This decision has been referenced in a table in the New York Supplement.
Robert T. Johnson, District Attorney, Bronx County, by Michael J. Weiss, Esq., Assistant District Attorney, for the People.
Angelo Petrigh, Esq., the Bronx Defenders, for the Defendant.
JOHN H. WILSON, J.
Defendant is charged with one count of Operating a Motor Vehicle Under the Influence of Alcohol or Drugs pursuant to VTL Sec. VTL Sec. 1192.3, an Unclassified Misdemeanor, and one count of Operating a Motor Vehicle Under the Influence of Alcohol or Drugs pursuant to VTL Sec. 1192.1, a traffic violation.
By motion dated March 30, 2013 Defendant seeks dismissal of all charges, asserting that the People's complaint is facially insufficient, rendering said complaint jurisdictionally deficient. Defendant also seeks suppression of all physical evidence seized and statements made to law enforcement personnel, as well as evidence of any prior bad acts.
The Court has reviewed the Court file, Defendant's motion, and the People's Response dated May 2, 2013. For the reasons stated below, the motion to dismiss is denied.
The motions for pre-trial hearings are granted, to the extent of ordering a hearing to determine if there was probable cause for Defendant's arrest and whether or not statements were taken in violation of defendant's rights under the United States and New York Constitutions.
Whether or not the People can use any prior bad acts or immoral conduct against the Defendant is referred to the trial court.
STATEMENT OF THE FACTS
Pursuant to the Criminal Court complaint, on or about March 11, 2013, at approximately 4:40 AM, Defendant was observed by Police Officer Mateusz Sajduk (deponent) " seated behind the steering wheel and operating a black 2007 BMW ... with the keys in the ignition, engine running, while said vehicle was traveling (on) a public roadway." These observations are alleged to have occurred at East Tremont Avenue and Prospect Avenue, Bronx, New York. See, Criminal Court complaint dated March 11, 2013, p.1.
The deponent also asserts that " he observed the defendant make a right turn, without utilizing his right turn signal and to swerve on numerous occasions, in that he observed defendant's vehicle cross the double yellow line and drive in the oncoming traffic lane and then back into his lane." See, Criminal Court complaint dated March 11, 2013, p.1. Upon stopping the vehicle, the officer observed defendant " to have an odor of alcoholic beverage emanating from his breath, slurred speech, watery eyes, and was swaying on his feet." See, Criminal Court complaint dated March 11, 2013, p.1.
The deponent further states that " the defendant stated in sum and substance, I had a few Coronas at two (2) AM." See, Criminal Court complaint dated March 11, 2013, p.1. The officer also states that defendant submitted to a chemical test to determine the Defendant's blood alcohol concentration with a result of ...