People v. Davis
| Decision Date | 24 March 2015 |
| Docket Number | 2014-0719 |
| Citation | 2015 NY Slip Op 50434 (U) |
| Parties | People of the State of New York, v. Cynthia A. Davis, Defendant. |
| Court | New York Court of Appeals Court of Appeals |
The Defendant, Cynthia A. Davis, by her attorney, Daniel J. Hogan, Esq., of counsel, to McPhillips, Fitzgerald & Cullum, L.L.P., having moved this Court for an order pursuant to CPL §§ 30.30, 60.45, 100.40 and 170.30 for an order dismissing the charge of Driving While Ability Impaired by Drugs, in violation of VTL § 1192(4), and upon reading and filing of the Notice of Motion, dated March 5, 2015, together with the affirmation of Daniel J. Hogan, Esq., dated March 5, 5015, and all supporting documents annexed thereto, and the People having responded to said motion by Affirmation of Benjamin R. Smith, Esq., Assistant District Attorney, dated March 19, 2015, and upon due deliberation, this Court issues the following Decision and Order.
The Defendant was arrested on September 2, 2014, at approximately 3:09 pm, on the charges of Driving While Ability Impaired by Drugs [VTL § 1192(4)], Failure to Keep Right [VTL § 1120(a)] and Unsafe Backing [VTL § 1211(a)]. The filed misdemeanor complaint alleges that:
The basis for the factual allegations in the complaint are "on personal knowledge and information and belief, the source being, the DEFENDANT'S ADMISSIONS."
A September 2, 2014 supporting deposition by Patrol Officer Bradley Hamilton affirms that, on the date of the incident, the road conditions were "dry," the traffic was "light" and the weather "clear." The reason for the stop was an accident with property damage. A CPL 710.30 Notice annexed to the supporting deposition asserts that, at approximately 3:00 p.m., while at the arrest scene, the defendant allegedly admitted to operating the vehicle, indicating that she was driving from the hospital. The defendant allegedly stated to officer Hamilton,
The supporting deposition further affirms that the defendant allegedly had glassy eyes, impaired speech, impaired motor coordination, and that she failed field sobriety tests consisting of horizontal gaze nystagmus, walk and turn and the one leg stand. A pre-screening test of the defendant was negative for the presence of alcohol.
The defendant was allegedly read her Miranda warnings by officer Hamilton on September 2, 2014, at 3:23 pm, at the Glens Falls Police Department. At approximately 3:56 pm, while at the Glens Falls Hospital, the defendant allegedly stated to officer Hamilton that she had operated the motor vehicle, she was driving to her home and she was driving from the hospital. The defendant allegedly further stated,
A blood sample was obtained from the defendant at the Glens Falls Hospital by nurse Reuther for subsequent testing. On March 18, 2015, the People filed the certified toxicology report, dated March 9, 2015, from the New York State Police Forensic Investigation Center, which indicates that the drug "Lorazepam," was present in the defendant's blood.
At the time of the defendant's arrest, she was issued an appearance ticket directing her to appear in this Court on September 16, 2014. The defendant failed to appear on September 16, 2014, and an arrest warrant was directed to be issued to secure the defendant's appearance in Court. On September 18, 2014, the defendant appeared in Court and was arraigned on the charges. A "not guilty" plea was entered by the Court on the defendant's behalf.
The defendant was released in her own recognizance and directed to return to court with counsel on September 25, 2014. By letter dated September 23, 2014 from attorney Hogan, the defendant requested "a short adjournment . . . in hopes that we might be able to best find out her needs for alcohol/drug treatment and be able to report same to the District Attorney's Office." Since there was no requested adjourned date, this Court contacted attorney Hogan's office to determine the length of the requested adjournment. By letter dated September 26, 2014 from attorney Hogan, the defendant requested an adjournment to October, 30, 2014, and the matter was adjourned, at the defendant's request, until October 30, 2014. On October 30, 2014, the matter was again adjourned, at the defendant's request, until December 16, 2014. By letter dated December 16, 2014, the defendant requested a further adjournment "to late January so that we can conference this matter with the District Attorney's Office." The matter was adjourned at the defendant's request until January 29, 2015.
On January 29, 2015, counsel failed to appear at court, and the matter was adjourned by the court to February 5, 2015 to allow counsel to appear. A letter was sent to counsel by this Court concerning the February 5, 2015 adjourned date.
On February 5, 2015, defendant and counsel appeared in court and a scheduling order was placed on the record with defendant's omnibus motions due by March 5, 2015, the People's response due by March 26, 2015 and a subsequent court appearance on April 2, 2015. In the March 19, 2015 Affirmation of Benjamin R. Smith, Esq., the People announced their readiness for trial.
The Defendant has timely filed her motions seeking an order: a) dismissing the charge of DWAI Drugs on the grounds that the factual allegations of the Misdemeanor Complaint andsupporting deposition is legally insufficient to support that charge; b) suppressing the defendant's alleged statements made to the police; c) suppressing evidence obtained against the defendant based on an alleged lack of probable cause and d) dismissing the charge of DWAI Drugs on the grounds that the defendant has been denied her speedy trial rights.
In order to be sufficient, the factual portion of an information "must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges." CPL § 100.15 [3]. In addition, under CPL 100.40 (1) an information is sufficient on its face when: "(a) It substantially conforms to the requirements prescribed in section 100.15"; and "(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and "(c) non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof."
Paragraphs (b) and (c) of CPL § 100.40 (1), when read in conjunction, places the burden on the People to make out their prima facie case for the offense charged in the text of the criminal information. People v. Jones, 9 NY3d 259, 261 (2007). The failure to assert sufficient non-hearsay factual allegations in the Information is a jurisdictional defect. People v Alejandro, 70 NY2d 133, 134-135 (1987). Thus, unless the accusatory instrument alleges or is based upon reasonable cause to believe defendant committed the offense, the court has no authority to enter an order that restrains defendant's liberty, as this is a basic constitutional prerequisite. McKinney's CPL § 100.40, Practice Commentaries, Professor Peter Preiser, (2012), citing, People v. Dumas, 68 NY2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986]; County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991).
However, so long as the factual allegations of an 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, the information should be given a fair and not overly restrictive or technical reading. See: People v. Konieczny, 2 NY3d 569, 780 N.Y.S.2d 546, 813 N.E.2d 626 (2004); People v. Casey, 95 NY2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000).
The requirement of non-hearsay factual allegations is satisfied by either a deponent's direct, firsthand observations, or by hearsay evidence that would be admissible at trial under some exception to the rule against hearsay. See: People v. Casey, 95 NY2d 354, 361, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000]; New York Pretrial Criminal Procedure § 3.7, at 109 [7 West's NY Prac. Series 1996]; People v. Belcher, 302 NY 529, 534—535, 99 N.E.2d 874 [1951]). Examples of various hearsay allegations that fall under exceptions to the rule against hearsay, and have been held to provide legally sufficient support for an information charging a misdemeanor offense include a police detective's allegation that an order of protection was served on a defendant based on a certified copy of the order with defendant's signature acknowledging service, which is admissible under the public documents or official entry exception (People v. Casey, 95 NY2d at 361—362, 717 N.Y.S.2d 88, 740 N.E.2d 233) and a defendant's admission to an officer that he had been served with the order of protection (Id. at 362, 717 N.Y.S.2d 88, 740 N.E.2d 233); and the police department records documenting car theft, which is admissible as business records (People v. Fields, 74 Misc 2d 109, 344 N.Y.S.2d 413 [Dist. Ct., Nassau County,1973]; and a copy of a temporary order of protection along with subscribed, certified stenographic transcripts of the proceeding at which the order was issued, which is admissible as business records and public documents ( People...
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