The defendant, charged with one count of Driving While Intoxicated in violation of New York’s Vehicle & Traffic Law (“VTL”) 1192(3), an unclassified misdemeanor, and one count of Aggravated Driving While Intoxicated in violation of VTL 1192(2-a), an unclassified misdemeanor, moves this Court to dismiss the accusatory instruments pursuant to CPL 170.30(1)(a), (f), CPL 170.35(1), 100.15 and 100.40 on the grounds that (1) the counts alleged therein are both facially insufficient and jurisdictionally defective and (2) his statutory right to a speedy trial pursuant to CPL 170.30(1)(e) and 30.30 has been violated. The People have filed an Affirmation in Opposition and the defendant has filed a Reply. The defendant’s motion seeking an order dismissing the accusatory instrument as facially insufficient and jurisdictionally defective, and on the grounds that his right to a speedy trial has been violated, is DENIED. A. Motion to Dismiss For Facial Insufficiency and Jurisdictional Defect The defendant first contends that the accusatory instruments with respect to both counts are facially insufficient, and therefore jurisdictionally defective, because (1) they are based solely upon the hearsay statement of a complaining witness and (2) fail to establish every element of the offense. (Def.’s Aff. at 18, 19, 21). In general, in order for a misdemeanor information to be facially sufficient, the information must meet three requirements: (1) must state “facts of an evidentiary character supporting or tending to support the charges,” [100.15[3]]; (2) “[t]he allegations of the factual parttogether with those of any supporting depositionsprovide reasonable cause to believe that the defendant committed the offense charged” [100.40(1)(b)] and (3) the “non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant’s commission thereof.” [100.40(1)(c)]. Moreover, “failure to comply with the ‘prima facie case’ requirement for facial sufficiency in CPL 100.40(1)(c) and 100.15(3) is a jurisdictional defect.” People v. Pearson, 78 AD3d 445, 445, 914 NYS2d 2, 3 (1st Dep’t 2010]. Accord, People v. Banville, 134 AD2d 116, 523 NYS2d 844, 846 [2d Dep't 1988] ["a valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to criminal prosecution"]. Courts have held that “[s]o 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, 360 [2000]. 1. Count 1 Driving While Intoxicated [VTL 1192(3)] The defendant is charged in Count 1 with Driving While Intoxicated in violation of VTL 1192(3), which provides, in pertinent part: “[n]o person shall operate a motor vehicle while in an intoxicated condition.” (Def.’s Aff., Ex. A). To prove that the defendant committed the offense charged, the People must establish: that the defendant (1) operated a motor vehicle (2) while intoxicated. The factual portion of the misdemeanor information states as follows: *** To Wit: THE DEFENDANT, AT [LOCATION AND TIME] OPERATED A MOTOR VEHICLE, [VEHICLE MODEL AND REGISTRATION NUMBER] WHILE HE WAS IN AN INTOXICATED CONDITION; IN THAT THE DEFENDANT WAS INVOLVED IN A REPORTABLE MOTOR VEHICLE ACCIDENT. THE DEFENDAN[T] DID STATE TO YOUR DEPONENT THAT HE WAS DRIVING HOME FROM A FRIEND’S HOUSE. UPON INTERVIEWING THE DEFENDANT, WHO WAS ON HIS KNEES LEANING UP AGAINST A BRICK COLUMN, IT WAS OBSERVED AND NOTED THAT THE DEFENDANT DID HAVE AN ODOR OF AN ALCOHOLIC BEVERAGE ON HIS BREATH, HIS SPEECH WAS SLURRED, HIS EYE[S] WERE BLOODSHOT AND GLASSY AND THE DEFENDANT WAS UNABLE TO STAND. THE DEFENDANT DID STATE TO YOUR DEPONENT, “I HAD A BEER.” THE DEFENDANT WAS ARRESTED AND TRANSPORTED TO MATHER HOSPITAL VIA PORT JEFFERSON AMBULANCE WHERE ON 8/28/21 AT 8:27PM THE DEFENDANT DID REFUSE TO SUBMIT TO A BREATH TEST. (Def.’s Aff., Ex. A). Moreover, the supporting deposition of the complaining witness, Ryan Clay, set forth the following: ON 8/28/2021, I WAS IN MY APARTMENT ON MY BALCONY WHEN I SAW A BLACK NISSAN SUN PULL INTO THE PARKING LOT BEHIND THE BUILDING. THE SUN PULLED IN ERRATICALLY AND FAST INTO THE LOT AND CRASHED INTO A SILVER HYUNDAI SEDAN. THE DRIVER OF THE BLACK NISSAN SUN GOT OUT OF THE CAR AND SEEMED TO BE STUMBLING AROUND AND UNAWARE OF WHAT HAPPENED. HE THEN GOT BACK INTO THE CAR AND STARTED BACKING OUT TO LEAVE. THAT’S WHEN I CALLED THE POLICE. THE DRIVER WAS A WHITE MALE, APPROXIMATELY 60 YEARS OLD, WITH GRAY HAIR WEARING JEAN SHORTS AND A POLO SHIRT. WHEN THE POLICE CAME HE WAS THE ONE THEY ARRESTED. (Def.’s Aff., Ex. A). This Court finds that the misdemeanor information is facially sufficient. The defendant’s arguments, that the factual portion is (1) based upon hearsay and (2) devoid of evidence the defendant was the operator of a motor vehicle, are both meritless. (Def.’s Aff. at 18, 19, 21). The defendant’s first contention, that the factual portion of the misdemeanor information is based solely upon information and belief and/or hearsay, is flatly contradicted by the plain language of the factual narrative. While the defendant is correct that the misdemeanor information contains a box, checked by the deponent, stating that “[t]his charge is based solely upon information and belief, the source being: Ryan Clay,” it is nevertheless clear from the narrative that the deponent in fact had direct personal knowledge of relevant events. (Def.’s Aff. at 18, Exs. A, C). The factual narrative established that the defendant was (1) driving a motor vehicle and (2) had been drinking. Specifically, the narrative notes that “the defendant did state to your deponent [Officer Anthony Buonagurio] that he was driving home from a friend’s house” and “[the defendant] state[d] to “your deponent [Officer Buonagurio], ‘I had a beer.’” (Def.’s Aff., Ex. A) (emphasis added). In addition, the defendant’s admissions were corroborated by the officer’s own observations. See, e.g., People v. Booden, 69 NY2d 185 [1987] (defendant’s admission that he had driven the car corroborated sufficiently by the testimony of a police officer that he had observed the defendant standing “next to” a car that was off the road, in a ditch, facing against oncoming traffic). The defendant’s second contention, that the supporting deposition is deficient because the complaining witness failed to identify the defendant as the operator of a motor vehicle, is also belied by the supporting deposition, in which the complaining witness stated “the driver [of the black nissan sun] was a white male, approximately 60 years old, with gray hair wearing jean shorts and a polo shirt. When the police came[,] he [the driver] was the one they arrested.” (Def.’s Aff., Ex. A) (emphasis added). Taken together, the fair import of these two sentences is that the man arrested [the defendant] was the operator of the vehicle. Accordingly, the Court finds that Count 1 is facially sufficient and thus not jurisdictionally defective. 2. Count 2 Aggravated Driving While Intoxicated [VTL 1192(2-a)] The defendant is charged in Count 2 with Aggravated Driving While Intoxicated in violation of VTL 1192(2-a), which provides, in pertinent part: “[n]o person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person’s blood.” (Def.’s Aff., Ex. B). To prove that the defendant committed the offense charged, the People must establish: that the defendant (1) operated a motor vehicle (2) while having a blood alcohol content level of 0.18 percent or higher. The factual portion of the misdemeanor information for Count 2 repeated the same narrative as in Count 1 (noted above), but also stated as follows: BLOOD AND URINE SAMPLES WERE COLLECTED UNDER NUMBER 812993. TOXICOLOGY WAS PERFORMED ON DEFENDANT’S BLOOD FROM MATHER HOSPITAL, RESULTS BEING 0.21 percent BLOOD-ETHANOL WAS PRESENT. (Def.’s Aff., Ex. B). Attached to the misdemeanor information was a toxicology report prepared by the Suffolk County Medical Examiner’s Officer, which stated that the defendant had a blood alcohol content of 0.21 percent. (Def.’s Aff., Ex. D). The defendant contends that the misdemeanor information with respect to Count 2 is deficient in three respects: (1) it is based on hearsay; (2) the supporting deposition of the complaining witness is not appended to Count 2 and (3) the Blood Test Kit referenced in the information fails to establish that the defendant was operating a motor vehicle. (Def.’s Aff. at 45-49). As with Count 1, the defendant first contends that the misdemeanor information with respect to Count 2 is based upon hearsay, and again notes that the information contains a box checked by the deponent which states that “[t]his charge is based solely upon information and belief, the source being: Ryan Clay, Blood Test Kit # HB-100321.” (Def.’s Aff. at 47 & Ex. B). As noted above, despite the checked box, it is clear from the factual narrative that the deponent officer [Officer Anthony Buonagurio] had personal knowledge, i.e., direct admissions from the defendant to the officer that defendant both operated a motor vehicle and had been drinking. The narrative portion also established that the toxicology reports revealed that the defendant’s BAC was greater than 0.18 percent. The facts that the defendant had been in a reportable accident, had admitted drinking and driving, that the officer observed the defendant to show signs of intoxication, and the results of the toxicology report all support a finding of facial sufficiency. See People v. McConnell, 11 Misc3d 57, 60, 812 NYS2d 742, 744 [App. Term 9th and 10th Jud Dist 2006] [misdemeanor information sufficient where driver was involved in accident, officer detective odor of alcohol on breath, defendant admitted that he "had like 2 beers"]. Next, the fact that the supporting deposition of the complaining witness was not attached to Count 2 is not fatal. The sufficiency of a misdemeanor information is measured by the sum of two parts: “allegations of the factual parttogether with those of any supporting depositions.” 100.40(1)(b) [emphasis added]; see also 100.40(1)(c) [allegations of the factual part of the information and/or of any supporting depositions." [emphasis added]. As noted above, the factual narrative alone is sufficient to support the charge. Moreover, it is undisputed in this case that the supporting deposition was, in fact, attached to Count 1. There was only one such deposition; the substance of the deposition did not differ by count. Thus, this Court finds that the defendant had notice of the contents of the complaining witness’s supporting deposition. Finally, the defendant’s contention that the misdemeanor information with respect to Count 2 is devoid of evidence that the defendant in fact operated the motor vehicle is rejected for the same reasons as set forth with respect to Count 1. Accordingly, the Court finds that Count 2 is facially sufficient and thus not jurisdictionally defective. B. Motion to Dismiss for Violation of Speedy Trial Right Next, the defendant contends that his speedy trial rights were violated insofar as the People failed to file a valid Certificate of Compliance ["CoC"] and Statement of Readiness ["SoR"] within 90 days of commencement of the action. (Def.’s Aff. at 66-81). CPL 30.30(1)(b) provides, in pertinent part, that a motion to dismiss an accusatory instrument must be granted where the People are not ready for trial within: “ninety days from the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony.” Moreover, a criminal action is commenced by the filing of an accusatory instrument against a defendant in criminal court (see Criminal Procedure Law 1.20[17]). Courts have held that for purposes of CPL 30.30, that the legislature intended for the speedy trial clock to begin running upon the defendant’s “actual physical appearance in court.” (People v. Mendoza, __ Misc 3d __, 2021 NY Slip Op 50850(U) [Crim Ct, NY County 2021] quoting People v. Stirrup, 91 NY2d 434 [1998]). On January 1, 2020, new legislation affecting both CPL 30.30 and CPL 245.50 went into effect. The new law requires the People to file a CoC with the Court prior to announcing readiness under CPL 30.30 (see CPL 245.50[3]). In order for the People to be ready for trial, “the People must: (1) file a certificate of good faith discovery compliance; (2) file a valid statement of readiness; and (3) certify the facial sufficiency of the accusatory instrument” (People v. Ramirez-Correa, Docket CR-018674-20QN [Crim Ct, Queens County 2021]); see also People v. Hall, CR-013437-20SU [Dist Ct, Suffolk County, April 14, 2021 Kerr, J.]). Here, while the People’s CoC and SoR were filed within 90 days of arraignment,1 the defendant contends that the People’s CoC and SoR are nevertheless invalid due to the People’s failure to certify the facial sufficiency of the accusatory instrument. (Def.’s Aff. at 66-81). It is undisputed that the People’s CoC filed on November 15, 2021 did, in fact, certify the facial sufficiency of the accusatory instrument. (11/15/2021 CoC, Court file). However, the defendant contends that such certification is invalid because the accusatory instruments were facially insufficient. (Def.’s Aff. at 71). This Court rejects the defendant’s motion as meritless, as the accusatory instruments were in fact facially sufficient for the reasons discussed above. In addition, the People contend that the defendant’s motion challenging the CoC is untimely insofar as such motions must be filed within 45 days pursuant to CPL 255.20(1)&(3). (People’s Mem. of Law in Opp. at Point I, pp. 1-2). CPL 255.20 provides, in pertinent part, “all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment.” CPL 255.20(1). CPL 245.50(4), which governs motions challenging the validity of CoCs, is silent as to the timing of making such a motion. Nevertheless, several courts have held that the 45-day time limit set by CPL 255.20 is applicable to motions challenging the sufficiency of a CoC, and have held that a motion challenging the validity of a CoC must be filed within 45 days of the filing of the CoC. See People v. Lenio, CR-020394-20SU, CR-020417-20SU [Dist Ct, Suffolk Cnty, July 19, 2021] [motion challenging CoC denied as untimely where filed more than 45 days after the filing of the CoC]. Accord, People v. Florez, 74 Misc3d 1222(A), 162 NYS3d 920 [Dist Ct, Nassau Cnty, March 10, 2022] [same]. Here, the People filed their CoC on November 15, 2021, and the defendant filed the instant motion on March 17, 2022, some 122 days later. Since more than 45-days have elapsed since the filing of the CoC, the defendant’s motion is untimely. By reason of the foregoing, the defendant’s motion to dismiss the accusatory instrument as both jurisdictionally defective and facially insufficient, and on the grounds that his right to a speedy trial has been violated, is DENIED. This shall constitute the decision and Order of the Court. Dated: May 17, 2022
