Opinion
2015KN071410
04-11-2016
The People of the State of New York, v. Marco McKenzie,
For the People Kenneth P. Thompson District Attorney, Kings County 350 Jay Street Brooklyn, NY 11201 By ADA Queenie Paniagua (718) 250-2001 For the Defendant Justine Luongo, Esq. The Legal Aid Society 111 Livingston Street Brooklyn, NY 11201 By Julia Lum, Esq. (718) 243-6334
For the People Kenneth P. Thompson District Attorney, Kings County 350 Jay Street Brooklyn, NY 11201 By ADA Queenie Paniagua (718) 250-2001 For the Defendant Justine Luongo, Esq. The Legal Aid Society 111 Livingston Street Brooklyn, NY 11201 By Julia Lum, Esq. (718) 243-6334 Curtis J. Farber, J.
Defendant moves, pursuant to CPL §170.30(1)(a), for dismissal of the accusatory instrument charging him with Driving While Intoxicated (VTL §1192[3]), Driving While Ability Impaired (VTL §1192[1]), and Reckless Driving (VTL §1212), upon the ground that the accusatory instrument is facially insufficient. The People filed an Affirmation in Opposition to defendant's motion. For the reasons which follow, defendant's motion to dismiss the accusatory instrument is denied.
The Accusatory Instrument
The accusatory instrument alleges that on or about November 1, 2015, at approximately 5:51 a.m. at 612 Argyle Road, in the County of Kings, State of New York:
The deponent [Police Officer John Moran] is informed by the defendant's own statements that, at the above time and place, the defendant was driving a 2015
Toyota Camry PA state license no. JWB8690, and that defendant crashed said Toyota into 3 parked vehicles and [sic] causing said Toyota to flip upside down coming to rest on its roof.
Deponent further states that at the approximate time and place, deponent observed the defendant exhibiting signs of intoxication: to wit, slurred speech, red watery eyes, and an odor of alcoholic beverage about defendant's breath and person.
Deponent further states that deponent is informed by the attached chemical test analysis that at the time indicated, the defendant submitted to a chemical test to determine the defendant's blood alcohol concentration with a result of .038% alcohol content.
The deponent is informed by defendant's own statements that just before the above time and place, the defendant drank a bottle of Coors Light at a bar, and that defendant closed defendant's eyes and when defendant opened defendant's eyes, defendant's car was upside down.
Analysis
To be sufficient on its face, an information must contain factual allegations of an evidentiary nature demonstrating reasonable cause to believe that the defendant committed the offenses charged (CPL §§100.15[3]; 100.40[1][b]; 70.10[2]). Mere conclusory allegations are insufficient (People v. Dumas, 68 NY2d 729, 731 [1986]). The facts must be supported by non-hearsay allegations which establish, if true, every element of the charged offense and the defendant's commission of the offense (CPL §100.15[3]; CPL §100.40[1][c]). An information which fails to satisfy these requirements is jurisdictionally defective (People v. Alejandro, 70 NY2d 133 [1987]). So long as the factual allegations contained in an information "give an accused sufficient notice 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" (People v. Casey, 95 NY2d 354, 360 [2000]). The facts alleged in the accusatory instrument need not rise to the level of establishing guilt beyond a reasonable doubt (People v. Kalin, 12 NY3d 225, 230 [2009]).
VTL §§1192 and 1195
Vehicle and Traffic Law ("VTL") §1192 defines Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs, in relevant part, as follows:
1. Driving while ability impaired. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.
3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.
Vehicle and Traffic Law §1195 provides, in relevant part:
1. Admissibility. Upon the trial of any action or proceeding arising out of actions alleged to have been committed by any person arrested for a violation of any subdivision of section eleven hundred ninety-two of this article, the court shall admit evidence of the amount of alcohol or drugs in a defendant's blood as
shown by a test administered pursuant to the provisions of section eleven hundred ninety-four of this article.
2. Probative Value. The following effect shall be given to evidence of blood-alcohol content, as determined by such tests, of a person arrested for violation of section eleven hundred ninety-two of this article:
(a) Evidence that there was .05 of one per centum or less by weight of alcohol in such person's blood shall be prima facie evidence that the ability of such person to operate a motor vehicle was not impaired by the consumption of alcohol, and that such person was not in an intoxicated condition.
In order to establish a violation of VTL § 1192(1), an accusatory instrument must demonstrate reasonable cause to believe a defendant's ability to operate a motor vehicle was actually impaired by the consumption of alcohol. The Court of Appeals, in People v. Cruz, 48 NY2d 419 (1979), made clear that the act of driving after having consumed some alcohol is not, in and of itself, illegal. Thus, merely alleging that a person was operating a motor vehicle at a time when a police officer smelled alcohol on his breath, is legally insufficient to satisfy the element of impairment.
In order to support a charge of driving while impaired by alcohol, "the question in each case is whether, by voluntarily consuming alcohol, this particular defendant has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver" (Id. at 427). With regard to driving while intoxicated, Cruz indicated that "intoxication is a greater degree of impairment which is reached when the driver 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 a vehicle as a reasonable and prudent driver" (Id. at 428). Cruz pointed to the State Legislature's creation of the statutory trial presumption, set forth at VTL §1195(2)(a), as recognition that the average person can consume a certain amount of alcohol without necessarily impairing his ability to operate a motor vehicle (Id. at 426). Despite this presumption, however, Cruz recognized that "some persons may find their driving faculties impaired by the least consumption of alcohol and, therefore, would be guilty of driving while impaired while others would not (Vehicle and Traffic Law, §1195, subd 2, par [a])." (Id.). Thus, under the rational set forth in Cruz, a chemical test result of less than .05 of 1% of blood alcohol content does not bar a prosecution for driving under the influence of alcohol.
In People v. Blair, 98 NY2d 722 (2002), the Court of Appeals, in addressing the VTL §1195 presumptions, made clear that these presumptions are rebuttable. Thus, the accusatory instrument at issue in Blair was held to be legally sufficient to support the charge of common law driving while intoxicated, VTL §1192(3), despite the fact that Defendant's breathalyzer test reading created a trial presumption that he was not intoxicated. In Blair, the accusatory instrument indicated that the defendant committed a traffic infraction, by driving without headlights or taillights. Additionally, it alleged that when stopped, the arresting officer observed the defendant had glassy eyes, impaired speech, impaired motor coordination, smelled of alcohol, failed four field sobriety tests, and admitted to having consumed five to six beers prior to driving. Based upon these factual allegations, reasonable cause to believe the defendant had violated VTL §1192(3) was established and the People were entitled to an opportunity to rebut the presumption set forth in VTL §1195 at the time of trial. (See also, People v. Arroyo, 48 Misc 3d 1202[A] [Crim Ct, Bronx Co 2015]; People v. Pasquazi, 48 Misc 3d 1226[A] [Crim Ct, NY Co 2015]; People v. Veras, 40 Misc 3d 1235[A] [Crim Ct, Bronx Co 2013]; People v. Gristina, 186 Misc 2d 877 [Crim Ct, NY Co 2001]).
In People v. McConnell, 11 Misc 3d 57, 60-61 (App Term, 2d Dept 2006), the Appellate Term, following the rational of Blair, supra, found factual allegations similar to those in the current accusatory instrument were facially sufficient to support the charge of driving while intoxicated (VTL §1192[3]). In McConnell, the factual allegations in the accusatory instrument stated, in sum and substance, that the defendant had lost control of his vehicle, causing it to leave the road and strike a mailbox and then a tree. In addition, the police officer who assessed the defendant's physical condition, detected an odor of alcohol both in the vehicle and on the defendant's breath. Finally, the defendant admitted that he "had like 2 beers" (Id. at 60). A chemical test, administered approximately four hours after the defendant's arrest, showed a reading of .07 of 1% of blood alcohol content, which raised a statutory trial presumption, under VTL §1195(2)(c), that the defendant was not intoxicated. McConnell held that this chemical test result did not negate the legal sufficiency of the factual allegations supporting the charge of VTL §1192(3).
VTL §1195(2)(c) reads: "Evidence that there was .07 of one per centum or more but less than .08 of one per centum by weight of alcohol in such person's blood shall be prima facie evidence that such person was not in an intoxicated condition, but such evidence shall be given prima facie effect in determining whether the ability of such person to operate a motor vehicle was impaired by the consumption of alcohol."
In this case, the allegation of the chemical test result of .038 of 1% of blood alcohol does not stand alone. The accusatory instrument further alleges that Police Officer Moran smelled alcohol on defendant's breath and person, that he observed that defendant's speech was slurred and that his eyes were red and watery. Additionally, defendant admitted to having consumed alcohol, albeit, one beer. Most significantly, the criminal court information alleges that the defendant had been in a serious accident, having lost control of his vehicle, causing it to hit three parked cars, and causing his own vehicle to flip over and land on its roof. These facts are legally sufficient to support the charges of driving under the influence of alcohol (VTL §1192[3] & VTL §1192[1]). Although defendant contends that he merely fell asleep at the wheel of his car because he was tired, and that the accident was not the result of his impairment or intoxication due to alcohol consumption, this is an issue for trial.
The Court notes that the reading of .038 of 1% of blood alcohol, set forth in the accusatory instrument, was obtained almost three hours after the time of the motor vehicle accident. At trial, the People will have the opportunity to prove, through expert testimony, by means of extrapolation, should they so choose, that defendant's blood alcohol content was higher at the time he operated his vehicle.
Accordingly, defendant's motion to dismiss the charges of VTL §1192(1) & VTL §1192(3), is denied.
VTL §1212
VTL §1212 reads, in relevant part:
Reckless driving shall mean driving or using any motor vehicle . . . in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway.
The Court of Appeals, in interpreting the predecessor statute to VTL §1212, indicated that in order to be facially sufficient, an accusatory instrument charging reckless driving must show more than the defendant's involvement in a motor vehicle accident (People v. Grogan, 260 NY 138 [1932]). Rather, it must demonstrate that the defendant's manner of operation "interferes with or endangers the user of the highway through the failure to exercise reasonable care, reasonable caution or the reasonable foresight of a reasonably prudent and careful person" (Id. at 149). Reckless driving involves the presence of additional aggravating acts or circumstances beyond a single violation of a rule of the road (People v Goldblatt, 98 AD3d 817 [3d Dept 2012], lv denied 20 NY3d 932 [2012]).
While the act of driving in an intoxicated condition does not, by itself, establish the crime of reckless driving, a defendant's impairment due to the consumption of alcohol is a factor which may be considered in assessing whether a defendant failed to exercise reasonable care, caution, or foresight. The standard jury charge for reckless driving, set forth in the New York Criminal Jury Instructions, indicates how the trial jury is to evaluate evidence of intoxication when considering a charge of reckless driving, stating that:
Intoxication, absent more, does not establish reckless driving. One can engage in reckless driving without being intoxicated and, conversely, one can drive while intoxicated without engaging in reckless driving. Evidence of an individual's intoxication and how that condition may have affected his or her ability to perceive and react to risks commonly encountered while operating a motor vehicle on a public highway may be relevant to prove reckless driving when that evidence is coupled with evidence of the manner in which the motor vehicle was being operated.
In this case, the accusatory instrument alleges more than defendant's involvement in a minor traffic accident. Here, defendant's vehicle is alleged to have been involved in a serious accident in which his car hit three parked cars and flipped onto its roof, without any indication the accident was precipitated by the actions of any other vehicle being operated on the road. A trier of fact could reasonably conclude that the accident was aggravated by the unsafe manner in which the vehicle was operated. The information further alleges that after having voluntarily consuming alcohol, defendant closed his eyes while driving, and when questioned by the police officer at the scene, defendant had no recollection as to how the accident had occurred. Also, the officer at the scene observed signs of defendant's intoxication, including that he had an odor of alcohol on his breath and person, that his eyes were red and watery, and that his speech was slurred. These allegations are sufficient, for pleading purposes, to show defendant's disregard of the consequences of his actions to others using the public highway.
Defendant cites to the case of People v. Whitby, 44 NYS2d 76 (City Ct, City of Middletown 1943), for the proposition that falling asleep and subsequently causing an accident does not establish reckless driving. Here, however, as previously noted, the accusatory instrument contains more than an allegation of an accident after falling asleep, or merely having an odor of alcohol on the one's breath after being involved in an accident. The allegations set forth in the accusatory instrument, if proven at trial, are legally sufficient to support a conviction for reckless driving. (See, People v. Brown, 44 Misc 2d 129[A] [App Term, 2d Dept 2014], lv denied 24 NY3d 1001 [2014] [evidence that the defendant ingested alcohol before operating his vehicle, and struck another vehicle stopped at a traffic light, sufficed to prove the charge of reckless driving]; People v. Earley, 121 AD3d 1192, 1193-1194 [3d Dept 2014], lv denied, 25 NY3d 1200 [2015] [defendant's act of crossing center line and colliding with oncoming vehicle, her admission to having been drinking prior to driving, and the arresting officer's testimony that she had glassy eyes, slurred speech, smelled of alcohol and appeared intoxicated, supported the defendant's conviction for reckless driving]; People v. Bohacek, 95 AD3d 1592 [3d Dept 2012] [evidence was sufficient to support conviction for reckless driving where the jury could reasonably infer that the defendant, in reckless disregard of the consequences, ingested drugs, drove her car across the center line of the highway, and collided with decedent's vehicle]). Accordingly, defendant's motion to dismiss the charge of VTL §1212, is denied.
Conclusion
Defendant's motion to dismiss the accusatory instrument, charging him with Driving While Intoxicated (VTL §1192[3]), Driving While Ability Impaired (VTL §1192[1]), and Reckless Driving (VTL §1212), for facial insufficiency, is denied.This constitutes the Decision and Order of the Court.DATED: April 11, 2016 Brooklyn, New York CURTIS J. FARBER, J.C.C.