Opinion
No. 2009–2428 S CR.
2011-12-27
The PEOPLE of the State of New York, Respondent, v. Tracey MILOWSKI, Appellant.
( see also People v. Dumas, 68 N.Y.2d 729 [1986]; Delgado v. City of New York, 86 AD3d 502, 507 [2011] ).
PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ.
Appeal from judgments of the Justice Court of the Town of Southold, Suffolk County (Rudolph H. Bruer, J.), rendered October 23, 2009. The judgments convicted defendant, upon jury verdicts, of driving while intoxicated per se and driving while intoxicated, and of parking on a sidewalk, respectively.
ORDERED that the judgments of conviction are affirmed.
Defendant was charged in an information with one count of driving while intoxicated per se (Vehicle and Traffic Law § 1192[2] ) and one count of driving while intoxicated (Vehicle and Traffic Law § 1192[3] ), and, in a separate accusatory instrument, with parking on a sidewalk (Vehicle and Traffic Law § 1212[a][1][b] ). The factual portion of the information charging both counts of driving while intoxicated contained, among other things, an allegation by Police Officer Wilinski that he had personally observed defendant operating a motor vehicle. At a Huntley hearing and at the trial, Officer Wilinski testified that he had not personally observed defendant driving a motor vehicle. Defendant moved to dismiss both counts of driving while intoxicated on legal insufficiency grounds. The Justice Court denied the motion. Following a jury trial, defendant was convicted of driving while intoxicated per se, driving while intoxicated, and parking on a sidewalk.
On appeal, defendant contends that the information charging her with two counts of driving while intoxicated is jurisdictionally defective because the allegation contained in the factual portion of the information stating that Officer Wilinski had personally observed her operating the motor vehicle was contrary to the officer's testimony made during the Huntley hearing and at trial. Contrary to defendant's contention, the factual allegations of the information were sufficient to satisfy the element of the statute regarding defendant's operation of the vehicle. An accusatory instrument must be construed within its four corners ( see People v.. Thomas, 4 NY3d 143, 146 [2005] ), and its sufficiency is not undermined by contrary findings of fact made in subsequent stages of the action ( see People v. Gordon, 88 N.Y.2d 92, 96 [1996];People v. Taher, 23 Misc.3d 138[A], 2009 N.Y. Slip Op 50922 [U] [App Term, 9th & 10th Jud Dists 2009] ).
Defendant further contends that the trial evidence was legally insufficient to establish her guilt beyond a reasonable doubt with respect to all three charges on the ground that the People failed to establish that defendant had operated the motor vehicle. We find that the evidence, when viewed in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620 [1983] ), was legally sufficient to establish defendant's guilt of driving while intoxicated per se, driving while intoxicated, and parking on a sidewalk. Officer Wilinski testified that defendant told him at the scene that she had pulled over to the side of the road and kicked the passenger out of the vehicle. Thus, the proof was legally sufficient to establish defendant's operation of the motor vehicle ( see People v. Becht, 163 A.D.2d 811 [1990] ). Furthermore, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 NY3d 342 [2007] ), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility ( see People v. Mateo, 2 NY3d 383 [2004];People v. Bleakley, 69 N.Y.2d 490 [1987] ). Upon a review of the record, we are satisfied that the verdicts of guilt were not against the weight of the credible evidence ( see People v. Romero, 7 NY3d 633 [2006] ).
We have considered defendant's remaining contention and find it to be without merit. Accordingly, the judgments of conviction are affirmed. MOLIA and IANNACCI, JJ., concur.
TANENBAUM, J.P., concurs in part and dissents in part in a separate memorandum.
TANENBAUM, J.P., concurs in part and dissents in part and votes to reverse the judgment convicting defendant of driving while intoxicated per se and driving while intoxicated and dismiss that accusatory instrument in the following memorandum:
A falsely sworn information not supported by nonhearsay allegations is jurisdictionally defective. A court is not limited to construing the “four corners” of the information since on its face the allegations may appear to be true and must dismiss upon discovery of the falsity of the information since there is no supporting statement which acts as a due process foundation for the underlying criminal proceeding.
In August 2008 the defendant was charged in an instrument, sworn to by the arresting officer and entitled “Driving While Intoxicated” (misdemeanor), with “Driving While Intoxicated (Sec 1192 Sub 2)” and “Driving While Intoxicated (Sec 1192 Sub 3) ... As to operation of said motor vehicle by said defendant, this complaint is based on personal knowledge. The source being the direct observation of the defendant.”
Defendant moved to dismiss the accusatory instrument as a “facially insufficient information (CPL 100.25 and CPL 100.40) based on hearsay as to primary element” following a hearing at which the arresting officer testified that contrary to his sworn statement in the information, he did not observe defendant operate the motor vehicle. The Justice Court denied the motion.
The false statement appears to be in violation of Penal Law Sec 210.10, perjury in the second degree and Penal Law Section 175.30, filing a false instrument, although the later retraction may constitute a defense (Penal Law Section 210.25).
On appeal following a conviction of driving while intoxicated per se and driving while intoxicated, defendant again contends, among other things, that the information was defective. This claim is based upon the arresting officer's proven false sworn statement in the information that he had personal knowledge by his observation of the operation of the motor vehicle by defendant.
In response, the People argue that the Justice Court properly denied defendant's motion to dismiss such information on the basis that the information was legally sufficient.
Section 100.40 (1) of the Criminal Procedure Law states that an information is sufficient on its face when it substantially conforms to the requirements of CPL 100.15 and the factual allegations thereof (together with those of any supporting depositions which may accompany it) provide reasonable cause to believe that the defendant committed the offenses charged in the accusatory part of the information, and the non-hearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, every element of the offenses charged and defendant's commission thereof. The law does not require that the most precise words or phrases which most clearly express the thought be provided in an information, but only that the crime be alleged and the specifics set forth so that a defendant can prepare himself for trial, and so that he will not be tried again for the same offense (People v. Zambounis, 251 N.Y. 94 [1929] ). The failure to comply with this requirement renders the proceedings void ab initio for it is a nonwaivable jurisdictional defect “to protect a defendant against groundless criminal proceedings by providing reasonable guarantees against baseless prosecutions not predicated on probable cause” (People v. Casey, 95 N.Y.2d 354, 363 [2000] ). It is analogous to the Fourth Amendment requirement of nonhearsay applications for search warrants ( see Spinelli v. United States 393 U.S. 410, 419 [1969]:
“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Johnson v. United States, supra, 333 U.S. at 13–14, 68 S.Ct. at 369. Although the reviewing court will pay substantial deference to judicial determinations of probable cause, the court must still insist that the magistrate perform his neutral and detached' function and not serve merely as a rubber stamp for the police” ( Aguilar v. Texas, 378 U.S. 105, 111 [1964] [internal quotation marks omitted] ) ... “that in judging probable cause issuing magistrates are not to be confined by [scanty] limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745 (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U.S. 257, 270–271, 80 S.Ct. 725, 735–736 (1960). But we cannot sustain this warrant without diluting important safeguards that assure that the judgment of a disinterested judicial officer will interpose itself between the police and the citizenry” (Spinelli v. United States 393 U.S. at 419).
( see also People v. Dumas, 68 N.Y.2d 729 [1986];Delgado v. City of New York, 86 AD3d 502, 507 [2011] ).
In contrast to a misdemeanor complaint, which may contain hearsay allegations, an information or prosecutor's information must be supported by nonhearsay allegations (emphasis added) that establish every element of the offense charged (People v. Thomas 4 NY3d 143, 146 [2005];Casey, 95 N.Y.2d at 360). The two types of informations are definitionally distinct: an information must set forth the required nonhearsay evidentiary allegations within “the four corners of the instrument itself” or in annexed supporting depositions whereas a prosecutor's information must rely on some other source (e.g., a previously filed accusatory instrument) to establish every element of the charged offense (Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 100.10, at 330; compare CPL 100.40[1], with CPL 100.40[3], Thomas, 4 NY3d at 146 and Casey, 95 N.Y.2d at 360). The sufficiency of grand jury proceedings and indictments are governed by different rules (People v. Gordon, 88 N.Y.2d 92, 93 [1996] ). It is therefore an error to cite Gordon as the basis to support a mistaken rule of construction which prevents the court from dismissing an information on discovery of the falsity of the accusatory statement in the information and requires the court to ignore a jurisdictional defect.
An additional erroneous argument against review and reversal is that the accusatory statement must be construed (emphasis provided) within its four corners citing Thomas. The Thomas court (4 NY3d at 146), however, did not hold that the information must be “construed by” but it stated that ... “an information must be supported by nonhearsay allegations that establish every element of the offense charged” (emphasis provided). It did not bind the court to entertain a criminal proceeding based upon a false Information. Moreover, it did not limit the action of the court on discovery of the falsity of the Information.
It is paradoxical, a challenge to logic and a mistaken policy to dismiss a truthfully sworn information that recited no nonhearsay allegations but to uphold and force a trial in a criminal proceeding based on an information that falsely claims personal knowledge of an alleged crime. Rewarding falsity compromises principle and deprives an accused of due process. The court has an independent role in guarding the integrity of the judicial process. Thus the judgment convicting defendant of driving while intoxicated per se and driving while intoxicated in this criminal proceeding is burdened by a jurisdictional defect and must be reversed and the information dismissed.