People v. Gingello
| Decision Date | 07 June 1999 |
| Citation | 694 N.Y.S.2d 579,181 Misc.2d 163 |
| Court | New York District Court |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>ANTHONY GINGELLO, Defendant. |
181 Misc.2d 163
694 N.Y.S.2d 579
THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,
v.
ANTHONY GINGELLO, Defendant.
June 7, 1999.
Richard A. Miller, Rochester, for defendant.
Howard R. Relin, District Attorney of Monroe County, Rochester (Kelly Diel of counsel), for plaintiff.
[181 Misc.2d 164]
OPINION OF THE COURTMARJORIE L. BYRNES, J.
On January 17, 1999, the above-named defendant was charged by simplified information with one count of common-law driving while intoxicated, in violation of Vehicle and Traffic Law § 1192 (3). Accompanying the simplified information and filed with the court was a supporting deposition signed by Rochester Police Officer James Reed.
Although not raised by defendant, this court is constrained to address a nonwaivable jurisdictional defect regarding the charge. Specifically, to meet the statutory requirements for an accusatory instrument upon which a defendant may be held for trial, a simplified information must allege facts of an evidentiary nature that provide "reasonable cause" to believe that he committed the crime charged (CPL 100.40 [2]). While there are some indicia of alcohol consumption noted in the supporting deposition, the supporting deposition also states that defendant submitted to a chemical breath test to determine his blood alcohol content and that the result was a .06 % blood alcohol content (hereinafter BAC). Thus, the issue is presented whether the chemical test result, together with the statutory presumptions associated with such result, fail to satisfy the "reasonable cause" standard needed for facial sufficiency (Vehicle and Traffic Law § 1195 [2] [a]). This court holds that it does.
According to CPL 100.40 (2), a simplified information is facially sufficient when it substantially conforms to the form prescribed by the Commissioner of Motor Vehicles and supporting depositions timely filed therewith contain allegations of fact, based either upon personal knowledge or information and belief, that provide reasonable cause to believe that defendant committed the offense charged (CPL 100.25 [2]; 100.20). "Reasonable cause" exists when: "information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10 [2]). Facts constituting every element of the offense charged must be...
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People v. Niedermeier
... ... Smith, 163 Misc.2d 365). [ Peoplev.Gingello, 181 Misc.2d 163,165, 694 N.Y.S.2d 579,581 (1999) ]. However, in determining whether reasonable cause to believe that the defendant was driving while intoxicated has been established by the supporting deposition, despite a BAC of less than the per se intoxication standard, it must be kept in mind ... ...
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People v. Millet
...2005). Finally, an officer's opinion as to whether the defendant was intoxicated is also a relevant consideration. People v. Gingello , 181 Misc 2d 163, 165 (Rochester City Court 1999), abrogated on other grounds by People v. Blair , 98 NY2d 722, 724 (2002) ; People v. Wesley , 151 AD3d 127......
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People v. Kilmer, 2010 NY Slip Op 30143(U) (N.Y. Dist. Ct. 1/25/2010)
... ... 1. Vehicle and Traffic Law § 1192(3). The People were thus entitled to an opportunity to rebut the section 1195(2)(c) presumption at trial. People v. Blair, 98 N.Y. 2nd 722, 749 N.Y.S. 2nd 809 (2002). People v. Gingello, 181 Misc.2d 163, 694 N.Y.S.2d 579 [1999], was specifically overturned by the Blair case ... For an accusatory instrument charging driving while intoxicated to be facially sufficient there must be factual allegations providing "reasonable cause" to believe that defendant operated a ... ...
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People v. Carambia, 2009 NY Slip Op 31254(U) (N.Y. Sup. Ct. 6/11/2009)
... ... 1. Vehicle and Traffic Law § 1192(3) and § 1192(4-a). The People were thus entitled to an opportunity to rebut the section 1195(2)(c) presumption at trial. People v. Blair, 98 N.Y. 2nd 722, 749 N.Y.S. 2nd 809 (2002). People v. Gingello, 181 Misc.2d 163. 694 N.Y.S.2d 579 [1999], was specifically overturned by the Blair case ... For an accusatory instrument charging driving while intoxicated to be facially sufficient there must be factual allegations providing "reasonable cause" to believe that defendant operated ... ...