PEOPLE v. SCHELL (2008)

An accusatory instrument was filed with the court on August 1, 2007, charging the defendant with Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol and Any Drug or Drugs (VTL § 1192 4-a) and Reckless Driving (VTL § 1212).   In a motion dated December 10, 2007, the defendant moves for an order dismissing the accusatory instrument contending that it is jurisdictionally defective.   The People oppose defendant's motion in a response filed on January 11, 2008.

Facts

The accusatory instrument contains sworn allegations of a police officer that he observed the defendant operate a motor vehicle on July 21, 2007, with .036 of 1% by weight of alcohol in his blood.¹  The informant also alleges that the defendant admitted to consuming one beer and drugs (Paxil [paroxetine] and Depakote [divalproex sodium] ), and that he observed that the defendant had watery and bloodshot eyes, slurred speech, an odor of an alcoholic beverage on his breath, and was unsteady on his feet.

Discussion

 When a defendant is charged in a misdemeanor complaint, unless he pleads guilty or waives prosecution by information, the misdemeanor complaint must be replaced prior to trial with an information which meets the requirement for facial sufficiency (CPL §§ 170.65;  100.40[1][c];  100.15[3];  170.35;  People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ).   The information must, for jurisdictional purposes, contain nonhearsay factual allegations sufficient to establish a prima facie case (People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71, supra ).   Furthermore, both informations and misdemeanor complaints must allege or be based on “reasonable cause to believe” that defendant committed the offense (People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ).  “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․” (CPL § 70.10[2] ).

Although the defendant is charged with VTL § 1192 subd 4-a, rather than VTL § 1192 subd 4, it is worth noting that VTL § 1192 subd 4 (Driving While Ability Impaired by Drugs) provides:

No person shall operate a motor vehicle while the person's ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter.

VTL § 114-a provides:

The term “drug” when used in this chapter, means and includes any substance listed in section thirty-three hundred six of the public health law.

While VTL § 114-a was enacted more than three decades ago and remains unamended, VTL § 1192 subd 4-a (Driving While Ability Impaired by the Combined Influence of Drugs or of Alcohol and Any Drug or Drugs) was enacted in 2006, and provides:

No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs.  (Emphasis added.)

 Unlike VTL § 1192 subd. 4, VTL § 1192 subd. 4-a does not contain the limitation of “drug as defined in this chapter.”   The accusatory instrument provides this defendant with sufficient notice that the People accuse him of operating a motor vehicle while impaired by the combined influence of alcohol and any drug or drugs.   The People do not dispute the defendant's contention that neither Paxil [paroxetine] nor Depakote [divalproex sodium] are listed in Public Health Law § 3306.   Nevertheless, contrary to the defendant's assertions, the People are correct in reasoning that the offense with which the defendant is charged, VTL § 1192 subd. 4-a, contemplates chemicals beyond those listed in Public Health Law § 3306.   The newly enacted statute recognizes the dangerous scenario of a driver operating a motor vehicle after combining a relatively small amount of alcohol and any drug or drugs.²  The phrase “alcohol and any drug or drugs” distinguishes subdivision 4-a from subdivision 4.   While VTL § 1192 subd. 4 contemplates only drugs listed in Public Health Law § 3306, VTL § 1192 subd. 4-a proscribes “any drug or drugs.”

 As to the Reckless Driving count, the deponent in the accusatory instrument states that “based on his review of surveillance video taken from a patrol vehicle,” the defendant drove through a steady red light and stopped his motor vehicle in the middle of an intersection against oncoming traffic.   However it is unclear whether the deponent actually saw the defendant drive through a steady red light and stop his motor vehicle in the middle of an intersection against oncoming traffic.   It cannot be determined from a reading of the accusatory instrument whether the defendant was videotaped by the deponent's patrol vehicle and the deponent reviewed the tape to refresh his recollection concerning the manner in which the defendant drove, or if the deponent's observations of the defendant's reckless driving was solely based on a videotape provided by someone else and not observed by the deponent as it transpired.   Therefore, this court regards the deponent's observations of a video as hearsay, unsupported by sworn allegations of fact.   Consequently, the accusatory instrument contains insufficient sworn allegations of fact that the defendant unreasonably interfered with the free and proper use of the roadway (see VTL 1212) as alleged in the accusatory instrument.

Conclusion

The accusatory instrument filed by the People contains sufficient nonhearsay factual allegations that the defendant operated a motor vehicle while impaired by the combined influence of alcohol and any drug or drugs.   The accusatory instrument filed by the People does not contain sufficient nonhearsay factual allegations that the defendant unreasonably interfered with the free and proper use of the roadway (see VTL 1212) as alleged in the accusatory instrument.

Accordingly, it is hereby:

ORDERED, that the defendant's motion to dismiss the count charging a violation of VTL § 1192 subd 4-a is denied;  and it is further,

ORDERED, that the defendant's motion to dismiss the count charging Reckless Driving (VTL § 1212) is granted, with leave to the People to file an information, unless proscribed by CPL § 30.30[1].

This opinion shall constitute the decision and order of the court.

FOOTNOTES

1.   The informant swore that he “observed the defendant ․ seated in the front driver's side seat behind the steering wheel with the engine running, and the motor vehicle was moving on a public roadway․”

2.   This court chooses not to follow the trial court's decision in People v. Primiano, 16 Misc.3d 1023, 843 N.Y.S.2d 799 [Sullivan County Ct. 2007].

MATTHEW A. SCIARRINO, J.