The People of the State of New York v. Ronald J. Betters, Defendant. (2026)

Synopsis. The defendant is charged by the New York State Police with common law driving while intoxicated , VTL 1192 (3), imprudent speed, VTL § 1180 (a), no inspection, VTL § 306 -B, unsafe lane change, VTL 1128(a), leaving the scene of a property damage accident, VTL § 600 (1) (a) and failure to notify the Department of Motor Vehicles of an address change. Defense counsel filed omnibus motions, which included a motion to dismiss the accusatory instrument charging the defendant with common law driving while intoxicated as being insufficient on its face pursuant to CPL §§ 170.30 (1) (a) and 170.35 (1) (a). The People filed a response in opposition to said motion. The court will grant the motion to dismiss the charge of common law driving while intoxicated. As to the motion to preclude statements of the defendant, the motion is granted relative to statements made in the body worn camera footage.

History of the Case.

Filed with the court were uniform traffic informations and a fill-in-the blanks and check box Supporting Deposition / Bill of Particulars. Said latter form consisted of two pages. Attached thereto was a CPL 710.30 form, which was blank except for a reference that the Miranda warnings were provided to the defendant on March 14, 206 at 15:57. The defendant was directed to appear in court on April 1, 2024 by means of a Uniform Appearance Ticket. The defendant was arraigned on that date. Subsequently, a second CPL § 710.30 Notice relative to statements made by the defendant, was served on the court and defense counsel via an email dated April 16, 2026, which was fifteen days after said arraignment. Upon further review it was determined that the court was in possession of a duly executed notice of refusal to submit to a chemical test. As a result, on June 17, 2026 the defendant's license was suspended pending a DMV refusal hearing. Furthermore, motion argument was also conducted on that date. Whereupon the court reserved decision.

Facts of the Case.

Both the uniform traffic informations and the Supporting Depositon/Bill of Particulars [hereinafter referred to as the supporting deposition] allege that the defendant operated a motor vehicle on March 14, 2026 at approximately 3:30 P.M. while proceeding eastbound on State Route 104 in the Town of Webster, Monroe County. The supporting deposition sets out the reason for the stop of the defendant as the list of violations set out above. The arresting NYS trooper went on to check the boxes for crash, property damage and civilian complaint. However, in responding to the question in the deposition relative to whether there were any civilian witnesses, the trooper checked the box that indicates "no". As to the issue of operation, he went on to check the box for "Defendant near the Vehicle". There was no indication that keys were in the ignition, that the engine was running, that the engine was warm, nor that the defendant was injured in the crash.Probable cause for arrest was the said to be odor of alcoholic beverage, glassy eyes, impaired speech and impaired motor coordination. The deposition stated that the defendant refused to perform any roadside field tests. There were no reported oral admissions made by the defendant. However, the officer checked the box for "flight" in the section designated as "Admissions by the Defendant". No preliminary breath test was performed.

Legal Analysis.

CPL § 100.25 (2) states in pertinent part that

"A defendant charged by a simplified information is, upon a timely request, entitled as a matter of right to have filed with the court and served upon him, or if he is represented by an attorney, upon his attorney, a supporting deposition of the complainant police officer or public servant, containing allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged."

Furthermore, CPL § 70.10 (2) states that

" 'Reasonable cause to believe that a person has 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. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay."

This court has previously held that "An accusatory instrument charging a defendant with common law driving while intoxicated must provide reasonable cause to believe three specific elements. Namely, the accusatory instruments must allege that the defendant operated a motor vehicle; that the defendant was intoxicated and that the operation and intoxication were simultaneous." (People v. Chandler, 253 N.Y.S 3d 521,525, See also Gerstenzang, Handling a DWI Case in New York § 16;32 at 817 [2025-2026 ed]) The People in their responding motion refer to the police report filed as part of the arrest package as set out in an exhibit attached to said responding papers. However, to refer to the police report in determining the sufficiency of the accusatory instrument herein would be a grave error. The Court of Appeals has held

"As we recently reiterated, 'in evaluating the sufficiency of an accusatory instrument,' a court does 'not look beyond its four corners (including supporting declarations appended thereto)' (People v. Hardy, 35 NY3d 466, 475, 132 N.Y.S.3d 394, 157 N.E.3d 117 [2020]; see CPL 100.15[3]; 100.40[1][c]; People v. Thomas, 4 NY3d 143, 146, 791 N.Y.S.2d 68, 824 N.E.2d 499 [2005]). Courts must 'not rely on external factors to create jurisdictional defects not evident from the face of the' accusatory instrument (People v. Konieczny, 2 NY3d 569, 576, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004]). Instead, '[w]hether the allegation of an element of an offense is hearsay, rendering the information defective, is to be determined on a facial reading of the accusatory instrument' (Casey, 95 NY2d at 361, 717 N.Y.S.2d 88, 740 N.E.2d 233)." (People v. Slade, 37 NY3d 127, 136-137, 148 N.Y.S.3d 413,419-420, 170 N.E.3d 1189 [2021])

Operation. In this case the arresting trooper did not observe the defendant operating his motor vehicle. Instead he stated that when he came upon the scene in question "the defendant was near the vehicle". Nothing else in the supporting deposition suggested the element of operation. As a result the deposition does not establish the first element of common law driving while intoxicated, namely that of operation.

"The term 'operation' has a very specific meaning under the Vehicle and Traffic Law. It is undisputed that the definition of the term 'operate' as defined in DWI statutes is broader than that of driving and that '[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 the vehicle.' People v. Alamo, 34 NY2d 453, 459, 358 N.Y.S.2d 375, 315 N.E.2d 446 (1974) quoting Matter of Prudhomme v. Hults, 27 AD2d 234, 237, 278 N.Y.S.2d 67 (3d Dept. 1967). Therefore, 'criminal liability under section 1192 can attach to conduct dangerously close to driving, as long as that conduct occurs upon locations covered by the statute.' People v. Prescott, 95 NY2d 655, 662, 722 N.Y.S.2d 778, 745 N.E.2d 1000 (2001)." People v. Lekram, 57 Misc 3d 1220[A], 68 N.Y.S.3d 380, 2017 NY Slip Op. 51562[U] *3[2017])

Nevertheless, the court in Lekram dismissed the accusatory instrument charging the defendant with common law driving while intoxicated. It held that

"the sole allegations pertinent to the element of operation are that the defendant was seen sitting behind the wheel of his car in an intoxicated condition with a remote key in his pocket. This Court finds that the allegation that the motor vehicle was operating is conclusory and therefore is not 'a fact of an *526 evidentiary character' (CPL § 100.15[3]; see also, People v. Dreyden, 15 NY3d 100, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010]; Dumas, 68 NY2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686) which supports an element of the offense charged, namely vehicular operation. 'The phrase factual allegations of an evidentiary character' means nonconclusory descriptions of what the deponent personally observed, heard or experienced.' People v. Concepcion, 36 Misc 3d 551, 553, 945 N.Y.S.2d 543 (Crim. Ct., NY County 2012) citing Dumas, supra. '[W]here the fact at issue is a conclusion that derives solely from another fact or facts that have not been alleged, that fact is a conclusory allegation....' "¹

See also, People v. Lawrence, 55 Misc 3d 1209 [A], 58 N.Y.S.3d 875, 2017 NY Slip Op. 50474[U] [2017]. In that case the court in dismissing the accusatory instrument noted that

"Here the sole allegations pertinent to the element of operation are that the defendant was seen sitting alone in the driver's seat of his car while intoxicated. There are no allegations that the engine was running, that the key was in the ignition, nor even that the defendant was in possession of the keys to his car. Standing alone, the facts alleged are insufficient to find it reasonably likely that the defendant was operating his car at the time of the charged offenses...."²

In this case the allegations do not even allege that the defendant was in the vehicle, but only that the defendant was "near the vehicle".

CPL § 710.30 Notice to Defendant of Intention to Offer Evidence. CPL § 710.30 (2) requires that "Such notice must be served within fifteen days after arraignment and before trial". Service on the court and defense counsel on April 16, 2026 satisfied that specific requirement. However, in particular the said notice referred to statements made "on or about the date of 3/14/26, at or about the approximate time of 3:30 p.m., the sum and substance of which is: See attached pgs. and any/all BWC statements made to above law enforcement at above dates/times/locations." This court has held

"A statement in the 710.30 notice directing the defense to 'See Any and all BWC', does not in any way give the reader notice of the sum and substance of the statements of the defendant. Nor does it make the defense aware of said statements or give an adequate opportunity to timely move to suppress nor does it adequately identify any said statements." (People v. Bowman, 81 Misc 3d 1223[A], 2024 NY Slip Op. 5000[U] *4 [2024])

Conclusion.

In this case the accusatory instruments do not set out any allegations that would allow the court to reasonably conclude that the defendant operated his vehicle; that he was intoxicated and that the operation and intoxication occurred simultaneously. Therefore the motion to dismiss the charge of common law driving while intoxicated is hereby granted. The motion to grant preclusion of statements for failure to conform to CPL § 710.30 is also granted relative to any statements made in the body worn camera footage. The court reserves on the other motions of the defendant at this time. In the meantime the remaining charges continue to be before the court for disposition. This constitutes the decision and order of this court.

Dated: July 20, 2026

Webster, New York

Hon. Thomas J. DiSalvo

Webster Town Justice

FOOTNOTES

1.   (Id.)

2.   (Id. at *2)

Thomas J. DiSalvo, J.