Criminal Court of the City of New York, Bronx County, November 13, 2017

Hannah Rosenthal for defendant.

Lourdes Ann Vetrano for plaintiff.

Defendant Luis Valera is charged with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and driving while ability impaired (Vehicle and Traffic Law § 1192 [1]). He moves for dismissal of the charges against him, arguing his speedy trial right was violated. The issues presented in this case are:

1. Is the defendant's refusal to submit to a chemical test analysis an element of a Vehicle and Traffic Law § 1192 offense that must be corroborated?

2. Does the law of the case doctrine constrain the court to follow its earlier rulings in the case if the parties argued their respective positions on the record, but not on motion papers?

3. In a motion to dismiss for speedy trial violation, should the People be charged for erroneous adjournments for conversion of the accusatory instrument?

Holdings: The court finds that the defendant's refusal to submit to a chemical test analysis is not an element of either driving while intoxicated or driving while ability impaired. The court further holds that the parties must have had an opportunity to litigate the issue in front of a court that is fully cognizant of the issue for the law of the case doctrine to apply. Finally, the court finds that erroneous adjournments for conversion are not includable in a CPL 30.30 calculation because they did not affect the People's ability to proceed to trial. Additionally, the defendant failed to show that his constitutional right to speedy trial was violated. Accordingly, defendant's motions are denied.

Defendant Luis Valera was arrested on May 29, 2017, on charges of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and driving while ability impaired (Vehicle and Traffic Law § 1192 [1]). At the defendant's criminal court arraignment on the same date, the prosecution served and filed a form titled, Report of Refusal to Submit to Chemical Test (hereinafter refusal form). The form contains boxes for the vehicle and vehicle operator's information, the arresting officer's information, and the specific arrest charge under Vehicle and Traffic Law § 1192. The form further contains a section that requires the officer to articulate reasons for the arrest and detail signs of impairment or intoxication. There is also a warning{**58 Misc 3d at 372} that must be read to the subject motorist about the consequences of refusing to submit to a chemical test and space to provide the information about the officer who administers and witnesses this warning. Notably, the refusal form contains instructions to the arresting officer and the court, but it is addressed to the "Commissioner of Motor Vehicles."

In this case, the refusal form was completely devoid of information about the motorist or the vehicle. It contained some information about the arresting officer and the witnessing officer. It was signed only by the witnessing officer, but not the arresting officer. Based on this lack of [*2]information, and upon concession of the People, the court did not suspend the defendant's driver's license at his arraignment (Vehicle and Traffic Law § 1194 [2] [b] [3]). Moreover, given this defect, the prosecution stated not ready and requested to file a statement of readiness along with a new or amended refusal form. This case was adjourned to July 12, 2017, for conversion.

The People filed a statement of readiness off-calendar on June 2, 2017, but did not attach a new or amended refusal form. Instead, on the defendant's next scheduled court appearance on July 12, 2017, the People argued that they were converted on the date of the defendant's arraignment as the refusal form was necessary only for the suspension of the defendant's license, and not for the conversion of the accusatory instrument. After a bench conference, the court adjourned the case once again for conversion, making a note that the arraignment judge indicated that the accusatory instrument was not converted.

On July 13, 2017, the People filed and served a statement of readiness, again without a new or amended refusal form. On the defendant's next scheduled court appearance on July 19, 2017, the prosecution once again argued that the refusal form was unnecessary for conversion. Defendant argued, on the other hand, that the accusatory instrument contained hearsay as it related to whether the refusal warnings had been properly administered. Defendant submitted that this defect could not be cured without the refusal form. After a bench conference, the court again adjourned the case to September 6, 2017, for conversion.

On September 6, 2017, for the third time, the People maintained that they did not need a refusal form to convert the accusatory instrument. Following this appearance, the defendant filed the instant motion to dismiss pursuant to CPL {**58 Misc 3d at 373}30.30 and 30.20 on October 2, 2017. The People responded on October 25, 2017.

The defendant is charged with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and driving while ability impaired (Vehicle and Traffic Law § 1192 [1]). Driving while intoxicated is an unclassified misdemeanor (Vehicle and Traffic Law § 1193 [1] [b]), which, for the purposes of a CPL 30.30 calculation, is deemed a class A misdemeanor by operation of Penal Law § 55.10 (2) (b). Accordingly, the People must be ready within 90 days of the commencement of the criminal action (CPL 30.30 [1] [b]). Driving while ability impaired is a traffic infraction (Vehicle and Traffic Law § 1193 [1] [a]) and does not have an applicable 30.30 time (People v Graham, 39 Misc 3d 35 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

A criminal action commences with the filing of an accusatory instrument with the court (CPL 1.20 [17]; 100.15). The Court in Chavis discusses two requirements for readiness:

"(i) either a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk and (ii) the People must in fact be ready to proceed at the time they declare readiness" (People v Chavis, 91 NY2d 500, 505 [1998] [internal quotation marks omitted]).

In a motion to dismiss pursuant to CPL 30.30, the initial burden rests on the defendant to allege that her right to speedy trial has been violated (see People v Luperon, 85 NY2d 71, 77-78 [1995]). Then, the burden shifts to the People to identify "the exclusions on which they intend to rely" (id. at 78). If the defendant disagrees, she "must identify any legal or factual impediments to the use of these exclusions" (id.).

In this case, defense argues that 100 days passed between Mr. Valera's arraignment and September 6, 2017, when the defense requested a motion schedule, because the accusatory instrument was never converted to an information. The People oppose this motion, arguing that the accusatory instrument had been converted at arraignment and that they were ready to proceed to trial when they filed an off-calendar statement of readiness.

The threshold question this court must answer, then, is whether the accusatory instrument was an information at the{**58 Misc 3d at 374} defendant's arraignment or whether, as the defense argues, the People needed an appropriately completed refusal form.

Facial Insufficiency

To be facially sufficient, the accusatory instrument must provide a "reasonable cause to [*3]believe that the defendant committed the offense charged" (CPL 100.40 [1] [b]; 70.10). In order to do so, the accusatory instrument must contain "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15 [3]). Furthermore, these facts must be supported by "[n]on-hearsay allegations" (CPL 100.40 [1] [c]). Finally, a valid and sufficient accusatory instrument is a "nonwaivable jurisdictional prerequisite" (People v Dreyden, 15 NY3d 100, 103 [2010]).

In reviewing an accusatory instrument for facial sufficiency, the Court of Appeals has instructed that "[s]o 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 Konieczny, 2 NY3d 569, 575 [2004]; People v Casey, 95 NY2d 354 [2000]). The standard of review for the court is whether the accusatory instrument makes out a prima facie case when the allegations are viewed in the light most favorable to the People (People v Jennings, 69 NY2d 103, 114 [1986] ["The sufficiency of the People's presentation is properly determined by inquiring whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury"]; CPL 170.45).

In this case, the defendant is charged with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and driving while ability impaired (Vehicle and Traffic Law § 1192 [1]). Vehicle and Traffic Law § 1192 (1) provides, "No 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 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], citing People v Cruz, 48 NY2d 419, 427 [1979]).

Vehicle and Traffic Law § 1192 (3) prohibits operation of a motor vehicle while in an "intoxicated condition." A person is {**58 Misc 3d at 375}"intoxicated" 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], citing People v Ardila, 85 NY2d 846 [1995]; see also Cruz, 48 NY2d at 427). Finally, Vehicle and Traffic Law § 1192 (7) provides, "The provisions of this section shall apply upon public highways, private roads open to motor vehicle traffic and any other parking lot."

Thus, the common elements that are required for conversion of Vehicle and Traffic Law § 1192 (3) and (1) offenses are: (1) operation of a vehicle, (2) on a public road as defined in Vehicle and Traffic Law § 1192 (7), in either (3) an intoxicated or impaired condition.

The accusatory instrument in this case provides:

"[Police Officer Jonathan Gonzalez of 48 Precinct, Shield No. 649] states that [on or about May 29, 2017 at approximately 12:36 a.m. at Northeast corner of East Fordham Road and Hughes Avenue, County of the Bronx, State of New York,] he observed defendant operating a 2000 gold Acura four-door sedan (New York license plate # HKJ5081), in that defendant was seated behind the steering wheel and said vehicle was moving along a public street. Deponent further states that he observed defendant drive through a red traffic light.

"Deponent further states that he observed defendant to have slurred speech and an odor of alcoholic beverage on his breath. Deponent further states that defendant stated, in sum and substance, I HAD TWO BEERS ABOUT AN HOUR AGO.

"Deponent further states that he was present at the administration of a chemical test analysis of defendant's breath and defendant refused to take said test, stating in sum and substance, NO, I'M NOT GOING TO DO THAT." (See criminal court complaint.)

The defendant argues that the complaint in this case contains hearsay allegations regarding his refusal to take a breath test. He argues that, in the context of a Vehicle and Traffic Law § 1192 offense, refusal to submit to a chemical test is a "term of art" because Vehicle and Traffic Law § 1194 (2) (f) {**58 Misc 3d at 376}requires a [*4]persistent refusal after a sufficient and clear warning. As such, the allegation that the officer observed the defendant refuse to take the test and say "No, I'm not going to do that" is, according to the defense, hearsay that requires further corroboration in the form of refusal paperwork.

In their response, the People argue that the refusal form is necessary only for the suspension of the defendant's license pursuant to Vehicle and Traffic Law § 1194 (2) (b) (1)-(3). They submit that the refusal form has no bearing on the conversion of the accusatory instrument and their ability to assert valid readiness for trial.

[1] This court finds the defendant's argument to be without merit. The allegations in the complaint sufficiently plead each element of Vehicle and Traffic Law § 1192 (3) and (1). The defendant's refusal to take a chemical test is simply not an element of either crime. The accusatory instrument pleads operation by stating that Officer Gonzalez observed "defendant operating a 2000 gold Acura four-dour sedan (New York license plate # HKJ5081) . . . in that defendant was seated behind the steering wheel and said vehicle was moving." The complaint further alleges that he did so at "Northeast corner of East Fordham Road and Hughes Avenue, County of the Bronx, State of New York," which is a "public street." At this juncture, the court is satisfied that this language sufficiently pleads the operation of a motor vehicle on a public road as required under Vehicle and Traffic Law § 1192 (7). As such, the first two elements of the crimes against the defendant are sufficiently alleged.

Then, the only remaining element is whether the defendant operated his motor vehicle in an impaired or intoxicated condition. Here, the complaint alleges that the officer observed the defendant driving through a steady red light. Upon stopping the defendant's vehicle, the officer observed the defendant to have slurred speech and an odor of alcoholic beverage on his breath. The complaint also alleges that the defendant admitted to drinking alcohol an hour ago. Viewing the evidence in the light most favorable to the People, the court finds that the combination of the exhibition of commonly recognized signs of intoxication, driving through a red light, and the defendant's statement sufficiently pleads the element of impaired or intoxicated driving (see e.g. People v Stephens, 50 Misc 3d {**58 Misc 3d at 377}1215[A], 2016 NY Slip Op 50113[U] [Suffolk Dist Ct 2016] [holding that the complaint that alleges indicia of intoxication and that the defendant failed to maintain his lane several times sufficiently pleads the crime of Vehicle and Traffic Law § 1192 (3)]; People v Stafford, 48 Misc 3d 1231[A], 2015 NY Slip Op 51326[U] [Crim Ct, Bronx County 2015, Montano, J.] [finding that the accusatory instrument that alleges that the defendant had bloodshot, watery eyes, a strong odor of alcohol on his breath, and a chemical test result of .08% blood alcohol concentration is facially sufficient for Vehicle and Traffic Law § 1192]; People v Pamulo, 48 Misc 3d 1227[A], 2015 NY Slip Op 51286[U], *2-3 [Crim Ct, NY County 2015] ["Allegations that Defendant smelled from the odor of alcohol, had watery and bloodshot eyes, was unsteady on his feet and operated a motor vehicle while having a blood alcohol concentration of .14% all tend to show that Defendant was in an intoxicated condition while driving. . . . Thus, the charge of Driving While Intoxicated is also facially sufficient"]).

As the People correctly point out, the refusal form is necessary solely for the purposes of the defendant's license suspension pending prosecution. Vehicle and Traffic Law § 1194 (2) (b) (1) (A) provides that when a person who has been arrested for a Vehicle and Traffic Law § 1192 offense refuses to take the chemical test, the officer before whom such refusal was made shall make a written report of the refusal. Vehicle and Traffic Law § 1194 (2) (b) (2) states that this report shall include reasonable grounds to believe that the arrested person has committed a violation of a Vehicle and Traffic Law § 1192 offense, that he has refused to submit to a chemical test, and that as a result, no chemical test was administered. This subdivision further requires this written report to be presented to the court at the defendant's arraignment and to be forwarded to the Commissioner within 48 hours. Finally, Vehicle and Traffic Law § 1194 (2) (b) (3) provides that the written report shall form the basis for the criminal court to suspend that motorist's driving privileges pending prosecution.

These statutes provide a mechanism for the criminal court to suspend driving privileges of a defendant in a Vehicle and Traffic Law § 1192 case. They do not create a separate element of a Vehicle and Traffic Law § 1192 crime. Here, the defendant is only charged with Vehicle and Traffic Law § 1192 (1) and (3), {**58 Misc 3d at 378}which rely on common [*5]signs of alcohol impairment or intoxication.^[FN1] These are readily observable by the arresting officer and do not require the results from the chemical test (People v Cruz, 48 NY2d 419, 424-425 [1979] ["Originally, impairment could only be established by scientific proof showing a specific blood alcohol content . . . . Now, whether the defendant is charged with driving while intoxicated or driving while impaired by alcohol, scientific evidence of blood alcohol content, although admissible, is not essential" (citations omitted)]).

Moreover, this court is not convinced by the defendant's argument that the police officer's observation of the defendant's refusal by saying "No, I'm not going to do that" is hearsay that requires further corroboration. It is well-settled that only the elements of an offense require "non-hearsay" factual allegations (People v Casey, 95 NY2d 354, 362 [2000]). Because the defendant's refusal to submit to a chemical test is simply not an element of either crime for which he is charged, whether the defendant's utterance to the police officer is hearsay or not is irrelevant and immaterial.

Even if the defendant's refusal were an element and his statement hearsay, "a non-hearsay requirement is met so long as the allegation would be admissible under some hearsay rule exception" (Casey, 95 NY2d at 361). Not only is there a statutory basis for the admission of his refusal at his trial (Vehicle and Traffic Law § 1194 [2] [f]), it would also be admissible as an admission (Bazza v Banscher, 143 AD2d 715, 716 [2d Dept 1988] ["Banscher's refusal to submit to a breathalyzer test is admissible as an admission by conduct and serves as circumstantial evidence indicative of a consciousness of guilt"]) or as a verbal act (People v Giordano, 50 AD3d 467 [1st Dept 2008] [verbal acts are admissible at trial as nonhearsay]).{**58 Misc 3d at 379}

For these reasons, the court finds that the accusatory instrument sufficiently pleads all of the elements for the crimes charged against the defendant, and as such, it was an information at the defendant's arraignment.

Law of the Case

Notwithstanding the court's ruling that the accusatory instrument was converted at the defendant's arraignment, the court must also examine whether it is bound by the law of the case doctrine as the instant case had been adjourned three times for conversion. On each date that the case was on for conversion, the People argued that the accusatory instrument was converted on the date of the defendant's arraignment and the defendant, on the other hand, argued that the accusatory instrument was unconverted as it contained hearsay, which could not be cured without the refusal form. Two other judges who have previously presided over this case had adjourned the case for conversion.

The law of the case doctrine falls within a group of judicial concepts that are designed to limit relitigation of issues (see People v Evans, 94 NY2d 499, 502 [2000]). Unlike the other kindred in this group, the law of the case doctrine is not codified in any New York statute (id.). The decisional law surrounding this concept has evolved to "express[ ] the practice of courts generally to refuse to reopen what has been decided" (Messenger v Anderson, 225 US 436, 444[*6][1912]; Evans at 503 ["law of the case is necessarily 'amorphous' in that it 'directs a court's discretion,' but does not restrict its authority"]). The preclusion under this doctrine requires "that the parties had a 'full and fair' opportunity to litigate the initial determination" (Evans at 502 [citation omitted]).

[2] Applying these principles to the case at hand, the other judges' previous determinations to adjourn the case for conversion are not binding on the issue of facial sufficiency. Although the parties have argued their respective positions on and off the record over the course of a few court appearances, the arguments were never put in writing (see People v Portorreal, 28 Misc 3d 388, 392 n 3 [Crim Ct, Queens County 2010] ["Since this is the first time that the issue has been addressed in a written motion, with notice and opportunity for response, the matter cannot be said to have been fully and fairly litigated before now"]). Moreover, on each of the dates that the court adjourned the case for conversion, it did not have the minutes from the arraignment in its possession. As such, the fact that it{**58 Misc 3d at 380} was the People who requested an adjournment for conversion, rather than the arraignment judge making such a finding, was not known to the subsequent judges presiding over the matter. An important component to the "full and fair" opportunity to litigate certainly involves a court that is fully informed before rendering its decision. Under the circumstances of this case, then, it cannot be said that the parties have had a "full and fair" opportunity to be heard after the initial determination had been made. Therefore, the court holds that the law of the case doctrine is inapplicable in this case.

Speedy Trial

Having concluded that the accusatory instrument was an information at the defendant's arraignment, this court now turns to the question of whether the People should nonetheless be charged time for the erroneous adjournments for the refusal form. The defendant moves under both CPL 30.30 and 30.20 for dismissal of the charges against him.

CPL 30.30 is not a constitutional speedy trial statute. It was enacted only to address delays caused by prosecutorial inaction (see People v McKenna, 76 NY2d 59, 63 [1990]; People v Sinistaj, 67 NY2d 236, 239 [1986]; People v Anderson, 66 NY2d 529, 535 [1985]). Thus, the defendant's right under this statute is separate and distinct from his constitutional right to a speedy trial (see Sinistaj, 67 NY2d at 239; People v Brothers, 50 NY2d 413, 416 [1980]; People ex rel. Franklin v Warden, Brooklyn House of Detention for Men, 31 NY2d 498, 502 [1973]). The People satisfy their obligation under the statute once they declare their readiness for trial (People v Giordano, 56 NY2d 524 [1982]). The People are not required to reiterate their readiness and only the delays that they have caused which "directly implicate[ ] [their] ability to proceed with trial" are charged against them (People v Cortes, 80 NY2d 201, 210 [1992]).

[3] Here, although the accusatory instrument was converted at the defendant's arraignment, the People requested an adjournment for a corroborating affidavit (see court minutes).^[FN2] Nevertheless, the People filed a statement of readiness off-{**58 Misc 3d at 381}calendar on June 2, 2017. As [*7]discussed in the previous section of this decision, the fact that the People did not attach a new or amended refusal form was immaterial. Because it was the People's request for an adjournment, they are charged three days from the defendant's arraignment to the filing of their statement of readiness on June 2, 2017 (People v Stiles, 70 NY2d 765 [1987] [although a criminal action commences when the accusatory instrument is filed, counting for speedy trial purposes starts the following day]). Because the People's ability to proceed to trial was unaffected by subsequent adjournments and not occasioned by the People, they are not charged for those adjournments. In all, three days are chargeable to the People.

The court now turns to the defendant's claim of constitutional speedy trial right violation (US Const 6th, 14th Amends; CPL 30.20). The Supreme Court of the United States has held that, in determining whether a defendant has been deprived of his constitutional rights under the Sixth Amendment to a speedy trial, the court must examine "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant" (Barker v Wingo, 407 US 514, 530 [1972]).

In New York, this determination involves a five-factor inquiry of

"(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay" (People v Taranovich, 37 NY2d 442, 445 [1975]).

The Court of Appeals instructs that a court "must engage in a sensitive weighing process of the diversified factors present in the particular case" with "no one factor or combination of the factors . . . necessarily decisive or determinative of the speedy trial claim" (id.).

{**58 Misc 3d at 382}Here, defense does not address the Taranovich factors other than the extent of the delay. At the same time, a period of 100 days does not rise to the level of a constitutional deprivation of his right to speedy trial. While the first three adjournments in this case were occasioned by erroneous adjournments for conversion, the underlying charge is Vehicle and Traffic Law § 1192 (3), which is a misdemeanor that carries with it a sentence of up to one year in jail (Vehicle and Traffic Law § 1193 [1] [b]), along with other possible non-jail sanctions such as the requirement for an installation of an ignition interlock device in any car that the defendant owns or operates (Vehicle and Traffic Law § 1193 [1] [b] [ii]), fine (Vehicle and Traffic Law § 1193 [1] [b] [i]), license revocation (Vehicle and Traffic Law § 1193 [2] [b] [2]), and programs (Vehicle and Traffic Law §§ 1192 [10] [a] [ii]; 1193 [1] [f]). Moreover, the defendant was at liberty for the duration of this case, and he has not made any showing that his ability to defend was prejudiced by the delay (see People v Newton, 221 AD2d 167 [1st Dept 1995] [a 22-month delay did not violate the defendant's speedy trial right]; People v Polite, 16 Misc 3d 18 [App Term, 1st Dept 2007] [defendant's constitutional right to speedy trial was not violated by an 18-month delay]; People v Taylor, 189 Misc 2d 313 [App Term, 2d Dept 2001] [defendant's speedy trial right was not violated by a 14-month delay]).^[FN3] Balancing the Taranovich factors, this court denies the defendant's motion to dismiss based on violation of his constitutional right to speedy trial.

"The Court: All right, let's see. All right. Well, at this particular point I don't believe I'm in the position to suspend the defendant's driving privil[e]ges.

"Ms. Stalzer: I will have to agree, Your Honor. I'm sorry, I have nothing else to combat what is before you.

"The Court: Okay. No problem. Hand that back to him. Alright. People, as to your readiness?

"Ms. Stalzer: I have—well, just one moment. People are ready.

"The Court: You're ready you said?

"Ms. Stalzer: I'm sorry, we're not ready given the issue was [sic] the refusal paperwork.

"The Court: So we'll adjourn for conversion.

"Ms. Stalzer: Yes." (Valera arraignment tr at 3, lines 16-25; at 4, lines 1-5.)

Footnote 3:Due to the defect in the refusal form, the defendant's driving privileges have not been suspended pending prosecution.