory instrument does not necessarily adhere to the remaining counts upon which the People could be ready for trial.” People v. Graham, 39 Misc.3d 35, 37 (App Term 2d Dept 2013) (citations omitted), defendant must demonstrate that each of the traffic infractions must be dismissed in furtherance of justice pursuant to CPL 170.30(1)(g). Here, the defendant has focused exclusively on the merits of his legal sufficiency claim, and has addressed none of the CPL 170.40 factors that, under People v. Taranovich, 37 N.Y.2d 442 (1975), might warrant a dismissal of such a case on constitutional speedy trial grounds. This Court therefore declines to dismiss any of the traffic infractions with which defendant is charged.
CONCLUSION
For the reasons set forth above, defendant's motion to dismiss the accusatory instrument is DENIED.
This constitutes the Decision and Order of the Court.