People v. Felicia

52 Misc. 3d 212, 27 N.Y.S.3d 841
CourtCriminal Court of the City of New York
DecidedMarch 31, 2016
StatusPublished

This text of 52 Misc. 3d 212 (People v. Felicia) is published on Counsel Stack Legal Research, covering Criminal Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Felicia, 52 Misc. 3d 212, 27 N.Y.S.3d 841 (N.Y. Super. Ct. 2016).

Opinion

OPINION OF THE COURT

Andrew Borrok, J.

The defendant, who is charged with operating a motor vehicle while under the influence of drugs (Vehicle and Traffic Law § 1192 [4]), obstructing traffic at intersection (Vehicle and Traffic Law § 1175), and three counts of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), seeks dismissal of the information (i) as facially insufficient and (ii) because he has been denied his right to a speedy trial pursuant to Criminal Procedure Law §§ 170.30 and 30.30 (1) (b). For the reasons set forth below, the defendant’s motion is denied in its entirety.

I. The Facts Relevant to the Defendant’s Motion

The defendant was arraigned on August 18, 2015 on the pending charges on which occasion the People stated that they were “ready for trial” because the accusatory instrument is a first-party complaint that contains nonhearsay factual allegations which make out a prima facie case of the pending charges. The factual portion of the instant accusatory instrument served and filed at arraignment provides that

“[o]n (1) August 17, 2015 at about 4:44 p.m. at the corner of 85th Street and 5th Avenue and (2) August 17, 2015 at about 4:58 p.m. at the corner of 84th Street and 5th Avenue, in the County of Kings, State of New York:
“Deponent [Police Officer Richard Scheblein] states that on the above mentioned time and place, the deponent observed the defendant behind the wheel of a 2012 black Chevy Impala, license plate no. Z63EVC, with keys in the ignition and engine running, and that defendant was obstructing traffic at an intersection while the traffic signal was green, in that approximately four vehicles were behind [214]*214the defendant’s vehicle, and were unable to drive around defendant’s vehicle.
“Deponent further states that at the approximate above time and place, deponent observed the defendant exhibiting signs of impairment: to [w]it, slurred speech, bloodshot, red water eyes, unable to stand straight, sweating profusely, and having disheveled clothing.
“Deponent further states, at the second above time and place, the deponent did observe the defendant to be in possession of cocaine in that deponent did observe a plastic straw with cocaine residue and a ziplock bag of cocaine in plain view in the driver seat of the above mentioned vehicle, and that deponent recovered another ziplock bag containing cocaine from defendant’s pants pocket.
“Deponent further states that deponent has had professional training as a police officer in the identification of cocaine, has previously made arrests for criminal possession of cocaine, has previously seized cocaine, which was determined to be such by a chemical analysis by the police department laboratory, and the substances in this case possess the same physical characteristics as such previously chemically identified substances and by professional training and experience as a police officer is familiar with the common methods of packaging cocaine and the plastic straw and zip-lock bag used to package the substance in this case is a commonly used method of packaging such substance. Based on the foregoing, in deponent’s opinion, the substance in this case is cocaine.”

The court deemed the accusatory instrument an information and adjourned the matter to Part DWI until August 21, 2015 for discovery by stipulation (DBS).

However, on August 21, 2015, the People did not produce the DBS, and the court instructed the People to serve and file DBS off-calendar and adjourned the case until October 5, 2015 for any necessary hearings and trial. The People thereafter served and filed a laboratory report of the drugs which were recovered and DBS off-calendar.

On October 5, 2015, the People indicated that they were not ready to proceed to trial and requested a seven-day adjournment. Consequently, the court adjourned the matter until November 5, 2015 for hearings and trial.

[215]*215On November 5, 2015, the People again indicated that they were not ready to proceed to trial because the assigned Assistant District Attorney was out of the office and requested a further 12-day adjournment. The court further adjourned the matter until November 30, 2015 for hearings and trial. On November 30, 2015, the People once again indicated that they were not ready to proceed to trial (on this occasion, because the arresting officer was on his regular scheduled day off). The People, therefore, requested an additional seven-day adjournment. The court once again adjourned the matter until January 13, 2016 for hearings and trial.

On January 13, 2016, the defendant served and filed the instant motion, whereupon the court adjourned this matter until January 29, 2016 and instructed the People to file any opposition papers on or before January 29, 2016. On January 29, 2016, the People in fact served and filed opposition papers and the court further adjourned the case until March 9, 2016 to await the court’s decision on the defendant’s motion.

II. Dismissal of the Information for Facial Insufficiency

The initial issue posited by the defendant’s motion is whether to be facially sufficient an accusatory instrument charging a violation of Vehicle and Traffic Law § 1192 (4) where the defendant is alleged to have been found in possession of drugs, must allege that there is either a laboratory report confirming that the recovered substance is in fact drugs proscribed by Public Health Law § 3306, or confirmation by a drug recognition expert (DRE) that at the time of arrest the defendant exhibited signs of intoxication caused by such drugs, or that there was an admission made by the defendant that he (or she) had ingested such drugs. For the reasons set forth below, the court holds that it does not.

An information is sufficient on its face when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the nonhearsay allegations establish, if true, every element of the offense charged and the defendant’s commission thereof. (CPL 100.40 [1]; 100.15.) Reasonable cause exists where there are sufficient facts set forth in the accusatory instrument which would convince a person of ordinary intelligence, judgment and experience that such offenses were reasonably likely to have been committed and that such offenses were committed by the defendant. (CPL 70.10 [2].) When evaluating whether an accusatory instrument [216]*216is facially sufficient, the court must view the facts alleged in the light most favorable to the People. (See People v Contes, 60 NY2d 620 [1983].) Provided that the factual allegations give the defendant sufficient notice to prepare a defense and are adequately detailed to prevent the defendant from being tried twice for the same offense, the allegations should not be given an overly restrictive or technical reading. (People v Casey, 95 NY2d 354, 360 [2000]; People v Kalin, 12 NY3d 225 [2009].) Although the requirement is not the same as the People’s burden at trial to prove every element of the offenses charged beyond a reasonable doubt, the failure to satisfy the requirements of CPL 100.40 (1) (c) creates a jurisdictional defect to the criminal action requiring dismissal. (See People v Henderson, 92 NY2d 677, 680 [1999]; People v Alejandro, 70 NY2d 133, 137 [1987]; People v Kalin,

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Related

People v. Casey
740 N.E.2d 233 (New York Court of Appeals, 2000)
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Cite This Page — Counsel Stack

Bluebook (online)
52 Misc. 3d 212, 27 N.Y.S.3d 841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-felicia-nycrimct-2016.