Defendant's motion to dismiss the charges against him on speedy trial grounds (CPL §30.30) is granted.

PROCEDURAL HISTORY:

Defendant, Rolando Ortiz, was arraigned on March 3, 2004 and charged with "Operating a Motor Vehicle While Under the Influence of Alcohol/Drugs" (VTL § 1192 [4]). The accusatory part of the complaint stated: "Defendant Did: operate a motor vehicle while his ability to operate that motor vehicle was impaired by the use of a drug."

The factual part of the accusatory instrument provided, in relevant part:

informant observed defendant operating a motor vehicle ... Informant further states that he observed defendant driving on a public street. Informant further states that he observed defendant's vehicle crash into a guard rail on said public street.

Deponent states that he observed defendant to have glassy blood shot eyes. Deponent further states that he observed defendant's eyes to be open and staring into space and defendant was also unresponsive. Deponent further states that defendant was unable to stand on his own feet.

The complaint was signed by Police Officer Kenneth Niepert who based his factual allegations upon the observations of Police Officer Jeffrey Yellin. There was no supporting affidavit from Police Office Yellin or laboratory report filed at arraignment. The defendant was released on his own recognizance and the matter was adjourned to April 14, 2004.

On April 14, 2004, the People stated ready and filed a supporting deposition from Police Officer Yellin, but did not file a laboratory analysis. The People also made an application to orally amend the accusatory instrument to add the charge of VTL § 1192 (3) - Driving While Intoxicated. Judge Lieb denied the People's motion. Defendant argued that the complaint was [*2]facially insufficient and objected to the People's assertion of readiness arguing, inter alia, that the accusatory instrument was insufficient without a laboratory report. Judge Lieb set a motion schedule, over defendant's objection that the People had not converted the complaint and were not ready, and adjourned the matter to May 20, 2004 for the People's response and the court's decision. Judge Lieb stated that the purpose of the motion schedule was to, inter alia, allow defendant to address the issue of facial sufficiency and readiness. (Transcript of proceedings, April 14, 2004, Page 3, Lines 19-22; Page 5, Lines 6-10)

On May 11, 2004, defendant filed an omnibus motion seeking to dismiss the matter on the grounds of facial insufficiency. The People filed their response on May 20, 2004.

In their response, the People state that they filed a Notice of Readiness with the court on May 13, 2004 which included a laboratory analysis of defendant's blood indicating the presence of Phencyclidine (PCP). While there is a Notice of Readiness dated May 13, 2004 in the court file, there is no indication it was filed with the court. There is no affidavit of service attached to the Notice, nor is it stamped received the Court, hence there is no proof positive that the Notice was served on the defense on that date.

On May 20, 2004 Judge Villegas adjourned the matter to July 6, 2004 for decision. ^[FN1]

On June 3, 2004, the People filed a superceding accusatory instrument, signed by Police Officer Kenneth Niepert, alleging defendant violated both VTL §§ 1192 (3) and 1192 (4), and a laboratory report indicating defendant's blood contained PCP.

Judge Villegas filed a decision and order, dated July 6, 2004, denying defendant's motion to dismiss the accusatory instrument on the grounds of facial insufficiency based on the superceding information and laboratory analysis provided in the People's June 3, 2004 statement of readiness. Judge Villegas also granted other omnibus relief.

On July 6, 2004, defendant was arraigned on the superceding accusatory instrument and defense counsel was granted leave to make additional motions. The matter was adjourned to August 31, 2004. On August 31, 2004 defendant filed the instant motion. The matter was adjourned to October 5, 2004 for response and decision. On October 5, 2004, the People filed their response and the motion was submitted. The matter was transferred to the Bronx County Supreme Court Criminal Division Part MSG and adjourned to November 24, 2004 for decision. On November 24, 2004 the matter was adjourned to December 13, 2004 as the court required a critical set of stenographic minutes to determine the motion.

SPEEDY TRIAL:

[*3]Facial Sufficiency of the preceding accusatory instrument prior to June 3, 2004

In this motion, the court is asked to determine if, notwithstanding prior motion practice, the People should be charged with time between defendant's arraignment on March 3, 2004 and June 3, 2004 on the grounds that they failed to convert the complaint to an information and were therefore not ready during this period. For the following reasons, the court determines that the People were not ready for the entire period, ninety-one (91) days, and grants defendant's motion to dismiss the charges on speedy trial grounds (CPL § 30.30)

As a threshold issue, the court must determine if the original accusatory instrument was facially sufficient between March 3, 2004, the date of arraignment, and June 3, 2004 the date the People filed their statement of readiness. In the prior order (July 6, 2004), Judge Villegas based his determination that the accusatory instrument was facially sufficient on the People's June 3, 2004 statement of readiness, which included a superceding accusatory instrument and laboratory report indicating defendant's blood tested positive for the presence of PCP. Although Judge Villegas determined the instrument was sufficient as of June 3, 2004, Judge Villegas was not required to determine the issue sufficiency as it related to speedy trial rules under CPL §30.30. Upon defendant's speedy trial motion, this court is now required to make that determination.

A misdemeanor information is facially sufficient when the factual portion contains non-hearsay allegations of an evidentiary nature that provide reasonable cause to believe that the defendant committed the offense charged. The non-hearsay allegations, if true, must establish every element of the crime and the defendant's commission of the crime. (CPL §§ 100.15(3), 100.40 (l); People v. Alejandro, 70 NY2d 133, 137-39.)

CPL §100.40 (l) provides that an information is sufficient on its face when: "(a) It substantially conforms to the requirements prescribed in section 100.15; and (b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and (c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof." Specific facts are required in order to establish facial sufficiency; conclusory statements will not suffice. (People v Dumas, 68 NY2d 729)

The accusatory portion of the first instrument was limited to one count of VTL§ 1192 (4) - Driving While Ability Impaired by Drugs. VTL § 1192 (4) provides: "No person shall operate a motor vehicle while the person's ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter." Under VTL § 114-a, a "drug" is "any substance listed in section thirty-three hundred six of the public health law."

The nonhearsay allegations included in the factual part of the accusatory instrument charging defendant with the crime of Driving While Ability is Impaired by Drugs (VTL § 1192 [4]) should provide reasonable cause to believe that: 1) The defendant ingested a drug; 2) The drug ingested by the defendant is one proscribed by Public Health Law § 3306. (VTL § 114-a); 3) After ingesting the drug, the defendant operated a motor vehicle (VTL § 125); and, 4) While operating his motor vehicle the defendant's ability to operate the motor vehicle was impaired by the ingestion of the drug. (See, e.g., People v Kahn, 160 Misc 2d 594, 597)

In reviewing the plain language of the statute, this court finds that the factual part of the [*4]accusatory instrument must contain a laboratory analysis indicating the presence of a drug in defendant's blood, or other evidence of ingestion of a drug i.e. a statement made by defendant that he ingested a drug, to support the element of ingestion of a drug. (See, Dumas, supra, 68 NY2d at 730; Alejandro, supra; People v Knapp, 164 Misc 2d 216, 221 [Crim Court Richmond County 1995]; People v Mercurio, NYLJ Aug. 30, 1993 at 25 col 5; see also People v Lopez, 170 Misc 2d 278, 280 [requiring a laboratory report to support alcohol level in blood to support charge of VTL § 1192 [2]];) Otherwise, the accusatory instrument is facially insufficient and jurisdictionally defective. (Id.)

Here, no laboratory analysis was filed to support the allegations in the original misdemeanor complaint. Hence, the People could not have been ready for the entire period from arraignment to the filing of the superceding instrument, as the original accusatory instrument had never been converted. (Id.; Alejandro, supra; CPL §§ 100.40 [4]; 100.50 [3]; 170.65 [3])

In their opposition to this motion, the People argue that the officer's observations, standing alone, are sufficient to provide reasonable cause to believe defendant was under the influence of a drug prohibited by VTL § 1192 (4). This argument is unpersuasive. Unlike the symptoms of intoxication, which are universally recognizable (People v Cruz, 48 NY2d 419), the effects of any particular drug or class of drugs listed in Public Health Law § 3306, are not necessarily uniform in the way they affect an individual's appearance. (See, generally, Gerstanzang Handling the DWI Case In New York §10:8 et seq, at 177 [2003-04 ed]) While the factual allegations in the first accusatory instrument could provide cause to believe defendant was under the influence of some drug, a strict reading of VTL § 1192 (4) still requires that a nonhearsay allegation be provided at the pleading stage tending to prove defendant has ingested a specific drug prohibited by the VTL. (Dumas, supra; Alejandro, supra) Barring defendant's admission, only a laboratory analysis can provide the threshold facts to show defendant ingested a drug. (People v Knapp, supra, 164 Misc 2d 2d at 221; People v Lopez, supra, 170 Misc 2d at 280.) Any other interpretation would allow a non-expert to speculate as to which drug was ingested by defendant. (Dumas, supra) Indeed, the original instrument did not even allege defendant was under the influence of PCP, nor did it provide any opinion by the complaining officer that defendant was under the influence of PCP or any other drug. (See, e.g., Knapp, supra 164 Misc 2d at 217; People v Shapiro, 141 AD2d 577, 578 appeal denied 72 NY2d 1049)

Statutory Speedy Trial Time

A speedy trial motion pursuant to CPL § 30.30 may be made at any time before commencement of trial. (See, CPL §§ 170.30 [2]; 210.20 [2]; People v Lawrence, 64 NY2d 200, 205)

CPL § 30.30 (1) (b) provides that a motion to dismiss must be granted when the defendant is charged with a misdemeanor punishable by a sentence of imprisonment of more than three months and the People are not ready for trial within 90 days of the commencement of the criminal action.

The computation of the time periods provided by CPL § 30.30 are not affected by the filing of a superceding accusatory instrument alleging the same crime or crimes; therefore, time that would have been charged against the People under the original accusatory instrument is includable under the superceding instrument. (People v Vreeland, 143 Misc 2d 141, 143 citing People v Lomax, 50 NY2d 351, 356 [1980] ["Continuity of a criminal action remains intact even [*5]through issuance of successive [accusatory instruments]."] )

While the court has concluded that the first accusatory instrument was not converted and therefore facially insufficient before it was superceded, there is still the issue of excludable time under CPL § 30.30. In determining defendant's instant CPL § 30.30 motion, the court is not bound by the calendar notations made at the time any adjournment was granted. Whether a specific period of delay is to be included or excluded "is a determination which is made when the defendant moves to dismiss on speedy trial grounds, and not at the time an adjournment is granted." People v. Berkowitz, 50 NY2d 333, 349 [1980]).

The first issue is that of the May 13, 2004 Notice of Readiness. In their opposition to defendant's omnibus motion and this motion, the People state they filed and served a Notice of Readiness on the Court and defendant and converted the first accusatory instrument on May 13, 2004 and that they served the Notice in court on May 20, 2004. However, the papers in the court file and the May 20, 2004 stenographic minutes do not support this argument; as stated supra, there is no court stamp on the notice, nor is there an affidavit of service. In addition, defense counsel affirms that they did not receive a copy of the lab report on May 20, 2004. Accordingly, the People are charged with the period between May 13, 2004 and June 3, 2004 on the grounds that their failure to properly serve the May 13, 2004 prevented them from being ready in that period. (See, e.g., People v Todd, 184 Misc 2d 381)

The time spent on motion practice regarding the first accusatory instrument must also be considered. Generally, the time allowed for motion practice is excludable. (CPL § 30.30 [4] [a])

However, if the People have not filed a jurisdictionally sufficient complaint before a court orders motion practice, the time is not excludable for purposes of CPL§ 30.30, provided the defendant object to the People's readiness. (People v Knapp, supra, 164 Misc 2d at 223; Vreeland, supra.) Here defendant never waived his right to be prosecuted by a facially sufficient misdemeanor information and argued from the outset that the charges were insufficient. (Transcript of proceedings April 14, 2004, Page 3, Line 17-25; Page 4, Line 1-4) Defendant also argued against the court's setting a motion schedule. (Id.) ^[FN2] Accordingly, the court finds the period motions were pending before the superceding information was filed is chargeable to the People, as defendant never waived chargeablilty and the instrument was never converted. (Knapp, supra ; Vreeland, supra.)

Defendant was arraigned on March 3, 2004. The People filed a superseding accusatory instrument, which has been found to be facially sufficient, on June 3, 2004. The People are therefore charged with ninety-one (91) days, which exceeds the period mandated by CPL § 30.30 (1) (b). (See, People v Stiles, 70 NY2d 765, 767 [1987]; CPL § 30.30 [1] [b])

Accordingly, defendant's motion to dismiss the charges against him pursuant to CPL § 30.30 (1) (b) is granted. (Id.; Knapp, supra; Vreeland, supra.)

The other branches of defendant's motion need not be addressed.

The foregoing constitutes the decision and order of this court.

Dated:December 6, 2004

Bronx, New York Judge of the Criminal Court