Issue Have the People set forth a Prima Facie case of intoxication while driving a lawn mower on a public roadway? Procedural Status The Defendant was tried on a one-count Indictment alleging a Felony DWI in violation of VT & L §1192 (3) and 1193 (1)(c)(i). The single count indictment alleges that on March 16th, 2018 at approximately 5:30pm the Defendant drove a (tractor motor vehicle) lawn mower on a public road in a private trailer park while he was in an intoxicated state. The People allege that on March 16th, 2018 while responding to a 911 call of “shots fired” at a trailer park at River Edge Trial in Sullivan County the arresting officer observed the Defendant and a woman standing near a lawn mower. The People allege that the officer approached the Defendant and that the Defendant appeared to have glassy eyes, slurred speech, impaired motor coordination and an odor of alcoholic beverages emanating from him. Upon questioning the Defendant he told the officer “I had a few beers at my house. I was just driving over here to get some food” and “I can drive here. The sign says Private Property. This road don’t count.” Thereafter the Officer administered a field sobriety test to the Defendant which he failed. The Defendant was arrested and a chemical analysis of the Defendant’s breath revealed that the Defendant had a.11 of one percent by weight of alcohol in the his blood. Defense counsel argues that the People have failed to meet their burden of proving the Defendant’s guilt beyond a reasonable doubt and ask the court to dismiss the Indictment as legally insufficient or in the alternative to issue a Trial Order of Dismissal for failure to establish a prima facie case. It is alleged by the Defendant that he did not drive the lawn mower on a public road and that he consumed alcohol at his friend’s house only after he arrived there. The Defense argues that on Cross Examination the following facts were established and were un-controverted by the People’s witnesses. The Trooper’s testimony revealed that he did not see the Defendant drive the lawn mower, did not see the Defendant drive the lawn mower at any time on a public roadway, did not see the Defendant drinking and could not ascertain how much the Defendant had drank or when the Defendant had consumed the alcohol which resulted in the.11 of one percent by weight of alcohol in his blood. The Defense further contends that the People rely heavily on the Defendant’s alleged statement that he had a few beers at his house and that from that statement the People’s witnesses speculated that had the Defendant rode the lawn mower from his home he would have had to cross a public highway to do so. And since he was found at his friend’s house in an intoxicated state, he must have done so while intoxicated. Opinion: In the case at bar, the Police did not observe the Defendant’s operation of the motor vehicle (lawn mower) but simply saw him and a woman standing next to a lawn mower while they were responding to an unrelated 911 call regarding “shots fired” in the vicinity. Nothing came of the “shots fired” call but during their investigation, the Police approached the Defendant and the woman standing next to the lawn mower and began to question them regarding “shots fired”. Then the conversation turned to the topic of the present prosecution for Driving While Intoxicated. It is alleged by the Police that the Defendant admitted that he had been driving the lawn mower. The People allege that the Defendant made the following statement which constituted the basis for his arrest on the Driving While Intoxicated charge: “I had a few beers at my house. I was just driving over here to get some food” and “I can drive here. The sign says Private Property. This road don’t count.” The Defendant claims that he drove his lawn mower to his friend’s house from a sewer treatment area where the lawn mower was stored. He claims that he drove across only private property while getting to his friend’s home and that he was at his friends for approximately 45 minutes before the police arrived. During that time, the Defendant claims he consumed the beer that he had brought with him on the back of his lawn mower. His testimony was corroborated by the testimony of the Defense witness, the woman friend, who was standing next to the lawn mower and the Defendant at the time of his arrest. The Defendant argues that the accusatory instrument is facially insufficient and should be dismissed in its entirety as it fails to adequately establish the elements of intoxication and operation of a motor vehicle. Or in the alternative for a trial order of dismissal for failure to set forth a prima facie case at trial. It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL §100.15[3];People v. Dumas, 68 NY2d 729 [Court of Appeals 1986]) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL §100.40[1][c]). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL §100.40(1)(b); Reasonable cause to believe that a defendant committed the crimes charged “exists when evidence or 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. “In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged.” People v. Hightower, 18 NY3d 249 (Court of Appeals 2011). In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§100.40 and 100.15; People v. Mellish, 791 N.Y.S.2d 872 (Crim Ct, NY County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103 (Court of Appeals 1986). Moreover, “the Court is not required to ignore common sense or the significance of the conduct alleged.” People v. Gonzalez, 184 Misc 2d 262 (App Term, 1st Dept. 2000) quoting People v. Abdul, 157 Misc 2d 511(Crim Ct, NY County 1993). The Defendant moves to dismiss the Information in its entirety on the grounds of facial insufficiency, alleging that the Indictment is facially insufficient because it fails to set forth proof that the Defendant was operating the motor vehicle, was operating on a public highway and/or was operating a motor vehicle while under the influence of alcohol. This Court does not agree. “So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading.” People v. Casey, 95 NY2d 354 (Court of Appeals 2000). In the case at bar the indictment specifies the date, time and location of the Defendant’s operation of a motor vehicle while intoxicated. Therefore, the Court finds that the accusatory instrument is facially sufficient and the Defendant’s Motion to Dismiss for facial insufficiency is denied. The Court will now address the Defendant’s Motion for a Trial Order of Dismissal on the basis of the Prosecutions failure to put forth a prima facie case. Vehicle and Traffic Law §1192 (3) states in pertinent part as follows: “Driving while intoxicated. No person shall operate [emphasis added] a motor vehicle while in an intoxicated condition.” The term “operation” has a very specific meaning under the Vehicle and Traffic Law. It is undisputed that the definition of the term “operate” as defined in DWI statutes is broader than that of driving and that “[a] person operates a motor vehicle within the meaning of the [statute] when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle.” People v. Alamo, 34 NY2d 453 (Court of Appeals 1974) quoting Matter of Prudhomme v. Hults, 27 AD2d 234, (3d Dept. 1967). Therefore, “criminal liability under section 1192 can attach to conduct dangerously close to driving, as long as that conduct occurs upon locations covered by the statute.” People v. Prescott, 95 NY2d 655, 662, 745 N.E.2d 1000, 722 N.Y.S.2d 778 (2001). Here, the sole allegations pertinent to the element of “operation” is that the officer testified that the defendant was standing next to a lawn mower in front of his friend’s house and upon being approached by the officer, who was responding to an unrelated 911 call, and was observed to be in an intoxicated condition. The People therefore infer that based on the Defendant’s statement to police and the location of the Defendant’s home and the intoxicated state of the Defendant that he must have driven the lawn mower from his home, across a public highway, in an intoxicated state. This Court finds that the allegation that the motor vehicle (lawn mower) must have been operated by the Defendant in an intoxicated condition, must have been driven from the Defendant’s home, and if driven from the Defendant’s home must have been driven across a public highway is conclusory and therefore is not “a fact of an evidentiary character” (CPL §100.15[3]; see also, People v. Dreyden, 15 NY3d 100 [Court of Appeals 2010]; Dumas, supra, 68 NY2d 729) which supports an element of the offense charged, namely vehicular operation. “The phrase factual allegations of an evidentiary character’ means non-conclusory descriptions of what the deponent personally observed, heard or experienced.” People v. Concepcion, 36 Misc 3d 551, 553, 945 N.Y.S.2d 543 (Crim Ct, NY County 2012) citing Dumas, supra. “[W]here the fact at issue is a conclusion that derives solely from another fact or facts that have not been alleged, that fact is a conclusory allegation..’ But where the fact at issue derives directly from the deponent’s own experience, or can naturally be determined from other facts alleged, it is not.” People v. Washington, 46 Misc 3d 1210[A] (Crim Ct, NY County 2015). The Defendant testified that he had been drinking after he drove the lawn mower to his friend’s house, and that he did not cross a public roadway with his lawn mower but rather came from the sewer plant at the trailer park location. In opposition, the People’s witness testified that the defendant admitted operating a motor vehicle (lawn mower) and that he admitted he drove it from his house. At trial the People’s witness used aerial photographs of the Defendant’s home and the arrest location. The People ask the Court to infer from these aerial shots that the Defendant could not have gotten from his house to the location of his arrest without crossing a public highway. Further the People ask the Court to assume that he drove the vehicle in an intoxicated state, since at the time of his arrest he had a blood alcohol content of.11 of one percent by breathalizer. The flaw in the Prosecution’s theory is that the allegation that the motor vehicle (lawn mower) was operated by the defendant while he was intoxicated cannot logically be determined from the mere fact that defendant was intoxicated when standing next to the lawn mower in front of his friend’s home. The Defendant apparently admitted to the Officer that he did in fact operate the lawn mower however he claimed he did not ride the mower across a public roadway and he did not operate while intoxicated. The Defendant testified that he had drank at his home before leaving but that he also was drinking at his friend’s home upon arriving there. Since the Defendant could have conceivably drank at home without being in an intoxicated state and then upon arriving at his destination continued to drink to the point of intoxication, the people have failed to establish a time sequence between the driving and the intoxication. There was no testimony offered by the People’s witness to establish when the defendant arrived at his friend’s house, nor the time sequence of drinking and driving. If the court takes all evidence in the light most favorable to the Prosecution, and assumes as the Prosecution has asked the Court to do, that the Defendant drove his lawn mower across a public roadway and was drinking at his home before he did so, the People have still failed to set forth a prima facie case that he did so while in an intoxicated state. Under certain circumstances the defendant need not be observed driving a motor vehicle and the operation of a motor vehicle can be proven by circumstantial evidence (People v. Booden, 69 NY2d 185 [Court of Appeals 1997]; People v. Blake, 5 NY2d 118, 154 N.E.2d 818, 180 N.Y.S.2d 775 [1958]), however there must be additional factual allegations which demonstrate that defendant performed some physical act with the intent of setting the motor vehicle in motion across a public highway, such as the keys were in the ignition or the engine was running. Since in the present case, the accusatory instrument fails to allege sufficient facts to support the essential element of operation of a motor vehicle, and has failed to set forth sufficient facts to support the essential element of intoxication at the time of operation, a prima facie case has not been established. Further, there are no evidence regarding the position or location of the lawn mower or other surrounding circumstances that would allow the Court to reasonably infer the defendant operated this lawn mower across a public roadway while he was intoxicated. The Defendant testified that he rode across private land on the lawn mower he used for work with a six pack on the back. Upon arriving at his destination, he consumed the alcohol. The Officer testified that he did not observe the Defendant operating the lawn mower or drinking but stated that the Defendant told him that he had been drinking at home and had only arrived a few minutes before the police. However, a Defense witness testified that the Defendant was at her house for at least 45 minutes before the police arrived and during that time he was consuming alcohol. The Defense witness was the only eye witness of this incident and Defense called her as their witness. Her testimony corroborated that of the Defendant in that she stated he was drinking upon arriving at her house. The Witness’s testimony was disputed by the People who claim that the witness was a friend of the Defendant and had reason to lie to protect him, however no proof was offered to discredit this witness’s testimony. Assuming arguendo for the People that the Defendant drank at home, and crossed a public roadway, the People have failed to establish that he was intoxicated at the time of the operation of the lawn mower. Since the Prosecution has failed to prove that the Defendant operated his lawn mower on a public highway while in an intoxicated condition, they have failed to set forth a prima facie case. The evidence has failed to connect the place and time of drinking in that the defendant’s witness testified that the Defendant was drinking at her house for 45 minutes prior to the police arriving. Although the People’s witness testified that the Defendant admitted he had drank at home earlier, there is and there can be no evidence of the state of intoxication of this Defendant at the time he allegedly drove on a public roadway in the trailer park. Based on the foregoing, Defendant’s motion to dismiss the driving while intoxicated count as facially insufficient is denied however Defendant’s Motion for a trial order of dismissal for failure of the Prosecution to establish prima facie evidence that this Defendant was operating a motor vehicle on a public highway in an intoxicated state is granted. This shall constitute the Decision and Order of this Court. Dated: November 27, 2019 Monticello, New York
