People v. Armenta, 2010 NY Slip Op 50792(U) (N.Y. Crim. Ct. 4/8/2010)
| Decision Date | 08 April 2010 |
| Docket Number | 2009KN064882 |
| Citation | 2010 NY Slip Op 50792 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK v. GABRIEL ARMENTA, Defendant. |
| Court | New York Criminal Court |
Seymour James, Esq. (Jenny S. Cheung, of Counsel) for the Defendant.
Charles J. Hynes, District Attorney, Kings County (Susan Park, of Counsel), for the People.
The defendant, Gabriel Armenta, is charged with Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (Vehicle Law ["VTL"] §1192.1]), Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (VTL §1192.2]) and Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (VTL §1192.3]). He has moved for an order dismissing the accusatory instrument pursuant to Criminal Procedure Law ("CPL") 170.30(1)(a) and 170.35(1) for lack of facial sufficiency and because his right to a speedy trial pursuant to Criminal Procedure Law ("CPL") 30.30(1)(b) has been violated.
The factual portion of the putative informationreads in relevant part:
The deponent [Police Officer Anthony Valluzzi] states that, at the above time and place [on August 13, 2009, at approximately 12:30 a.m. at the "vicinity of Ave T between East 16 Street and East 17 Street" in the County of Kings], which is a public highway, the deponent observed defendant's vehicle, a 1999 Ford van, New York State License Plate Number: ENG — 3440, has [sic] dents to the front part of the vehicle and that the defendant was standing near said vehicle.
The deponent further states that the deponent is informed by defendant's own statement that the defendant was driving the above Ford and that defendant had a glass of wine and a few beers.
The deponent further states that at the approximate above time and place, deponent observed the defendant exhibiting signs of intoxication: to wit, watery eyes and slight odor of alcoholic beverage on breath.
The 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 the result of .126% alcohol content.
It is axiomatic that facial sufficiency is a non-waivable, jurisdictional prerequisite to a valid prosecution. People v Alejandro, 70 NY2d 133 (1987). In order to be facially sufficient, an information, together with any supporting depositions, must comport with three requirements: (1) allege facts of an evidentiary character supporting or tending to support the charges, pursuant to CPL 100.15(3); (2) provide reasonable cause to believe that the defendant committed the offenses charged in the information; and (3) include non-hearsay factual allegations, which, if true, establish every element of the offense charged. See CPL 100.40(1) (a-c). This third requirement is what is referred to as a "prima facie" case. People v McDermott, 160 Misc 2d 769 (Dist Ct, Nassau County 1994). A prima facie case, also referred to as "legally sufficient evidence," means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof. See CPL 70.10[1]).1 VTL §1192 provides, in relevant part, the following:
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.
2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.
3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.
The defendant argues that the accusatory instrument is facially insufficient because it does not allege facts establishing reasonable cause to believe that he "operated" a motor vehicle as a matter of law. Such operation is an element of each of the offenses charged. SeeCJI2d(NY) Operating a Motor Vehicle When Under the Influence of Alcohol or Drugs; Matter of Woods, 56 AD3d 184, 185 (1st Dept 2008).
There is merit to the defendant's contention. The only factual allegation directly supporting the police officer's conclusion that the defendant had operated the motor vehicle at the time and place specified in the complaint is the defendant's alleged admission that he had done so.
The People initially contend that this statement, standing alone, satisfies the element of "operation" for pleading purposes. Certainly, CPL 60.50 permits conviction of an offense by confession or admission, but only if there is also "additional proof that the offense charged has been committed." See CPL 60.50; People v. Booden, 69 NY2d 185,187 (1987). The purpose behind this section "is to avoid the possibility that a crime may be confessed when, in fact, no crime has been committed." Id. Total corroboration is not required, just some independent evidence of guilt. Id.
The People argue that CPL 60.50 does not apply to the facial sufficiency of misdemeanor accusatory instruments but rather is limited in its application to sufficiency of proof at trial. The Court disagrees. Numerous appellate and lower courts have held that CPL60.50 does apply to misdemeanor complaints in the context of evaluating the facial sufficiency of such instruments. See People v. Miedema, 24 Misc 3d 132(A)(App Term, 9th and 10th Jud Dists. 2009)(unreported); People v. Gundarev, 2009 WL 3028941(Crim Ct, Kings County 2009)(unreported); People v. Walker, 21 Misc 3d 748 (Crim Ct, Kings County 2008); People v. Kaminiski, 143 Misc 2d 1089, 1092 (Crim Ct, NY County 1989); cf People v. Dolan, 1 Misc 3d 32, 34 (App Term, 1st Dept), leave to appeal denied 1 NY3d 571 (2003); People Olwes, 191 Misc 2d 275, 280 (Crim Ct, Kings County 2002).
The People further contend that even if CPL 60.50 does apply to the issue of facial sufficiency, there is adequate corroboration for the defendant's statement regarding his operation of the vehicle in this case, since such corroboration may be proven circumstantially. The People rely heavily upon the Court of Appeals decision in People v. Booden, 69 NY2d 185. In Booden, the Court of Appeals concluded that defendant Booden's admission that he had driven the car had been corroborated sufficiently by the testimony of a police officer that he had observed the defendant standing "next to" a car that was off the road, in a ditch, facing against oncoming traffic.
By comparison, in the instant case, but for the defendant's alleged admission, there are no other facts to suggest that the van had been operated and thus that any of the offenses charged actually occurred. The van's allegedly observed condition, that it bore front-end dents, does not tend to establish that a driver of the van had caused those dents at the time and place of the alleged commission of the charged offenses.2 Neither is there any indication of an accident, nor even use of the vehicle, such as that the hood of the car was warm to the deponent's touch, that there were skid marks on the road near by, that the car was facing into oncoming traffic, or was positioned in such a way as to suggest recent operation or accident, as in Booden. Indeed, the complaint merely indicates that the car was in "the vicinity of Avenue T between East 16th Street and East 17th Street" in Kings County and "the defendant was standing near said vehicle."3
The alleged fact that the officer observed the defendant "near" the van does not, without more, permit a reasonable inference that the defendant had recently operated the van. Cf People v. Blake, 5 NY2d 118 (1958)(defendant found alone inside vehicle); People v. Marriott, 37 AD2d 868 (3d Dept 1971)(defendant found asleep behind steering wheel of his car with engine running in remote area). If the Court were to disregard the defendant's alleged admission that he had driven the van, the only reasonable conclusion to be taken from the accusatory instrument is that the defendant was standing near a van bearing front-end "dents" while under the influence of alcohol, which is not an offense under New York law. Indeed, there is no indication from the defendant's statement as to how long before speaking to the deponent he allegedly drove the van.
Accordingly, the defendant's motion for an order dismissing the entire accusatory instrument is hereby granted. The dismissal is without prejudice to the People to cure the deficiencies within the time limit imposed by CPL 30.30, provided that they are able to do so.
Notwithstanding the Court's decision to grant the defendant's motion for dismissal of the accusatory instrument for facial insufficiency, the Court makes the following findings of fact and conclusions of law as to the defendant's motion for...
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