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The People of the State of New York v. Mary Donnelly

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


November 3, 2010

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
MARY DONNELLY,
APPELLANT.

People v Donnelly (Mary)

Decided on November 3, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: MOLIA, J.P., TANENBAUM and LaCAVA, JJ

Appeal from judgments of the Justice Court of the Village of Amityville, Suffolk County (Debra Urbano-DiSalvo, J.), rendered May 13, 2008. The judgments convicted defendant, upon jury verdicts, of driving while intoxicated per se and driving while intoxicated. The appeal from the judgments of conviction brings up for review an order which, among other things, denied the branches of defendant's pretrial motion seeking to suppress statements and physical evidence.

ORDERED that the judgments of conviction are reversed, on the law, the accusatory instrument charging defendant with driving while intoxicated per se is dismissed, so much of the order as denied the branches of defendant's pretrial motion seeking to suppress statements and physical evidence is vacated, said branches of defendant's motion are granted, and the matter is remitted to the Justice Court for all further proceedings on the accusatory instrument charging defendant with driving while intoxicated.

The People initially charged defendant, by simplified traffic informations, with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), based on a blood alcohol test result of .14 percent by weight, and speeding (Vehicle and Traffic Law § 1180 [d]). Several months later, after the Justice Court had denied as untimely the branches of defendant's pretrial motion to suppress evidence, the People filed two "long form" informations charging defendant with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). Defendant was arraigned on the informations, and the simplified traffic information charging defendant with driving while intoxicated per se was dismissed. In light of the new accusatory instruments, the Justice Court deemed the period for making a pretrial motion recommenced and, upon reconsideration, in effect, vacated the prior order denying the motion as untimely, and granted the motion to the extent of ordering a combined Huntley, Mapp and Dunaway hearing.

At the hearing, the People's sole witness, the arresting officer, testified that he had stopped defendant's vehicle upon his visual estimate that defendant was traveling at 40 miles per hour in a 30 miles per hour speed zone. Based on defendant's appearance, the officer suspected that defendant was intoxicated, and asked her to submit to field sobriety tests, which, the officer testified, she performed "poorly." Defendant was arrested and transported to police headquarters, where a chemical test of her blood alcohol content produced a reading of .14 percent by weight. After the hearing, the Justice Court denied the branches of the motion seeking to suppress statements and physical evidence, and, following a jury trial, defendant was convicted of driving while intoxicated per se and driving while intoxicated, and acquitted of speeding.

Defendant appeals, arguing, among other things, that the People improperly superseded the simplified traffic information charging her with driving while intoxicated per se with a long form information charging the same offense, and that the branches of her motion seeking to suppress statements, the results of the post-stop investigation into the state of her intoxication, and the chemical test results should have been granted. Upon a review of the record, we find that both contentions have merit.

As the People properly concede, the information purportedly superseding the simplified traffic information, which alleged the same offense, was unauthorized. A simplified traffic information "can only be amended so as to cure amendable defects and cannot . . . be superseded by an information" (People v Baron, 107 Misc 2d 59, 61 [App Term, 9th & 10th Jud Dists 1980]; see CPL 100.50 [1]; People v Greco, 12 Misc 3d 83, 84 [App Term, 9th & 10th Jud Dists 2006]; cf. People v Nuccio, 78 NY2d 102 [1991]). Although defendant did not raise an objection to the propriety of the superseding information until the midst of trial, in our view, the error is of jurisdictional dimension and, thus, not waivable (see People v Dreyden, 15 NY3d 100, 103 [2010]). Such an information is a legal nullity and could not confer jurisdiction on the Justice Court to adjudicate the offense charged therein (see People v Frederick, 14 NY3d 913, 916 [2010]). Consequently, the judgment convicting defendant of driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) is reversed and the superseding information alleging this offense is dismissed.

The People failed to meet their burden of proof at the suppression hearing to establish a legal basis for the initial stop of defendant's vehicle. The arresting officer testified only that he had observed defendant operating her vehicle at 40 miles per hour in a 30 miles per hour speed zone. Even assuming that such proof, if offered by a properly qualified witness and, consequently, admissible as evidence, could establish reasonable suspicion that defendant was speeding (cf. People v Olsen, 22 NY2d 230, 232 [1968]), the officer did not state that he was trained visually to estimate the speed of a moving vehicle or that his practical experience in such matters qualified him to make such an estimate (id. at 231-232). The officer also testified that defendant's vehicle had passed his observation post "a few moments" after he had first observed it approaching his position at a distance of 400-450 feet. Even if it is assumed that proof of a sufficiently great distance traveled in a sufficiently short period of time would have established the requisite basis for the stop (see Larsen v Vigliarolo Bros., 77 AD2d 562 [1980]), the officer admitted that he could not state whether the "few moments" represented a time shorter or longer than 10 seconds and, thus, his testimony did not establish that defendant traveled the observed distance in a time sufficiently brief to establish that she was speeding. As the People failed to meet their burden to establish that the arresting officer lawfully stopped defendant (see generally Soto v New York City Tr. Auth., 6 NY3d 487, 493 [2006]; Olsen, 22 NY2d at 231-232; People v Stoliarov, 21 Misc 3d 135[A], 2008 NY Slip Op 52209[U] [App Term, 9th & 10th Jud Dists 2008]; People v Cani, 17 Misc 3d 134[A], 2007 NY Slip Op 52167[U] [App Term, 9th & 10th Jud Dists 2007]; Prince, Richardson on Evidence § 7-202 [j] [Farrell 11th ed]), the branches of defendant's motion seeking to suppress statements and physical evidence should have been granted.

In light of the foregoing, defendant's remaining claims of error need not be addressed.

Accordingly, the judgments of conviction are reversed, the information charging defendant with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) is dismissed, the branches of defendant's motion seeking to suppress statements and physical evidence are granted, and the matter is remitted to the Justice Court for all further proceedings on the accusatory instrument charging defendant with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]).

Molia, J.P., Tanenbaum and LaCava, JJ., concur. Decision Date: November 03, 2010

20101103

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