People v. Van De Cruze, 2011KN002204.

• Decision Date: 18 June 2012
• Docket Number: No. 2011KN002204.,2011KN002204.
• Citation: 959 N.Y.S.2d 91,2012 N.Y. Slip Op. 51378,36 Misc.3d 1217
• Parties: The PEOPLE of the State of New York v. Leon A. VAN DE CRUZE, Defendant.
• Court: New York Criminal Court

36 Misc.3d 1217

959 N.Y.S.2d 91

2012 N.Y. Slip Op. 51378

The PEOPLE of the State of New York

v.Leon A. VAN DE CRUZE, Defendant.

No. 2011KN002204.

Criminal Court, City of New York,

Kings County.

June 18, 2012.

Evan DeCresce, Assistant District Attorney, Kings County District Attorney's Office, Brooklyn, for The People of the State of New York.

Douglas G. Rankin, Esq., Brooklyn, for Defendant.

DECISION AND ORDER

EVELYN J. LAPORTE, J.

The defendant, LEON A. VAN DE CRUZE, is charged with Operating a Motor Vehicle While Impaired (VTL § 1192[1] ); Operating a Motor Vehicle wile Intoxicated (VTL § 1192[3] ); Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles (VTL § 1227); Reckless Driving (VTL § 1212); Leaving the Scene of an Accident Without Reporting (VTL § 600[1] [a] ); Unlawfully Fleeing a Police Vehicle (PL § 270.25); Failure to Have Proof of Financial Security (VTL § 319[1] ); and Criminal Mischief in the Third Degree (PL § 145.00[3] ). He moves to dismiss the accusatory instrument on the ground that the complaint is facially insufficiency and alternatively, on the ground that his right to a speedy trial has been violated under CPL § 30.30 due to the fact that many charges in the complaint still contain hearsay and have not yet been converted pursuant to CPL § 170.30. For that reason, the defendant also moves to dismiss the complaint for facial insufficiency.

OVERVIEW

The instant action commenced with the defendant's arraignment on January 10, 2011.

The Criminal Court complaint was filed and the case was adjourned for conversion of the complaint with supporting documentation. Although a supporting deposition was eventually filed, there was some dispute regarding whether all of the charges had been converted with that document or whether more was necessary. The People moved to orally amend the complaint to correct an incorrect license plate number, but the court denied this request and directed the People to file a superseding information. This was never done and the complaint now stands with the Highway Patrol Intoxicated Driver paperwork and the supporting deposition from the involved civilian witness.

FACIAL SUFFICIENCY

The defendant moves for an order dismissing the complaint for facial insufficiency, inasmuch as the defendant asserts that the accusatory instrument was never properly converted.

An information is facially sufficient if the factual section contains allegations of an evidentiary nature demonstrating reasonable cause to believe that the defendant committed the offense charged (CPL §§ 100.15; 100.40[1] [b] ). The facts must be supported by non-hearsay allegations which establish, if true, every element of the charged offense (CPL § 100.40[1][c]; People v. Alejandro, 70 N.Y.2d 133 [1987] ). The standard for pleading a prima-facie case is lesser than the heavy burden of proof beyond a reasonable doubt required at trial ( see, People v. Henderson, 92 N.Y.2d 677, 680, 708 N.E.2d 165, 685 N.Y.S.2d 409 [1999] ) and the factual allegations should be given a fair and not overtly restrictive reading ( see, People v. Casey, 95 N.Y.2d 354, 360, 740 N.E.2d 233, 717 N.Y.S.2d 88 [2000] ).

When assessing the facial sufficiency of an accusatory instrument, a court must view the facts in the light most favorable to the People ( see, People v. Gonzalez, 184 Misc.2d 262, 708 N.Y .S.2d 564 [App Term, 1st Dept 2000], lv. denied95 N.Y.2d 835, 735 N.E.2d 422, 713 N.Y.S.2d 142 [2000] ). However, conclusory allegations are insufficient ( see, People v. Dumas, 68 N.Y.2d 729, 497 N.E.2d 686, 506 N.Y.S.2d 319 [1986] ) and a court need not ignore common sense or the significance of the alleged conduct in determining facial sufficiency ( Gonzalez, supra ).

THE COMPLAINT

The complaint reads in pertinent part as follows:

The deponent is informed by Mark Henry, that, [on or about January 9, 2011 at approximately 3:22 a.m. at the corner of McDonald Avenue and Broadway in Kings County, New York State], the informant observed the a[sic] black 2004 Acura TL New York State License No. FDE5095 cross a double yellow line and side swiped [sic] informant's vehicle, a 2001 Honda Accord N.Y. License No. ERN6834, from the opposite direction.

Deponent is further informed by informant that the defendant left the scene of the above-mentioned collision without exhibiting the defendant's license or insurance card to the informant.

Deponent further states that the defendant did not report the above-mentioned collision to any police officer.

Deponent further states that approximately five blocks away from the above location, the deponent observed the defendant driving the above-mentioned black 2004 Acura TL New York license No. DFE5095, that deponent instructed the defendant to pull over defendant's vehicle by using police sirens and by flashing deponent's police vehicle lights, and that the defendant refused to pull over defendant's vehicle and continued to drive for approximately four additional blocks.

Deponent further states that at the approximate above time and place, deponent observed the defendant exhibiting signs of intoxication: to wit, slurred speech, red watery eyes, odor of alcohol on breath, disheveled appearance and an unsteady gait.

Deponent is further informed by Mark Henry that informant is the custodian of the above-described Honda Accord and that the defendant neither had permission nor authority to damage said vehicle.

Deponent is further informed by the defendant's own statement that defendant was driving the above-mentioned Acura TL, that the defendant did collide with another vehicle and that the defendant was going to drive back to the above location to apologize.

The deponent further states that, at the above time and place, deponent recovered a glass bottle containing Ciroc vodka from the interior of defendant's vehicle.

The complaint is accompanied by a supporting deposition from the complainant, Mark Henry (dated January 13.2011), and an Intoxicated Driver Examination Report/IDTU completed by Police Officers Louis and Feinstein.

INTOXICATION CHARGES

The relevant sections of the New York Vehicle and Traffic Law § 1192 define Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs as follows:

1. Driving while ability impaired. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.

3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.

The complaint clearly states that the deponent, Police Officer Diery Louis observed the defendant to be operating a motor vehicle and that when the officer visually examined the defendant, he found him to be exhibiting such classic signs of intoxication as slurred speech, red and watery eyes, odor of alcohol on breath, disheveled appearance and an unsteady gait. That, coupled with the information that he received from Mark Henry that the defendant had just driven his car over a double yellow line, causing a collision is enough to make out a prima facie case as to both of these VTL charges. Prima facie evidence is evidence which, if uncontradicted, is sufficient to establish a fact. Prima facie evidence does not mean conclusive evidence, but rather evidence which creates a rebuttable presumption (see, People v. Gristina, 186 Misc.2d 877, [2001] ). Because the instant accusatory instrument contains factual allegations sufficient to establish reasonable cause that defendant violated VTL § 1192 .3, and 1192.1 the People are entitled to an opportunity to rebut the presumption, set forth in section 1195.2(b), at trial (People v. Blair, 98 N.Y.2d 722, [2002] ). Therefore, this branch of the defendant's motion to dismiss for facial insufficiency is denied.

OTHER DRIVING CHARGES

VTL § 1212 defines Reckless Driving as “driving or using any motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or any appliance or accessory thereof in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway.”

In the complaint Mark Henry affirms (via his supporting deposition) that he observed the defendant drive his vehicle across a double yellow line towards oncoming traffic and strike Mr. Henry's car. This clearly is not reasonable and acceptable behavior for someone operating a motor vehicle and obviously interfered with and endangered Mr. Henry, another user of the public roadways. Therefore the complaint meets the prima facie threshold on this count and the defendant's motion to dismiss this count is denied.

VTL § 319(1) requires that any owner of a motor vehicle in New York State, which will be operated within the state must have “in full force and effect the financial security” (appropriate insurance) and have proof of such financial security. In addition to the penalties herein set forth, such person, upon conviction, shall also become liable for payment to the department of the civil penalty provided in subdivision five of this section.”

Nowhere in the complaint does it state whether the defendant was carrying insurance on his vehicle. Therefore, the defendant's motion to dismiss the charge of Failure to Have Financial Security is granted.

VTL § 1227(1) defines Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles as follows:

The drinking of alcoholic beverages or the possession of an open [ emphasis added ] container containing an alcoholic beverage, in a motor vehicle located upon the public highways or right-of-way public highway is prohibited. Any operator or passenger violating this section shall be guilty of a traffic infraction.

Nothing in the complaint states that the bottle of vodka recovered from the defendant's car was open. It is not illegal in New York State to transport vodka in one's vehicle. Therefore, the defendant's motion to dismiss the charge of...