PEOPLE v. ORTEGA (2024)

ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.

After waiving prosecution by information, defendant pleaded guilty to the added charge of disorderly conduct (Penal Law § 240.20) in full satisfaction of an accusatory instrument in which he was charged with driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2]), aggravated driving while intoxicated (Vehicle and Traffic Law § 1192 [2-a] [a]), and driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]). On appeal, defendant challenges the facial sufficiency of the accusatory instrument, contending that it did not allege that he had operated the motor vehicle that was involved in an accident.

“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” (People v Case, 42 NY2d 98, 99 [1977]; see People v Dumay, 23 NY3d 518, 522 [2014]; People v Dreyden, 15 NY3d 100, 103 [2010]). Thus, the facial insufficiency of an accusatory instrument constitutes a jurisdictional defect which is not forfeited by a defendant's guilty plea (see People v Thiam, 34 NY3d 1040 [2019]; Dreyden, 15 NY3d at 103; People v Konieczny, 2 NY3d 569, 573 [2004]). Furthermore, since defendant expressly waived the right to be prosecuted by information, the accusatory instrument must be evaluated under the standards that govern a misdemeanor complaint, which can be based upon hearsay and which is sufficient on its face when it alleges facts of an evidentiary character supporting or tending to support the charge (see CPL 100.15 [3]) and provides reasonable cause to believe that the defendant committed the crime charged (see CPL 100.40 [4] [b]; Dumay, 23 NY3d at 524; People v Dumas, 68 NY2d 729, 731 [1986]). While the law does not require that the accusatory instrument contain the most precise words or phrases most clearly expressing the charges, the offense and factual bases therefor must be sufficiently alleged (see Konieczny, 2 NY3d at 575). “So long as the factual allegations of an [accusatory instrument] 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 Casey, 95 NY2d 354, 360 [2000]; see Konieczny, 2 NY3d at 575).

All four of the counts charged in the accusatory instrument require the People to allege that defendant was operating a motor vehicle (see Vehicle and Traffic Law § 1192 [1], [2], [2-a], [3]). “An accusatory instrument alleging a violation of Vehicle and Traffic Law § 1192 [ ] allows for a circumstantial showing of [an] inability to operate a motor vehicle while under the influence of alcohol, without the necessity of allegations that the defendant had been observed operating his [or her] vehicle or that the vehicle had actually been operated in an erratic fashion” (People v Green, 59 Misc 3d 134[A], 2018 NY Slip Op 50490[U], *2 [App Term, 2d Dept, 2d, 11th, & 13th Jud Dists 2018] [internal quotation marks and citations omitted]; see People v Williams, 55 Misc 3d 134[A], 2017 NY Slip Op 50478[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Here, however, the accusatory instrument lacked sufficient facts alleging that defendant had operated the motor vehicle which was involved in the accident (see People v Ortega, 75 Misc 3d 139[A], 2022 NY Slip Op 50587[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; People v Moreno, 70 Misc 3d 10 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Consequently, the accusatory instrument was facially insufficient and must be dismissed.

Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.