Opinion
No. 2020-748 RI CR
06-10-2022
The People of the State of New York, Respondent, v. Jose Alfonso Sanchez Ortega, Appellant.
Appellate Advocates (Anna Kou of counsel), for appellant. Richmond County District Attorney (Morrie I. Kleinbart and George D. Adames of counsel), for respondent.
Unpublished Opinion
Appellate Advocates (Anna Kou of counsel), for appellant.
Richmond County District Attorney (Morrie I. Kleinbart and George D. Adames of counsel), for respondent.
PRESENT:: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Raja Rajeswari, J.), rendered August 8, 2019. The judgment convicted defendant, upon his plea of guilty, of driving while ability impaired, and imposed sentence.
ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.
Defendant pleaded guilty to driving while ability impaired (Vehicle and Traffic Law § 1192 [1]) in satisfaction of an accusatory instrument that had also charged him with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) and common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]).
"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" (People v Case, 42 N.Y.2d 98, 99 [1977]; see People v Dumay, 23 N.Y.3d 518, 522 [2014]; People v Dreyden, 15 N.Y.3d 100, 103 [2010]). Thus, the facial insufficiency of an accusatory instrument constitutes a jurisdictional defect which is not forfeited by a defendant's guilty plea (see Dreyden, 15 N.Y.3d at 103; People v Konieczny, 2 N.Y.3d 569, 573 [2004]). Where a defendant has pleaded guilty to one or more of the counts actually charged in a multi-count accusatory instrument, and, on appeal, raises a jurisdictional challenge, the defendant need not challenge the facial sufficiency of all of the counts contained in the accusatory instrument at the time the defendant entered the guilty plea; rather, he or she need only challenge the facial sufficiency of the actual count(s) to which he or she pleaded guilty (see People v Mason, 62 Misc.3d 75 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Here, since defendant expressly waived the right to be prosecuted by information, the relevant count of the accusatory instrument, driving while ability impaired, must be evaluated under the standards that govern a misdemeanor complaint (see Dumay, 23 N.Y.3d at 524; see also CPL 100.15, 100.40 [4]; People v Dumas, 68 N.Y.2d 729, 731 [1986]). While the law does not require that the accusatory instrument contain the most precise words or phrases most clearly expressing the charge, the offense and factual basis therefor must be sufficiently alleged (see Konieczny, 2 N.Y.3d at 575). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 N.Y.2d 354, 360 [2000]; see Konieczny, 2 N.Y.3d at 575).
Vehicle and Traffic Law § 1192 (1) provides that "[n]o person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol." It is well settled that a person sitting in the driver's seat of a vehicle with the engine running may be found to have operated the motor vehicle without the need for proof that the defendant had put the vehicle in motion (see People v Prescott, 95 N.Y.2d 655, 662 [2001]; People v Alamo, 34 N.Y.2d 453, 458 [1974]; People v Ramlall, 47 Misc.3d 141 [A], 2015 NY Slip Op 50621[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Here, however, the accusatory instrument alleged that the arresting officer observed defendant "seated behind the driver's seat with the engine running." Consequently, without additional factual allegations pertaining to, for example, the position, condition, and location of the vehicle, the accusatory instrument failed to sufficiently allege that defendant had operated the motor vehicle, an essential element of the offense to which defendant pleaded guilty (see Vehicle and Traffic Law § 1192 [1]; People v Moreno, 70 Misc.3d 10 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Moreover, we find that the statement allegedly made by defendant to the arresting officer that he was coming from work and going home was not an admission that he had driven the vehicle or was intending to do so and any reliance upon this statement to satisfy the statutory element of operation is misplaced unless the reader of the accusatory instrument engages in impermissible speculation to fill in the gaps left open by such a vague statement (see generally People v Mejicanos, 40 Misc.3d 23, 26 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).
As the accusatory instrument failed to allege that defendant had operated a motor vehicle while his ability to do so was impaired by alcohol, the count in the accusatory instrument charging defendant with violating Vehicle and Traffic Law § 1192 (1), to which defendant pleaded guilty, was facially insufficient and must be dismissed (see Moreno, 70 Misc.3d 10). Instead of restoring the accusatory instrument "to its pre-pleading status... deem[ing it] to contain all [of] the counts... which it contained... at the time of the entry of the [guilty] plea" (CPL 470.55 [2]), here, driving while intoxicated per se and common-law driving while intoxicated, we dismiss the accusatory instrument in its entirety, as it is jurisdictionally defective for failing to sufficiently allege operation, a necessary element of these two counts as well (see Prescott, 95 N.Y.2d at 662; Alamo, 34 N.Y.2d at 458).
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.