People v. Rosa

• Decision Date: 29 January 2013
• Docket Number: No. 2011KN085800.,2011KN085800.
• Citation: 38 Misc.3d 1221,967 N.Y.S.2d 869,2013 N.Y. Slip Op. 50214
• Parties: The PEOPLE of the State of New York v. Ariel ROSA, Defendant.
• Court: New York Criminal Court

38 Misc.3d 1221
967 N.Y.S.2d 869
2013 N.Y. Slip Op. 50214

The PEOPLE of the State of New York
v.
Ariel ROSA, Defendant.

No. 2011KN085800.

Criminal Court, City of New York,
Kings County.

Jan. 29, 2013.

Mark A. Bederow, Esq., Law Offices of Mark A. Bederow, PC., New York, for defendant.

ADA Michael Chessa, Kings County District Attorney's Office, Brooklyn, for The People Of the State of New York.

EVELYN J. LAPORTE, J.

The defendant, ARIEL ROSA, is charged with one count of Driving While Impaired (VTL § 1192.1) and one count of Driving While Intoxicated (VTL § 1192.3). He moves, inter alia, to dismiss the accusatory instrument for facial insufficiency ( seeC.P.L. § 170.30[1] ). For the reasons that follow, the defendant's motion to dismiss for facial insufficiency is denied.

BACKGROUND

It is alleged that on October 28, 2011 the defendant was driving a motor vehicle while intoxicated. Although Sergeant John Flynn did not see the defendant driving, he did observe the defendant to be outside of his vehicle in an apparent state of intoxication with a bloody injury to his head. The defendant was also covered in vomit. Blood and vomit were also observed to be inside the defendant's damaged vehicle and on the vehicle's deployed airbag. A chemical test revealed that the defendant blood alcohol level was .16%. When asked what had happened, the defendant responded that he had fallen asleep. Based upon this, Sergeant Flynn deduced that the defendant had been operating a motor vehicle while intoxicated and had thereby been involved in a collision with a parked vehicle. The defendant argues that these facts are not sufficient to support the charges because there is no indication that the defendant was operating the vehicle at the time in question.

DISCUSSION

To be sufficient on its face, an information must provide reasonable cause to believe that the defendant committed the offense, and the non-hearsay allegations must establish, if true, every element of the offense charged ( see People v. McNamara, 78 N.Y.2d 626, 629 [1991], citing C.P.L. 100.40[1] [b],[c]; People v. Alejandro, 70 N.Y.2d 133, 136–137 [1987] ). Mere conclusory allegations are insufficient ( see People v. Dumas, 68 N.Y.2d 729 [1986] ) and a purported information which fails to meet these requirements is fatally defective ( see People v. Alejandro, supra at 136, 517 N.Y.S.2d 927, 511 N.E.2d 71). An information should be given a non-technical reading so long as it gives the defendant sufficient notice to prepare a defense and will prevent him from being tried twice for the same crime ( see People v. Casey, 95 N.Y.2d 354, 360 [2000] ).

The original complaint, in pertinent part, reads as follows:

The deponent is informed by Sergeant John Flynn that, [on or about October 28, 2011 at approximately 3:50 a.m. at 272 Moffat Street in Kings County, New York State], a public highway, the informed [sic] observed the defendant standing directly outside of Defendant's vehicle, 2009 Acura bearing a New York license number EXZ6088, and that said vehicle sustained severe damage along with a parked vehicle which was at the above mentioned location.

The deponent is further informed by Informant that upon arrival the informant observed a substantial amount of blood inside of Defendant's vehicle.

The deponent is further informed by the informant that when Informant asked the defendant what happened, the defendant stated, in sum and substance, I fell asleep.

The deponent is further informed by Defendant's own statements that the above-mentioned 2009 Acura is registered to the defendant.

Deponent further states that at the approximate above time and place, Informant observed the defendant exhibit signs of intoxication: to wit, red watery eyes, odor of alcoholic beverage on breath, and an unsteady gait.

Deponent further states that Deponent is informed by the attached chemical test analysis that at the time indicated, the defendant submitted to a chemical test to determine the defendant's blood alcohol concentration.

The complaint is accompanied by a supporting deposition from Sergeant John Flynn and the report of the above-referenced chemical test showing that the defendant had a blood alcohol concentration of .16%

On February 27, 2012, the defendant filed the instant motion to dismiss. On March 30, 2012 the People filed papers in opposition to the defendant's motion. They also simultaneously filed a superseding complaint. The superseding information reads in pertinent part:

The deponent is informed by Sergeant John Flynn that, [on or about October 28, 2011 at approximately 3:50 a.m. at 272 Moffat Street in Kings County, New York State], a public highway, the informed [sic] observed the defendant standing directly outside of Defendant's vehicle, 2009 Acura bearing a New York license number EXZ6088, and that said vehicle sustained severe damage along with a parked vehicle which was at the above mentioned location.

The deponent is further informed by Informant that, at the above time and place, the informant observed that there were no other individuals present at said location and that said location was a desolate street.

The deponent is further informed by Informant that upon arrival the informant observed a substantial amount of blood on the defendant's head and face, vomit on the defendant's person, and a substantial amount of blood and vomit inside of Defendant's vehicle.

The deponent is further informed by the informant that the informant observed the airbag in defendant's vehicle to be deployed and that there was blood on said airbag.

The deponent is...