The defendant, Paul Gomes, has submitted an omnibus motion and a challenge to the certificate of compliance, each dated December 27, 2021, seeking: request for a bill of particulars; inspection and release of the Grand Jury minutes and dismissal or reduction of the indictment; suppression of evidence; preclusion of evidence; Brady material; Sandoval relief; several discovery-related orders; and leave to file further motions. The People's responses, each dated January 14, 2022, consents to some of the relief sought and opposes other relief. The court decides the motion as follows.

Defendant's motion to inspect the grand jury minutes is granted. The minutes reveal that a quorum of the grand jurors was present during the presentation of evidence and at the time the prosecutor instructed the grand jurors on the law. The indictment substantially conforms to the [*2]requirements set forth in CPL § 200.50. Upon inspection of the grand jury minutes and exhibits, this court found the evidence to be legally sufficient to support all counts of the indictment except for count five.

The defendant's motion to release the grand jury minutes is partially moot, because the People certified that they turned over the grand jury testimony in their certificate of compliance dated August 10, 2021. Otherwise, the defendant's motion is denied because release of the remainder of the grand jury minutes is not necessary to assist this court in determining the defendant's motion to reduce or dismiss the indictment.

Count Five charges Reckless Driving (VTL § 1212). A defendant is guilty of reckless driving when he "unreasonably interferes with the free and proper use of the public highway, or unreasonable endangers users of the public highway."

To constitute a violation of this statute, the evidence must show that the operator of the vehicle engaged in conduct that went beyond mere negligence. (See People v Grogan, 260 NY 138, 143 [1932].) The focus is on the manner of operation that amounts to " additional aggravating acts or circumstances beyond a single violation of a rule of the road." (People v Goldblatt, 98 AD3d 817 [3d Dept 2012].)

Here, the evidence that the People presented in support of the reckless driving charge consisted of the testimony of Police Officer Christopher Conaghan. Officer Conaghan testified that he saw the defendant driving a Honda Odyssey minivan south on Parsons Boulevard as it made a left turn onto Union Turnpike. In turning, the defendant drove over a median that separated the east and westbound lanes on Union Turnpike. Officer Conaghan described the defendant's manner of operation as against the flow of traffic and over the median to get to the proper traffic lane. Officer Conaghan did not describe whether other vehicles or pedestrians were present or affected by the defendant's improper turning movement.

Thus, the evidence before the grand jury established that the defendant made an improper turn. The People presented no evidence that any other vehicles or pedestrians were present or affected by the defendant's operation of his motor vehicle. Nothing in this evidence tends to show the way the defendant operated his vehicle constituted a reckless disregard of the consequences of how he drove his vehicle.

Accordingly, the evidence before the grand jury was legally insufficient with respect to count five. That charge is, therefore, dismissed with leave to re-present before another grand jury.

The court finds the instructions were defective as a matter of law with respect to counts one, two, three, and four of the indictment.

Counts one and two charge respectively Aggravated Driving While Intoxicated (VTL § 1192[2][a]) and Operating a Motor Vehicle While Under the Influence of Alcohol (VTL § 1192[2]).

As relevant here, these charges require the People to prove that the defendant operated a motor vehicle in violation of subdivisions 2[a] and 2 of [VTL § 1192] while he had .18 and .08 respectively of one per centum or more by weight of alcohol in his blood as shown by a chemical analysis of his breath. In this case, the device used to measure the blood alcohol content in the defendant's breath was the Intoxilyzer 9000. The Criminal Jury Instructions for these counts provides guidance to the jurors that, "to determine whether the defendant had .18 and .08 of one per centum or more by weight of alcohol in his blood, you may consider the results of any test given to determine the alcohol content of defendant's blood. A finding that the defendant [*3]operated a motor vehicle, and thereafter the defendant had .18 and .08 of one per centum or more by weight of alcohol in his blood permits, but does not require, the inference that, at the time of the operation of the motor vehicle, the defendant had .18 and .08 of one per centum or more by weight of alcohol in his blood." (CJI2d[NY]VTL §§ 1192 [2a][a]; [2]) To determine the accuracy of the results of the breath test produced from the Intoxilyzer 9000, the instruction permits jurors to consider the qualifications and reliability of the person who gave the test, the lapse of time between the operation of the motor vehicle and the giving of the test, whether the devise used was in good working order at the time the test was administered; and whether the test was properly given. The instruction also provides a detailed list of facts and circumstances that jurors may consider in addition to the evidence of the results of the chemical test including, inter alia, the defendant's physical condition and appearance; balance and coordination; manner of speech; the presence or absence of an odor of alcohol; the manner in which the defendant operated the motor vehicle; opinion testimony regarding the defendant's sobriety, and the circumstances of any accident.

Upon instructing the grand jurors as to these charges, the prosecutor stated as to count one:

A person is guilty of Aggravated Operating a Motor Vehicle Under the Influence of Alcohol when he or she operates a motor vehicle while having a .18 of one per centum or more by weight of alcohol in his or her blood as shown by chemical analysis of such person's blood, breath, urine or salvia.^[FN1]

The prosecutor stated as to count two:

A person is guilty of Operating a Motor Vehicle Under the Influence of Alcohol when he or she operates a motor vehicle while having .08 of one per centum or more by weight of alcohol in his or her blood as shown by chemical analysis of such person's blood, breath, urine or salvia. If the defendant has within the previous ten years been convicted of a violation of VTL 1192-2, a conviction of Driving While Intoxication per se is a class E felony.^[FN2]

However, these instructions were defective because they were incomplete. The prosecutor did not instruct the jurors on the application of the permissible inference when considering the results of the Intoxilyzer 9000 breath results as applied to the time the defendant operated the motor vehicle. The absence of this instruction was important to a juror who asked: "My question is, from the time he was pulled over to the time he was given the test was almost an hour and a half, and if you are legally drunk or had a drink how much should be out of your [*4]system in an hour and half? So he was probably even worse."^[FN3] The prosecutor, rather than telling the juror that she would instruct the jury on the applicable law after the presentation of the evidence, asked the witness his opinion on the relative rate of metabolizing alcohol.^[FN4] Here, the prosecutor failed to lay a proper foundation for this opinion evidence by establishing that assessing an individual's rate of metabolizing alcohol was within the ambit of this witness's experience.

Further, the prosecutor did not guide the grand jurors by listing in her instructions as to counts one and two the detailed facts and circumstances they could rely upon to determine whether the defendant was in an intoxicated condition. Lastly, the prosecutor did not define motor vehicle and operation in the instructions for these two counts as well as counts three and four, or provide a limiting instruction as how the jurors may consider the defendant's prior conviction.

Counts three and four respectively charge Operating a Motor Vehicle While Under the Influence of Alcohol (VTL §1192[3]) and Operating a Motor Vehicle While Under the Influence of Alcohol (VTL § 1192[1]).

Upon instructing the grand jurors as to count three, VTL § 1192[3], the prosecutor stated:

A person is guilty of Operating a Motor Vehicle While Under the Influence of Alcohol when he or she operates a motor vehicle in an intoxicated condition.

The prosecutor stated as to count four, VTL § 1192[1] Driving While Ability Impaired:

A person is guilty of Operating a Motor Vehicle While under the Influence of Alcohol when he or she operates a motor vehicle while his or her ability to operate such motor vehicle is impaired by the consumption of alcohol.

The prosecutor did not, however, define the meaning of "intoxicated condition" for count three and the meaning of "impaired" for count four. Further, she did not guide the grand jurors by listing the facts and circumstances they could rely upon to determine whether the defendant was in an intoxicated or impaired condition.

The Court of Appeals stated in People v Calbud, 49 NY2d 389, 394-95 (1980), that "[a] Grand Jury need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law." The Court of Appeals also stated that "[w]e deem it sufficient if the District Attorney provides the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime." (Id.)

Here, the prosecutor's instructions to the grand jury as to counts one, two, three and four did not meet that standard because they did not provide the grand jurors with a basis to discern whether the defendant had, in fact, been in an intoxicated or impaired condition when he operated a motor vehicle. Accordingly, counts one, two, three and four are dismissed.

For all these reasons, the defendant's motion to dismiss the indictment is granted with leave to re-present within 30 days. In light of this determination, the court need not address the defendant's remaining claims.

This court issues this order as both a reminder and a directive that counsel uphold their constitutional, statutory and ethical responsibilities in the above-captioned proceeding:

To the Prosecutor:

The District Attorney and the Assistant responsible for the case, or, if the matter is not being prosecuted by the District Attorney, the prosecuting agency and its assigned representative, is directed to make timely disclosures of information favorable to the defense as required by Brady v Maryland, 373 US 83 (1963), Giglio v United States, 405 US 150 (1972), People v Geaslen, 54 NY2d 510 (1981), and their progeny under the United States and New York State constitutions, and pursuant to Criminal Procedure Law (CPL) article 245 and Rule 3.8(b) of the New York State Rules of Professional Conduct, as described hereafter.

• The District Attorney and the Assistant responsible for the case have a duty to learn of such favorable information that is known to others acting on the government's behalf in the case, including the police, and should therefore confer with investigative and prosecutorial personnel who acted in this case and review their and their agencies' files directly related to the prosecution or investigation of this case.

• Favorable information could include, but is not limited to:

a) Information that impeaches the credibility of a testifying prosecution witness, including (i) benefits, promises, rewards or inducements, express or tacit, made to a witness by a law enforcement official or law enforcement victim services agency in connection with giving testimony or cooperating in the case; (ii) a witness's prior inconsistent statements, written or oral; (iii) a witness's prior convictions and uncharged criminal conduct; (iv) information that tends to show that a witness has a motive to lie to inculpate the defendant, or a bias against the defendant or in favor of the complainant or the prosecution; and (v) information that tends to show impairment of a witness's ability to perceive, recall, or recount relevant events, including impairment of that ability resulting from mental or physical illness or substance abuse.

b) Information that tends to exculpate, reduce the degree of an offense, or support a potential defense to a charged offense.

c) Information that tends to mitigate the degree of the defendant's culpability as to a charged offense, or to mitigate punishment.

d) Information that tends to undermine evidence of the defendant's identity as a perpetrator of a charged crime, such as a non-identification of the defendant by a witness to a charged crime or an identification or other evidence implicating another person in a manner that tends to cast doubt on the defendant's guilt.

e) Information that could affect in the defendant's favor the ultimate decision on a suppression motion.

• Favorable information shall be disclosed whether or not it is recorded in tangible form, [*5]and irrespective of whether the prosecutor credits the information.

• Favorable information must be timely disclosed in accordance with the United States and New York State constitutional standards, and in accordance with the timing provisions of CPL article 245. The prosecutor is reminded that the obligation to disclose is a continuing one. Prosecutors should strive to determine if favorable information exists. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in CPL 245.10(1).

• A protective order may be issued for good cause pursuant to CPL 245.70 with respect to disclosures required under this order.

• Failures to provide disclosure in accordance with CPL Article 245 are subject to the available remedies and sanctions for nondisclosures pursuant to CPL 245.80.

• Only willful and deliberate conduct will constitute a violation of this order or be eligible to result in personal sanctions against a prosecutor.

To Defense Counsel:

Defense counsel, having filed a notice of appearance in the above captioned case, is obligated under both the New York State and the United States Constitution to provide effective representation of defendant. Although the following list is not meant to be exhaustive, counsel shall remain cognizant of the obligation to:

a) Confer with the client about the case and keep the client informed about all significant developments in the case;

b) Timely communicate to the client any and all guilty plea offers, and provide reasonable advice about the advantages and disadvantages of such guilty plea offers and about the potential sentencing ranges that would apply in the case;

c) When applicable based upon the client's immigration status, ensure that the client receives competent advice regarding the immigration consequences in the case as required under Padilla v Kentucky, 559 US 356 (2010);

d) Perform a reasonable investigation of both the facts and the law pertinent to the case (including as applicable, e.g., visiting the scene, interviewing witnesses, subpoenaing pertinent materials, consulting experts, inspecting exhibits, reviewing all discovery materials obtained from the prosecution, researching legal issues, etc.), or, if appropriate, make a reasonable professional judgment not to investigate a particular matter;

e) Comply with the requirements of the New York State Rules of Professional Conduct regarding conflicts of interest, and when appropriate, timely notify the court of a possible conflict so that an inquiry may be undertaken or a ruling made;

f) Possess or acquire a reasonable knowledge and familiarity with criminal substantive, procedural and evidentiary law to ensure constitutionally effective representation in the case; and

g) When the statutory requirements necessary to trigger required notice from the defense are met (e.g., a demand, intent to introduce particular evidence, etc.), comply with the statutory notice obligations for the defense as specified in CPL 250.10, 250.20, and 250.30.

This constitutes the decision and order of the court.

The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.