PEOPLE v. HINOJOSA (2025)

Defendant B. Hinojosa ¹ moves, among other things, to dismiss the accusatory instrument on facial insufficiency and speedy trial grounds, arguing that (1) it contains unconverted hearsay because of an unexplained shift in pronouns in what would otherwise be a first-party instrument; and (2) the People did not timely comply with their discovery obligations. For the reasons set forth below, the branch of the motion seeking dismissal is DENIED. Huntley/Mapp/Dunaway/1194 hearings are ORDERED. The People are ORDERED to provide the unredacted CCRB materials and IAB attachment to the defense within 30 days, and must make reasonable efforts to obtain and disclose the relevant NYS Chromatography Reports and NYS Police Simulator Solution Certificates within the same timeframe, or explain why they cannot do so. All other requests for relief are either REFERRED to the trial court or DENIED.

I. Background

Inconsistent Pronouns in the Accusatory Instrument

The short accusatory instrument in this case was sworn out by Officer Kamille Martinez. It charged Hinojosa with driving while intoxicated, driving while intoxicated per se, and driving while ability impaired—V.T.L. § 1192(3), (2), and (1), respectively—as well as unlicensed driving, V.T.L. § 509(1), all arising out an alleged March 28, 2025 incident in the Bronx.

Although the instrument was first-party, purporting to relate Officer Martinez's own observations, it used male pronouns to refer to its deponent for the opening and closing paragraphs, and female pronouns for the middle two paragraphs:

Deponent states that, at the above time and place, he observed defendant operating a 2012 white Mercedes Benz ․, in that he observed defendant seated behind the steering wheel, keys in the ignition, engine running, and headlights on, along a public roadway.

Deponent further states that when she observed defendant exit said vehicle, she observed a very strong odor of an alcoholic beverage emanating from defendant's breath, slurred speech and to be unsteady on his feet.

Deponent further states that she was present at the administration of a chemical test analysis of defendant's breath, and that defendant's blood alcohol conte[n]t as displayed on the breath analysis machine was .247 of one per centum by weight.

Deponent further states that he obtained and read a teletype printout of the New York State Department of Motor Vehicles, whose computers are tied into the New York City Police Department computer for the purpose of obtaining records, which records were made and obtained in the regular course of business and which are regularly made in the course of business within a reasonable time after the event or occurrence, and said records show that defendant does not own a valid driver's license.

Accusatory Instrument at 1—2 (emphasis added).

Arraignment and Off-Calendar Submissions

The accusatory instrument was filed on March 29. At arraignment that same day, the People filed the chemical test result. They submitted the DMV abstract off-calendar before the next court date, along with statement notice.

The Pronoun Issue at the First Post-Arraignment Appearance

The next appearance was on May 8, with Judge Krompinger presiding. Relying on the off-calendar filing of the DMV abstract, the People asked for the accusatory instrument to be deemed a misdemeanor information instead of a misdemeanor complaint. See Defense's Mot., Ex. E at 3. But defense counsel objected, emphasizing the shifting pronouns while asking the People to look into the issue:

[Defense Counsel]: So looking at the complaint, I would like to note that there are different pronouns used throughout. It says he observed, she observed, she observed, and then on the second page, he observed.

My understanding is that there might be a civilian witness who informed the police. So I would be asking that the prosecution to confirm that and look into that before we arraign my client on the information.

The Court: People, do you have a response?

[The People]: Judge, I can make a note for the assigned to take a look at the complaint. Hopefully, they will get back to you.

The Court: All right. On those grounds, I won't convert it at this time then.

Id. The court's action sheet entry for that day indicated that the People would investigate the issue. Neither the minutes for the appearance nor the action sheet reflected a court order for the People to investigate and resolve this issue.

The People's Certificate of Compliance

On June 26, a few days before the next appearance, the People filed their discovery materials, including a certificate of compliance (COC) and statement of readiness. The COC reflected disclosure of extensive discovery, including 911 materials, DMV reports, activity logs and body camera footage for twenty officers, and numerous reports relating to the Intoxilyzer 9000 used for the chemical test. Defense's Mot., Ex. A at 2—6.

The COC also reflected disclosure of Giglio impeachment materials for the three testifying officers—among them, the IDTU officer who administered the chemical test in Officer Martinez's presence. See id. at 3; see also People's Resp. Aff. at 4. The Giglio material for the IDTU officer consisted of only an unsubstantiated on-duty incident from 2021 for disobeying a traffic control device. According to an IAB log, the IDTU officer had been accused of crossing a double-yellow line and almost colliding with the complaining witness. See People's Resp., Exs. 4, 9. The People did not disclose the attachment to the log, and the corresponding CCRB reporter for the IDTU officer was partially redacted to remove his race, birth year, and age, as well as information pertaining to the specific CCRB # and incident date. Defense's Mot., Ex. D.

The COC flagged one item as unavailable: the patrol/roll call log. The People represented the document had not been obtained despite outreach to the discovery liaison and arresting officer on April 10, April 29, May 20, and June 25. Defense's Mot., Ex. A at 6—7.

Defense Counsel's Renewed Objection at the First Post-Readiness Appearance

The first post-readiness appearance was on June 30, with Judge Wolf presiding. After a brief discussion about discovery, defense counsel made a record regarding the prior objection to conversion:

On May 8th, I objected to having this complaint converted; Judge Krompinger sustained. I objected, because in the complaint there is inconsistent use of pronouns. He and then she, then she and then he. I offered that I believe that this may be [ ] evidence of a 911 call, or basically an informant. Judge Krompinger sustained my objection and ask[ed] the People to confirm if there was any of that. We received none of that evidence, so this case was not converted, by the way.

On the 26th, on Thursday, additionally, I received radio-run, and that I would suggest, potentially, I don't have it yet, but I haven't reviewed the discovery in bulk, so I'm maintaining my objection to converting this, and that this should be dismissed as the CPL 30.30 date was Friday the 27th so, because there was no SSI filed, and there wasn't any clarification given to the Court nor myself, I would be asking that this should be dismissed.

Defense's Mot., Ex. I at 4—5.

During a second call, the assigned ADA responded by contending that the first-party complaint was properly an information, regardless of the shifting pronouns. See id. at 6. Defense counsel reiterated his arguments and pointed also to the People's failure to correct the issue. See id. at 6—7. After a third call, the assigned ADA argued that the inconsistent pronouns were a typographical error. See id. at 11. Defense counsel reiterated his objection, which he intended to raise in a future motion. Id. at 12.

Judge Wolf ultimately deemed the complaint an information over defense counsel's objection. The matter was adjourned for a July 30 discovery conference. Id. at 12—13.

The Defense's Discovery Objections; Motion Schedule

On July 11, defense counsel emailed the assigned ADA with a list of missing discovery, consisting of (1) gas chromatography for four lot numbers; (2) New York State chromatography reports and New York State police simulator solutions for three of those lot numbers; (3) lawsuit material, the missing IAB log attachment, and unredacted CCRB sheets from Officer Peña's Giglio material, and (4) the roll call. The assigned ADA responded by email one day before the discovery conference, offering to discuss the matter with counsel before the case was called the next day. Defense's Mot., Ex. B.

After the discovery conference of July 30, this motion schedule was set. Hinojosa's August 29 motion is now fully briefed and ripe for decision.

II. The Parties' Arguments

Hinojosa's Motion

In addition to requesting omnibus relief, Hinojosa seeks dismissal of the entire complaint on several speedy trial and facial insufficiency grounds.

Hinojosa's main argument is that the shifting pronouns in the accusatory instrument amount to implicit hearsay. Relying primarily on People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000), he asserts that any ambiguity in whether a statement is hearsay requires an assumption in favor of hearsay. Because the shifting pronouns must reflect unconverted hearsay, the instrument is facially insufficient. And as a result, the People did not validly declare ready within the 90-day C.P.L. § 30.30 period, requiring dismissal of the instrument. See Defense's Aff. ¶¶ 54—63, 67—85.

Hinojosa separately argues that the People's COC was invalid. He points to (1) the belated disclosure of the roll call, and (2) the nondisclosure of unredacted Giglio material for the IDTU officer, the gas chromatography for four lot numbers, and the New York State chromatography reports and police simulator solutions for three of those lot numbers, all of which pertain to the February 2025 calibration report of the Intoxilyzer 9000. These issues revealed the People's lack of due diligence in discharging their discovery obligations, also requiring dismissal of the instrument on § 30.30 speedy trial grounds. See id. ¶¶ 13—37.

In the alternative, if the instrument is not dismissed in its entirety, Hinojosa contends that the count charging driving while ability impaired should be dismissed, because of insufficient facts to support the elements of impairment and operation. See id. ¶¶ 64—66.

The People's Response

The People respond by defending their diligence and the integrity of the accusatory instrument, arguing largely on the merits.² Regarding the implicit hearsay issue, the People respond that the inconsistent pronouns are a typographical error, and do not otherwise undermine conversion or facial sufficiency. They also assert that the driving while ability impaired count was supported by the necessary facts. People's Resp. at 27.

Regarding discovery compliance, the People argue that the belated disclosure of the roll call log, which was not subject to automatic discovery, was of no moment because reasonable diligence was exercised in trying to obtain it, and it was otherwise of limited value to the defense. See People's Resp. at 15—18. The unredacted Giglio materials for the IDTU officer and single attachment to the IAB log were not discoverable, as the People provided sufficient evidence to show there was no good-faith basis to impeach the IDTU officer on the unfounded allegation. See id. at 18—20. Finally, the simulator solution and chromatography reports were not in the People's custody and control, as Guth Labs is a private entity which could be subpoenaed by the defense. See id. at 20—26.

Hinojosa's Reply

Hinojosa has replied in further support of his arguments. Among other things, he contends that the complaint “was not converted” until after the 90th day because Judge Krompinger “upheld defense's objections and directed the People to inquire about a potential civilian witness,” which they did not do. Defense's Reply at 2. He also challenges the People's diligence more broadly.

III. Discussion

a. The inconsistent pronouns are not implicit hearsay.

Hinojosa's challenge to the inconsistent pronouns is premised on both facial insufficiency and the People's inability to declare ready without replacing the misdemeanor complaint with a misdemeanor information. Both parts of this challenge, though, depend on the contention that the inconsistency reflects hearsay. As explained below, it does not, and thus it did not affect either facial sufficiency or the People's ability to timely declare ready.

With exceptions not relevant here, a misdemeanor case that begins with the filing of a complaint cannot proceed to trial until the complaint is replaced by, or is otherwise deemed to be, a misdemeanor information. C.P.L. §§ 100.10(4), 170.65(1); People v. Slade, 37 N.Y.3d 127, 136, 148 N.Y.S.3d 413, 170 N.E.3d 1189 (2021). The difference between the two instruments is that—again, with exceptions not relevant here—a misdemeanor complaint can contain hearsay, while a misdemeanor information cannot. People v. Fernandez, 20 N.Y.3d 44, 50, 956 N.Y.S.2d 443, 980 N.E.2d 491 (2012). A statement in an instrument is hearsay if it is (1) used for its truth and (2) the person making the statement lacks personal knowledge of the events described and is instead relating information from another source. Slade, 37 N.Y.3d at 140, 148 N.Y.S.3d 413, 170 N.E.3d 1189.

Significantly, an assessment of whether a statement is hearsay is limited to the four corners of the instrument itself and certain supporting material (such as supporting depositions). Id. at 136—37, 148 N.Y.S.3d 413, 170 N.E.3d 1189. Any defect that is not within those four corners is “latent,” and does not affect conversion or facial sufficiency. See id.

In characterizing the alternating pronouns here as impermissible hearsay, Hinojosa relies primarily on People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000). He interprets Casey to stand for the proposition that “if there is ambiguity whether an allegation might be implicit hearsay ․ the court may not deem the complaint converted” and must instead “adjourn the case for the People to file additional documents” that cure any hearsay. Defense's Aff. ¶ 60.

But Hinojosa overreads Casey. The issue there was the scope of unambiguous hearsay, not whether there was any hearsay at all.

The accusatory instrument in Casey read:

Your deponent at the above time and place aforesaid, was advised by the complainant, Dawn Carlucci, that the defendant did violate a court order of protection, under docket number 24939/96, issued by Judge Anthony L. Parga, dated 8-15-96. The defendant did throw two diapers containing excrement on the complainant's 1988 Pontiac, bearing registration #C944EE. The defendant was advised and served a copy of the order of protection in court on 8-15-96.

Brief for Defendant-Appellant in People v. Casey, 2000 WL 34065313, at *2 (emphasis added). The first sentence was hearsay because the deponent officer was relaying information learned from the complainant. But the remainder of the paragraph was ambiguous, because the hearsay phrase “advised by the complainant” was contained in the paragraph's topic sentence, implying that the following sentences could also be information relayed by the complainant.

In other words, it was unclear in Casey whether “that allegation relating to defendant's knowledge of the order was based only upon the complainant's advice” or “whether it was based upon the detective's direct knowledge.” Casey, 95 N.Y.2d at 361, 717 N.Y.S.2d 88, 740 N.E.2d 233. Because the scope of the information related by the complainant could not “be determined upon the face of the information,” Casey assumed that the complaint would have been vulnerable to dismissal on hearsay grounds—before concluding, in any event, that any hearsay would have nevertheless have been allowable under “at least two hearsay rule exceptions.” Id.³

Here, by contrast, the face of the instrument does not contain the hearsay scope problem found in the Casey complaint. There is no mention of an informant or complainant, let alone any lack of specificity about the scope of information relayed from another source. Indeed, there is no dispute that the two areas of potential hearsay—the chemical test and DMV abstract—are both clearly cabined and were cured by the filing of supporting papers. And because Casey does not establish a broader rule that all inconsistencies about the source of a statement must be resolved in favor of an assumption of hearsay, Hinojosa is left with the assertion that the inconsistent pronouns must reflect hearsay because there is no other explanation.

However, the People advance an explanation that is both unfortunate and reasonable: the changing pronouns are a mistake by the drafter of the accusatory instrument. The explanation is unfortunate because while the People do not appear to have been ordered to fix the error,⁴ this whole problem is nevertheless an unforced and unfixed mistake. It could easily have been cured at any point prior to the declaration of readiness. But it is also a reasonable explanation that has the benefit of being logical and internally consistent.

While Hinojosa asserts that the shifting pronouns raise “the possibility of an informant,” Defense's Aff. ¶ 61, and undermine his ability to prepare a defense through a “lack of clarity in who allegedly witnessed” these incidents, Defense's Reply at 3 (emphasis omitted), the instrument has no information that would appear to come from a civilian informant rather than an officer. Instead, all four paragraphs read like the observations of an officer. The first paragraph recites the officer's observation of Hinojosa in the car, the second the officer's observations of the indicia of intoxication, the third the chemical test, the fourth the DMV abstract.⁵

The particular pattern of the shifting pronouns complicates matters further for Hinojosa. The first and fourth paragraphs are “he,” while the second and third are “she.” But both the third and fourth paragraphs reflect police observations and activity. If the “he” in the fourth paragraph refers to an officer, the first paragraph—also “he”—would not likely refer to a non-police informant, let alone a civilian at the scene.

In sum, far from creating the inference of hearsay, the inconsistent pronouns appear to be simply a mistake in the drafting of the instrument. Because they are not hearsay, they did not prevent conversion or undermine facial sufficiency. And non-hearsay drafting mistakes like these do not require dismissal. See, e.g., People v. Vargas, 55 Misc 3d 130(A), 2017 N.Y. Slip Op. 50387(U), at *1, 2017 WL 1201028 (App. Term, 1st Dept. 2017) (typographical error in deponent's name was not a defect warranting dismissal); People v. Johnson, 83 Misc 3d 133(A), 2024 N.Y. Slip Op. 51175(U), at *2, 2024 WL 4096663 (App. Term, 9th & 10th Jud. Dists. 2024) (impossible date in the accusatory instrument was a typographical error that did not warrant dismissal).

b. The driving while ability impaired count is facially sufficient.

Hinojosa also challenges the driving while ability impaired count as facially insufficient, contending that the facts in the instrument do not support the elements of operation or impairment. As explained below, however, the facts in the instrument are sufficient to support both elements of the charge.

The operation element is satisfied if the defendant “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. Prescott, 95 N.Y.2d 655, 662, 722 N.Y.S.2d 778, 745 N.E.2d 1000 (2001). Thus, a person is considered to be “operating a motor vehicle pursuant to Vehicle and Traffic Law § 1192 even if the vehicle is not moving, where the driver is at the wheel with the engine running.” People v. Gomez-Gutierrez, 85 Misc 3d 135(A), 2025 N.Y. Slip Op. 50485(U), at *3, 2025 WL 1097623 (App. Term, 9th & 10th Jud. Dists. 2025) (internal alterations and quotation marks omitted).

Here, the instrument alleged that Hinojosa was behind the wheel with the engine running and the keys in the ignition. Those allegations are more than sufficient to establish operation. See also People v. Narvaez, 72 Misc 3d 128(A), 2021 N.Y. Slip Op. 50601(U), at *1, 2021 WL 2639854 (App. Term, 1st Dept. 2021) (“Contrary to defendant's present contention, the operation element of the offense was satisfied by allegations that he was observed seated behind the steering wheel of the vehicle with the engine running.”).

The impairment element is also satisfied. Indicia of intoxication, such as slurred speech and the odor of alcohol, are enough to support the impairment element. See People v. Bryan, 63 Misc 3d 156(A), 2019 N.Y. Slip Op. 50821(U), at *2, 2019 WL 2275452 (App. Term, 2d, 11th & 13th Jud. Dists. 2019). Here, the officer observed a “very strong” odor of alcohol, slurred speech, and an unsteady stance. Accusatory Instrument at 1. Those facts, plus the .247 blow, were sufficient to demonstrate impairment. See also Bryan, 2019 N.Y. Slip Op. 50821(U), at *2 (“[T]he observations of defendant's physical condition and of actual operation need not directly establish that they were simultaneous.”).

Accordingly, the § 1192(1) count is facially sufficient and survives the motion to dismiss.

c. The People exercised due diligence and good faith in discharging their discovery obligations.

A COC is valid if it is the product of good faith and due diligence. People v. Bay, 41 N.Y.3d 200, 212, 208 N.Y.S.3d 490, 232 N.E.3d 168 (2023). Under the amended Article 245, factors relevant to diligence include the volume of the discovery provided, the prosecutor's efforts, the complexity of the case, explanations for any discovery lapse, the prosecutor's response to objections, and whether missing or belatedly disclosed documents were significant to the case. C.P.L. § 245.50(5)(a).

Here, those factors generally weigh in favor of the People, who disclosed extensive discovery material within the time permitted by statute after initiating their discovery search well within the time allowed. As set out above, the defense received 911 materials, DMV reports, activity logs and body camera footage for twenty officers, numerous reports relating to the Intoxilyzer 9000 used for the chemical test, and extensive Giglio material.

Tellingly, Hinojosa's objections were comparatively limited in scope. The People also were generally responsive to outreach from the defense.

The only item belatedly disclosed was the roll call. While it would have been better for the People to respond sooner, the roll call appears to be of minimal if any importance to the case, and the People documented multiple efforts to obtain it both before and after declaring ready.

The remaining items are all nondisclosed, a category consisting of the unredacted CCRB materials/IAB log attachment for the IDTU officer on one hand and the various calibration and solution reports on the other.

Here, even assuming without deciding that all of those materials should have been disclosed, the relevant § 245.50(5)(a) factors would still weigh in favor of the People. While defense arguments about gatekeeping in the context of Giglio material often have significant purchase, it is somewhat difficult to see how this particular unsubstantiated report, and the documents surrounding it, would “impeach the credibility of” the IDTU officer, P.L. § 245.20(1)(k)(iv), and Hinojosa does not persuasively show that the report and underlying materials would be relevant under any other subsection of (1)(k). Regardless, this minor omission was far outweighed by the other discovery provided. But to ensure that the defense has a complete picture of the witness, the People are ORDERED, pursuant to C.P.L. § 245.35(4), to provide the unredacted CCRB materials and activity log to the defense within 30 days of this order.

As to the various reports, the majority of the discussion in the parties' papers deals with discoverability, and not what any of these reports would actually show, or the role they would play in the case. Some of these issues were addressed at the discovery conference, but not at length, and the parties do not attach the minutes of the conference to their papers.

That said, even assuming that all of these reports should have been automatically discoverable, the COC would not be invalidated. For better or worse, there is currently no clear, binding appellate case law on this repeating issue. Any lapse by the People on this front, while potentially significant, did not outweigh their diligence in making reasonable inquiries and efforts to discharge their discovery obligations.

But that does not quite put the issue to bed, as Hinojosa may very well be entitled to some of these reports, if not others—and the People still do not explain why material within New York State custody should not also be in their custody, focusing instead on the inability to secure documents from Guth Laboratories. Accordingly, the People are ORDERED, pursuant to C.P.L. § 245.35(4), to make inquiries and attempt to obtain the relevant NYS Chromatography Reports and NYS Police Simulator Solution Certificates, as at least one court—in a decision relied on by the People—has determined that they are automatically discoverable. See People v. Harris, 87 Misc 3d 1212(A), 2025 N.Y. Slip Op. 51548(U), at *3, 5, 2025 WL 2799701 (N.Y.C. Crim. Ct., NY Co. 2025) (Coleman, J.). The People must do so within 30 days. If they are unable to obtain those reports within 30 days, they must explain their attempts or the reasons for being unable to obtain the reports in a submission to the court.

* * *

For the reasons set forth above, the branches of the motion seeking dismissal are DENIED. The People are ORDERED to disclose the unredacted CCRB materials and IAB attachment for the IDTU officer within 30 days of this order. The People are also ORDERED to make inquiries and try to obtain the relevant NYS Chromatography Reports and NYS Police Simulator Solution Certificates, and to provide them to the defense within 30 days; if the People are unable to obtain those reports, the People must explain their efforts and the impediments to their doing so in a supplemental submission. Huntley/Mapp/Dunaway/1194 hearings are ORDERED. The Brady/Vilardi request is STRUCK and will not be considered. All Sandoval/Molineux/Ventimiglia/preclusion issues are referred to the trial court. Any other request for relief not specifically mentioned is denied.

FOOTNOTES

1.   The version of this decision submitted for electronic publication has been lightly redacted to remove certain identifying information.

2.   The People appear to assert that Hinojosa's pre-COC-challenge conferral was partly inadequate under § 245.50(4)(c), because he did not make specific and particularized “argument[s]” about why the IAB attachment should be turned over. People's Resp. at 19. But § 245.50(4)(c) does not appear to require specific arguments to be made in the conferral process as a prerequisite to challenging a COC. Instead, it mandates an affirmation of conferral regarding “the specific and particularized matters” at issue. Thus, to the extent that a facially adequate § 245.50(4)(c) affirmation (like the one here, see Defense's Aff. ¶ 14) can be challenged based on alleged shortcomings in the conferral process, the People have not persuasively shown why Hinojosa's conferral email, which specifically mentioned the IAB attachment, was insufficient. However, the arguments raised in the conferral process may nevertheless still be relevant to the merits question of diligence.

3.   This entire discussion and resultant “presumption” might have been dicta. Since the statements would have been admissible anyway, the presumption was arguably unnecessary to the Court's holding. See People v. Bethea, 67 N.Y.2d 364, 368 n.*, 502 N.Y.S.2d 713, 493 N.E.2d 937 (1986) (observing that dicta is not binding).

4.   Hinojosa's suggestion to the contrary appears mistaken, as the minutes attached to his motion show only a statement by the People that they would make a “note for the assigned.” Defense's Mot., Ex. E at 3. The action sheet for that date says that the People would investigate the issue. So there appears to have been no explicit direction from the court one way or the other.Relatedly, and contrary to Hinojosa's assertion, see Defense's Aff. ¶¶ 82—85, it does not matter whether any judge explicitly deemed the complaint converted prior to the 90th day, because the substance of the instrument controls. See People v. Fernandez, 20 N.Y.3d 44, 51, 956 N.Y.S.2d 443, 980 N.E.2d 491 (2012). If an instrument satisfies the requirements of a misdemeanor information, it “is deemed” to be an information. C.P.L. § 170.65(1).

5.   The invitation to stray outside of the four corners of the instrument, Defense's Aff. ¶ 62 n.6, is respectfully declined.

David L. Goodwin, J.