The defendant, Rodrigue J. Turenne, is charged with Criminal Mischief in the Fourth Degree [Penal Law § 145.00(1)] and Driving While Ability Impaired [Vehicle and Traffic Law § 1192(1)]. The factual portion of the criminal accusatory instrument alleges that the defendant committed the misdemeanor of Penal Law §145.00(1) on August 8, 2015 at about 4:00 pm, when:

". . . the above named defendant, Rodrigue Junior Turenne, did intentionally damage property of another. Specifically, during a domestic incident, the defendant did damage a glass flower vase and the driver side tail lamp of a 2013 Dodge Journey, said property being owned by Dottie Jean Turenne."

A supporting deposition was given by Dottie Jean Turenne, dated August 8 , 2015, which alleges in pertinent part as follows:

My husband Rodrigue and I live at 44 Hunter Street with our son Kaiden. We have recently been having problems and he wanted to talk today. He began yelling and I told him I wouldn't talk with him until he calmed down, which made him more angry. He went into the kitchen and I heard a smash. I walked in and found a broken vase which he had thrown against the wall. This happened about 4:00 pm. He went outside and was punching stuff. He picked up a brown gravity chair and threw it at my Dodge Journey breaking the driver side tail light."

On August 8, 2015, at 5:39 pm, based on the information received from Dottie Jean Turenne, Glens Falls Police Officer Randy Strattman stopped the defendant, while he was operating a 2000 Honda automobile on Hunter Street in the City of Glens Falls. According to the Officer Strattman's supporting deposition, the officer found that the defendant had an odor of alcoholic beverages, glassy eyes and impaired motor condition. The officer had the defendant [*2]perform certain field sobriety tests. The defendant allegedly failed three of the field sobriety tests, including the gaze nystagmus, walk and turn, and the reciting of the alphabet. The defendant also allegedly admitted to drinking one beer prior to the operation of his vehicle.

At approximately 6:40 pm, Glens Falls Police Officer Campbell performed a breath test on the defendant using a Datamaster instrument No.: 117106. The defendant's breath test showed a result of .05% of 1 percent of alcohol by weight. The defendant was then charged with the offense of Driving While Ability Impaired by Alcohol in violation of Section 1192(1) of the Vehicle and Traffic Law.

The defendant now moves to dismiss both charges against the defendant pursuant to CPL §170.30(a) alleging that the pleadings filed against the defendant are defective within the meaning of §170.35. More specifically, the defendant asserts that, with respect to the charge of Driving While Ability Impaired by Alcohol [VTL § 1192(1)], the charge must be dismissed because the defendant's Breathalyzer test result of .05% constitutes "prima facie evidence that the ability of such person to operate a motor vehicle was not impaired by the consumption of alcohol ..." [Affidavit of attorney Jeffrey C. Matte, pg.2, ¶s 4-5, citing, VTL § 1195(2)9a)].

With respect to the charge of Criminal Mischief in the Fourth Degree [Penal Law § 145.00(1)], the defendant asserts that the supporting deposition of Dottie Turenne is insufficient because she did not see the defendant break the vase and she has no idea how the vase was actually broken. As a result, the defendant asserts that the misdemeanor complaint, when read with the supporting deposition of Dottie Tureene, fails to provide non-hearsay factual support of the charge of Criminal Mischief, since Mrs. Turenne merely heard the vase break and cannot state that the defendant intentionally broke the vase. [Affidavit of attorney Jeffrey C. Matte, pg.3, ¶s 6-7]. The People oppose the defendant's motion.

The standard for the facial sufficiency of a criminal information is well settled. In order to be sufficient, the factual portion of an information "must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges." [CPL § 100.15(3)]. In addition, under CPL 100.40 (1) 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."

Paragraphs (b) and (c) of CPL § 100.40 (1), when read in conjunction, places the burden on the People to make out their prima facie case for the offense charged in the text of the criminal information, when read together with any supporting depositions. People v. Jones, 9 NY3d 259, 261 (2007). The failure to assert sufficient non-hearsay factual allegations in the Information is a jurisdictional defect. People v Alejandro, 70 NY2d 133, 134-135 (1987). Thus, unless the accusatory instrument alleges or is based upon reasonable cause to believe defendant committed the offense, the court has no authority to enter an order that restrains defendant's liberty, as this is a basic constitutional prerequisite. CPL § 100.40, Practice Commentaries, Professor Peter Preiser, (2012), citing, People v. Dumas, 68 NY2d 729, 506 N.Y.S.2d 319, 497 [*3]N.E.2d 686 [1986]; County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991).

However, 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, the information should be given a fair and not overly restrictive or technical reading. See: People v. Konieczny, 2 NY3d 569, 780 N.Y.S.2d 546, 813 N.E.2d 626 (2004); People v. Casey, 95 NY2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000).

The requirement of non-hearsay factual allegations is satisfied by either a deponent's direct, firsthand observations, or by hearsay evidence that would be admissible at trial under some exception to the rule against hearsay. See: People v. Casey, 95 NY2d 354, 361, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000]; New York Pretrial Criminal Procedure § 3.7, at 109 [7 West's NY Prac. Series 1996]; People v. Belcher, 302 NY 529, 534—535, 99 N.E.2d 874 [1951]). Examples of various hearsay allegations that fall under exceptions to the rule against hearsay, and have been held to provide legally sufficient support for an information charging a misdemeanor offense include a police detective's allegation that an order of protection was served on a defendant based on a certified copy of the order with defendant's signature acknowledging service, which is admissible under the public documents or official entry exception (People v. Casey, 95 NY2d at 361—362, 717 N.Y.S.2d 88, 740 N.E.2d 233) and a defendant's admission to an officer that he had been served with the order of protection (Id. at 362, 717 N.Y.S.2d 88, 740 N.E.2d 233); and the police department records documenting car theft, which is admissible as business records (People v. Fields, 74 Misc 2d 109, 344 N.Y.S.2d 413 [Dist. Ct., Nassau County, 1973]; and a copy of a temporary order of protection along with subscribed, certified stenographic transcripts of the proceeding at which the order was issued, which is admissible as business records and public documents (People v. Henry, 167 Misc 2d 1027, 641 N.Y.S.2d 1003 [Dist. Ct., Nassau County, 1996]); and the defendant's own self-incriminating oral statements made to a deponent officer, admissible as an admission of a party (People v. Alvarez, 141 Misc 2d 686, 688, 534 N.Y.S.2d 90 [Crim. Ct., NY County 1988]); and a complainant's statement made at the scene of the crime to a police officer, which was admissible as excited utterance (People v. Solomon, 2002 NY Slip Op. 50712[U], 2002 WL 32157170 [Crim. Ct., Kings County, 2002]).

In the present case, with respect to the charge of Driving While Ability Impaired by 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. CJI § 1192(1), citing, People v Cruz, 48 NY2d 419, 427 (1979)(emphasis added). Here, the defendant correctly states that his .05% breath test result constitutes prima facie evidence that the defendant was neither impaired nor intoxicated. [VTL § 1195(2)(a)]. However, the People are also correct that "prima facie evidence does not mean conclusive evidence, but rather evidence which creates a rebuttable presumption." People v. McConnell, 11 Misc 3d 57, 812 N.Y.S.2d 742 (App. Term 2006), citing, People v Gristina, 186 Misc 2d 877 (Crim. Ct., New York County, 2001).

Thus, the results of breathalyzer test showing less than .05 of 1 percent by weight of alcohol in blood does not conclusively establish that defendant is innocent of charge of driving [*4]while ability impaired, but is merely prima facie evidence that his ability to operate a motor vehicle was not impaired. People v. Lawrence, 53 AD2d 705, 384 N.Y.S.2d 37 (3d Dept. 1976).

In the present case, Officer Strattman's supporting deposition alleges that he observed that the defendant had an odor of alcoholic beverages, glassy eyes and impaired motor condition. The defendant also allegedly failed three separate standardized field sobriety tests administered by Officer Strattman. These facts, if proven to be true, could rebut the statutory presumption and constitute direct evidence of the defendant's alleged violation of section 1192(1) of the Vehicle and Traffic Law.

With respect to the charge of Criminal Mischief in the Fourth Degree [Penal Law § 145.00], a review of the criminal complaint, when read together with the filed supporting deposition, fails to provide non-hearsay factual allegations that support all of the essential elements of the charge of Criminal Mischief. The defendant is correct that there is simply no non-hearsay factual allegations sufficient to demonstrate that the defendant damaged the vase and, even if he did damage the vase, that he intentionally did so. See: People v. Roberts, 140 AD2d 961 (4th Dept. 1988)(a violation of subdivision one of Penal Law § 145.00 requires that the defendant have the specific intent to damage the property of another).

However, with respect to the damage to Mrs. Turenne's 2013 Dodge Journey automobile, the criminal complaint and supporting depositions do satisfy the requirements of CPL §§ 100.15 and 100.40. See: People v. Konieczny, 2 NY3d 569, 780 N.Y.S.2d 546, 813 N.E.2d 626 (2004); People v. Casey, 95 NY2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000).

Here, the misdemeanor complaint, when taken together with Mrs. Turenne's supporting deposition, allege that on August 8, 2015, at approximately 4:00 pm, the defendant "picked up a brown gravity chair and threw it at my [Dottie Turenne's] Dodge Journey breaking the driver side tail light." These factual allegations do support all of the essential elements of the charge of Criminal Mischief in the Fourth Degree.

While the People must still meet their burden of proof at trial, their much lower burden at the pleading stage has been met with respect to the charge of Driving While Ability Impaired by Alcohol. The Defendant's motion to dismiss that charge is DENIED. With respect to the motion to dismiss the charge of Criminal Mischief in the Fourth Degree, the defendant's motion is GRANTED to the extent that the allegation that the defendant intentionally damaged Mrs. Turenne's vase is stricken from the Misdemeanor Complaint. The remainder of the Misdemeanor Complaint, which alleges that the defendant allegedly violated Penal Law § 145.00 by intentionally damaging Mrs. Turenne's 2013 Dodge Journey automobile, is sufficient on its face and, as a result, the remainder of the defendant's motion to dismiss for facial insufficiency is DENIED. In addition, the defendant's motion to modify the Order of Protection issued by this Court is denied as being moot.

The above captioned matter is scheduled for appearances in Court on October 2, 2015 at 10:00 a.m.