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The Misdemeanor Motion to Dismiss

February 14, 2008

Without question, a consistently ignored opportunity for success in the defense of alcohol influenced operating offenses is motion practice.  Perhaps because of ever increasing time constraints, this crucial step is frequently viewed as a pro forma area to be dominated by the interposition of so-called "boiler plate" or catch all forms.

It is not.  Second only to a trial in importance, those who regularly handle Article 31 offenses will candidly admit that more cases are won or lost at the pre-trial stage than at any other point in the litigation.

While, in future issues we will touch upon how one properly brings a pre-trial criminal motion, let's first examine what one hopes to accomplish.

By far the most perfunctorily brought of all pre-trial criminal motions, the motion to dismiss is nevertheless a mere half step behind suppression in importance if counsel knows where to look.

Consider Vehicle and Traffic Law '1192(2).  This section, as we all know, prohibits operation of a motor vehicle with more than .10% by weight of alcohol in the bloodstream.  In the usual case, the prosecution will be commenced by the service of a simplified traffic information.  Thereafter, at arraignment, counsel will generally request a copy of the information.  This crucial request makes it incumbent upon the People to establish by "[n]on-hearsay allegations * * * every element of the offense charged and the defendant's commission thereof" CPL '100.40(1)(c).

Therefore, once an information is requested, a pleading will be insufficient if it merely sets forth that the results of a chemical test exceeded the statutorily permitted limit when the individual supplying this allegation is one other than the officer who administered the test.  (See, People v. Connaughton, NYLJ, October 23, 1993, p. 26, col. 2; People v. Richberg, 125 Misc2d 975, 481 NYS2d 237). 

CPL '100.40, of course, applies only to instances when the defendant is charged by an information.  Is a motorist who has been charged by means of a simplified traffic information with a criminal violation of the Vehicle and Traffic Law entitled to an information?  Absolutely.  Crucial to recognizing the mandatory nature of an information in a prosecution for DWI is the role played by the misdemeanor complaint.  Defined by CPL '100.10(4), a "misdemeanor complaint is a verified written accusation by a person, filed with a local criminal court, charging one or more other persons with the commission of one or more offenses, at least one of which is a misdemeanor."  A simplified traffic information is described by CPL '1.20(5) as "being in a brief or simplified form prescribed by the commissioner of motor vehicles * * *."  Missed by many is that the slip of paper that is filed with the Court differs from that which is served upon the motorist in one critical respect; immediately above the officer's signature it contains the words, "affirmed under the penalty of perjury."  Affirmation or verification is required by 15 NYCRR '91.7(b) and is in keeping with the legislature's intent that "the Commissioner of Motor Vehicles . . . prescribe a simplified form of an information or complaint which would serve as a short form pleading and which would be combined with the uniform ticket in a packet" People v. Boback, (1969) 23 NY2d 189, 193‑194, 295 NYS2d 912.  CPL '100.30 expressly provides that a misdemeanor complaint may be verified by means of "a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the Penal Law, and such form notice together with the subscription of the deponent constitute a verification of the instrument" (see also, Vehicle and Traffic Law '208 ["a complaint need not be verified provided it shall be affirmed under penalty of perjury"].

Such an instrument, therefore, is a misdemeanor complaint.

Thereafter, CPL '170.65(1) sets forth that the misdemeanor complaint must be replaced by an information, unless the defendant "waive[s] prosecution by information and consent[s] to be prosecuted upon the misdemeanor complaint (CPL '170.65[3])."

To what degree does the service of a supporting deposition alter the foregoing analysis?  CPL '100.25 entitles the defendant, upon a timely request, to service of a supporting deposition.  As a practical matter, supporting depositions are commonly filed with the Court prior to arraignment.  When served at arraignment, the simplified traffic information and the supporting deposition together become a "misdemeanor complaint" in every sense of the word.  Since the defendant is now charged by a "misdemeanor complaint," he or she is entitled to an information as a matter of law.  When filed after a demand to be prosecuted by information, the supporting deposition should be judged as though it was an information served pursuant to the defendant's demand and, in the event that the necessary allegations are not set forth in non-hearsay fashion, the Court should dismiss.

While cases can be found which seemingly stand for the proposition that in a prosecution commenced by means of a simplified traffic information the requirement of non-hearsay pleading will never arise, these cases may be distinguished inasmuch as they involve traffic infractions, not misdemeanors (see, People v. Dabo, NYLJ 12/30/93, p. 30, col. 1; People v. Howell, -Misc2d-, 601 NYS2d 778).

What of '1192(3)?  Again, counsel should ask if it has been satisfactorily pled.  While clearly the arresting officer is better situated to supply the statutorily mandated non-hearsay allegations when charging common law DWI, such latitude is not unbridled.  Does the instrument set forth that the motorist was intoxicated?  If it does, does the pleading provide facts upon which the Court can determine that the officer has the necessary expertise to detect the subtle difference between impairment and intoxication (see, People v Dumas, (1986) 68 NY2d 729, 506 NYS2d 319)?  If the document is lacking a conclusion that the defendant was intoxicated, examine the facts that have been provided.  Bearing in mind that in People v. Cruz (48 NY2d 419, 423 NYS2d 625) the Court of Appeals acknowledged that there are two states of alcohol induced disability, take a hard look at the information to determine whether it alleges sufficient facts to justify a finding of intoxication.  Don't forget that unlike an indictment, an information will be insufficient when the factual allegations fail to support every element of the offense charged and the defendant's commission thereof.

While many consider Driving While Ability Impaired (Vehicle and Traffic Law '1192[1]) an offense to be pled out, opportunities for success exist despite its characterization as a traffic infraction.

Assume the result of the motorist's Breathalyzer7 test was .09%.  In such situations police officers will frequently charge "common law" DWI (Vehicle and Traffic Law '1192[3]).  Should this occur, the defendant is fortuitously entitled to a dismissal since the People's proof is prima facie evidence that the motorist was not intoxicated (see, Vehicle and Traffic Law '1195[2][c]).  Confronted with such a motion the People will normally move to amend, but amend what?  To sustain the charge the People must amend the simplified traffic information to charge a violation of Driving While Ability Impaired.  The problem here, however, is that the amendment may not be done by means of a superseding information or supporting deposition (People v Baron, (1980) 107 Misc2d 59, 438 NYS2d 425), and CPL '100.45 makes no provision for amendment of such an instrument.  Since the Court, following dismissal, loses jurisdiction of the defendant, it will be necessary for the defendant to be personally served with the redrafted instrument (CPL '150.40(2) and the time in so doing will be charged to the People.

Obvious as it may be, don't forget operation.  1993 saw a flurry of activity in this area (See, p. 6, infra).  If the information fails to set forth facts that are sufficient to establish this all crucial element, then it is insufficient.

Was an accident involved and is operation based upon a statement alleged to have been made by the defendant?  If so, the overwhelming authority is that such statements must be corroborated (see, Fiandach, New York Driving While Intoxicated, '9:8).

While unquestionably a dismissal at this point will not be upon the merits, success at this early stage may spell victory nevertheless.  Consider People v Kocowitz (NYLJ March 19, 1993, p. 23, col. 4).  In Kocowitz, the defendant was charged with DWI by means of an information that inadequately established operation.  Although the People subsequently refiled a sufficient instrument, the Trial Court held that the absence of a jurisdictionally sufficient instrument for a period in excess of ninety days mandated dismissal.  Although CPL '30.30(4)(a) sets out that time attributable to the defendant's pre-trial motions is to be excluded from the time in which the People must be ready for trial, the failure to have a sound jurisdictional instrument supersedes any delay occasioned by the defendant's motions (see, People v. Colon, (1983) 59 NY2d 921, 466 NYS2d 319).

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