SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
December 27, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
DANIEL D. NETUSIL,
Appeal from a judgment of the Justice Court of the Town of Riverhead, Suffolk County (Allen M. Smith, J.), rendered March 19, 2010.
People v Netusil (Daniel)
Decided on December 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: TANENBAUM, J.P., MOLIA and IANNACCI, JJ
The judgment convicted defendant, upon a jury verdict, of driving while ability impaired.
ORDERED that the judgment of conviction is affirmed.
In August 2008, defendant was charged with driving while intoxicated (Vehicle and Traffic Law § 1192 ). The evidence adduced at the jury trial established, among other things, that defendant was the driver of one of the motor vehicles involved in a three-vehicle accident, that defendant had bloodshot eyes, was unsteady on his feet, and had slurred speech, and that the odor of alcohol emanated from defendant's breath. Following trial, defendant was acquitted of driving while intoxicated and was convicted of driving while ability impaired (Vehicle and Traffic Law § 1192 , ).
Defendant contends on appeal that the misdemeanor complaint was defective because the police officer had no personal knowledge that defendant had operated the motor vehicle. However, the misdemeanor complaint could not serve as the basis of this prosecution, as defendant never expressly waived his right to be prosecuted by an information (see CPL 100.20 ; 170.65 , ). Consequently, the accusatory instrument must be evaluated under the standards that apply to an information (see People v Kalin, 12 NY3d 225, 228 ). In order for an information to be facially sufficient, it (and/or any supporting depositions accompanying it) must allege non-hearsay allegations of fact of an evidentiary character that establish, if true, every element of the offense charged (see CPL 100.15 ; 100.40  [c]; People v Dumas, 68 NY2d 729, 731 ). These requirements are jurisdictional (see People v Kalin, 12 NY3d 225; People v Casey, 95 NY2d 354 ; People v Alejandro, 70 NY2d 133 ; People v Dumas, 68 NY2d at 731), and may be asserted at any time, with the exception of a claim of hearsay, which is waived if it is not timely raised by motion in the court of first instance (see People v Casey, 95 NY2d 354). While the factual allegations "should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d at 360; see also People v Konieczny, 2 NY3d 569, 575 ), they must suffice to "give an accused notice sufficient to prepare a defense and . . . [be] adequately detailed to prevent a defendant from being tried twice for the same offense" (People v Casey, 95 NY2d at 360; see also People v Konieczny, 2 NY3d at 575).
The accusatory instrument at bar asserts the factual allegation that defendant operated the motor vehicle based on the police officer's personal knowledge and, therefore, provides non-hearsay allegations of fact of an evidentiary character (see CPL 100.15 ) which, along with the other factual allegations, establish, if true, every element of the offense charged (see CPL 100.40  [c]; People v Dumas, 68 NY2d at 731). The accusatory instrument also provided defendant with sufficient notice to prepare a defense, and is adequately detailed to prevent defendant from being tried twice for the same offense (see People v Konieczney, 2 NY3d at 575; People v Casey, 95 NY2d at 360). It is of no import that the trial testimony established that the police officer, in fact, had not observed defendant operate the vehicle, but had been informed by other persons that defendant had operated the vehicle, since "[a]n accusatory instrument must be construed [within] its four corners (People v Thomas, 4 NY3d 143, 146 ) and may not be undone by contrary findings of fact in a subsequent proceeding (People v Gordon, 88 NY2d 92, 96 )" (People v Christiansen, 19 Misc 3d 134[A], 2008 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists 2008]).
It is uncontroverted that the People failed to provide defendant with a CPL 710.30 notice. However, any error in admitting into evidence at trial defendant's statement that he had operated the motor vehicle was harmless in view of the overwhelming proof that defendant had operated the vehicle, as well as the fact that there is no significant probability that defendant would have been acquitted but for this error (see People v Crimmins, 36 NY2d 230 ). The failure to provide a CPL 710.30 notice did not preclude the People from offering at trial evidence of defendant's refusals to submit to a chemical breath test (see People v Peeso, 266 AD2d 716 ) and, despite the court's failure to conduct a pretrial hearing to determine the admissibility of the refusal evidence, a foundation for the admission of defendant's refusals was established through the testimony that defendant had been apprised of the consequences of his failure to submit to the test (see People v Friel, 53 AD3d 667 ).
Pursuant to Vehicle and Traffic Law § 1192 (1), a defendant is guilty of driving while ability impaired if the evidence adduced at trial shows that "by voluntarily consuming alcohol . . . defendant has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver" (People v Cruz, 48 NY2d 419, 427 ; see also People v Litto, 8 NY3d 692, 706 ). "A conviction of the . . . offense of driving while impaired . . . requires only a showing that the defendant's ability to operate a vehicle was impaired to some extent" (People v McNamara, 269 AD2d 544, 545 ). Compared to proof of intoxication, the quantum of proof necessary to support a conviction of driving while impaired is "far less rigorous" (People v Reding, 167 AD2d 716, 717 ). Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 ), we find that it was legally sufficient to establish defendant's guilt of driving while ability impaired beyond a reasonable doubt (see e.g. People v Sykes, 31 Misc 3d 126[A], 2011 NY Slip Op 50442[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; People v Shihab, 19 Misc 3d 137[A], 2008 NY Slip Op 50808[U] [App Term, 1st Dept 2008]; People v Peck ,16 Misc 3d 126[A], 2007 NY Slip Op 51213[U] [App Term, 2d & 11th Jud Dists 2007]).
We note that defendant has not established that he was prejudiced by the Justice Court's conduct of the trial. The court's rulings throughout the trial were appropriate and designed to do no more than enforce propriety, orderliness, decorum and expedition in the trial (see People v De Jesus, 42 NY2d 519, 523 ; People v White, 213 AD2d 347 ). To the extent there were acrimonious exchanges between the court and defense counsel, they took place outside the presence of the jury (see People v Martin, 50 AD3d 278 ), and were brought about by defense counsel's own conduct, which included asking improper questions and ignoring the court's rulings (see People v Pierce, 303 AD2d 314 ). In addition, to the extent defendant challenges the court's conduct in the jury's presence, we find that this conduct consisted of making proper rulings on the evidence (see People v Pierce, 303 AD2d at 314).
Accordingly, the judgment of conviction is affirmed.
Molia and Iannacci, JJ., concur.
Tanenbaum, J.P., dissents in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM 9th and 10th JUDICIAL DISTRICTS
PRESENT TANENBAUM, J.P., MOLIA and IANNACCI, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- DECIDED DANIEL D. NETUSIL, Appellant.
NO. 2010-789 S CR
Tanenbaum, J.P., dissents and votes to reverse the judgment of conviction and dismiss the accusatory instrument in the following memorandum:
For the reasons stated in my dissent in People v Milowski (___ Misc 3d ___, 2011 NY Slip Op ________ [Appeal No. 2009-2428 S CR], decided herewith), I vote to reverse the judgment of conviction and dismiss the accusatory instrument.
Decision Date: December 27, 2011
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