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People v. Valera

Criminal Court of the City of New York, Bronx County

November 13, 2017

The People of the State of New York, Plaintiff,
v.
Luis Valera, Defendant.

          Lourdes Ann Vetrano, for the People Hannah Rosenthal, for the Defendant

          Hon. Tara A. Collins J.

         Defendant Luis Valera is charged with Driving While Intoxicated (VTL § 1192[3]) and Driving While Ability Impaired (VTL § 1192[1]). He moves for dismissal of the charges against him, arguing his speedy trial right was violated. The issues presented in this case are:

1. Is the defendant's refusal to submit to a chemical test analysis an element of a VTL § 1192 offense that must be corroborated?
2. Does the law of the case doctrine constrain the Court to follow its earlier rulings in the case if the parties argued their respective positions on the record, but not on motion papers?
3. In a motion to dismiss for speedy trial violation, should the People be charged for erroneous adjournments for conversion of the accusatory instrument?

         Holdings: The Court finds that the defendant's refusal to submit to a chemical test analysis is not an element of either Driving While Intoxicated or Driving While Ability Impaired. The Court further holds that the parties must have had an opportunity to litigate the issue in front of a court that is fully cognizant of the issue for the law of the case doctrine to apply. Finally, the Court finds that erroneous adjournments for conversion are not includable in a CPL § 30.30 calculation because they did not affect the People's ability to proceed to trial. Additionally, the defendant failed to show that his constitutional right to speedy trial was violated. Accordingly, defendant's motions are DENIED.

         PROCEDURAL HISTORY

         Defendant Luis Valera was arrested on May 29, 2017, on charges of Driving While Intoxicated (VTL § 1192[3]) and Driving While Ability Impaired (VTL § 1192[1]). At the defendant's criminal court arraignment on the same date, prosecution served and filed a form titled, REPORT OF REFUSAL TO SUBMIT TO CHEMICAL TEST (hereinafter "refusal form"). The form contains boxes for the vehicle and vehicle operator's information, the arresting officer's information, and the specific arrest charge under VTL § 1192. The form further contains a section that requires the officer to articulate reasons for the arrest and detail signs of impairment or intoxication. There is also a warning that must be read to the subject motorist about the consequences of refusing to submit to a chemical test and space to provide the information about the officer who administers and witnesses this warning. Notably, the refusal form contains instructions to the arresting officer and the court, but it is addressed to the "Commissioner of Motor Vehicles."

         In this case, the refusal form was completely devoid of information about the motorist or the vehicle. It contained some information about the arresting officer and the witnessing officer. It was signed only by the witnessing officer, but not the arresting officer. Based on this lack of information, and upon concession of the People, the Court did not suspend the defendant's driver's license at his arraignment (VTL § 1194[2][b][3]). Moreover, given this defect, the prosecution stated not ready and requested to file a statement of readiness along with a new or amended refusal form. This case was adjourned to July 12, 2017, for conversion.

         The People filed a statement of readiness off-calendar on June 2, 2017, but did not attach a new or amended refusal form. Instead, on the defendant's next scheduled court appearance on July 12, 2017, the People argued that they were converted on the date of the defendant's arraignment as the refusal form was necessary only for the suspension of the defendant's license, and not for the conversion of the accusatory instrument. After a bench conference, the Court adjourned the case once again for conversion, making a note that the arraignment judge indicated that the accusatory instrument was not converted.

         On July 13, 2017, the People filed and served a statement of readiness, again without a new or amended refusal form. On the defendant's next scheduled court appearance on July 19, 2017, the prosecution once again argued that the refusal form was unnecessary for conversion. Defendant argued, on the other hand, that the accusatory instrument contained hearsay as it related to whether the refusal warnings had been properly administered. Defendant submitted that this defect could not be cured without the refusal form. After a bench conference, the Court again adjourned the case to September 6, 2017, for conversion.

         On September 6, 2017, for the third time, the People maintained that they did not need a refusal form to covert the accusatory instrument. Following this appearance, the defendant filed the instant motion to dismiss pursuant to CPL §§ 30.30 and 30.20 on October 2, 2017. The People responded on October 25, 2017.

         DISCUSSION

         The defendant is charged with Driving While Intoxicated (VTL § 1192[3]) and Driving While Ability Impaired (VTL § 1192[1]). Driving While Intoxicated is an unclassified misdemeanor (VTL § 1193[1][b]), which, for the purposes of a CPL § 30.30 calculation, is deemed a class A misdemeanor by operation of CPL § 55.10(2)(b). Accordingly, the People must be ready within ninety days of the commencement of the criminal action (CPL § 30.30[1][b]). Driving While Ability Impaired is a traffic infraction (VTL § 1193[1][a]) and does not have an applicable 30.30 time (People v. Graham, 39 Misc.3d 35 [App Term, 2d Dept, 11th and 13th Jud Dists 2013]).

         A criminal action commences with the filing of an accusatory instrument with the court (CPL §§ 1.20[17]; 100.15). To be ready for trial, the People must serve "(1) either statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, and (2) the People must in fact be ready to proceed at the time they declare readiness" (People v. Chavis, 91 N.Y.2d 500, 505 [1998]).

         In a motion to dismiss pursuant to CPL § 30.30, the initial burden rests on the defendant to allege that her right to speedy trial has been violated (See People v. Luperon, 85 N.Y.2d 71, 77-78 [1995]). Then, the burden shifts to the People to identify "the exclusions on which they intend to rely" (id. at 78). If the defendant disagrees, she "must identify any legal or factual impediments to the use of these exclusions" (id.).

         In this case, defense argues that 100 days passed between Mr. Valera's arraignment and September 6, 2017, when the defense requested a motion schedule, because the accusatory instrument was never converted to an information. The People oppose this motion, arguing that the accusatory instrument had been converted at arraignment and that they were ready to proceed to trial when they filed an off-calendar statement of readiness.

         The threshold question this Court must answer, then, is whether the accusatory instrument was an information at the defendant's arraignment or whether, as the defense argues, ...


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