People v. Smith

• Decision Date: 09 March 2023
• Docket Number: 2021-509 W CR,No. 2021-509 W CR
• Citation: 2023 NY Slip Op 50290 (U)
• Parties: The People of the State of New York, Respondent, v. Rhonda Smith, Appellant.
• Court: New York Supreme Court — Appellate Term

2023 NY Slip Op 50290(U)

The People of the State of New York, Respondent, v. Rhonda Smith, Appellant.

No. 2021-509 W CR

Supreme Court of New York, Second Department

March 9, 2023

Unpublished Opinion

Scott M. Bishop, for appellant.

Westchester County District Attorney(William C. Milaccio and Brian R. Pouliot of counsel), for respondent.

PRESENT: JERRY GARGUILO, P.J., TIMOTHY S. DRISCOLL, JAMES P McCORMACK, JJ

Appeal from a judgment of the City Court of Yonkers, Westchester County(Evan Inlaw, J.), rendered June 30, 2021.The judgment convicted defendant, upon her plea of guilty, of driving while ability impaired, and imposed sentence.The appeal from the judgment of conviction brings up for review so much of an order of that court(Arthur J. Doran, III, J.) dated March 13, 2020 as denied the branch of defendant's motion seeking to dismiss, on facial insufficiency grounds, the accusatory instrument charging her with common-law driving while intoxicated.

ORDERED that the judgment of conviction is affirmed.

On September 19, 2019, defendant was arraigned on four simplified traffic informations charging her with respectively, driving while ability impaired by drugs (Vehicle and Traffic Law § 1192 [4]), driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs (Vehicle and Traffic Law § 1192 [4-a]), common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), and stopping or standing on a highway blocking a passing lane (Vehicle and Traffic Law § 1201 [a]), and on a separate accusatory instrument charging her with obstructing governmental administration in the second degree (Penal Law § 195.05), resisting arrest (Penal Law § 205.30), and two counts of disorderly conduct (Penal Law § 240.20 [2], [3]).In a supporting deposition, which was made "upon direct knowledge unless otherwise specified" in connection with the charges of common-law driving while intoxicated and stopping or standing on a highway blocking a passing lane, the complainant police officer alleged, among other things, that defendant admitted to operating the vehicle, that the officer observed defendant at the wheel of the vehicle with the keys in the ignition and the motor running, that defendant exhibited glassy eyes and impaired speech, that defendant"would not give an appropriate response" when asked whether "she had used drugs or alcohol earlier in the night," that defendant refused to take two of three field sobriety tests and that defendant refused to submit to a chemical test.

Defendant moved to dismiss, on facial insufficiency grounds, all of the accusatory instruments except for the one charging her with stopping or standing on a highway blocking a passing lane.In an order dated March 13, 2020, the City Court(Arthur J. Doran, III, J.) granted the branches of defendant's motion seeking to dismiss the charges of driving while ability impaired by drugs, driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs, and both counts of disorderly conduct, and denied the branches of the motion seeking to dismiss the charges of common-law driving while intoxicated, obstructing governmental administration in the second degree, and resisting arrest.Thereafter, defendant pleaded guilty to driving while ability impaired (Vehicle and Traffic Law § 1192 [1]) in satisfaction of each remaining accusatory instrument, and sentence was imposed.

On appeal, defendant argues, among other things, that the accusatory instruments charging her with common-law driving while intoxicated, stopping or standing on a highway blocking a passing lane, obstructing governmental administration in the second degree, and resisting arrest are facially insufficient; that she was denied the effective assistance of counsel; and that the accusatory instrument charging defendant with obstructing governmental administration in the second degree and resisting arrest should have been dismissed on statutory speedy trial grounds.

"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution"(People v Case, 42 N.Y.2d 98, 99[1977];see alsoPeople v Dumay, 23 N.Y.3d 518, 522[2014];People v Dreyden, 15 N.Y.3d 100, 103[2010]).Thus, the facial insufficiency of an accusatory instrument constitutes a jurisdictional defect which is not forfeited by a defendant's guilty plea (seeDreyden, 15 N.Y.3d at 103;People v Konieczny, 2 N.Y.3d 569, 573[2004]).Where, as here, a defendant has pleaded guilty to a statutorily defined lesser included offense of the sole charge in an accusatory instrument (seeCPL 1.20 [37]; 220.20) in satisfaction of multiple accusatory instruments, and, on appeal, raises a facial sufficiency challenge, she need challenge only the facial sufficiency of the actual charge to which she pleaded guilty to a lesser included offense thereof (seePeople v Curry, 70 Misc.3d 35, 37-38[App Term, 2d Dept, 9th & 10th Jud Dists2020];People v Meme, 63 Misc.3d 164[A], 2019NY Slip Op50940[U][App Term, 2d Dept, 2d, 11th & 13th Jud Dists2019];see alsoPeople v Baltazar, 73 Misc.3d 130[A], 2021NY Slip Op50948[U][App Term, 2d Dept, 2d, 11th & 13th Jud Dists2021];People v Mason, 62 Misc.3d 75, 78 n 2[App Term, 2d Dept, 2d, 11th & 13th Jud Dists2019]).Here, defendant pleaded guilty to driving while ability impaired, a statutorily defined lesser included offense of the charge of common-law driving while intoxicated contained in a simplified traffic information (seeCPL 1.20 [37];Vehicle and Traffic Law § 1192 [9];People v Hoag, 51 N.Y.2d 632, 635[1981]).Consequently, this court need examine only the facial sufficiency of the simplified traffic information charging defendant with common-law driving while intoxicated (seePeople v Thiam, 34 N.Y.3d 1040[2019];Curry, 70 Misc.3d at 38).

The simplified traffic information charging defendant with common-law driving while intoxicated substantially conforms to the form prescribed by the Commissioner of Motor Vehicles (seeCPL 100.25 [1]; 100.40 [2];Regulations of Commissioner of Motor Vehicles[15 NYCRR] § 91;People v Anand, 65 Misc.3d 151[A], 2019NY Slip Op51875[U][App Term, 2d Dept, 9th & 10th Jud Dists2019];People v Ferro, 22 Misc.3d 7[App Term, 2d Dept, 9th & 10th Jud Dists2008]) and provides the court with sufficient information to establish that it has jurisdiction to hear the case(seePeople v Fernandez, 20 N.Y.3d 44[2012];People v Key, 45 N.Y.2d 111, 116[1978];People v Carpenter, 65 Misc.3d 132[A], 2019NY Slip Op51605[U][App Term, 2d Dept, 9th & 10th Jud Dists2019];People v Long, 44 Misc.3d 126[A], 2014NY Slip Op50949[U][App Term, 2d Dept, 9th & 10th Jud Dists2014]).Moreover, the supporting deposition established reasonable cause to believe that defendant had committed the charged offense (seeCPL 100.25 [2]; 100.40 [2];Carpenter, 2019 NY Slip Op51605[U];People v Atkinson, 42 Misc.3d 139[A], 2014NY Slip Op50169[U][App Term, 2d Dept, 9th & 10th Jud Dists2014];People v Salerno, 36 Misc.3d 151[A], 2012NY Slip Op51699[U][App Term, 2d Dept, 9th & 10th Jud Dists2012]).Consequently, the simplified traffic information charging defendant with common-law driving while intoxicated is facially sufficient, and the City Court correctly denied the branch of defendant's motion seeking its dismissal.

" 'By pleading guilty, [ ]defendant forfeited... h[er] claims of ineffective assistance of counsel which do not directly involve the [plea] bargaining process'"(People v Gott, 165 A.D.3d 1283, 1284[2018]quotingPeople v Perazzo, 65 A.D.3d 1058, 1059[2009]).Defendant argues that she received ineffective assistance of counsel because her trial lawyer did not challenge the facial sufficiency of the accusatory instrument charging defendant with stopping or standing on a highway blocking a passing lane.As we found above, the accusatory instrument charging defendant with common-law driving...