DECISION & ORDER Defendant moves for an order (i) dismissing the accusatory instrument as facially insufficient pursuant to CPL §§100.40; 170.40(1)(a), and 170.35(1)(a); and (ii) for such other relief as this Court may deem proper. For the foregoing reasons, defendant’s motion to dismiss the accusatory instrument as facially insufficient is denied. Factual and Procedural History Defendant is accused of driving while intoxicated. The accusatory instrument filed alleges that Police Officer Dmitriy Lyubchenko was informed that on August 25, 2023 Sergeant Bryan Ortiz, observed defendant sleeping behind the driver seat of a blue 2008 Nissan Pathfinder SUV that had the keys in the ignition, engine was running, headlights were on, and the vehicle was in a public roadway. Once Sergeant Ortiz approached defendant, he observed defendant with bloodshot watery eyes, slurred speech, unable to stand, and emanating a scent of alcohol. Defendant was therefore arrested. However, defendant refused to take a chemical test analysis. Given defendant’s alleged actions, defendant was charged with Vehicle and Traffic Law §§1192(3) (driving while impaired) and 1192(1) (driving while impaired). The matter was adjourned to September 26, 2023 for the People to convert the misdemeanor complaint to an information and file a Certificate of Compliance (“CoC”). At the September 26, 2023 court appearance, the matter was still unconverted and the People had not filed their CoC. The matter was adjourned to November 15, 2023. On November 15, 2023, the complaint remained unconverted and the People noncompliant. Consequently, the matter was adjourned to December 29, 2023 for the People to file a CoC and to convert the accusatory instrument to an information. In between court appearances, on November 18, 2023 (85th day), the People filed and served a Superseding Information (“SSI”), CoC, and Statement of Readiness (“SoR”). The SSI added that Officer Lyubchenko observed the incident through Department of Transportation (“DOT”) surveillance footage time stamped 22:18 August 24, 2023. The footage showed a blue SUV traveling on the Bronx Expressway that crashed into a police vehicle parked between the expressway and on-ramp which crash caused the blue SUV to sustain a crumpled front bumper. Near the collision was a New York license plate #KZF381 on the ground. The damaged blue SUV drove into the parking lot located at 500 Abbott Street. The SSI also noted that Officer Lyubchenko observed the NYPD body-worn camera (“BWC”) footage of Sergeant Ortiz recorded at approximately 23:23 on August 24, 2023. The footage corroborated Sergeant Ortiz’s observation as stated in the original accusatory instrument. When Officer Lyubchenko arrived at the scene, he observed a license plate bearing KZF5381 affixed to the rear of the 2008 Nissan Pathfinder. Moreover, Officer Lyubchenko observed damage to the front of the vehicle with no front license plate. Officer Lyubchenko also noticed that defendant had bloodshot watery eyes, slurred speech, and a strong odor of alcoholic beverage emanating from his breath. Furthermore, Officer Lyubchenko was present when defendant refused to take a chemical breath test. At the December 29, 2023 court appearance, the misdemeanor complaint was deemed an information. Defendant’s appearance was excused due to a medical condition therefore the court could not arraign defendant on the information. Additionally, defendant had not completed screening and assessment. The matter was adjourned to January 26, 2024 for a discovery conference and screening and assessment results. On January 26, 2024, the date of the discovery conference, defendant indicated that there were no discovery issues that would impact the CoC. However, defendant argued that the matter should be dismissed because the accusatory instrument contained hearsay and, therefore, was unconverted before the filing of the CoC. Now before this court is defendant’s motion to dismiss the accusatory instrument as facially insufficient for failing to show that defendant operated the vehicle while intoxicated and to cure the hearsay in the SSI. In opposition, the People argued that “merely stating what one sees on a video, which has no audio does not constitute hearsay.” However, on reply, defendant maintained that the accusatory instrument failed to show that defendant operated a vehicle. Legal Analysis “A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution.” People v. Dreyden, 15 N.Y.3d 101, 103 (2010). Thus, a facially insufficient accusatory instrument must be dismissed. People v. Alejandro, 70 N.Y.2d 133 (1987). However, the Criminal Procedure Law provides the People with an opportunity to cure a defective complaint by filing a superseding information that may contain additional facts or charges not contained in the original accusatory instrument. People v. Morel, 157 Misc. 2d 94 (Crim. Ct. Kings Cnty. 1993) (People may file a superseding with new charges and additional facts subject to the right to a speedy trial); People v. Cibro Oceana Terminal Corp., 148, 151 Misc. 2d 149 (Crim. Ct. Bronx Cnty. 1990) (“superseding information may be supported by factual allegations not included in the original accusatory instrument.”). Hence, a superseding information is not limited to the contents of the original accusatory instrument and therefore may be used to cure any defects. The contents of an accusatory instrument must comply with the requirements of CPL 100.15. Specifically, the allegations must contain “facts of an evidentiary character supporting or tending to support the charges”. See CPL §§100.40 (1), (4) and 100.15 (3). The “test for facial sufficiency ‘is, simply, whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy’ ” People v. Aragon, 28 N.Y.3d 125, 128 (2016) (citations omitted); People v. Casey, 95 N.Y.2d 354 (2000). To be facially sufficient, an information must “ provide reasonable cause to believe that the People can prove every element of the crime charged.” CPL §100.40(1)(b); People v. Jordan, 43 Misc. 3d 1210(A) (Crim. Ct. N.Y. Cnty. 2014). Reasonable cause exists when the evidence and information can “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). When conducting a review to determine sufficiency, the court examines the factual allegations in the accusatory instrument together with supporting depositions or other non-hearsay documents which relate to it or that of a superseding information. See CPL §100.40(1)(b); see People v. Dumas, 68 N.Y.2d 729 (1986) (“factual part of a misdemeanor complaint must allege ‘facts of an evidentiary character’ (CPL 100.15) demonstrating ‘reasonable cause’ to believe the defendant committed the crime charged (CPL 100.40 [b])”). Moreover, the allegations “should be given a fair and not overly restrictive or technical reading”. People v. Kalin, 12 N.Y.3d 225, 230 (2009). However, the court’s review is limited to the four corners of the accusatory instrument, People v. Casey, 95 N.Y.2d 354 (2000); which must be given a liberal review by assuming that the factual allegations are true. People v. Lugo, 47 Misc. 3d 1222(A) (Crim. Ct. Bronx Cnty. 2015). In other words, the allegations must give rise to a prima facie case when viewed in the light most favorable to the People. People v. Henderson, 92 N.Y.2d 677 (1999). It is fundamental that the facts in a facially sufficient accusatory instrument must be supported by non-hearsay allegations establishing the elements of each individual charge. CPL §100.40(1)(c); People v. A.S., 28 Misc. 3d 381 (Crim. Ct. N.Y. 2010). Hearsay is defined as “an out-of-court statement made by a declarant and offered for the truth of the matter asserted”, People v. Ogando, 64 Misc. 3d 310 (Crim. Ct. N.Y. Cnty. 2019) (citations omitted), regardless of whether the statement was made verbally, written, or through non-verbal conduct. People v. Kass, 59 A.D.3d 77 (2d Dept. 2008). However, non-verbal hearsay only pertains to actions that have assertions and are intended “as a substitute for words in expressing the matter stated.” People v. Caviness, 38 N.Y.2d 227, 230 (1975). It is well settled that a facially sufficient accusatory instrument charging VTL §§1192(1) (driving while impaired) and 1192(3) (driving while intoxicated) must provide reasonable cause to believe that the defendant “(1) operat[ed] a vehicle, (2) on a public road as defined in Vehicle and Traffic Law §1192(7), in either (3) an intoxicated or impaired condition.” People v. Valera, 58 Misc. 3d 369 (Crim. Ct. Bronx Cnty. 2017). A facially sufficient accusatory instrument only requires facts to support an inference that defendant was operating a motor vehicle. People v. Stafford, 48 Misc. 3d 1231(A) (Crim. Ct. Bronx Cnty. 2015) (police officer responded to the scene of a motor vehicle accident and observed defendant standing near the vehicle). Operation does not require direct observations of driving and can be established “in either one of two ways: (1) evidentiary facts to support the inference that defendant was operating a case (such as an admission, eyewitness account, key in the ignition, location of the car; or (2) an allegation that the engine was running.” People v. Black, 58 Misc. 3d 221, 226 (Crim. Ct. Queens Cnty. 2017). Hence, the accusatory instrument does not need to allege that defendant was observed operating the vehicle. People v. Green, 59 Misc. 3d 134 (A) (App. T. 2018) (“An accusatory instrument alleging a violation of Vehicle and Traffic Law §1192 (3) ‘allows for a circumstantial showing of [an] inability to operate a motor vehicle while under the influence of alcohol’”) (citations omitted) see also People v. Ramlall, 47 Misc. 3d 141(A) (App. T. 2nd, 11th, and 13th Judicial Districts 2015) (“element of operation can also be proven by circumstantial evidence.”). Here, the accusatory instrument states that that the deponent, Officer Lyubchenko, observed a motor vehicle via the DOT surveillance footage traveling along the public roadway. The motor vehicle crashed into a parked police vehicle leaving behind a New York license plate number #KZF5381. Officer Lyubchenko then viewed a fellow officer’s BWC footage and observed defendant exit a blue SUV. When the deponent arrived at the scene of the incident, he observed the blue SUV with a rear license plate (#KZF5381). Additionally, the officer observed that defendant had an odor of alcohol from his breath, bloodshot watery eyes, and slurred speech. Therefore, considering the totality of the facts this Court deems the accusatory instrument facially sufficient as to the VTL §§1192(1) and 1192(3) charges. As to the SSI, the court deems it an information since it does not contain any hearsay violations even though Officer Lyubchenko is the one who observed both the DOT surveillance and Sergeant Ortiz’s BWC footage. “Merely stating what one sees on a video, which has no audio and includes no nonverbal assertions does not constitute hearsay.” People v. Jones, 77 Misc. 3d 5, 9 (App. T. 2d Dept. 2022). Further, videos are merely visual representations of the events that transpired during a specific period of time. People v. Clyburn, 56 Misc. 3d 1204(A) (Crim. Ct. N.Y. Cnty. 2017) (“As a non-testimonial, machine-made video recording, the surveillance video poses none of the credibility hazards contemplated by the hearsay rule.”). Hence an individual’s rendition of their observations when viewing video footage does not constitute hearsay. See, e.g., People v. West, 41 Misc. 3d. 542 (Crim. Ct. Bronx Cnty. 2013) (complainant viewed video footage and saw defendant take money from the register); People v. Patten, 32 Misc. 3d 440 (City Ct. Long Beach 2011) (police officer’s observation of video); People v. Lamber, 2002 WL 176921 (Crim. Ct. N.Y. Cnty. 2002) (officer personally viewed videotape of criminal conduct); but see People v. Kelly, 35 Misc. 3d 1233(A) (Crim. Ct. Kings Cnty. 2012) (complaining witness viewing video surveillance that required authentication constituted hearsay); People v. Allison, 21 Misc. 3d 1108(A) (Dist. Ct. Nassau Cnty. 2008) (Macy’s employee observing camera held hearsay when employee failed to lay proper foundation authenticating the footage). Accordingly, this court finds that statements as to observations of a video do not constitute hearsay. Therefore, the accusatory instrument is facially sufficient and the People’s CoC and SoR are valid. This constitutes the decision of the court. Dated: May 30, 2024
