Opinion
2005-1022 OR CR.
Decided December 19, 2005.
Appeal from an order of the Justice Court of the Town of Minisink, Orange County (Paul Lattimer, J.), rendered April 18, 2005. The order granted defendant's motion to dismiss the simplified traffic informations charging him with failure to stay on a roadway, unlicensed operation of a motor vehicle, aggravated unlicensed operation of a motor vehicle, driving while intoxicated per se and common law driving while intoxicated.
Order unanimously modified on the law by denying defendant's motion to dismiss the simplified traffic informations charging defendant with common law driving while intoxicated (Vehicle and Traffic Law § 1192) and failure to stay on a roadway (Vehicle and Traffic Law § 1128 [a]), and by reinstating said simplified traffic informations; as so modified, affirmed.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ.
In separate simplified traffic informations, defendant was charged with failure to stay on a roadway, unlicensed operation of a motor vehicle, aggravated unlicensed operation of a motor vehicle, driving while intoxicated per se and common law driving while intoxicated. The defendant moved to dismiss the accusatory instruments. After the People advised the court that they could not proceed on the charge of driving while intoxicated per se based on a blood alcohol reading greater than .08 (Vehicle and Traffic Law § 1192), the court dismissed the remaining simplified traffic informations. In so ruling, the court noted that it was dismissing the unlicensed operation of a motor vehicle charges (Vehicle and Traffic Law § 509; § 511 [1] [a]) based upon defendant's proof of the existence of a valid driver's license on the subject date and was dismissing the failing to stay on a roadway charge (Vehicle and Traffic Law § 1128 [a]) in the interest of justice.
Section 1192 (3) of the Vehicle and Traffic Law provides that "(n)o persons shall operate a motor vehicle while in an intoxicated condition." A driver of a motor vehicle is intoxicated when he has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate the vehicle as a reasonable and prudent driver ( see People v. Cruz, 48 NY2d 419, 428). Examples of the factors to be considered include, but are not limited to, a defendant's physical condition and appearance, balance and coordination, manner of speech, and the presence of the odor of alcohol ( see People v. Hohmeyer, 70 NY2d 41, 44). The factual statements in the supporting deposition with respect to said charge, which deposition was signed and dated on the day of the accident, were set forth by check marks made in boxes next to the applicable conditions and observations signifying the complainant's allegations as to the existence of those conditions and the truth of those observations. Said observations included an admission by defendant that he had been drinking, that defendant's eyes were glassy, his speech was slurred, his motor coordination was impaired and that defendant had an odor of alcohol. In addition, defendant failed a number of the field tests. Since the foregoing allegations were sufficient to provide reasonable cause to believe that defendant committed the offense charged ( see CPL 100.25), dismissal of the simplified traffic information charging defendant with common law intoxication (Vehicle and Traffic Law § 1192) was not warranted.
The court's dismissal in the interest of justice of the simplified traffic information charging defendant with violation of section 1128 (a) of the Vehicle and Traffic Law was also not warranted. An information, including a simplified traffic information, may be dismissed in the interest of justice, as provided in CPL 170.30 (g), when dismissal is required as a matter of discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of defendant upon such instrument would constitute or result in injustice ( see CPL 170.40). In the instant matter, no such compelling factor was set forth in the record.
As to the remaining charges, since the court noted that defendant presented proof of a valid driver's license on the subject date and since the People do not contest said fact in their "affidavit of errors," the court's dismissal of the simplified traffic informations charging violations of sections 509 (1) and 511 (1) (a) of the Vehicle and Traffic Law was proper.