Notice of Motion 1 Addendum to Motion 2 People’s Affirmation in Opposition to Defendant’s Motion to Dismiss 3 Reply to Opposition 4 DECISION The defendant has been charged with Driving While Ability Impaired by Drugs (Vehicle and Traffic Law ["VTL"] §1192[4]) and Unlawful Possession of Marihuana (Penal Law §221.05) as a result of her alleged activities at or about 11:32 pm on May 30, 2019 in the vicinity of 98 Harmon Street in the City of Long Beach, County of Nassau, State of New York. She now seeks omnibus relief, which is determined as provided herein. The defendant moves for dismissal of the simplified traffic information charging her with a violation of VTL §1192(4) on the ground that it is insufficient. A simplified traffic information is sufficient if it is substantially in the form required by the Commissioner of Motor Vehicles (see People v. Nuccio, 78 NY2d 102 [1991]; CPL 100.25[1], 100.40[2]). The court is satisfied that the simplified traffic information at issue is in proper form. However, the People’s provision of a supporting deposition imposes an additional burden to consider in determining the sufficiency of the subject simplified traffic information. Where, as here, the People provide a supporting deposition voluntarily, or pursuant to a timely request by the defendant, such deposition must provide reasonable cause to believe that the defendant committed the offense charged (see CPL 100.25[2]; People v. Key, 45 NY2d 111 [1978]; People v. Smith, 163 Misc2d 353, 360 [Justice Court, Monroe County 1994]). Pursuant to CPL 70.10(2), “reasonable cause to believe that a person committed an offense” 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.” This standard is equivalent to that of probable cause (see People v. Wharton, 60 AD2d 291 [2d Dept 1977]). In the context of alcohol related driving offenses, the probable cause standard has been defined as one in which, when “viewing the facts and circumstances as they appeared at the time of the arrest, a reasonable person in the position of the officer could have concluded that the motorist had operated the vehicle while under the influence of intoxicating liquor” (People v. Farrell, 89 AD2d 987 [2d Dept 1982]). This standard can easily be applied to drug related driving offenses. Pursuant to VTL §1192(4), “No person shall operate a motor vehicle while the person’s ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter.” At issue in the instant matter is whether the element of “operation” of the offense charged is sufficiently alleged in the supporting deposition such that it can be said that the allegations contained therein provide reasonable cause to believe that the defendant (1) operated the vehicle, and (2) did so while impaired by the use of a specified drug.1 In this case, the supporting deposition annexed to the simplified traffic information, which is signed by Police Officer Brian Wells, contains certain allegations relating to the operation of the vehicle. Those relevant allegations are as follows: listed under the section titled “Vehicle Operation Shown By” are checked boxes indicating that Officer Wells directly observed “Defendant at Wheel”; and “Keys in Ignition”, with the “Engine Running”. It is well settled that the definition of “operation” is broader than that of mere driving (see Matter of Prudomme, 27 AD2d 234, 236 [3d Dept 1967]; People v. O’Connor, 159 Misc2d 1072, 1075 [Dist Ct Nassau County 1994]). Indeed, “a person operates a motor vehicle when he begins to use the mechanism of the automobile for the purpose of putting the automobile in motion even though he does not move it” (People v. Marriott, 37 AD2d 868 [3d Dept 1971], citing Prudhomme, supra; see People v. Alamo, 34 NY2d 453, 459 [1974]). The element of operation can be proven by circumstantial evidence (see People v. Booden, 69 NY2d 185 [1987]; People v. Turner, 34 Misc3d 159A [App Term 2d Dept 2012]). In his motion papers, defense counsel relies heavily upon a theory that proof of the defendant’s intent to put the vehicle in motion is lacking. To that end, counsel paints a vivid picture of the circumstances that led to the defendant’s arrest. Specifically, counsel tells a tale of a young couple having a romantic interlude in a legally parked vehicle with the engine running which was ultimately interrupted by the Long Beach Police. As suggested by counsel in his motion papers, the defendant had no intention of putting the vehicle in motion “any time soon” because she was “intent upon the ‘commission’ of much more romantic things instead!” (Defense Counsel’s Affirmation in Support, 5). The court appreciates counsel’s ability to convey through words the story of a perfect evening gone awry. In fact, as a longtime resident and avid historian of the City of Long Beach, the court has fond memories of many of our city’s more tranquil and scenic locations to park a vehicle to enjoy the evening ambience that our city has to offer, including the location at issue here. Nevertheless, the entire universe of factual allegations is not available for the court’s consideration on the instant motion. At this phase, where the court is merely examining the sufficiency of the accusatory instrument, the court’s analysis is confined solely to the allegations contained in the simplified traffic information and the supporting deposition. Moreover, at this stage of the proceedings, the People are not required to prove operation (or even more specifically, the defendant’s intent to put the vehicle in motion) beyond a reasonable doubt. In fact, at this stage, the People are not required to “prove” operation at all. Rather, with respect to the offense charged, the supporting deposition must merely contain allegations of fact which demonstrate that a person of ordinary intelligence, judgment and experience in the position of the officer reasonably could have concluded that the defendant “operated” the motor vehicle while her ability was impaired to do so by a specified drug. This distinction between standards of proof, i.e., “probable” or “reasonable” cause versus “beyond a reasonable doubt”, and how they are applied with regard to circumstantial evidence of operation of a motor vehicle, has been addressed by numerous other courts, particularly at the suppression hearing phase (see e.g. People v. Khan, 182 Misc2d 83, 84 [App Term 2d Dept 1997] ["the analysis used by the court below was more proper for a decision after trial, instead of determining if probable cause existed for the arrest of the defendant at that time"]; People v. Thompson, 35 Misc3d 1211[A], note 1 [Justice Court, Niagara County 2012] ["Whether or not the People can prove beyond a reasonable doubt that the defendant operated a motor vehicle on a public highway while in an intoxicated condition caused by the voluntary consumption of alcohol should be left for the trier of fact to decide"]; People v. Wilson, 2005 NY Misc LEXIS 3208, NYLJ, p17, col. 3 [1/14/05] [City Ct Westchester County 2005] ["such issues relating to proof of operation are properly reserved for trial, at which the standard of proof and the People's burden are beyond the standards that obtain here"]; People v. Balcom, 22 Misc3d 1137[A] [Justice Court, Niagara County 2004] ["it is a question of fact for the People to show at trial that operation is established by proof that the defendant was behind the wheel of the automobile with the engine running"]). In some such cases, courts have suggested that certain limited facts regarding operation, although sufficient to establish probable cause for arrest, might not prove a sufficient basis for conviction after trial, particularly when considered along with the defense’s factual allegations (see e.g. People v. Camacho, 40 Misc3d 1211[A] [Crim Ct Bronx County 2013] ["As this Court stated in its oral decision, 'all of the arguments made by the defense (regarding whether or not Defendant intended to operate a motor vehicle) are absolutely wonderful trial defenses.' As such, Defendant's arguments regarding these defenses had no bearing on the Court's finding of probable cause for the stop and arrest of this Defendant"]; People v. Wilson, supra). With regard to the instant circumstances, the court does note that the defendant’s extraneous factual assertions (the “Paradise by the Dashboard Light”2 defense) may well constitute the basis for a viable defense at trial, where the burden on the People is not only substantially higher, but also broader. However, at this point in time, these allegations, which are not contained in the accusatory instrument, have no bearing upon the analysis of the sufficiency of the accusatory instrument and whether the allegations contained therein provide reasonable cause to believe that the defendant operated the vehicle. Examining the cases cited by the defense in its papers, in their proper context, generally demonstrate a lack of applicability to the instant circumstances. As one representative example, in People v. Dymond, 158 Misc2d 677 (County Ct Greene County 1993), the court states as follows: “Uniformly, cases holding a defendant ‘found behind the wheel with the motor running’ to be engaged in ‘operation’ of the vehicle all include facts or circumstances proving the defendant had actually moved the car while intoxicated, or intended to do so.” However, the cases cited in Dymond in support of such proposition are largely post-conviction cases, where the People were already required to lay bare the proof necessary to establish evidence of the defendant’s guilt beyond a reasonable doubt. Again, this Court’s obligation in the instant matter is merely to examine the accusatory instrument for facial sufficiency. Establishing reasonable cause to believe that an offense occurred is a much lesser and narrower burden for the People to meet, than is the burden at trial of proving beyond a reasonable doubt that such offense occurred. Notably, the very next sentence in Dymond commences with a statement that “[t]he issue of ‘operation’ is generally a question of fact for the jury” (Dymond, supra). The defense also cites People v. DeSantis, an unrecorded decision of the Second Judicial Department of the Ninth and Tenth District Appellate Term that was reported in the New York Law Journal on May 21, 1990, page 32, column 4. In that case, the defendant was found asleep in his car, with the engine running, at a train station, and was charged with violations of VTL §§1192(2) and (3). After denying the defendant’s pretrial order to dismiss, the lower court sua sponte ordered a hearing on the issue of operation. At the hearing, the defendant testified that upon returning to his car by train after having dinner and drinks, he knew he was unable to drive. He testified that he intended to find alternate means of returning home, started his vehicle solely with the intention to turn the heat on, and subsequently fell asleep. The court, likening the proceeding to a nonjury trial, credited the defendant’s testimony and dismissed the accusatory instruments in the interest of justice. On the People’s appeal, with respect to the determination on the substantive issue of operation, the Appellate Term found no basis upon which to disturb the lower court’s findings. DeSantis is not applicable to the instant matter because, first and foremost, once again, at this stage of the instant proceedings, this Court is not in a position to consider any facts outside the corners of the simplified traffic information and supporting deposition, whereas in DeSantis, the court was able to consider the defendant’s testimony in what amounted to a nonjury trial. Based thereon, presumably applying the “beyond a reasonable doubt standard” applicable at trial, the court made a factual determination that the defendant did not have the intent to put the vehicle in motion. As such, and even irrespective of the atypical procedure undertaken by the lower court, DeSantis is simply not instructive here. Thus, while defense counsel purports to construct an “evolution” of the law regarding operation and a “quagmire of cases” which cause confusion, the court finds that the only confusion lies with defense counsel’s failure to recognize the distinction between cases which address the People’s burden at trial of proving operation beyond a reasonable doubt, and cases which address the much lesser reasonable or probable cause standard applicable in cases at the suppression hearing stage, or as here, the facial sufficiency stage. Once again, there may be a very compelling defense at trial that the defendant did not have any intent to move the vehicle, which could create reasonable doubt as to whether the defendant was operating the vehicle. However, such a defense presented at this stage of the proceedings is of no moment, as it does not have any bearing upon the reasonable cause analysis relevant here, and does not in any way render the accusatory instrument insufficient. Indeed, in examining the factual allegations contained in the supporting deposition sworn to by Officer Wells, the court is satisfied that such allegations demonstrate that Officer Wells had reasonable cause to believe that the defendant committed the crime of Driving While Ability Impaired by Drugs. It has been determined in numerous cases at the suppression hearing phase, for the purposes of a probable cause analysis, that operation can be established under comparable factual scenarios to the instant matter (see People v. Thompson, supra [probable cause to arrest existed where defendant was parked in McDonald's parking lot, sitting in driver's seat of vehicle, with keys in ignition but engine not running, eating food]; People v. Khan, supra [reversing hearing court determination and finding that probable cause to arrest existed where defendant, while legally parked with the engine running, was found asleep or unconscious, slumped over the steering wheel with his head back]; People v. Membrino, 181 Misc2d 796 [Crim Ct Kings County 1999] [probable cause to arrest existed where defendant was found asleep or unconscious, slumped over the steering wheel with engine running]; see generally People v. Cross, 52 Misc3d 133[A][App Term 2d Dept 2016]; People v. Balcom, supra; People v. Rockwell, 2003 NY Slip Op 50572[U], 2003 WL 1389071 [City Court Rochester County 2003 ["No one except defendant knows with certainty what his purpose was in placing the key in the ignition, but it is reasonable to believe his purpose was to drive the car"]). To the extent that defense counsel argues, in effect, that it has not been sufficiently established that the defendant was impaired at the time of operation of the vehicle, the court does not find such argument compelling. It appears that in advancing this argument, defense counsel switches gears and maintains that the People are required to prove at this stage that the defendant was impaired while driving the vehicle. First, as discussed at length above, “operation” is the relevant term at issue here, and is much broader than “driving.” The accusatory instrument sufficiently alleges the element of operation, and the court need not concern itself with speculation as to when the defendant actually “drove” the vehicle, or when she actually put the vehicle in motion. Second, defense counsel brings the lab report into the discussion, contending that it does not establish precisely when the defendant was impaired in relation to her “driving” the vehicle. While the defense may argue at trial that the lab report does not indicate precisely when any impairment of the defendant’s ability to operate a motor vehicle occurred, that does not negate Officer Wells’s observations of the defendant at the time immediately prior to her arrest, including the odor of marihuana, glassy eyes, impaired speech, dilated pupils, and impaired motor coordination. These observations were made at the time that Officer Wells also made his observations regarding the defendant’s operation of the vehicle, i.e., that the defendant was at the wheel, with the keys in the ignition, and the engine running. All of these observations together demonstrate reasonable cause to believe that the defendant was operating the vehicle while her ability was impaired by marihuana. Accordingly, that branch of the defendant’s motion to dismiss the accusatory instrument on the ground that it is legally insufficient is denied. Any attempt by the defense to seek suppression of the lab report is denied, as any of its arguments regarding the report go to the weight of such evidence rather than its admissibility. Further, the defense’s policy arguments have no bearing upon the issues before the court. While such arguments are interesting, the court is constrained to follow the law as it currently exists. To the extent that the defense moves for a dismissal of the accusatory instrument in the interest of justice, it is well settled that such relief requires a sensitive balancing of the interest of the individual and the state (see People v. Clayton, 41 AD2d 204 [2d Dept 1973]). The court’s discretionary power to dismiss a criminal charge on this ground should be “exercised sparingly” (People v. Harmon, 181 AD2d 34 [1st Dept 1992]), and a dismissal in the interest of justice should be reserved for that “rare and unusual case where it cries out for fundamental justice beyond the confines of conventional consideration” (People v. Insignares, 109 AD2d 221, 234 [1st Dept 1985] [citations and internal quotations omitted]). The factors to be considered upon such a motion are explicitly enumerated in CPL §170.40(1)(a)-(j). Upon consideration of these factors, the court finds that the instant circumstances do not warrant the extraordinary remedy of a dismissal in the interest of justice. Accordingly, this branch of the defendant’s motion is denied. A Dunaway/Huntley/Mapp hearing will be held. The parties are directed to appear for virtual conference before the Court at a mutually agreed upon date and time. This constitutes the decision and order of the court. So Ordered this 24th day of June, 2020
