People v. Flores

• Decision Date: 20 December 2018
• Docket Number: 2015-2630 N CR
• Citation: 62 Misc.3d 46,90 N.Y.S.3d 803
• Parties: The PEOPLE of the State of New York, Respondent, v. Jonathan FLORES, Appellant.
• Court: New York Supreme Court — Appellate Term

62 Misc.3d 46

90 N.Y.S.3d 803

The PEOPLE of the State of New York, Respondent,

v.Jonathan FLORES, Appellant.

2015-2630 N CR

Supreme Court, Appellate Term, New York.

Decided December 20, 2018

Nassau County Legal Aid Society (Marquetta Christy of counsel), for appellant.

Nassau County District Attorney (Yael V. Levy and Sarah S. Rabinowitz of counsel), for respondent.

PRESENT: : ANTHONY MARANO, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ

ORDERED that the judgment convicting defendant of common-law driving while intoxicated is reversed, on the law, and, as a matter of discretion in the interest of justice, the accusatory instrument alleging the offense is dismissed; and it is further,

ORDERED that the judgments convicting defendant of aggravated unlicensed operation of a motor vehicle in the third degree, failing to signal before turning, driving without a license, operating an unregistered motor vehicle, and operating a motor vehicle with an expired inspection certificate are affirmed.

On September 19, 2013, the People charged defendant, in simplified traffic informations, with aggravated unlicensed operation of a motor vehicle in the third degree ( Vehicle and Traffic Law § 511 [1 ] [a] ), failing to signal before turning ( Vehicle and Traffic Law § 1163 [a] ), driving without a license ( Vehicle and Traffic Law § 509 [1 ] ), operating an unregistered motor vehicle ( Vehicle and Traffic Law § 401 [1 ] ), operating a motor vehicle with an expired inspection certificate ( Vehicle and Traffic Law § 306 [b] ), and driving while intoxicated (per se) ( Vehicle and Traffic Law § 1192 [2 ] ), after a chemical test of defendant's blood alcohol content allegedly produced a reading of .13 of one per centum by weight. On February 5, 2014, the police officer who had administered defendant's blood alcohol test passed away. On February 14, 2014, the People charged defendant, in an information, with driving while intoxicated (common law) ( Vehicle and Traffic Law § 1192 [3 ] ). Two additional Vehicle and Traffic Law charges were dismissed by the People prior to trial and a third was dismissed after trial.

At a jury trial, the People produced, as witnesses, a retired breath test operator who had been present at the police testing facility during defendant's breath test but had not witnessed the test, and the arresting officer, who had observed defendant during the pre-test observation period and who had received the written 12-step test preparation checklist and the test results printout from the testing officer immediately after the test. The defense objected to the competence of the substitute witness to testify as to the foundation requirements for the admission of the test results. The People also produced an employee of the Department of Motor Vehicles (DMV), who testified to her experience with the procedures employed by the DMV to generate and mail license suspension notices. The defense objected to this testimony as insufficient to support the charge of aggravated unlicensed operation of a motor vehicle in the third degree absent proof that the witness had been employed by the Albany office of the DMV at the time the notices had been issued and had personal knowledge of the actual production and mailing to defendant of license suspension notices. Following the trial, the jury acquitted defendant of driving while intoxicated per se and convicted him of common law driving while intoxicated, aggravated unlicensed operation of a motor vehicle in the third degree, failing to signal before turning, driving without a license, operating an unregistered motor vehicle, and operating a motor vehicle with an expired inspection certificate.

With respect to the judgment convicting him of common-law driving while intoxicated, defendant argues that the information alleging that charge is jurisdictionally defective in that it fails to establish, prima facie, that he was "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, 423 N.Y.S.2d 625, 399 N.E.2d 513 [1979] ); that the admission of proof of the breath test result violated his Confrontation Clause rights and fatally prejudiced his defense of the charge of common law driving while intoxicated; and that, in any event, the foundation for the test's admission was legally insufficient absent sufficient proof of the integrity of the 20-minute pre-test observation period and that the simulator solution temperature was in the proper range. With respect to the judgment convicting defendant of aggravated unlicensed operation of a motor vehicle in the third degree, defendant argues that the DMV witness failed to establish her knowledge of the DMV procedures concerning the issuance of license suspension notices that were in effect at the time the suspensions were imposed. Defendant also challenges the guilty verdicts on the remaining convictions, arguing that they were against the weight of the evidence. The Court of Appeals has recently summarized the standard of review for the factual sufficiency of an information as follows:

"[T]he factual part of a facially sufficient misdemeanor information must show ‘reasonable cause’ that a ‘prima facie’ case exists against the defendant ( People v. Kalin , 12 N.Y.3d 225, 229 [878 N.Y.S.2d 653, 906 N.E.2d 381] [2009] ; CPL 100.15, 100.40 ). ‘Reasonable cause’ exists when ‘evidence or information which appears reliable discloses facts or circumstances’ adequate ‘to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that’ defendant committed the offense ( CPL 70.10 [2 ] ). ‘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, they should be given a fair and not overly restrictive or technical reading’ ( People v. Casey , 95 N.Y.2d 354, 360 [717 N.Y.S.2d 88, 740 N.E.2d 233] [2000] )" ( People v. Andujar , 30 N.Y.3d 160, 168, 66 N.Y.S.3d 151, 88 N.E.3d 309 [2017] ).

An information's purpose is simply to "ensure[ ] that a legally sufficient case can be made against the defendant" ( People v. Dumay , 23 N.Y.3d 518, 522, 992 N.Y.S.2d 672, 16 N.E.3d 1150 [2014] ), and, absent a timely objection, a defendant waives any hearsay defects in the information's factual assertions (see People v. Keizer , 100 N.Y.2d 114, 121, 760 N.Y.S.2d 720, 790 N.E.2d 1149 [2003] ; People v. James , 49 Misc. 3d 154[A], 2015 N.Y. Slip Op. 51791[U], *1, 2015 WL 8485828 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2015] ).

The facts supporting the information, contained in the combined "DWI Supporting Deposition and Bill of Particulars" (see CPL 100.15 [3 ]; 100.40 [1]; 100.20; People v. Dumas , 68 N.Y.2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ; People v. Sanson , 59 Misc. 3d 4, 6, 71 N.Y.S.3d 797 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2018] ), are that, shortly after 4:00 a.m. on September 19, 2013, defendant was observed repeatedly committing Vehicle and Traffic Law violations while operating his motor vehicle, specifically, turning and changing lanes without signaling. Upon being stopped, defendant exhibited watery, glassy, and bloodshot eyes, and the arresting officer detected the odor of an alcoholic beverage on defendant's breath. A portable breath test administered at the arrest scene produced a reading of .14 of one per centum by weight. The allegations concerning the traffic violations permit an inference of diminished capacity for exercising driving judgment, and the indicia of alcoholic beverage consumption observed by the arresting officer are consistent with intoxication. The portable breath test result, while inadmissible at a trial to prove intoxication (see e.g. People v. Krut , 133 A.D.3d 781, 784-785, 21 N.Y.S.3d 106 [2015] ), may support an inference of reasonable cause (see People v. Kulk , 103 A.D.3d 1038, 1040, 962 N.Y.S.2d 408 [2013] ; People v. Hogue , 136 A.D.3d 1351, 1353, 24 N.Y.S.3d 474 [2016] ). "[A]s a matter of common sense and reasonable pleading" ( People v. Davis , 13 N.Y.3d 17, 31, 884 N.Y.S.2d 665, 912 N.E.2d 1044 [2009] ), the factual allegations suffice to support an inference that it is "reasonably likely" ( CPL 70.10 [2 ] ) that defendant committed the offense of common law driving while intoxicated.

However, the results of defendant's blood alcohol test conducted at the Central Testing Section of the Nassau County Police Department Headquarters were admitted into evidence in violation of defendant's Confrontation Clause protections. "[B]reathalyzer results [may] be admitted in evidence [if] the People ... establish that the machine is accurate, that it was working properly when the test was performed and that the test was properly administered" ( People v. Campbell , 73 N.Y.2d 481, 484, 541 N.Y.S.2d 756, 539 N.E.2d 584 [1989] ; see e.g. People v. Murphy , 101 A.D.3d 1177, 1178, 956 N.Y.S.2d 207 [2012] ; People v. Morren , 52 Misc. 3d 132[A], 2016 N.Y. Slip Op. 51005[U], *2, 2016 WL 3658875 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2016] ). The last condition is satisfied by proof of "the manner in which the instrument had been activated, the procedure the officer had employed to run the instrument's self-diagnostic and self-calibrating pre-test functions, the adequacy of the observation period, and the propriety of the manner in which he [or she] had obtained a breath sample" ( People v. Bankupally , 51 Misc. 3d 144[A], 2016 N.Y. Slip Op. 50710[U], *2, 2016 WL 2584908 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2016] [internal quotation marks and citations omitted] ).

In People v. John , 27 N.Y.3d 294, 33 N.Y.S.3d 88, 52 N.E.3d 1114 (2016), the Court of Appeals held that "[a]n analyst who witnessed, performed or supervised the generation of [a DNA] profile, or who used his or her independent...