Opinion
570258/20
06-25-2021
The PEOPLE of the State of New York, Respondent, v. Dana NARVAEZ, Defendant-Appellant.
Per Curiam.
Judgment of conviction (Tara A. Collins, J., on dismissal motion; George A. Grasso, J., at plea and sentencing), rendered March 6, 2019, affirmed.
Since defendant waived the right to be prosecuted by information, the facial sufficiency of the accusatory instrument must be assessed under the standard required of a misdemeanor complaint ( see People v Dumay , 23 NY3d 518 [2014] ). At the pleading stage, the misdemeanor complaint need only provide factual allegations that give defendant sufficient notice to prepare a defense and to ensure against double jeopardy ( id., at 524 ). Additionally, the misdemeanor complaint must allege facts of an evidentiary character that provide reasonable cause to believe that the defendant committed the crime charged ( People v Dumas , 68 NY2d 729, 731 [1986] ; CPL 100.40[4][b] ).
In this case, the misdemeanor complaint was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant operated a motor vehicle while his ability to do so was impaired by alcohol ( see Vehicle and Traffic Law § 1192[1] ). Contrary to defendant's present contention, the operation element of the offense was satisfied by allegations that he was observed seated behind the steering wheel of the vehicle with the engine running ( see People v Alamo, 34 NY2d 453, 458-459 [1974] ; People v Almanzar , 113 AD3d 527 [2014], lv denied 23 NY3d 1059 [2014] ).
By pleading guilty, defendant forfeited his right to appellate review of the court's denial of his CPL 170.40 motion to dismiss the misdemeanor complaint in furtherance of justice ( see e.g. People v Kontos , 71 AD3d 507 [2010], lv denied 14 NY3d 889 [2010] ; People v Monroe , 56 Misc 3d 127[A], 2017 NY Slip Op 50810[U] [App Term, 1st Dept 2017], lv denied 29 NY3d 1131 [2017] ). In any event, the motion was properly denied. The trial court determined that the prosecutor's actions were without malice or ill will and did not rise to the level of exceptional serious misconduct. The trial court also provided a thorough analysis of the ten factor test enumerated in CPL 170.40. We are not persuaded that this is one of those rare and compelling instances in which the public interest and the individual interest of the accused coincide and permit the court to exercise forbearance ( see People v Tavares , 273 AD2d 707 [2000], lv denied 95 NY2d 939 [2000] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
All concur.