People v. Puente

DECISION & ORDER Upon review and consideration of the submissions, court file and relevant law, defendant’s motion to dismiss the misdemeanor complaint on speedy trial grounds pursuant to CPL §30.30 (1)(b) is granted. The reasons for the court’s decision are explained below. Procedural and Factual Background On February 19, 2022, defendant Johnathan Puente was arrested and charged with violating Vehicle and Traffic Law (“VTL”) §600 (2) (leaving the scene of an incident without reporting), §511 (1)(a) (aggravated unlicensed operation of a motor vehicle), §1192 (2) (driving while intoxicated; per se), §1192 (1) (driving while under the influence of alcohol or drug), §509 (1) (unlicensed operation of a motor vehicle), and §600 (1)(a) (leaving the scene of an incident without reporting). On February 20, 2022, defendant was arraigned and released on his own recognizance. The matter was adjourned to March 30, 2022, for conversion of the complaint to an information, and for the People to file a certificate of compliance (“COC”) with their discovery obligations. At the March 30, 2022 court appearance, the complaint remained unconverted and the People had not filed a COC. The matter was therefore adjourned to May 2, 2022, for conversion and the filing of a COC. At the May 2, 2022 court appearance, again the complaint remained unconverted and the People had not filed a COC. The matter was therefore adjourned to June 3, 2022, for conversion and the filing of a COC. On May 13, 2022, the People served and filed (off-calendar) a superseding information which included, inter alia, the VTL §1192 (2) charge (driving while intoxicated; per se) — which had been initially charged — and an additional charge of VTL §1192 (3) (driving while intoxicated). The People also served and filed a copy of an alleged “Drager AlcoTest 7510 report” (“Drager report”), supporting deposition of David Adomah (a witness to the subject incident), certified Department of Motor Vehicles (“DMV”) driving abstract, supplemental automatic disclosure form, certificate of compliance (“COC”) and statement of readiness (see Appendix B & C, Opposition to Defendant’s Motion). The Drager report consisted merely of a single page document resembling a receipt (with the heading “Drager”), contained several handwritten entries, as well as some printed portions, and misspelled defendant’s first name (see Appendix C, People’s Opposition to Defendant’s Motion).¹ The report did not contain a certification in accordance with CPLR §4518;² nor was a supporting deposition supplied by the person who performed the chemical test, namely Nicole M. Cotumaccio. At the June 3, 2023 court appearance, the court (Giyang An, J.), refused to arraign defendant on the superseding information because the Drager report was not certified. The matter was adjourned to June 23, 2022, for possible disposition, a discovery conference, and for defendant to be arraigned on the superseding information (if certified). At the June 23, 2022 court appearance, the defense contested the sufficiency of the Drager report on the basis that it was still uncertified, and a motion schedule was set; the matter was adjourned for decision. By notice of motion dated August 10, 2022, defendant sought an order dismissing the misdemeanor complaint on speedy trial grounds pursuant to CPL §30.30 (1)(b). By affirmation dated September 16, 2022, the People opposed the motion. Reply papers were filed by the defense on October 4, 2022.³ Discussion The defense argued that the People were not ready for trial when they filed their statement of readiness on May 13, 2022 since they never moved to dismiss the VTL §1192 (2) charge, nor filed a certified copy of the blood alcohol test results, and therefore, the misdemeanor complaint was not converted to an information. The defense argued that since the statement of readiness failed to stop the speedy trial clock, the People must be charged a total of 122 days through June 23, 2022, which exceeded the speedy trial time and warranted dismissal. In opposition, the People argued that by filing the Draeger report, supporting deposition and DMV abstract, the hearsay defects in the complaint were cured in this case. The People further argued that in any event, the Draeger report qualified as a business record (an exception to the rule against hearsay), thereby curing any hearsay defect. The People maintained that since the complaint was converted on May 13, 2022, they should be charged with only 82 days and therefore, the motion to dismiss must be denied. Alternatively, the People argued that if this court finds that the Drager report failed to convert the VTL §1192 (2) charge, the court should strike the paragraph of the superseding information pertaining to the VTL §1192 (2) charge and dismiss that charge, leaving the VTL §1192 (3) charge to stand. In reply the defense urged that the uncertified copy of the Drager report, together with the People’s alleged superseding information, failed to convert the complaint to an information. Pursuant to CPL §30.30 (1), a motion to dismiss must be granted when the prosecution is not ready for trial within the time set forth by the relevant speedy trial provision. To satisfy the initial burden under CPL §30.30, a defendant need allege “only that the prosecution failed to declare readiness within the statutorily prescribed time period” (People v. Luperon, 85 NY2d 71, 77-78 [1995]). Once a defendant has alleged that more than the statutorily prescribed time has elapsed since the commencement of the action without a declaration of readiness, the prosecution bears the burden of establishing sufficient excludable delay (see People v. Berkowitz, 50 NY2d 333, 349 [1980]). The time within which the prosecution must be ready is computed by subtracting any periods of delay that are excludable under the statute (see People v. Cortes, 80 NY2d 201, 208 [1992]). In this case, it is undisputed that the prosecution must be ready for trial within ninety (90) days of the commencement of the action. Trial readiness means that the prosecutors must have “done all that is required of them to bring the case to a point where it may be tried” (People v. England, 84 NY2d 1, 4 [1994]). To be ready for trial for section 30.30 (1) purposes, the People must first communicate their readiness either by stating that they are ready for trial in open court on a record transcribed by a stenographer or by a statement of readiness served upon defense counsel by the People and filing it with the court to be placed in the original record (see People v. Kendzia, 64 NY2d 331, 337 [1985]). Significantly, the People cannot be ready for trial until a misdemeanor complaint has been converted or replaced by an information (see CPL §170.65 [1]). A valid and sufficient information is a nonwaivable jurisdictional prerequisite to a criminal prosecution (see People v. Alejandro, 70 NY2d 133, 136 [1987] [an information which fails to contain allegations establishing each element of the crime without hearsay is fatally defective]; People v. Matthew P., 26 NY3d 332, 335 [2015]). For an information to be sufficient on its face, the factual portion of the accusatory instrument together with those of any supporting deposition, must “provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and [contain] “[n]on-hearsay allegations…[that] establish, if true, every element of the offense charged and the defendant’s commission thereof” (CPL §100.40 [1][c]; see also CPL §100.15 [3]).⁴ “This is referred to as the ‘prima facie case requirement’” (see People v. Kalin, 12 NY3d 225, 229 [2009] [citation omitted]). “Non-hearsay refers to that type of evidence which would be admissible at trial” (People v. Swinger, 180 Misc 2d 344, 346 [Crim Ct, NY County 1998]). In analyzing whether the factual allegations provide reasonable cause to believe the defendant committed the charged offense, courts must consider whether 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 [2]). To meet this standard, the allegations must be “of an evidentiary character supporting or tending to support the charges” (CPL §100.15 [3]), and be factual, rather than conclusory in nature (see People v. Dumas, 68 NY2d 729, 731 [1986]). Thus, if an information fails to make out a prima facie case by supporting the material elements of the charged crime with non-hearsay allegations of fact, it is subject to dismissal (see People v. Suber, 19 NY3d 247, 252 [2012]). Here, as stated, defendant is charged with, inter alia, VTL §1192 (2) — driving while intoxicated; per se — which provides, in relevant part, that “[n]o person shall operate a motor vehicle while such person has .08 of one per centum or more 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 ninetyfour of this article.” An element of this charge, as relevant to this motion, is defendant’s blood alcohol level, which must be shown to be .08 percent or greater, by non-hearsay allegations, in order to convert the complaint to an information. “[E]vidence that a breathalyzer test administered [to defendant]…showed defendant to have such a [blood alcohol content] is sufficient to establish a prima facie violation of [VTL §1192 (2)]” (People v. Mertz, 68 NY2d 136, 139 [1986] [emphasis supplied]). The relevant factual portion of the superseding information provided that, deposing, Police Officer Jimmy Bonilla, stated defendant was transported to a local-area Bronx hospital, wherein the defendant submitted to a chemical test analysis of the defendant’s breath. Deponent further state[d] that he was present at the administration of the aforementioned chemical test analysis of the defendant’s breath and that the defendant’s blood alcohol content as displayed on the breath analysis machine was 0.12 of one per centum by weight. Deponent further state[d] that the defendant refused to submit to a blood analysis test. The court finds that the factual allegations in the superseding information are not supported by sufficient non-hearsay evidence to establish the essential element of the VTL §1192 (2) charge as to defendant’s blood alcohol content (see People v. Wolfe, 88 NY2d 426, 432 [1996] [reasonable cause to believe that driver operated motor vehicle with a blood alcohol level in excess of the legal limit is established by the results of a chemical test "in certified, documented form…[pursuant to] CPLR 4518 [c];” People v. Strafer, 10 Misc3d 1072 [A], *2 [Crim Ct, Kings County 2006] [certified copy of breathalyzer results required for conversion of complaint alleging VTL §1192 (2) violation]; People v. Lopez, 170 Misc 2d 278 [Crim Ct, Kings County 1996] [accusatory instrument charging VTL §1192 (2) held to be jurisdictionally defective where not supported by a chemical test verified by the individual who administered the test in compliance with CPL §100.30]). Specifically, police officer Bonilla’s allegations as to the chemical test performed on defendant are conclusory in nature, rather than of an “evidentiary character,” and do not eliminate hearsay, to support the charge. The deponent failed to state the type of chemical test that was allegedly performed (the Drager test is not mentioned by the officer), when the test was performed and, who performed the test. Nor did the officer allege to have personal (i.e., “non-hearsay”) information, as to the actual administration of the test, and does not allege any experience or expertise with respect to the same. Additionally, the Drager report supplied in this case by the People, also failed to eliminate hearsay as to the chemical test and the alleged blood alcohol level results (see Appendix C, People’s Opposition to Defendant’s Motion). Significantly, the People failed to show that the report was a “business record” under CPLR §4518 to qualify as an exception to the hearsay rule, given no certification was supplied, nor statement by Nicole M. Cotumaccio, attesting that she performed the test, and that the report was made in the regular course of business; as part of the regular course of such business; and at the time of the act, transaction, occurrence or event, and recorded within a reasonable time thereafter (CPLR §4518 [a] & [c]).⁵ Additionally, the report does not appear to be reliable, as it contains a misspelling of defendant’s name, and unexplained handwritten and digital markings. Moreover, the People did not supply a supporting deposition by Nicole Cotumaccio, “containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein” (CPL §100.20). Further, the People have not supplied any statutory authority or case law to support their argument that this court should strike — at this juncture — the VTL §1192 (2) count of their original complaint (a charge which was also included in the superseding information) and let the VTL §1192 (3) charge (which was first alleged in the superseding information) stand as the top count in the accusatory instrument. As the People failed to convert the complaint — specifically as to the 1192 (2) charge — and failed to withdraw such charge prior to the 90-day statutory period, any declaration of readiness by the People had no effect and failed to stop the speedy trial clock. The court therefore calculates 103 days are chargeable to the People for the time from arraignment (February 20, 2022), to date.⁶ Since the People failed to be trial ready within the statutorily prescribed time, defendant’s motion to dismiss on speedy trial grounds pursuant to CPL §30.30 (1)(b) is granted. Dated: January 23, 2023