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People v. Black

Criminal Court of the City of New York, Queens County

May 15, 2017

The People of the State of New York, Plaintiff,
Jarrell J. Black, Defendant.

          For the People: Queens County District Attorney's Office by ADA Aaron Spurlock, Esq.

          For the Defendant: Queens Law Associates by Timothy Shields, Esq.

          JOHN ZOLL, A.J.S.C.

         On April 26, 2017, the defendant filed a motion requesting leave to re-argue this Court's decision denying the defendant's motion to dismiss the count of operating a motor vehicle while under the influence of alcohol for facial insufficiency. The Court grants the defendant's motion to re-argue, and finds that the accusatory instrument is facially sufficient.

         The accusatory instrument alleges, in relevant part, that on February 11, 2015, between 3:50 am and 3:58 am, at the intersection of 135 Place and Rockaway Boulevard, Police Officer Adolfo Berrios observed the defendant, Jarrell J. Black, "behind the wheel of a 2009 Black Hyundai with the keys in the ignition, in front of a fire hydrant." Police Officer Berrios averred that "upon approaching the defendant's vehicle, he observed the defendant to have bloodshot watery eyes, slurred speech, a strong odor of an alcoholic beverage on his breath and the defendant was swaying upon exiting said vehicle." Police Officer Berrios further stated that "he recovered an open container of an alcoholic beverage: to wit 200 mL bottle of Vodka from the center console."

         The issue before this Court is whether a complaint, that does not include the allegation that the engine was running, but otherwise alleges that there was a key in the ignition of a car parked in front of a fire hydrant is sufficient to establish the element of operation for pleading purposes.

         At the outset, an accusatory instrument "must set forth the required nonhearsay evidentiary allegations within the four corners of the instrument itself." (People v Thomas, 4 N.Y.3d 143, 146 [2005].) The factual portion of the instrument must therefore contain "nonhearsay" factual allegations of an "evidentiary character" that demonstrates "reasonable cause" and a " prima facie case" that the defendant committed "every element" of the charged offense(s). (See CPL 100.15[3], 100.40[1]; People v Jones, 9 N.Y.3d 259, 261-262 [2007].) Otherwise known as the " prima facie requirement, " it does not insist that the information allege facts that would prove the defendant's guilt beyond a reasonable doubt. (People v Kalin, 12 N.Y.3d 225, 229 [2009]; People v Jennings, 69 N.Y.2d 103, 115 [1986].) On the contrary, the information need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." (People v Casey, 95 N.Y.2d 354, 360 [2000].) With that understanding, a court reviewing the facial sufficiency of an information must subject the allegations in the information to a "fair and not overly restrictive or technical reading, assume those allegations are true, and consider all reasonable inferences that may be drawn from them." (Casey at 360; People v Jackson, 18 N.Y.3d 738, 747 [2012].)

         The defendant contends that this Court misapplied the Court's holding in People v Jackson (18 N.Y.3d 738), in that "making a determination as to what is in public view is different than making the determination as to operation under the law, " and that the two cases are otherwise factually distinguishable. (Def. Resp., Para 12). The defendant further argues that "there is no testimony that anyone saw the defendant drive the vehicle and no layman's inference to be taken that the defendant did or had the intent to operate the vehicle." (Id.) However, the defendant misapprehends this Court's reliance on the Jackson decision. The only purpose for citing to the Jackson case was for the proposition that the Court may draw reasonable inferences from the facts alleged in the complaint. The facts in Jackson have no bearing on the facts in the instant case.

         The defendant next argues that the accusatory instrument is defective because it does not sufficiently allege the "operation" element of driving while intoxicated. The facts in the complaint merely allege that the keys were in the ignition, but does not allege that the engine was running or that the officer ever saw the vehicle in motion with the defendant driving. In New York, "operation" is given a "broad meaning, " and is defined as where the defendant "intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle." (Matter of Prudhomme v Holts, 27 A.D.2d 234, 236-37 [3d Dept 1967]; People v Prescott, 95 N.Y.2d 655, 662 [2001])(citations omitted) (emphasis added).

         There are instances where a complaint establishes that the officer did not in fact observe the defendant driving. Under those circumstances, the complaint must otherwise allege sufficient facts to establish the inference that the defendant was operating the motor vehicle. Indeed, operation may be established "on proof that the defendant was merely behind the wheel with the engine running without need for proof that defendant was observed driving the car, i.e., operating it so as to put it in motion." (People v Alamo, 34 N.Y.2d 453, 458-459 [1974]; People v Cunningham, 274 A.D.2d 484, 484 [2d Dept 2000]; People v David, 83 A.D.2d 690');">83 A.D.2d 690 [3d Dept 1981]; People v Lloyd, 2002 NY Slip Op 50624[U] [App Term, 9th & 10th Jud Dist [2002].)

         It is here that the defendant disagrees with this Court's decision that the facts contained in the complaint allege operation. First, the defendant contends that the inference in this case is not as strong as the inferences in People v Blake, Tomasello v Tofany, and People v Booden. The defendant argues that a set of keys merely resting in an ignition is not strong enough of an allegation to infer operation.

         In People v Blake (5 N.Y.2d 118');">5 N.Y.2d 118 [1958]), the defendant was alleged to have been found "seated alone in a drunken state in his automobile" which was "damaged and halted against a guardrail, with the engine running." The complaint further alleged that the defendant admitted that he was returning home from a party. (Id.) The Court held that the defendant did operate the car, saying "the facts established point logically to the defendant's operation of the automobile while intoxicated, even though there is no direct proof that he drove into the guardrail." (Id. at 120.) In People v Booden (69 N.Y.2d 185, 186 [1987]), the complaint alleged that the officers found the defendant, along with two other individuals, standing beside a vehicle that had come "to rest in a ditch on the north side of the highway facing east." When asked who had been driving, the defendant admitted to being the driver. (Id.) The Court held that the facts alleged provided an inference that the defendant operated the car, noting that "the circumstances of the accident may have been capable of innocent explanation, but they nonetheless supported an inference that a crime had been committed because the vehicle had been driven by a person under the influence of alcohol." (Id. at 188). Finally, in Matter of Tomasello v Tofany (32 A.D.2d 962, 963 [2d Dept 1969]), the officer was alleged to have observed the defendant turn the key in the ignition in an attempt to start the motor. The Court likewise held that the officer's observation was enough to sufficiently allege operation. (Id.)

         In relying on the three cases above, the defendant suggests that the combination of an admission and circumstantial evidence of an accident, or the defendant's proximity to the vehicle or an officer's observation of the defendant turning a key in the ignition (as opposed to keys merely resting in the ignition) are necessary to sufficiently allege operation. This Court disagrees. The lone fact that the key was in the ignition still falls within the very broad definition of beginning the mechanical sequence of starting the engine for the purpose of placing the vehicle in motion. Any further challenges to that allegation are evidentiary and not part of a facial sufficiency analysis. Clearly, the defendant has a strong defense at trial that he did not operate the vehicle and that the key was in the ignition for some purpose other than starting the car so as to drive it, which, if accepted by the finder of fact, would provide the basis for an acquittal of that count. Indeed, the defendant argues that "observing a defendant actually turn the keys in an attempt to start the vehicle creates a much stronger inference than keys merely resting in the ignition." (Def. Mot., Para 14). Nevertheless, the Court's standard is not whether the facts create a stronger (or weaker) inference of operation; but only if the facts alleged allow the Court to draw a reasonable inference that the defendant operated the vehicle.

         The Court's reference to VTL 1202[b][1], which provides that a car cannot be parked in front of a fire hydrant unless occupied by a licensed driver who can move the car in case of an emergency, is not nullified. The fact that the statute is limited by NYCRR 4.08[e][2] does not somehow take away from the reasonable inference that a car parked in front of a fire hydrant was not recently operated or about to be operated by the individual seated behind the wheel of the car. Indeed, the content of both statutes merely goes towards the reasonable inference that the defendant, seated behind the wheel of the car, intended to operate the vehicle. This Court again emphasizes that a facial sufficiency analysis is not meant to be an overly restrictive or technical reading of the information. As the Court noted in Booden, while the circumstances by which this ...

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