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People v. Ausby

Criminal Court of City of New York, Bronx

July 12, 2013

The PEOPLE of the State of New York,
v.
Donnell AUSBY, Defendant. No. 2011BX063659.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Lily Goetz, Criminal Defense Practice, for Defendant.

ADA Edward Siclari, Bronx District Attorney's office, for People.

LINDA POUST-LOPEZ, J.

Defendant Donnell Ausby was arrested on November 25, 2011 and charged with two counts of Driving While Intoxicated (V.T.L. § 1192.2 and § 1192.3) and one count of Driving While Impaired (V.T.L. § 1192.1). He was arraigned on November 26, 2011.

Defendant moved, on May 22, 2012, for dismissal pursuant to C.P.L. § 30.30, as well as on the grounds of facial insufficiency. He also moved for suppression of statements and of all evidence stemming from the arrest, and for other relief. The People responded, and defendant submitted a reply. By decision dated December 12, 2012, the judge sitting in this part at the time denied dismissal on the facial insufficiency motion and granted hearings on the suppression issues, but did not reach the C.P.L. § 30.30 motion. This decision therefore addresses the 30.30 issue alone.

Procedural History

The Criminal Court complaint filed at defendant's arraignment charged defendant with Driving While Intoxicated under V.T.L. § 1192 .2, an element of which is a blood alcohol level of at least .08 of one percent. It also charged him with the so-called " common-law intoxication" statute, Driving While Intoxicated, under V.T.L. § 1192.3, which does not require any particular blood alcohol level, but does require other indicia of intoxication. Finally, the complaint charged Driving While Impaired under V.T.L. § 1192.1, which requires a showing that defendant's ability to drive was impaired by alcohol.

The common-law intoxication and the Driving While Impaired charges were established in the initial complaint by the first-party, sworn statement of the arresting officer, who stated that defendant had " a strong odor of an alcoholic beverage emanating from [his] breath, bloodshot watery eyes, and slurred speech" and said, " I had a drink like an hour ago." The Driving While Intoxicated charge was based on the allegation in the complaint that the breathalyzer test performed on defendant revealed his blood alcohol content to be .13 of one percent. The People did not file a chemical test analysis to corroborate the blood alcohol level, however. They told the court that they had a chemical test analysis that showed a reading of .07.[1] That charge therefore remained unsupported by non-hearsay allegations. The People nonetheless said that they were " ready." The court expressed its confusion at how the People could be ready if they were claiming the .13 blood alcohol level was converted by a .07 chemical test analysis. Defense counsel opined that the complaint was not converted and objected to the statement of readiness. The court did not rule on the issue, and the case was adjourned to January 11, 2012.

On the next court date, the People indicated that they intended to file a superseding information, and the case was then adjourned for that purpose. The following date was February 28, 2012. The People confirmed on that date that they still intended to file a superseding information but did not yet have one to file. They also said that since arraignments they had " maintained their readiness" on the common-law intoxication and the Impaired counts. The case was adjourned to April 2, 2012. The People did file a superseding information off calendar on February 29, 2012, charging the defendant with only the common-law intoxication under V.T.L. § 1192.3, and with Driving While Impaired under V.T.L. § 1192.1.

Positions of the Parties

Defendant argues that People did not have a jurisdictionally sufficient information until at least February 29, 2012 when they filed the superseding information. He says that, as more than 90 days had elapsed between the initial arraignment and the filing of the superseding information, the People's allotted time under C.P.L. § 30.30 had expired and the case should be dismissed. He argues against the ideas of " partial conversion" and " partial readiness." The People counter that they had been " ready" on the common-law Intoxication and the Driving While Impaired charges at arraignment, and that they were therefore within their 30.30 time period for those charges. They also assert that, in any event, the traffic infraction of Driving While Impaired is not subject to any 30.30 analysis and should survive regardless of the result for the other charge. Finally, the People argue at length that defendant's constitutional right to a speedy trial has not been denied, even though defendant has not raised a constitutional speedy trial argument.

Legal Analysis

C.P.L. § 30.30(1)(b) provides that a motion to dismiss pursuant to C.P.L. § 170.30(e) must be granted when the People are not ready for trial within " ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months, and none of which is a felony."

In this case, two of the offenses which were initially charged-V.T.L. § 1192.2 and 1192.3-are misdemeanors punishable by up to a year in jail. V.T.L. § 1193(1)(b). And as there were no felony charges here, the People were entitled to 90 days, from the commencement of the criminal action, to be ready for trial.

To be ready for trial, the People must have an accusatory instrument upon which a defendant may be tried. In this case, that would be a jurisdictionally sufficient information.

The Criminal Procedure Law provides that a criminal action may be commenced by the filing of certain enumerated accusatory instruments. C.P.L. § 100.05. The two types of accusatory instruments relevant for these purposes are a misdemeanor complaint, and an information. Each must conform to the form requirements of C.P.L. § 100.15. A misdemeanor complaint is a " verified written accusation charging one or more other persons with the commission of one or more offenses, at least one of which is a misdemeanor and none of which is a felony." C.P.L. § 100.10(4). It may serve as the basis for the commencement of an action, but may not serve as a basis for prosecution unless a defendant has waived prosecution by information. Id. An information is also a " verified written accusation charging one or more other persons with the commission of one or more offenses, at least one of which is a misdemeanor and none of which is a felony." C.P.L. § 100.10(1), but has other elements, beyond those required for a misdemeanor complaint, (see below). An information may serve as both the basis for a criminal action and the prosecution thereof. Id.

For an information to be jurisdictionally valid, it must contain allegations which provide reasonable cause to believe that the defendant committed the offense charged, and non-hearsay allegations which establish, if true, every element of the offense charged and the defendant's commission thereof. C.P.L. § 100.40[1][c]; C.P.L. § 100.15[3]; People v. Jones, 9 N.Y.3d 259, 848 N.Y.S.2d 600, 878 N.E.2d 1016 (2007); People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71(1987); People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986).

The People therefore cannot be ready for trial in a case where the highest charge is a misdemeanor unless they have a jurisdictionally sufficient information. C.P.L. § 100.10[1]; C.P.L. § 100.15[3]; § 100.40[1][c]; People v. Colon, 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548 (1983), rev'g for reasons stated at 110 Misc.2d 917, 919-920, 443 N.Y.S.2d 305 (Crim. Ct. N.Y. County 1981); People v. Caussade, 162 A.D.2d 4, 8, 560 N.Y.S.2d 648 (2nd Dept.1990).

In this case, the People did not have a valid, jurisdictionally sufficient information-that is, one in which every element was established by non-hearsay allegations-until the superseding information was filed on February 29, 2012. Until that point, the accusatory instrument was merely a misdemeanor complaint, as it contained an allegation, necessary to support one of the charges, that defendant's blood alcohol content was .13 of one percent, yet there was no chemical test analysis to support that allegation.

The People argue that the complaint was converted to an information at arraignment (People's response, page 3, line 2; page 4 line 19). They state that the failure to file a chemical test analysis that matched the blood alcohol level in the complaint was a " clerical error" (People's response page 3 lines 5, 11; page 4 line 7). They argue that their statement of readiness made at arraignment was therefore valid.

The People also argue that, in any event they were " ready" on the impaired and common law intoxication charges from the beginning, as those did not require the chemical test analysis to make out the charges.

The problem with this argument is that there was no valid information in existence until the superseding was filed. The People do not provide any authority for the idea that the People can be " ready" on some counts without having a fully converted information. There is one case from the Appellate Term, First Department that defendant addressed in his motion, and that case bears looking at closely.[2]

People v. Brooks

In People v. Brooks, 190 Misc.2d 247, 736 N.Y.S.2d 823 (Appellate Term, 1st Dept.2001), the complaint charged several crimes, including a count of Criminal Impersonation where the defendant was accused of impersonating a police officer. At arraignment the court deemed the complaint an information and the People stated " Ready." The defense made no objection to either, and consented to an adjournment. On the next date the defense raised the argument, for the first time, that the allegation in connection with the Criminal Impersonation charge that the defendant " was not employed by the New York City Police Department" was not supported by any statement of anyone with firsthand knowledge of such a fact. The court agreed and adjourned the matter for the People to file a superseding information. The People eventually dismissed the Criminal Impersonation charge, 102 days after the arraignment.

The defendant moved to dismiss under C.P.L. § 30.30, alleging that the People did not have a valid information until more than 90 days after arraignment, when the Criminal Impersonation charge was dismissed. The court granted the motion. The Appellate Term reversed, for several reasons.

One reason for reversal was that the defense had consented to the 31-day adjournment from arraignment to the next court date.[3] Where a defendant consents to an adjournment, that time period is excluded from the People's time limit under C.P.L. § 30.30, even where the People do not yet have a jurisdictionally valid accusatory instrument. People v. Worley, 66 N.Y.2d 523, 498 N.Y.S.2d 116, 488 N.E.2d 1228 (1985). It was for this reason that the dismissal in Brooks was reversed.

The Brooks court also mentioned other factors in support of its decision to reverse, however. One of these was that " defendant's hearsay challenge to the criminal impersonation count of the information should have been raised by way of a formal motion to dismiss that count ... a procedure which, of course, would have triggered the motion ...


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