PEOPLE v. FEYJOO (2019)

 Summary of the Court's Decision

The defendant's motion to dismiss Count One—namely, V.T.L. § 1192.4—as facially insufficient is GRANTED.

The defendant, Vencent Feyjoo, is charged with Operating a Motor Vehicle While Under the Influence of Drugs (V.T.L. § 1192(4)) and Stopping, Standing, or Parking Outside of Business Residence District (V.T.L. § 1201(A))¹ . He now moves this Court to dismiss Count One of the information on facial sufficiency grounds. The People, by written response, oppose the defendant's motion. After a review of the defendant's motion, the People's response, and the court file and record, this Court makes the following findings.

The Accusatory Instrument

In analyzing the facial sufficiency of the accusatory instrument, this Court must presume true all non-hearsay, evidentiary allegations of the information and any supporting documentation. See C.P.L. § 100.40(1)(c) (“[T]he non-hearsay allegations of the factual part of the information ․ [must] establish, if true, every element of the offense charged and the defendant's commission thereof.”) (emphasis added); People v. Casey, 95 NY2d 354, 360 (2000) (quoting P.L. § 100.40(1)(c)).

The accusatory instrument alleges, in pertinent part, that at approximately 1:30P.M., deponent Police Officer Albert Aronov observed the defendant sleeping in the driver's seat of a 2000 Subaru, with the engine running, blocking the right lane of traffic at the intersection of Astoria Boulevard and the Brooklyn Queens Expressway. He observed the defendant to have bloodshot, watery eyes, slurred speech, to be unable to remain awake or answer questions and unsteady on his feet upon exiting the vehicle. The defendant stated that he took his medication and did not know that he couldn't drive on medication. Drug Recognition expert Cochran concluded the defendant was on anti-depression medication.

The People served statement notice pursuant to C.P.L. § 710.30(1)(a) that he drove after taking gabapenin  ² .

Facial Sufficiency Analysis

“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution.” People v. Smalls, 26 NY3d 1064, 1066 (2016) (quoting People v. Dreyden, 15 NY3d 100, 103 (2010)); see also C.P.L. §§ 170.30; 170.35. A facially sufficient and valid misdemeanor information must contain non-hearsay, non-conclusory, factual allegations of an evidentiary character that establish every element of, and constitute reasonable cause to believe the defendant committed the charged offenses. See C.P.L. §§ 70.10; 100.15(3); 100.40(1)(b) & (c); People v. Alejandro, 70 NY2d 133 (1987); People v. Dumas, 68 NY2d 729 (1986). Further, “[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading.” People v. Ocasio, 28 NY3d 178, 180 (2016) (quoting People v. Casey, 95 NY2d 354, 360 (2000)).

It is unlawful to “operate a motor vehicle while [one]'s ability to operate such a motor vehicle is impaired by the use of a drug.” V.T.L. § 1192.4. “The term ‘drug’ ․ means and includes any substance listed in section thirty-three hundred six of the public health law.” V.T.L. § 114-a. Thus, in order to sufficiently plead a violation of V.T.L. § 1192.4, the People must allege: (1) the defendant ingested a drug; (2) the drug ingested is proscribed in P.H.L. § 3306; (3) after ingesting the drug, the defendant operated the vehicle; and, (4) while operating the vehicle, the defendant was impaired by the ingestion of that drug.

A chemical analysis of the defendant's blood, an admission by the defendant or a Drug Recognition Expert's analysis, is necessary to establish what substance the defendant ingested and that the defendant's operation of the vehicle was impaired by the ingestion of that substance. People v. Jackson, 32 Misc 3d 139(A) (App. Term, 2d Dept. 2011)(the supporting deposition failed to provide reasonable cause to believe that the defendant was impaired by the use of any substances set forth under P.H.L. § 3306); People v. Grinberg, 4 Misc 3d 670, n.1 (Crim. Ct. Kings Co. 2004)(“absent such chemical analysis, or perhaps the defendant's admission, the prosecution could not prove that the defendant was impaired by one of the listed drugs”); People v. Felicia, 52 Misc 3d 212, 217 (Crim. Ct. NY Co. 2016)(a facially sufficient accusatory instrument “must contain a laboratory report confirming that the recovered substance was in fact drugs, confirmation by a DRE that the defendant exhibits signs of intoxication caused by prohibited drugs, or an admission by the defendant that he ingested prohibited drugs”); see also People v. Matozzo, 47 Misc 3d 1212(A) *5 (Co. Ct. Nassau Co. 2015)(the accusatory instrument is facially insufficient because there were no allegations showing what drug caused the impaired driving and the supporting deposition merely states that the officer observed the defendant operate a car and the officer recovered heroin from the defendant's pocket); People v. Kahn, 160 Misc 2d 594 (Dist. Ct. Nassau Co. 1994)(the defendant did not state the specific medication, but he consented to a urine test which showed the presence of benzodiazepine); People v. Rose, 8 Misc 3d 184, 190-191 (Dist. Ct. Nassau Co. 2005)(“the written record of an opinion of a DRE” is necessary in converting the complaint if there is no test or admission identifying the substance); People v. Ortiz, 6 Misc 3d 1024(A) *4 (Crim. Ct. Bronx Co. 2004)(the officer's observations, standing alone, are insufficient to plead a violation of V.T.L. § 1192.4 because “barring defendant's admission, only a laboratory analysis can provide the threshold facts to show defendant ingested a drug”); cf People v. Hill, 16 Misc 3d 176 (Crim. Ct. NY Co. 2007)(even though the People failed to provide the results of a urine test, the Information was facially sufficient because officer described his training and experience in the identification of drugs, the officer recovered marijuana from the vehicle, and the field test was positive for marijuana).

To establish the drug allegedly ingested element, the People presumably rely on DRE Cochran, defendant's statement that he took gabapenin [sic], an antidepressant medication, and/or a lab report.

The criminal court complaint alleges Drug Recognition Expert Officer Cochran “concluded that the defendant was on anti-depression medication” but fails to provide a basis by which he formed such a conclusion or establish his qualification, training or experience in detecting drugs. Moreover, no supporting deposition was ever filed for DRE Cochran. As such, the People have failed to establish by the DRE the drug ingested.

The criminal court complaint fails to allege what if any specific drug was used, but merely concludes it was an anti-depression drug. The People seemingly offer defendant's statement that he took gabapenin [sic] to establish the drug the defendant ingested. Even giving the People the benefit of the doubt and assuming they meant to allege defendant took gabapentin, not gabapenin a non-existent substance, gabapentin is not a controlled substance listed on P.H.L. § 3306.

The People's assertion that defendant's laboratory report shows that defendant was under the influence of other drugs—to wit, “cotinine, pheycylidinme, dextromethorphan, levamisole, norcocaine, ecgonine methyl ester, benxoylecgonine, isopropylester, cocaine, benzoylecgonine” is likewise meritless. The drugs being alleged, for the first time in their written answer to this motion, were not listed within the four-corners of the complaint, any supporting deposition or any paperwork handed over by the People. Despite the People's assertion that they provided a lab report in court on June 25th, the Court notes that no lab report was ever filed on or off calendar and that defendant had no court date in June, he was arraigned on May 13th and appeared on July 9th, the scheduled adjourn date.

As the information fails to adequately allege that the defendant was impaired by a drug proscribed by Public Health Law § 3306—a necessary element of V.T.L. § 1192.4, the defendant's motion to dismiss count one is GRANTED.

This constitutes the decision and order of this Court.

FOOTNOTES

1.   Two additional charges, V.T.L. § 1192.3 and V.T.L. § 1192.1 were dismissed on November 13th, 2018.

2.   This Court assumes that the People intended to state that the defendant took gabapentin, anti-depression medication. However, the People did not address the spelling of the medication in its response.

Karen Gopee, J.