Summary of the court’s decision: the defendant’s motion to dismiss the accusatory instrument for facial insufficiency is denied. DECISION AND ORDER Defendant’s query as to the facial sufficiency of the accusatory instrument is found to be unavailing by this court. Defendant is charged with three counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (Vehicle and Traffic Law [VTL] §1192[1], [2], and [3]). By motion dated August 11, 2021, the defendant seeks, inter alia, dismissal of accusatory instrument for facial insufficiency. The People oppose dismissal. The Court has reviewed the parties’ submissions, relevant statutes, and case law. The defendant’s motion to dismiss the accusatory instrument is denied. FACTUAL ALLEGATIONS The accusatory instrument alleges that: PO VINCENT RUSSO of 49 PCT, Shield #50, states that on or about June 13, 2020 at approximately 2:20 AM at [the] Northwest corner of Fenton Avenue and Pelham Parkway North, County of the Bronx, State of New York… Deponent is informed by PO VLADIMIR DELGADO (Shield #001433) that, at the above time and place, a public street, informant observed defendant operating a 2004 silver Honda Civic (MA license plate #4TV596), in that informant observed defendant seated behind the steering wheel, with the engine running stopped at red traffic light. Deponent is further informed by informant that informant observed defendant begin to drive through the red light, and informant stopped defendant and instructed him to pull over. Deponent states that he observed defendant seated behind the steering wheel of his vehicle, which was parked at the corner. Deponent further states that he observed defendant to have a strong odor or alcohol on his breath. Deponent further states that defendant stated in sum and substance: I HAD A COUPLE OF DRINKS. Deponent further states that he was present the administration of a chemical test analysis of defendant’s breath, and that defendant’s blood alcohol content as displayed on the breath analysis machine .11 of one per centum by weight. FACIAL SUFFICIENCY 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 [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); Dumas, 68 NY2d 729). 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 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, 4 Misc.3d 1013[A] [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 [1986]). “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 N.Y.2d 354, 360 [2000]). Moreover, “the Court is not required to ignore common sense or the significance of the conduct alleged” (People v. Gonzalez, 184 Misc.2d 262, 264 [App Term, 1st Dept.2000] quoting People v. Abdul, 157 Misc.2d 511, 514 [Crim Ct, NY County 1993]). DISCUSSION Defendant makes multiple contentions. He contends that the complaint does not provide sufficient non hearsay allegations to establish that defendant operated the motor vehicle and was intoxicated while doing so. The defendant further contends that the breath analysis machine used to test defendant’s blood alcohol level is not an instrument approved under the New York Public Health Law (10 NYCRR 59.4). As an initial matter, contrary to defense counsel’s contention, there is no hearsay contained in the instant accusatory instrument because the supporting deposition from Officer Delgado was filed with the Court and served on defendant’s original counsel (People’s exhibit A), on September 23, 2020. Additionally, when defendant’s first attorney was relieved and new counsel was assigned, the People shared Officer’s Delgado’s supporting deposition with counsel via OneDrive on November 25, 2020 (People’s exhibit B). Then on August 19, 2021, the supporting deposition was served electronically on defendant’s current counsel (People’s exhibit C). Accordingly, the accusatory instrument was converted into an information as of September 23, 2020. It should also be noted that contrary to defendant’s claim, the accusatory instrument is not required to allege that that the instrument used to test the defendant’s blood alcohol content is approved under New York Public Health Law Section 59.4. Such claim is an issue counsel may raise at hearings and trial, not an element of the charged offenses that the People must plead (see generally People v. Thomas, 70 NY2d 823, 825 [1987]). Vehicle and Traffic Law 1192(1), (2) & (3) Vehicle and Traffic Law §1192(1) provides that “[n]o person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.” Vehicle and Traffic Law §1192(2) provides that “[n]o person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.” Vehicle and Traffic Law §1192(3) provides that “[n]o person shall operate a motor vehicle while in an intoxicated condition.” A driver of a vehicle is intoxicated when “[h]e has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate the vehicle as a reasonable and prudent driver.” People v. Cruz, 48 NY2d 419, 428 (1979). “A person’s ability to operate a motor vehicle is impaired by the consumption of alcohol when that person’s consumption of alcohol has actually impaired, to any extent, the physical and mental abilities which such person is expected to possess in order to operate a vehicle as a reasonable and prudent driver.” CJI2d (N.Y.) Vehicle and Traffic Law §1192(1); see also, People v. Cruz, 48 N.Y.2d 419, 427 (1979). The definition of the “operation” of a motor vehicle is broader than that of “driving” (People v. Prescott, 95 NY2d 655, [2001]). A person operates a motor vehicle when “[h]e intentionally does any act or makes any use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle” (People v. Alamo, 34 NY2d 453, 458 [1978]). “There is no requirement that the defendant be observed driving the vehicle, instead, operation of a vehicle can be proven by circumstantial evidence” (People v. Salerno, 36 Misc3d 151[A] [App Term, 9th * 10th Jud. Dists., 2012], *1[defendant observed sleeping behind the wheel of vehicle park by the side of a road sufficient to establish defendant's operation of the vehicle]; People v. Prescott, 95 NY2d 655, 662 ["Our courts have long recognized that the definition of operation is broader than that of driving…"]; People v. Alamo, 34 NY2d 453, 458 [1974] [], quoting Matter of Prudhomme v. Hults, 27 AD2d 234, 237 [1967] ["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 that vehicle”]). Therefore, factual allegations that a defendant was observed seated behind the wheel of a vehicle with the key in the ignition and the engine running are sufficient to demonstrate an individual’s operation of a vehicle (People v. Garcia, 64 Misc.3d 150[A], *1 [App Term, 1st Dept 2019], lv denied, 24 NY3d 980 [2019][per curiam]["Sworn police allegations that 'the engine was running and the defendant was behind the steering wheel' satisfied the operation element of the charged Vehicle and Traffic Law offenses]; People v. Hernandez, 46 Misc 3d 151[A] [App Term, 1st Dept 2015] [accusatory instrument alleging that defendant was observed behind the wheel of a vehicle provided reasonable cause to believe defendant was operating the vehicle]; People v. Contreras-Santana, 54 Misc3d 129[A] [App Term, 1st Dept 2016][accusatory instrument alleging that defendant was behind the wheel with the key in the ignition and the engine running sufficient to establish defendant's operation of vehicle for pleading purposes] People v. Stafford, 48 Misc3d 1231[A] [Crim Ct, Bronx County 2015][defendant found standing near vehicle found to be in operation of the vehicle]). It is well settled that allegations of intoxication indicia are sufficient to establish intoxication (People v. Fiumara, 116 AD3d 421 [1st Dept, 2014]; People v. Hernandez, 46 Misc3d 151(A) [App Term, 1st Dept 2015]; People v. Sanchez, 54 Misc3d 133(A) [App Term, 1st Dept 2017]). “However, not all classic symptoms of impairment or intoxication need be exhibited to establish that the defendant was incapable of operating the vehicle as a reasonable and prudent driver” (People v. Pasquazi, 48 Misc3d 1226[A], *2 [Crim Ct, NY County 205]). For instance, there is no requirement that erratic driving or any certain combination of common law indicia be alleged to establish a prima facie case of Driving While Intoxicated or Impaired (People v. Pasquazi, 48 Misc3d 1226[A], *2). Moreover, contrary to defendant’s contention, “the concept of intoxication does not require expert opinion. A layman, including the defendant and those charged with administering the law, should be able to determine whether the defendant’s consumption of alcohol has rendered him incapable of operating a motor vehicle as he should (People v. Cruz, 48 NY2d 419, 428 [1979]). The symptoms of intoxication, unlike the effects of certain drugs are “universally recognizable” in the way they effect an individual’s physical condition (People v. Ortiz, 6 Misc3d 1024[A], *4). Therefore, the observations of police officers, likely trained to recognize the tell-tale signs of intoxication suffice, for pleading purposes to establish the defendant’s intoxication (see generally People v. Fiumara, 116 AD3d 421; People v. Contreras-Santana, 54 Misc3d 129[A] App Term, 1st Dept, 2016]; People v. Pasquazi, 48 Misc3d 1226[A], *2). In addition to common law indicia of intoxication, courts may also look to other signs of intoxication, which include, but are not limited to, corroborated admissions of alcohol consumption from the defendant (People v. Booden, 69 NY2d 185 [1987]; People v. Stafford, 48 Misc3d 1231[A] [Crim Ct, Bronx County 2016]) and chemical test results showing the presence of alcohol (People v. Hernandez, 46 Misc3d 151[A] [App Term, 1st Dept 2015]; People v. Contreras-Santana, 46 Misc3d 129[A] [App Term, 1st Dept 2016]). Applying these precedents to the instant accusatory instrument renders the instant accusatory instrument facially sufficient. Here, the accusatory instrument alleges that both Police Officers Vincent Russo and Vladimir Delgado observed the defendant seated behind the steering wheel of a vehicle with the engine running. The complaint further alleges that Officer Delgado observed the defendant begin to drive the vehicle through a red light when he instructed the defendant to pull over. These allegations are sufficient to establish the defendant’s operation of the vehicle (People v. Hernandez, 46 Misc3d 151[A]; People v. Pasquazi, 48 Misc3d 1226[A] [Crim Ct, New York County 2015]; People v. Contreras-Santana, 46 Misc3d 129[A]; People v. Stafford, 48 Misc3d 1231[A]). With respect to the defendant’s impairment and intoxication, the accusatory instrument alleges that Officer Russo smelled a strong odor of alcohol emanating from the defendant’s breath, that the defendant stated to Officer Russo in sum and substance that he “had a couple of drinks” (complaint), and a subsequent chemical test of defendant’s breath, which Officer Russo observed being administered, revealed that defendant’s blood alcohol content was .11 percent. As such, there is reasonable cause to believe that defendant was operating a motor vehicle while both impaired by alcohol and while in an intoxicated condition. Moreover, as the results of the chemical test analysis was .11, the allegations of the complaint are sufficient to satisfy the charge of Driving While Intoxicated per se. Consequently, this court finds that the accusatory instrument is facially sufficient and that each element of the three offenses charged has been established through non-hearsay factual allegations. Accordingly, defendant’s motion to dismiss the accusatory instrument as facially insufficient is denied. REMAINING CONTENTIONS The defendant’s remaining contentions are decided as follows: Embedded in defense counsel’s facial sufficiency motion is a brief two-sentence argument pursuant to CPL §30.30 that the People’s speedy trial time has elapsed because the required supporting deposition from Officer Delgado was never filed. The People did not address this argument in their response affirmation. Consequently, with the exception of finding that the People filed Officer Delgado’s supporting deposition on September 23, 2020, the Court could not address defendant’s claim without a response from the People regarding this issue. Therefore, the Court grants counsel leave to file a motion pursuant to CPL §30.30. Defendant’s motion to preclude unnoticed statement or identification evidence pursuant to CPL §710.20(3) is referred to the trial court. Defendant’s motion to suppress physical evidence is granted to the extent that a Johnson/Mapp/Dunaway hearing shall be held. Defendant’s motion to suppress statement evidence is granted to the extent that Huntley/Dunaway hearing shall be held. Defendant’s Sandoval application is referred to the trial court. The People are reminded of their discovery obligations pursuant to Article 245 of the Criminal Procedure Law. Defendant may make additional motions to the extent permitted by CPL §255.20. This constitutes the Decision and Order of the Court. Dated: September 30, 2021
