Defendant is charged with the misdemeanors of Driving While Intoxicated (VTL §§ 1192[2] and [3]) and the traffic infraction of Driving While Ability Impaired by Alcohol (VTL § 1192[1]).

Defendant moves for an order 1) dismissing the accusatory instrument as facially insufficient; 2) suppressing statements for which proper notice has been given pursuant to CPL § 710.30, or in the alternative, granting a Huntley/Dunaway hearing to determine the admissibility of said statements; 3) suppressing videotape and the results of coordination tests; 4) suppressing the results of chemical test; and 5) directing the People to provide him with all information listed in his the Bill of Particulars and Demand to Produce.

The factual allegations in the accusatory instrument, sworn to by PO Larry Jimenez, read as follows:

Deponent states that [on or about March 21, 2015 at approximately 4:20 AM, at the northwest corner of East 165 Street and Third Avenue, County of Bronx, State of New York], a public roadway, he responded to a radio run of a motor vehicle accident. Deponent further states that at above-mentioned location, deponent observed a 2011 Ford Explorer, Pennsylvania License Plate No.JNX7946, in the middle of the roadway. Deponent further states that said vehicle was damaged, in that the front bumper had fallen off. Deponent further states he observed defendant standing near the above-mentioned vehicle. Deponent further states that defendant put keys in the ignition and attempted to start said vehicle, but it would not start. Deponent further states that defendant stated, in sum and substance: THAT'S MY CAR. I'M FINANCING IT.

Deponent further states that he observed defendant to have bloodshot, watery eyes and a strong odor of an alcoholic beverage emanating from his breath. Deponent further states that defendant stated in sum and substance: I WAS TRAVELING DOWN 165 STREET APPROACHING THE INTERSECTION WITH THIRD AVENUE. I NOTICED THAT THE LIGHT WAS YELLOW. I TRIED CROSSING THIRD AVENUE WHEN SUDDENLY THE OTHER CAR APPEARED AND WE GOT INTO AN ACCIDENT.

Deponent further states that he was present at the administration of a chemical test of the defendant's breath and that the defendant's blood alcohol content as displayed on the breath analysis machine was .08 of one percentum by weight. Deponent further states that defendant states, in sum and substance, I HAD ONE CUP OF HENNESSY.

Defendant argues that the accusatory instrument is jurisdictionally defective as it fails to allege essential elements of the offenses charged. First, defendant argues that the accusatory instrument fails to adequately allege the element of location. Defendant argues that VTL § 1192 only applies to certain enumerated locations, i.e., "public highways, private roads open to motor vehicle traffic and any other parking lot." VTL § 1192(7). Here, defendant asserts that the accusatory instrument utterly fails to allege that the operation of a motor vehicle occurred on one of the specified locations.

Second, defendant avers that the accusatory instrument fails to adequately allege the essential element of operation of a motor vehicle. Defendant contends that the element of operation is supported only by his admission indicating that he was driving the Ford Explorer. However, pursuant to CPL § 60.50, defendant argues that his admission must be corroborated to prove the element of operation.

Third, defendant argues that with respect to count two, VTL § 1192(3), the accusatory instrument fails to allege the element of intoxication. Defendant asserts that the only non-conclusory factual allegations set forth in the accusatory instrument consist of defendant's breath smelling of alcohol, watery eyes, and the results of a chemical test analysis indicating a blood alcohol content ("BAC") of .08. Defendant maintains that none of the aforementioned allegations make out a prima facie case of intoxication. Defendant points out that the accusatory instrument fails to allege any factors such as stumbling or erratic driving which could allow the court to reasonably infer that defendant was intoxicated.

Lastly, defendant argues that with respect to count three, VTL § 1192(1), the accusatory instrument fails to adequately allege the element of impairment. Defendant notes that the only non-conclusory factual allegations set forth in the accusatory instrument consist of defendant's breath smelling of alcohol, the presence of open beer cans on the car seat, and the results of a chemical test analysis of his BAC. Defendant argues that none of these allegations make out a prima facie case of impairment. Defendant further notes that the mere consumption of alcohol which does not result in impairment should not prevent an individual from driving.

In opposition, the People argue that the instant information is facially sufficient in that it provides adequately detailed facts of an evidentiary nature to support each and every element of the offenses charged. The People first point out that contrary to defendant's assertions, the information clearly reads that the offenses charged occurred on a public roadway. As such, the [*2]People contend that the accusatory instrument sufficiently alleges the location of the crime.

With respect to the element of operation of a motor vehicle, the People note that the information clearly indicates that the deponent responded to a radio run of a motor vehicle accident. Upon arrival, the deponent observed a vehicle with significant damage to the front bumper in the middle of the roadway. Deponent also observed defendant attempting to start the motor vehicle to no avail. Defendant further admitted to the officer that he was driving the vehicle when he got into an accident. The People argue that based upon the personal observations of the officer, who responded to the scene of a motor vehicle accident, coupled with defendant's admission of driving the motor vehicle sufficiently establishes the element of operation.

The People finally argue that the information sufficiently alleges the elements of intoxication and impairment. The information alleges that defendant exhibited bloodshot, watery eyes, had the strong smell of an alcoholic beverage emanating from his breath, and the results of a chemical test analysis of defendant's breath revealed a BAC of .08. Therefore, the People aver that based upon a fair reading of the four corners of the complaint, the elements of VTL §§ 1192(1) and (3) have been established.

It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15[3]; People v. Dumas, 68 NY2d 729 [1986]) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40[1][c]). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b); Dumas, 68 NY2d 729. Reasonable cause to believe that a defendant committed the crimes charged "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70.10.

In reviewing an accusatory instrument for facial sufficiency, the Court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15; People v. Mellish, 4 Misc 3d 1013(A) (Crim Ct, NY County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103 (1986). "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 NY2d 354, 360 (2000). Moreover, "the Court is not required to ignore common sense or the significance of the conduct alleged." People v. Gonzalez, 184 Misc 2d 262, 264 (App Term, 1st Dept. 2000) quoting People v. Abdul, 157 Misc 2d 511, 514 (Crim Ct, NY County 1993).

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." "A person's ability to operate a motor vehicle is impaired by the consumption of alcohol when that person's consumption of alcohol has actually impaired, to any extent, the physical and mental abilities which such person is expected to possess in order to operate a vehicle as a reasonable and prudent driver." CJI2d (NY) Vehicle and Traffic Law § 1192(1); see also, People v. Cruz, 48 NY2d 419, 427 (1979). Vehicle and Traffic Law § 1192(2) provides [*3]that "[n]o person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article." Vehicle and Traffic Law § 1192(3) provides that "[n]o person shall operate a motor vehicle while in an intoxicated condition." "A person is in an intoxicated condition when such person has consumed alcohol to the extent that he or she is incapable, to a substantial extent, of employing the physical and mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver." CJI2d (NY) Vehicle and Traffic Law § 1192(3); see also, People v Ardila, 85 NY2d 846 (1995); Cruz, supra.

This court finds defendant's argument that his uncorroborated admission renders the accusatory instrument facially insufficient to be without merit. The confession corroboration rule, CPL § 60.50, provides that "[a] person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged as been committed." "Th[is] rule protects against conviction of an offense based only on a person's admission, with no other proof that the offense actually has been committed." People v. Heller, 180 Misc.160, 164 (Crim Ct, NY County 1998); see also, People v. Lipsky, 57 NY2d 560 (1982); People v. Lytton, 257 N.Y.310 (1931). The Court of Appeals has held that "corroboration of a defendant's admission is not a component of the prima facie case requirement for an information" and "the absence of allegations in the information corroborating defendant's statements [does] not affect the jurisdictional validity of the information." People v. Suber, 19 NY3d 247, 254 (2012). In other words, the corroboration of a confession and/or admission is not required for purposes of pleading in a misdemeanor information.

As to the element of location, it is unclear to this court as to what additional factual allegations defendant would require for the information to be facially sufficient. A public highway is defined as "[a]ny highway, road, street, avenue, alley, public place, public driveway or any other public way." VTL § 134. Not only does the deponent, Officer Jimenez, specifically identify the place of the occurrence of the motor vehicle accident as a public roadway, but defendant was also observed in the middle of the roadway standing near his vehicle and he admitted to driving the vehicle on East 165th Street just prior to the happening of the motor vehicle accident. Therefore, this court finds that the accusatory instrument adequately alleges the element of location.

All three of the offenses charged also include the essential element of operating a motor vehicle. The operation of a motor vehicle can be proved by circumstantial evidence. See, People v. Booden, 69 NY2d 185 (1997); People v. Blake, 5 NY2d 118 (1958) In Booden, supra, the defendant and two other individuals were found standing next to a motor vehicle, which had come to rest in a ditch. When the investigating officer arrived on the scene, he asked who had been the driver. In response, the defendant identified himself as the driver and produced his driver's license. Based upon the following facts, the Court of Appeals held that there was sufficient corroborative evidence to conclude that the defendant was operating the motor vehicle, namely: 1) the motor vehicle was found in a ditch facing the wrong direction of travel; 2) the defendant and the other two individuals were standing next to the motor vehicle; and 3) the defendant identified himself as the driver.

The facts in this case are similar to those in People v. Espanda, 11 Misc 3d 1067(A) (Crim Ct, Queens County 2006). In Espanda, supra, the defendant was charged with Operation of a Motor Vehicle While Under the Influence of Alcohol or Drugs and sought to dismiss the [*4]information as facially insufficient. In denying the defendant's motion, the court noted the following:

In the case before the Court, the defendant admitted to operating a motor vehicle and being involved in an accident in that he admitted that "he was trying to park and he might of tapped the parked vehicle and that he had a few beers." In addition, he was observed by the arresting officer at the scene of the motor vehicle accident and exhibited the common law indicia of intoxication. After being placed under arrest he refused to take the Intoxilyzer test. The Court finds that these factual allegations serve to corroborate the defendant's admissions. The Court finds that the defendant's statement supplies the necessary element of operation for purposes of pleading. These factual allegations taken together with his admissions establish reasonable cause to believe that the defendant was involved in a motor vehicle accident while his ability to drive was impaired by alcohol. This is all that is required at the pleading stage.

Despite the fact that the deponent, the investigating officer, did not observe defendant actually operating the motor vehicle, the facts alleged in the complaint, are sufficient to reasonably infer that defendant operated the motor vehicle. Officer Jimenez responded to the scene of a motor vehicle accident where he observed defendant standing near a vehicle in the middle of the roadway. Officer Jimenez further observed the vehicle to have significant damage to its front bumper. Moreover, defendant admitted to the officer that 1) he had been driving on East 165th Street towards Third Avenue and 2) as he entered the intersection of Third Avenue and 165th Street, he was involved in an accident with another motorist.

Based upon defendant's admission of driving a motor vehicle coupled with the surrounding circumstances, that the motor vehicle which defendant admitted to driving was involved in a motor vehicle accident, this court can reasonably infer that defendant was operating a motor vehicle.

The accusatory instrument also alleges that defendant displayed the indicia of intoxication in that he had bloodshot, watery eyes, and he had a strong odor of alcohol on his breath. Further, a subsequent chemical test of defendant's breath, which Officer Jimenez observed being administered, revealed that defendant's BAC was .08. As such, there is reasonable cause to believe that defendant was operating a motor vehicle while both impaired by alcohol and while in an intoxicated condition. Moreover, the results of the chemical test analysis was .08, which is sufficient to satisfy the charge of Driving While Intoxicated per se. Consequently, this court finds that the accusatory instrument is facially sufficient and that each element of the three offenses charged has been established through non-hearsay factual allegations. Accordingly, defendant's motion to dismiss the accusatory instrument as facially insufficient is denied.

Defendant argues that all evidence obtained as a result of his unlawful stop should be suppressed because the police lacked any basis for stopping him. Specifically, defendant seeks to suppress the following: 1) videotapes taken of him; 2) the results of coordination tests; 3) and the results of the chemical test. Defendant denies engaging in unlawful conduct and he denies that his ability to drive was impaired in any way.

The People oppose defendant's motion to suppress physical evidence in its entirety. The Peoplefurther refuse to consent to a hearing to determine whether such evidence should be suppressed. The People contend that defendant has failed to allege sworn allegations of fact in [*5]support as required under CPL § 710.60. The People assert that defendant merely denies the allegations contained in the accusatory instrument and posits in a conclusory fashion that the police lacked probable cause. Notwithstanding defendant's deficient showing, the People aver that the police had ample probable cause based upon the personal observations of the arresting officer. With respect to the videotape of defendant's refusal to submit to a Breathalyzer test and coordination tests, the People argue that such evidence is not subject to exclusion as they are merely the recorded products of an officer's observations.

A motion to suppress evidence "must state the ground or grounds of the motion and must contain sworn allegations of fact." CPL § 710.60(1). A motion to suppress must be summarily granted where the defendant alleges a legal ground warranting suppression and the People concede the truth of the factual allegations. CPL § 710.60(2)(a). A Court may summarily deny a motion to suppress if the defendant fails to allege a proper legal basis for suppression or if the "sworn allegations of fact do not as a matter of law support the ground alleged." CPL § 710.60(3)(b). "[T]he sufficiency of [the] defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) [the] defendant's access to information." People v. Mendoza, 82 NY2d 415, 426 (1993). However, even if the defendant's factual allegations are deficient, summarily denying a motion to suppress is disfavored. In Mendoza, supra, the Court of Appeals explained:

The CPL does not mandate summary denial of defendant's motion even if the factual allegations are deficient .If the Court orders a Huntley or Wade hearing, and defendant's Mapp motion is grounded in the same facts involving the same police witnesses, the court may deem it appropriate in the exercise of discretion to consider the Mapp motion despite a perceived pleading deficiency. Indeed, considerations of judicial economy militate in favor of this procedure; an appellate court might conclude that summary denial of the Mapp motion as improper, requiring the parties and witnesses to reassemble for a new hearing, often months or years later.

A stop of a motor vehicle without probable cause constitutes a legal basis for the suppression of physical evidence. However, Vehicle and Traffic Law § 1194(1)(a) provides that "[n]otwithstanding the provisions of section 140.10 of the criminal procedure law ^[FN1] , a police officer may without a warrant, arrest a person in case of a violation of subdivision one of section eleven hundred ninety-two of this article, if such violation is coupled with an accident or collision in which such person is involved, which in fact has been committed, though not in the police officer's presence, when the officer has reasonable cause to believe that the violation was committed by such person." Vehicle and Traffic Law § 1194(1)(a) permits a police officer who neither observed an intoxicated driver nor the happening of a motor vehicle accident to effectuate a warrantless arrest so long as evidence of an accident and indicia of intoxication are present.

This court finds that defendant's moving papers are "minimally sufficient" to warrant a hearing on the issue of suppression. See, People v. Harris, 160 AD2d 515, 515 (1st Dept. 1990). [*6]Here, Officer Jimenez arrived at the scene of a motor accident and observed defendant standing near a motor vehicle. Once at the scene, the officer observed defendant exhibiting the outward signs of intoxication and detected the strong smell of an alcoholic beverage on his breath. Defendant was subsequently arrested based upon the purported personal observations of criminality by the arresting officer. Defendant's denial of any wrongdoing challenges the facts relied upon by the arresting officer to establish probable cause. "When the validity of a warrantless arrest is challenged, the presumption of probable cause disappears and the People bear the burden of coming forward with evidence showing that it was supported by probable cause." People v. Chaney, 253 AD2d 562, 564 (3d Dept. 1998). Where material facts are in issue, a hearing must be held in order for the Court to determine whether evidence was obtained lawfully ^[FN2] . People v. Burton, 6 NY3d 584 (2006). A hearing shall be held to determine 1) the propriety of defendant's warrantless arrest and whether, in light of all the circumstances, probable cause existed for it; 2) whether the chemical test was administered i n violation of VTL § 1194; and 3) whether the chemical test was properly administered. Therefore, defendant's motion for a Mapp/Dunaway/Johnson hearing is granted.

Defendant claims that his statements for which notice was given should be suppressed on the grounds that such statements were made involuntarily pursuant to CPL § 60.45. Defendant further argues that such statements were obtained in violation of his constitutional rights.

Due to defendant's deficient showing, the People ask this court to summarily deny this branch of defendant's motion in its entirety. However, should a Huntley hearing be ordered, the People request the scope of the hearing to be limited, since there is no probable cause issue with respect to defendant's statements and defendant has failed to raise an issue of fact regarding the issue of probable cause.

One exception to a court's authority to summarily deny a pretrial suppression motion for inadequate factual allegations relates to motions to suppress involuntarily made statements. People v. Huntley, 259 AD2d 843 (3d Dept. 1999). Where, as here, defendant claims that his statements were made involuntarily pursuant to CPL § 60.45, a Huntley hearing must be held to determine the admissibility of said statements. Therefore, defendant's motion for a Huntley hearing is granted.

As stated above, summary denial of suppression motion is disfavored. In the interest of judicial economy and in light of the fact that the branch of defendant's motion seeking a Dunaway hearing "is grounded in the same set of facts and involve[es] the same police witnesses" as the Mapp/Johnson hearing (Mendoza, 82 NY.2d at 429), defendant's motion for a Dunaway hearing to determine whether there was probable cause to effectuate his arrest is granted. Therefore, defendant's motion for a Dunaway hearing is granted.

The People are reminded of their continuing obligation to supply all Brady material. The People have already responded to defendant's request for a bill of particulars and demand to [*7]produce. Therefore, defendant's motion for a Bill of Particulars and discovery is denied as moot.

Accordingly, defendant's motion to the accusatory instrument as facially insufficient is denied. Defendant's motion for a Mapp/Dunaway/Johnson hearing is granted. Defendant's motion for a Huntley/Dunaway hearing is granted. The People are reminded of their continuing obligation to supply all Brady material. Defendant's motion for a Bill of Particulars and discovery is denied as moot.

This constitutes the decision and order of this court.

Bronx, New York

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