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Decided on February 7, 2008
Criminal Court of the City of New York, Kings County

2007KNO02181

For the People: ADA Matthew MacIntyre
For the Defendant: Gregory A. Blackman, Esq.
Eileen N. Nadelson, J.

Defendant's Motion to Dismiss for Facial Insufficiency
Defendant moves to dismiss this action alleging that the information is facially insufficient pursuant to CPL 170.30 and 170.35. Defendant is charged with six violations of the Vehicle and Traffic Law and one violation of the Penal Code.
Generally, to be facially sufficient, an information must contain allegations of every element of the offense charged and the defendant's commission thereof. People v. T.W., 2006 NY Slip Op. 50232(U) (NY City Crim. Ct. 2006). The information must contain non-hearsay allegations which make out a prima facie case that a defendant was likely to have committed the crimes charged. See People v. Henderson, 92 NY2d 677 (1999). Therefore, in determining facial sufficiency the court must only look to the non-hearsay allegations and the facts stated in the complaint and corroborating affidavit to determine whether a prima facie case has been stated; the court, prior to trial, does not have to determine whether a defendant will ultimately be convicted of the offenses charged. Bearing this standard in mind, the court will now address each charge individually.
VTL 1192(1), Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs. The People, in their opposition, concede that this charge is facially insufficient and so this count is dismissed.
VTL 1192(4), Operating a Motor Vehicle While Under the Influence of Drugs. Defendant asserts that the complaint and affidavit only state that he was holding what "appeared to be a marihuana cigarette" and that the police officer observed him to have slurred speech, red and watery eyes, and that there was a strong odor of marijuana emanating from the car. This, according to Defendant, is insufficient to make out the charge because the police officer's statements are conclusory. The court disagrees. [*2]
The complaint specifically states that the police officer's statements are based on his professional training in the identification of marijuana and previous experience in making marijuana arrests. In People v. Paul, 133 Misc 2d 234, 506 N.Y.S. 2d 834 (NY City Crim, Ct. New York County 1986), the court held that a complaint is facially sufficient when a police officer merely states that a defendant possessed a substance which, because of his training and experience, the officer concluded was a controlled substance. People v. T.W., op. cit. Therefore, the court concludes that this charge is facially sufficient.
PL 110/215.40(2), Attempted Tampering with Physical Evidence. In order for a person to be guilty of this section of the Penal Law, he or she must have some knowledge that the physical evidence may be used in a criminal proceeding. In support of his proposition, Defendant cites People v. Mercedes, 194 Misc 2d 731 (NY City Crim. Ct, New York County 2003) in which the court held this charge to be legally sufficient because that defendant destroyed a marijuana cigar as a police officer approached him, asserting that the distinguishing characteristic between the instant matter and Mercedes was the act of the police officer approaching that defendant. In the instant case, Defendant swallowed the alleged marijuana cigarette, but there is no allegation that at the time the cigarette was swallowed the police officer was approaching him or that Defendant had any knowledge that an arrest was imminent or likely. The complaint only states that the police officer "observed" Defendant swallow the cigarette. In order to be found guilty of violating PL 110/215.40(2), a defendant must have knowledge that a proceeding is imminent.
In People v. Mitchell, 2007 NY Slip. Op. 51805(U) (NY City Crim. Ct. Kings County 2007), even though the complaint alleged that the officer was approaching the defendant when she swallowed a zip-lock bag, the court nevertheless held the charge to be facially insufficient. The court noted that there were no facts to show that the defendant had knowledge of an imminent arrest.
Therefore, based on the foregoing, this court determines this charge is facially insufficient.
VTL 1212, Reckless Driving. The complaint states that the arrest was made while Defendant was operating a motor vehicle on a public highway. However no allegation of any specific act of driving was made to determine whether the operation of vehicle was reckless or not. Therefore, this charge is facially insufficient.
VTL 1225-C(2)(A), Use of Mobile Telephone. The complaint alleges that Defendant was observed by the police officer talking on a cellular phone while operating a Mazda Millenium. According to VTL 1221-C(1)( c), to be using a mobile telephone in contravention of the statute the person must be "holding a mobile telephone to, or in the immediate proximity of the user's ear." VTL (C)(3) specifically exempts the use of a hands-free telephone from the proscription of this statute. The complaint does not indicate that Defendant was actually holding a mobile telephone. As Defendant points out, the complaint does not state that he was in fact "holding" a cellular telephone; the telephone could have been a hands-free model. Therefore, this charge is [*3]also determined to be facially deficient.
VTL 319(1), Failure to Have Proof of Financial Security. Defendant asserts that this statute only applies to owners of motor vehicles and there is no allegation that Defendant was the owner of the car in question. In this Defendant is incorrect. VTL 319(1) states that it applies not only to owners, but also to "any other person who shall operate in this state any motor vehicle..." Since the complaint states that Defendant was unable to provide such proof of financial security, this charge is found to be facially sufficient.
VTL 401(1)(a), Unregistered Motor Vehicle. This section of the VTL specifically applies to owners of motor vehicles, and the complaint does not allege that Defendant was the owner of the car in question. Although the court has discovered one case that holds that VTL 401(1)(a)'s "proscription is not limited to owners," People v. Hakimi-Fard, 137 Misc 2d 116, 519 N.Y.S. 2d 766 (City Court, Yonkers 1987), this court is not inclined to follow that decision because there is a specific subsection of VTL 401 that applies to operators of vehicles, regardless of ownership. Therefore, the court finds this charge to be facially deficient.
This constitutes the decision of the court.
Dated: February 7, 2008

EILEEN N. NADELSON, J.C.C.

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