People v. Esposito
Decision Date | 03 August 2018 |
Docket Number | 2015-2946 RI CR |
Citation | 81 N.Y.S.3d 853,60 Misc.3d 60 |
Parties | The PEOPLE of the State of New York, Respondent, v. Monique ESPOSITO, Appellant. |
Court | New York Supreme Court — Appellate Term |
Appellate Advocates (Michael Arthus of counsel) for appellant.
Michael E. McMahon, District Attorney (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, J.P., MICHAEL L. PESCE, MICHELLE WESTON, JJ
ORDERED that the judgment of conviction is reversed, on the law, and the information is dismissed.
In an information charging defendant with driving while ability impaired ( Vehicle and Traffic Law § 1192 [1 ] ), common-law driving while intoxicated ( Vehicle and Traffic Law § 1192 [3 ] ) and resisting arrest ( Penal Law § 205.30 ), a police officer alleged that, on March 8, 2015, at Ramona Avenue and Bloomingdale Road, in Staten Island:
Following a jury trial, defendant was found guilty of common-law driving while intoxicated and resisting arrest. On appeal, defendant contends, among other things, that the factual part of the information charging her with common-law driving while intoxicated ( Vehicle and Traffic Law § 1192 [3 ] ) is jurisdictionally defective.
A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution (see People v. Dreyden , 15 N.Y.3d 100, 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010] ). An information is sufficient on its face if it contains nonhearsay factual allegations of an evidentiary nature which establish, if true, every element of the offense(s) charged and the defendant's commission thereof (see CPL 100.15 [3 ]; 100.40 [1]; People v. Henderson , 92 N.Y.2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165 [1999] ; People v. Alejandro , 70 N.Y.2d 133, 136-137, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ; People v. Westwood , 53 Misc. 3d 74, 77, 41 N.Y.S.3d 347 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2016] ). The failure to meet these requirements may be asserted at any time, with the exception of a claim of hearsay, which, as here, is waived if not raised in a timely motion in the trial court (see People v. Casey , 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ).
Vehicle and Traffic Law § 1192 provides in part:
The salient facts set forth in the accusatory instrument with respect to defendant's operation of a vehicle are that a Hyundai SUV had been involved in a motor vehicle collision and that defendant was spotted two blocks away from the site of the accident and stated, "I was chasing my boyfriend and I hit a tree." There was no allegation as to what the vehicle had collided with. Nor was there any allegation connecting defendant to the vehicle or to the collision in question. Thus, even when "given a fair and not overly restrictive or technical reading" ( People v. Casey , 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 ), the accusatory instrument was jurisdictionally defective, as it failed to establish that defendant had operated the Hyundai SUV involved in the accident or, for that matter, any other vehicle.
To be jurisdictionally sufficient, the factual part of an accusatory instrument alleging resisting arrest ( Penal Law § 205.30 ) must set forth allegations sufficient to establish, if true, that the defendant's arrest was lawful and "premised on probable cause" ( People v. Jensen, 86 N.Y.2d 248, 253, 630 N.Y.S.2d 989, 654 N.E.2d 1237 [1995] ; see People v. Christiansen , 19 Misc. 3d 134[A], 2008 N.Y. Slip Op. 50693[U], 2008 WL 905899 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2008] ). As the counts contained in the information charging defendant with common-law driving while intoxicated and driving while...
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