PEOPLE v. LOPEZ (2023)

The defendant, Alexandra Lopez, submitted an omnibus motion, dated November 18, 2022, seeking: inspection of the Grand Jury minutes and dismissal or reduction of the indictment; motion for a Bill of Particulars and related discovery; suppression of evidence; Sandoval/Ventimiglia relief and leave to file further motions. The People's response, dated January 3, 2023, consents to some of the relief sought and opposes other relief. The court decides the motion as follows.

INSPECTION AND DISMISSAL OR REDUCTION

Defendant's motion to inspect the grand jury minutes is granted. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time the prosecutor instructed the grand jurors on the law. The indictment substantially conforms to the requirements set forth in CPL § 200.50. The instructions were not defective as a matter of law and the proceedings were proper except for counts 1, 2, 3, 4, 5, 7, 9, 11 and 15. Upon inspection of the Grand Jury minutes, this court found the evidence to be legally sufficient to support all counts of the indictment.

Nonetheless, the court finds that the instructions were defective as a matter of law with respect to counts 1, 2, 3, 4, 5, 7, 9, 11 and 15.

Counts 1 and 3 charge Aggravated Vehicle Assault (Pl § 120.04[-a][1]), count 2 charges Aggravated Vehicle Assault (PL § 120.04[-a][4]), counts 4 and 7 charge Vehicle Assault in the First Degree (PL § 120.04[1]), count 5 charges Vehicle Assault in the First Degree (PL § 120.04[4]), counts 9 and 11 charge Vehicle Assault in the Second Degree (PL § 120.03[1]) and count 15 charges Aggravated Driving While Intoxicated (VTL § 1192[2][-a]).

As defined by the Penal Law and the Vehicle and Traffic Law, counts 1, 3, 4, 7 and 15 each contain the element that the defendant operated a motor vehicle while she had .18 of one per centum or more by weight of alcohol in her blood as shown by a chemical analysis of her breath.

As charged by the prosecutor to the grand jury, counts 2, 5, 9 and 11 each allege the defendant operated a motor vehicle while she had .08 of one per centum or more by weight of alcohol in her blood as shown by a chemical analysis of her breath.

In this case, the device used to measure the blood alcohol content in the defendant's breath was the CMI Intoxilyzer 9000. The criminal jury instructions for these counts provides guidance to the jurors that, “to determine whether the defendant had .08 and .18 of one per centum or more by weight of alcohol in her blood, you may consider the results of any test given to determine the alcohol content of the defendant's blood. A finding that the defendant operated a motor vehicle, and thereafter had .08 and .18 of one per centum or more by weight of alcohol in her blood permits, but does not require, the inference that, at the time of the operation of the motor vehicle, the defendant had .08 and .18 of one per centum or more by weight of alcohol in her blood.” (CJI2d[NY][VTL §§ 1192[2]; [2a].) To determine the accuracy of the results of the breath test produced from the Intoxilyzer 9000, the instruction permits jurors to consider the qualifications and reliability of the person who gave the test, the lapse of time between the operation of the motor vehicle and the giving of the test, whether the device used was in good working order at the time the test was administered, and whether the test was properly given. The instruction also provides a detailed list of facts and circumstances that jurors may consider in addition to the evidence of the results of the chemical test including, inter alia, the defendant's physical condition and appearance; balance and coordination; manner of speech; the presence or absence of an odor of alcohol; the manner in which the defendant operated the motor vehicle; opinion testimony regarding the defendant's sobriety, and the circumstances of any accident.

Upon instructing the grand jurors as to count 15, the prosecutor stated:

A person is guilty of Aggravated Operating a Motor Vehicle Under the Influence of Alcohol when, she operates a motor vehicle while having .18 of one per centum or more by weight of alcohol in her blood as shown by a chemical analysis of such person's blood, breath, urine or salvia.

Motor vehicle means every vehicle operated or driven upon a public highway, which is propelled by any power other than muscul[ar] power.

Operate means to drive.

The Court of Appeals stated in People v Calbud, 49 NY2d 389, 394-395 (1980), that “[a] Grand Jury need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law.” The Court of Appeals also stated that “[w]e deem it sufficient if the District Attorney provides the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime.” (Id.)

Here, the prosecutor's instructions to the grand jury as to count 15 did not meet that standard because it was incomplete. The prosecutor, in count 15, failed to instruct the jurors on the application of the permissible inference when considering the results of the Intoxilyzer 9000 breath results as applied to the time the defendant operated the motor vehicle or of the factors to consider in determining the accuracy of the results of the breath test. The prosecutor also did not guide the grand jurors by listing in his instructions the detailed facts and circumstances they could consider in determining whether the defendant operated a motor vehicle while having a blood alcohol content of .18 or more for count 15.¹

Further, the instructions for counts 1, 2, 3, 4, 5, 7, 9 and 11 required the prosecutor, when charging the grand jury as to these counts, to include in the charge the appropriate instruction for VTL § 1192[2] for counts 2, 5, 9, and 11 and VTL § 1192 [2][-a] for counts 1, 3, 4, and 7, or if a separation instruction was given, to incorporate it in the charge for each related count by reference. The prosecutor failed to do either for counts 1, 2, 3, 4, 5, 7, 9 and 11. The incomplete instruction given for each of these counts did not address how the grand jurors should assess and evaluate evidence offered to prove that the defendant operated a motor vehicle while having a blood alcohol content of .08 of one per centum by weight of alcohol in her blood for counts 2, 5, 9 and 11 and a blood alcohol content of .18 of one per centum by weight of alcohol in her blood for counts 1, 3, 4, and 7. Accordingly, counts 1, 2, 3, 4, 5, 7, 9, 11 and 15 are dismissed with leave to re-present to another grand jury.

The prosecutor also erred by permitting a witness to offer a lay opinion without providing a proper foundation. Police Officer Cyndee Davis testified in the grand jury. At one point, the prosecutor asked her, “Could you just describe the condition of [the defendant] at the time you observed her?” Police Officer Davis replied, “She appeared to be intoxicated. She had bloodshot eyes, slurred speech, she looked disoriented.”

Opinion testimony from a lay witness is admissible where: (1) it “is rationally based on the witness's perception;” (2) it “is within the ambit of common experience or that of a particular witness;” and (3) it “would be helpful to the finder of fact in understanding the witness's testimony or in determining a fact in issue, especially when facts cannot be stated or described in such a manner as to enable the finders of fact to form an accurate judgment about the subject matter or of the opinion or inference.” (Guide to NY Evid Rule 7.03, Opinion of Lay Witness).

Here, the prosecutor failed to lay a proper foundation for this opinion evidence by establishing that assessing an individual's state of intoxication was within the ambit of this witness's experience. If he had wished for Police Officer Davis to give an opinion on the defendant's intoxication, he could have laid a proper foundation by eliciting information about her background, training, and familiarity with individuals under the influence of alcohol. However, he failed to establish that foundation. Thus, it was error for the prosecutor to elicit opinion testimony from Police Officer Davis. Nevertheless, this error did not impair the integrity of the proceedings as a whole. (People v Steans, 187 AD2d 741, 741 [2nd Dept 1992].)

To sustain the element that the defendant's blood alcohol content was .18 of one per centum or more by weight of alcohol in the defendant's blood as shown by a chemical analysis of the defendant's breath, the following exchange occurred between the prosecutor and Police Officer Martocci:

Q. What, if anything happened at the 112?

A. She [the defendant] takes the intoxilyzation test, and at that point, she blew a .196.

Q. To the benefit of your knowledge, what is the legal limit here in New York?

A. .08.

This brief, isolated line of questioning by the prosecutor of Police Officer Martocci was improper because the prosecutor permitted the witness to instruct the grand jury as to the law in violation of CPL § 190.25(6) which provides “The legal advisors of the grand jury are the court and the district attorney, and the grand jury may not seek or receive legal advice from any other source.” However, this error as well as eliciting improper opinion testimony from Police Officer Davis, did not impair the integrity of the grand jury proceeding as a whole. The motion to dismiss the indictment is, therefore, denied with respect to the remaining counts. (see Steans, 187 AD2d at 741)

BILL OF PARTICULARS AND DISCOVERY-RELATED MOTIONS

The defendant's motion for an order compelling a bill of particulars is denied s moot, as the People have provided one with their omnibus response.

In her motion, the defendant has moved for an order relating to Rosario and Consolazio material. The People have certified that they have satisfied their automatic discovery obligations pursuant to CPL § 245.20(1) in their certificate of compliance dated October 3, 2022. In the absence of any challenge to the People's certificate, the court declines to issue any discovery-related order, which appears to be superfluous in this case, aside from the court's standing Brady order, which appears below. The court reminds the People of their ongoing discovery obligations.

MOTIONS TO SUPPRESS

The defendant has made a pre-trial motion to suppress physical evidence, namely her vehicle, claiming that it was the product of her illegal arrest. In her motion papers, the defendant alleged that prior to her arrest she was seated in her parked car when the police ordered her out of her vehicle. The police thereafter seized her vehicle.

The defendant's motion to suppress physical evidence is denied as moot, as the People have affirmed in their certificate of compliance that no property was recovered from the defendant which the People intend to introduce on its direct case.

In any event, the factual allegations in the defendant's motion are insufficient to give rise to a Dunaway hearing. In her motion, the only facts with which the defendant supports her request for suppression on the basis of lack of probable cause are: “The defendant was in a parked car on June 28, 2022; [t]he police ordered everyone out of the car with no probable cause; the police seized the [defendant's] vehicle without consent and without probable cause”; and that “said property [the defendant's vehicle] was taken subsequent to the defendant's arrest, said arrest being made absent probable cause.”

To obtain a Dunaway hearing, a defendant must allege a sufficient factual basis to demonstrate that there is some material factual dispute that requires resolution by such a hearing. (see People v Mendoza, 82 NY2d 415, 426 [1993].) In this regard, the Court of Appeals has explicitly stated, “An allegation that ‘I did nothing giving rise to probable cause’ is, without more, plainly insufficient because probable cause is a mixed legal-factual issue and the pleading lacks the factual portion of the equation.” (Id. at 427.) Here, the purportedly factual portion of the defendant's motion on this point is nearly identical to the allegation the Court of Appeals deemed “plainly insufficient” in Mendoza. Unsurprisingly, then, this allegation is insufficient to give rise to a Dunaway hearing and the defendant's motion is denied in that regard.

The defendant's motion to suppress his statements to police officers is denied because the People have indicated they are “unaware of any statement made by this defendant” pursuant to CPL § 710.30(1)(a). (Affirmation of Prosecutor at 5)

SANDOVAL/VENTIMIGLIA RELIEF

The defendant's requests for a Sandoval/Ventimiglia hearing and, ultimately, the preclusion of evidence of prior bad acts is referred to the trial court. The People are remined that the disclosure of any Sandoval/Ventimiglia material that they intend to introduce at trial shall be made in accordance with the time frame set forth in CPL §§ 245.10(1)(b) and 245.20(3).

ORDER TO COUNSEL

This court issues this order as both a reminder and a directive that counsel uphold their constitutional, statutory and ethical responsibilities in the above-captioned proceeding:

To the Prosecutor:

The District Attorney and the Assistant responsible for the case, or, if the matter is not being prosecuted by the District Attorney, the prosecuting agency and its assigned representative, is directed to make timely disclosures of information favorable to the defense as required by Brady v Maryland, 373 US 83 (1963), Giglio v United States, 405 US 150 (1972), People v Geaslen, 54 NY2d 510 (1981), and their progeny under the United States and New York State constitutions, and pursuant to Criminal Procedure Law (CPL) article 245 and Rule 3.8(b) of the New York State Rules of Professional Conduct, as described hereafter.

• The District Attorney and the Assistant responsible for the case have a duty to learn of such favorable information that is known to others acting on the government's behalf in the case, including the police, and should therefore confer with investigative and prosecutorial personnel who acted in this case and review their and their agencies’ files directly related to the prosecution or investigation of this case.

• Favorable information could include, but is not limited to:

a) Information that impeaches the credibility of a testifying prosecution witness, including (i) benefits, promises, rewards or inducements, express or tacit, made to a witness by a law enforcement official or law enforcement victim services agency in connection with giving testimony or cooperating in the case; (ii) a witness's prior inconsistent statements, written or oral; (iii) a witness's prior convictions and uncharged criminal conduct; (iv) information that tends to show that a witness has a motive to lie to inculpate the defendant, or a bias against the defendant or in favor of the complainant or the prosecution; and (v) information that tends to show impairment of a witness's ability to perceive, recall, or recount relevant events, including impairment of that ability resulting from mental or physical illness or substance abuse.

b) Information that tends to exculpate, reduce the degree of an offense, or support a potential defense to a charged offense.

c) Information that tends to mitigate the degree of the defendant's culpability as to a charged offense, or to mitigate punishment.

d) Information that tends to undermine evidence of the defendant's identity as a perpetrator of a charged crime, such as a non-identification of the defendant by a witness to a charged crime or an identification or other evidence implicating another person in a manner that tends to cast doubt on the defendant's guilt.

e) Information that could affect in the defendant's favor the ultimate decision on a suppression motion.

• Favorable information shall be disclosed whether or not it is recorded in tangible form, and irrespective of whether the prosecutor credits the information.

• Favorable information must be timely disclosed in accordance with the United States and New York State constitutional standards, and in accordance with the timing provisions of CPL article 245. The prosecutor is reminded that the obligation to disclose is a continuing one. Prosecutors should strive to determine if favorable information exists. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in CPL 245.10(1).

• A protective order may be issued for good cause pursuant to CPL 245.70 with respect to disclosures required under this order.

• Failures to provide disclosure in accordance with CPL Article 245 are subject to the available remedies and sanctions for nondisclosures pursuant to CPL 245.80.

• Only willful and deliberate conduct will constitute a violation of this order or be eligible to result in personal sanctions against a prosecutor.

To Defense Counsel:

Defense counsel, having filed a notice of appearance in the above captioned case, is obligated under both the New York State and the United States Constitution to provide effective representation of defendant. Although the following list is not meant to be exhaustive, counsel shall remain cognizant of the obligation to:

a) Confer with the client about the case and keep the client informed about all significant developments in the case;

b) Timely communicate to the client any and all guilty plea offers, and provide reasonable advice about the advantages and disadvantages of such guilty plea offers and about the potential sentencing ranges that would apply in the case;

c) When applicable based upon the client's immigration status, ensure that the client receives competent advice regarding the immigration consequences in the case as required under Padilla v Kentucky, 559 US 356 (2010);

d) Perform a reasonable investigation of both the facts and the law pertinent to the case (including as applicable, e.g., visiting the scene, interviewing witnesses, subpoenaing pertinent materials, consulting experts, inspecting exhibits, reviewing all discovery materials obtained from the prosecution, researching legal issues, etc.), or, if appropriate, make a reasonable professional judgment not to investigate a particular matter;

e) Comply with the requirements of the New York State Rules of Professional Conduct regarding conflicts of interest, and when appropriate, timely notify the court of a possible conflict so that an inquiry may be undertaken or a ruling made;

f) Possess or acquire a reasonable knowledge and familiarity with criminal substantive, procedural and evidentiary law to ensure constitutionally effective representation in the case; and

g) When the statutory requirements necessary to trigger required notice from the defense are met (e.g., a demand, intent to introduce particular evidence, etc.), comply with the statutory notice obligations for the defense as specified in CPL 250.10, 250.20, and 250.30.

LEAVE TO FILE FURTHER MOTIONS

The branch of the motion requesting leave to file additional motions is granted to the extent recognized by CPL 255.20(3).

This constitutes the decision and order of the court.

The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.

FOOTNOTES

1.   The prosecutor, in his instructions for count 16 that charged VTL § 1192(3), included an incomplete instruction of the Intoxilyzer 9000. He said “in this case the device that was used to measure blood alcohol content was an Intoxilyzer. That device is a generally accepted instrument for determining blood alcohol content, Thus, the People are not required to offer expert scientific testimony to establish the validity of the principles upon which the device is based.” Of course, this instruction was substantially incomplete and wholly inadequate to inform the grand jurors how they should assess and evaluate blood alcohol content evidence when offered to prove that the defendant operated a motor vehicle while having .08 and .18 of one per centum or more by weight of alcohol in her blood. Moreover, the prosecutor did not incorporate the incomplete instruction by reference when he instructed the jurors as to counts 1, 2, 3, 4, 5, 7, 9 and 11.

Gary F. Miret, J.