Criminal Court of the City of New York, Kings County
JOHN T. HECHTJ.C.C.
Defendant Edwin Martinez-Guzman is charged with a variety of offenses involving alleged drinking and driving.  Defendant moves to dismiss the accusatory instrument on facial sufficiency and speedy trial grounds. The People oppose the motion.
The accusatory instrument provides, in pertinent part:
The deponent [Police Officer Glen Dengeles] states that, at the above time and place [October 29, 2011, 4:55 a.m. at Jamaica and Euclid Avenue, Brooklyn], the deponent observed the defendant standing next to a 2001 Lincoln with New York State license plate number T455950C with the keys in the ignition and the engine to be [ sic ] running.
Defendant is further informed by Danny Dominguez that the defendant was driving defendant's vehicle at the above time and place.
Deponent further states that deponent is informed by the attached chemical test analysis that at the time indicated, the defendant submitted to a chemical test to determine the defendant's blood alcohol concentration with a result of.093% alcohol content.
(Accusatory instrument dated October 29, 2011).
Defendant argues that the prosecution should be dismissed for facial insufficiency because, without the supporting deposition of Danny Dominguez (which has never been filed), the critical element of "operation" or "driving" has not been established by non-hearsay allegations. Instead, the information merely alleges "operation" of the vehicle by inference from the fact that defendant was standing next to it. Defendant also contends that the case should be dismissed because the time limit prescribed by CPL 30.30 has run, and that the People's delay violates CPL 30.20.
Each of the offenses charged in the subject accusatory instrument includes the essential element of "operation" or "driving." Here, the accusatory instrument states that Officer Dengeles observed defendant standing at the intersection of two roads at 4:55 AM next to a 2001 Lincoln whose keys were in the ignition and whose engine was running. Observation of a defendant actually driving a motor vehicle is not necessary to allege the element of operation, or the similarly defined element of driving. Thus, in People v. Booden, where, among other things, the defendant was found next to a car in a ditch, the Court of Appeals found that the element of operation had been proved (People v Booden, 69 N.Y.2d 185 ; see People v Dolan, 1 Misc.3d 32 [App. Term, 1st Dept. 2003] [information containing defendant's admission as to driving and arresting officer's observation of defendant in driver's seat with seat belt fastened and air bag deployed found facially sufficient]). Although Booden and Dolan were decisions rendered after trial, and other facts were elicited at the trials of those cases to sustain the charges, they support the conclusion that operation may be inferred from the defendant's proximity to, or presence inside, a vehicle, even if no witness observes him driving it, particularly where the circumstances imply that the car has recently been driven. The circumstances alleged here include that the car was at an intersection in the early morning - in contrast to a car, say, parked among others at the side of a road or one traveling by at rush hour - from which the court may reasonably infer that the car had recently been driven and that the defendant, who was "next" to it, was its driver. The contrary conclusion reached by the court in People v. Barrett - that a defendant's presence near the scene of a vehicle accident is insufficient to allege operation - may perhaps be attributed to the different standard that applies to the review of a grand jury indictment (People v Barrett, 22 Misc.3d 1134 [A] [County Ct., Essex County 2009]).
Indeed, four recent decisions of the Court of Appeals describe how the People's pleading obligations in a Criminal Court information are more limited than may previously have been believed. In People v. Kalin, the Court explained that the statutory "prima facie case requirement" for an information is less than "the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial" (People v Kalin, 12 N.Y.3d 225, 230  [internal citations omitted]). The Court emphasized that this was so in light of the twofold purpose of an information: to "give an accused notice sufficient to prepare a defense and... to prevent a defendant from being tried twice for the same offense" (id.).
To be sure, as the Court reminded the People in People v. Dreyden, facts of an evidentiary nature, rather than conclusions, must be alleged to meet their prima facie case requirement (People v Dreyden, 15 N.Y.3d 100 ). If the "conclusion drawn by a police officer... involves the exercise of professional skill or experience, some explanation concerning the basis for that conclusion must be evident from the accusatory instrument" (People v. Jackson, 18 N.Y.3d 738, 746 ). Thus, in Kalin, the officer was required to explain the basis for the conclusion that the substance allegedly recovered from the defendant was a controlled substance. Similarly, in Dreyden, the officer was required to explain how he came to identify defendant's knife as a gravity knife, which has a specific statutory definition.
But not every conclusion requires detailed factual allegations. In Jackson, where the question was whether the People had sufficiently alleged that the defendant's marihuana possession was "open to public view, " the Court concluded that a "determination that a particular item is open to public view' does not require the exercise of professional skill or experience on the part of a police officer warranting a specialized explanation. Thus, in most cases the basis for such an allegation can be discerned by drawing reasonable inferences from all the facts set forth in the accusatory instrument" (id. at 747).
Kalin, Dreyden, and Jackson therefore explain the parameters of the People's obligation to allege evidentiary facts in an information. If the ordinary observer may readily draw the conclusion the People allege, the People's pleading burden is limited. If the conclusion is the product of the more specialized observation ...