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The People of the State of New York, Respondent v. Fred Grove

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


September 30, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
FRED GROVE, APPELLANT.

Appeal from a judgment of the District Court of Suffolk County, Second District (John Iliou, J.), rendered June 26, 2009.

People v Grove (Fred)

Decided on September 30, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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: IANNACCI, J.P., NICOLAI and MOLIA, JJ

The judgment convicted defendant, upon a jury verdict, of driving while impaired by drugs.

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

Defendant was charged in a misdemeanor information with driving while impaired by drugs (Vehicle and Traffic Law § 1192 [4]). The factual portion of the information contains, among other things, the following allegations: "The defendant, at main street, Sayville, in the town of Islip, Suffolk County, NY on or about 05/22/08 at approximately 0005 AM, operated a motor vehicle, 1996 Jeep NY registration EBN9287 while he was in an impaired by drugs condition; in that . . . Defendant then drive [sic] vehicle into curb, upon interviewing the defendant it was observed defendant had bloodshot red eyes, and slurred speech, poor coordination admitted to taking pain meds, strong odor of marijuana, performed poorly on standardized field sobriety tests . . . The defendant refused to [sic] the administration of an analysis of his blood at 1:00 AM, at the time of arrest, the defendant was in possession of a controlled substance, namely marijuana. Defendant did admit to your deponent that he had taken pain killers and he shouldn't be driving and the rest is his son's."

In order to be sufficient on its face, an information (and/or any supporting deposition) must allege, among other things, "facts of an evidentiary character" (CPL 100.15 [3]) that "establish, if true, every element of the offense charged" (CPL 100.40 [1] [c]; People v Dumas, 68 NY2d 729, 731 [1986]). In addition, the factual portion of an information must provide "reasonable cause" to believe that the defendant committed the charged offense (CPL 100.40 [4] [b]; People v Kalin, 12 NY3d 225, 228 [2009]). An information charging a defendant with driving while impaired by drugs (Vehicle and Traffic Law § 1192 [4]) is sufficient on its face where the factual allegations provide: (1) that the defendant operated a motor vehicle, (2) the defendant's ability to operate a motor vehicle was impaired by the use of a drug, and (3) the drug used is one of the substances listed in Section 3306 of the Public Health Law (Vehicle and Traffic Law § 114-a).The factual allegations of the information refer to the officer smelling the strong odor of marihuana and finding marihuana in defendant's possession. While it may be inferred that defendant operated the motor vehicle under the influence of marihuana, a substance listed in Public Health Law § 3306, the information did not contain any allegations concerning the officer's familiarity with or training regarding the identification of marihuana or why he concluded that the substance was marihuana (see Kalin, 12 NY3d at 229). Moreover, the information fails to contain factual allegations establishing that defendant was impaired by the use of any of the other substances set forth in Public Health Law § 3306 (see People v Jackson, 32 Misc 3d 139[A], 2011 NY Slip Op 51550[U] [App Term 9th & 10th Jud Dists 2011]).

Since the allegations of the information fail to establish one of the elements of the offense, the information was legally insufficient and must be dismissed. In view of the foregoing determination, we pass upon no other issue.

Iannacci, J.P., Nicolai and Molia, JJ., concur.

Decision Date: September 30, 2011

20110930

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