People v. Arroyo
| Decision Date | 11 June 2015 |
| Docket Number | No. 2015BX013676.,2015BX013676. |
| Citation | 18 N.Y.S.3d 580 (Table) |
| Parties | PEOPLE of the State of New York, Plaintiff, v. Natasha ARROYO, Defendant. |
| Court | New York Criminal Court |
Robert T. Johnson, District Attorney, Bronx County by Ryan J. LeGrady, Assistant District Attorney, for The People.
The Bronx Defenders by Renagh O'Leary, for Defendant.
Defendant is charged with Driving while Intoxicated (VTL § 1192[3] ) and Driving while Ability Impaired (VTL § 1192[1] ). By Affirmation dated April 15, 2015, Defendant moves to dismiss the charge of Driving While Intoxicated, on the ground that the accusatory instrument is facially insufficient and for other relief. By Affirmation in Opposition dated May 11, 2015, the People oppose dismissal arguing that the accusatory instrument is facially sufficient. In rendering a decision, this court has reviewed Defendant's Affirmation dated April 15, 2015, the People's Affirmation in Opposition dated May 11, 2015, the court file, and relevant statutes and case law.
Defendant's motion to dismiss the charge of Driving While Intoxicated for facial insufficiency is denied.
The information alleges that on or about March 22, 2015, at approximately 3:43 AM, at the southeast corner of Quincy Avenue and Cross Bronx Expressway, the following occurred:
Deponent states that, at the above time and place, he observed defendant seated behind the steering wheel and operating a 2013 gray Volkswagen, (New York License Plate Number GAK1056), in that said engine was running and the car was moving on a public street. Deponent further states that he observed defendant operating said vehicle in the left lane of a two-lane street, from which defendant turned right onto another street through the intersection without changing lanes. Deponent further states that he observed defendant to have a strong odor of an alcoholic beverage emanating from her breath.
Deponent further states that he observed the administration of a chemical test of defendant's breath and that the defendant's blood alcohol content as displayed on the breath analysis machine was .06 of one percentum by weight. Deponent further states that defendant stated in sum and substance, I had two drinks.
To be facially sufficient, an accusatory instrument “must designate the offense or offenses charged” (CPL § 100.15[2] ) and “must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges” (CPL § 100.15[3] ). More specifically, an information must provide “reasonable cause to believe that the defendant committed the offense” and must contain “nonhearsay allegations ... [that] establish, if true, every element of the offense charged and the defendant's commission thereof” (People v. Henderson, 92 N.Y.2d 677, 679 [1999] ; See CPL § 100.40[1] ).
The Court of Appeals has stated that CPL § 100.40(1) places “the burden on the People to make out their prima facie case for the offense charged in the text of the information” (People v. Jones, 9 NY3d 259, 261 [2007] ). It should be noted that the “prima facie case requirement is not the same as the burden required at trial of proof beyond a reasonable doubt, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at the trial” (People v. Kalin, 12 NY3d 225, 230 [2009] ). Rather, what is required is that the factual allegations in the information “give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense” (Id. at 230 [internal citations and quotations omitted] ). Ultimately, the information “should be given a fair and not overly restrictive or technical reading” (People v.. Casey, 95 N.Y.2d 354, 360 [2000] ).
Vehicle and Traffic Law § 1192(3) states that, “no person shall operate a motor vehicle while in an intoxicated condition.” “Intoxication 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” (People v. Cruz, 48 N.Y.2d 419, 428 [1979] ).
The accusatory instrument alleges that Deponent, Police Officer Daniel Lonergan, observed Defendant seated behind the steering wheel of a 2013 Volkswagen, with keys in the ignition, the engine running, and moving along a public street. “A person operates a motor vehicle when such person is sitting behind the wheel of a motor vehicle for the purpose of placing the vehicle in motion, and when the motor vehicle is moving, or even if it is not moving, the engine is running” (CJI2d [NY] Vehicle and Traffic Law § 1192[3] ). Based on Deponent's actual observation, the accusatory instrument establishes that Defendant was operating a motor vehicle.
The crux of Defendant's argument is that the chemical breath test result, indicating her blood alcohol content was .06%, is prima facie evidence of non-intoxication requiring dismissal of the charge. Vehicle and Traffic Law § 1195(2)(b) provides that:
Evidence that there was more than .05 of one per centum but less than .07 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 relevant evidence, but shall not 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.
Defendant, however, misinterprets the scope and purpose of VTL § 1195. That section is a rule of evidence, and is only applicable at trial. In no unclear words, subsection one states, (Emphasis added).
Therefore, it is inappropriate to dismiss a charge of Driving While Intoxicated merely because a defendant qualifies for prima facie evidence of non-intoxication. “Prima facie evidence does not mean conclusive evidence; it is evidence which creates a rebuttable presumption” (People v. Gristina, 186 Misc.2d 877, 878–879, 721 N.Y.S.2d 491 [Crim Ct, New York County 2001] ).
The Court of Appeals has provided guidance regarding the application of VTL § 1195 to accusatory instruments. When a defendant qualifies for a rebuttable presumption of non-intoxication under VTL § 1195(2)(c), an accusatory instrument is still facially sufficient if it contains factual allegations to provide reasonable cause that a defendant violated VTL § 1192(3) (People v. Blair, 98 N.Y.2d 722, 724 [2002] ). In Blair, the Court of Appeals found that even when defendant's .08% result on a Breathalyzer constituted prima facie evidence of non-intoxication1 , the People must be given an opportunity to rebut that presumption at trial upon a showing that the accusatory otherwise establishes the offense. In that case, the accusatory instrument established the element of intoxication by the deponent's observations that the defendant had glassy eyes, smelled of alcohol, and exhibited impaired speech and motor control. Furthermore, the defendant failed several field sobriety tests, and even admitted to drinking alcohol earlier (Id. ). Even though Blair discusses VTL § 1195(2)(c) specifically, its rationale extends to VTL § 1195(2)(b) (People v. Cavana, 16 Misc.3d 1120 [A], 2007 N.Y. Slip Op 51518[U] [Sullivan County Ct 2007] ). In addition, this court has previously upheld facial sufficiency by observations when a Breathalyzer result did not support the charge (See People v. Veras, 40 Misc.3d 1235[A], 975 N.Y.S.2d 711, Wilson, J. [Crim Ct, Bronx County 2013] ).
None of Defendant's offered cases persuade this court to the contrary. In People v. Coutard, (115 Misc.2d 630 [Nassau Dist Ct 1982] ), the court considered the facial sufficiency of three accusatory instruments in a consolidated prosecution of Driving While Intoxicated cases. Each defendant submitted to a chemical breath test, and qualified for prima facie evidence of non-intoxication pursuant to...
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