July 31, 2014

DPCA developed the form to remedy perceived shortcomings in the statute..cont


The Criminal Defendants claiming indigency are obliged to seek a payment waiver from the court. To obtain the waiver, they must complete and submit to the court a financial history/status form prepared by the Department designed to aid the court's indigency determination. Curiously, the law supplies no indigency metric to guide the court nor is the court obliged to use the financial history form in making its determination. Ironically, DPCA developed the form to remedy perceived shortcomings in the statute as the statutory language does not refer to indigency' nor contain other limiting criteria based upon prescribed income levels or guidelines, including federal poverty, food stamps and participation in other government assistance programs, DPCA developed the Financial Disclosure Report form to provide the judiciary with information to better gauge whether the operator has resources to pay for device installation and maintenance.

As of 15 July 2010, the Department has approved seven qualified manufacturers, and, via memorandum, has published a list of each provider's prices for services.

The costs are not final, however. Besides, setting up the possibility of annual rate increases. Moreover, nothing in Part 358.5 prohibits manufacturers from increasing operator prices mid-contract.

The legislature's failure statutorily to fix the ignition interlock costs presents a significant due process problem because potential offenders and the general public cannot determine the punishment for violating the law, given that ultimate interlock costs are subject to administrative fiat.

The ambiguity lies in the fact that the State failed to provide constitutionally-required notice of the interlock fine amounts facing DWI convicts, given DCJS can, at its discretion, raise interlock rates. Because the Defendant hasn't been afforded such notice, lenity forbids the court from ordering him to finance interlock installation and maintenance. Instead, the State must find an alternative funding source for any interlock device the Defendant is required to install and maintain.

It should be noted that the "final" price list for interlock services hasn't been filed. Instead, the latest filing provides only an estimate of the interlock costs. Such failure violates New York’s Constitution, which requires that newly-enacted rules be filed with the Secretary of State for effectuation.

Also, the publication requirement is simple and obvious- rules and regulations to which citizens are held accountable must be available to them.

That the State has designed the system such that no final cost can be ascertained does not suspend its obligation to publish a statement of those costs, given that it elected to classify them as criminal fines.

The Department might contest the publication requirement related to costs on two grounds. The court finds that neither of which is persuasive. First, it might argue that t the master fee list does not constitute a "rule" per New York State Administrative Procedure Act § 102, which excludes from the publication requirement any fee which is established through negotiation, written agreement or competitive bidding, including, but not limited to, contracts, leases, charges, permits for space use, prices, royalties or commissions. Part 358.5, which governs the approval process of prospective interlock manufacturers, requires those applying for certification provide "fee structure information... including any and all fees charged to the operator, including but not limited to installation fee, monthly fee, any special service fees, shipping fee, and de-installation fee. The proposed fee structure shall take into consideration and be based upon an anticipated ten percent (10%) waiver of fees by sentencing courts due to operator unaffordability." Accordingly, the Department might contend, the fees needn't be published to be lawful.

To Be cont...

July 31, 2014

People v. Durham

People v. Durham

Court Discusses Whether the Trial Judge Improperly Allowed Unauthorised Information Prohibited by the Sandoval Hearing

The defendant was convicted of driving while intoxication, DWI, and appealed on the ground that he did not have a fair trial. The defendant’s contention was based on the ruling of the Sandoval hearing versus what took during trial. The hearing held that if the defendant were to testify, he could be testified about his previous conviction of criminal possession of stolen property in the third degree in 1979, criminal possession of stolen property in the third degree in 1984, and operating a motor vehicle while intoxicated as a felony in 1984. The court allowed the prosecution to make inquiries into fact that there was a conviction of a class E felony in 1984 for operating a motor vehicle while intoxicated, but there could be no inquiry into the underlying facts of that conviction. The prosecution was not permitted to cross-examine the defendant on previous uncharged crimes. When the defendant testified, he denied intoxication and stated that he had experienced a dizzy spell and pull over onto the roadside. The defendant further stated he was yanked from the vehicle and lost consciousness while the police office stuck his head to the roof of the vehicle. The prosecution asserted that the defendant was driving with a suspended license and he did not produce any indicia of ownership of the car when demanded by the arresting officer after the objection by the defendant’s Queens County Criminal Attorney. The court allowed the prosecution to question the defendant about the indicia of ownership of the car. The evidence of the uncharged crimes was not directly relevant to the question of whether the defendant committed the crime charged, and went only to credibility.

The Court of Appeal reversed the conviction and ordered a new trial. The purpose of the Sandoval hearing was for an accused to make an informed decision as to whether he should take the stand. The defendant was denied the right to make an informed decision after the trial court effectively changed its ruling of the Sandoval hearing by permitting cross-examination with respect to uncharged crimes on issue of credibility after he had made an informed the decision based on the conclusion of the Sandoval Hearing. The trial court errors were not seen as harmless but prejudicial to the defendant. Additionally, the prosecutor’s summation also deprived the defendant of a fair trial where the prosecution’s witnesses were repeatedly vouched for, the defendant was called a “loud drunk and the defendant’s testimony was described as a creation and fabrication.

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July 29, 2014

DPCA developed the form to remedy perceived shortcomings in the statute

This matter is before the Court for sentencing under Leandra's Law New York's newest anti-DWI measure wherein the defendant pled guilty to DWI driving while intoxicated pursuant to Vehicle and Traffic Law § 1192 (3).

One month after the DWI death of 11-year-old Leandra Rosado in New York City, the State enacted Leandra's Law on 18 November 2009 requiring all first-time, misdemeanor DWAI http://www.newyorkdwilawyer24-7.com/new-york-dwai-lawyer.htmloffenders install ignition interlock devices in every automobile they own or operate for at least 6 months. It further requires, barring indigency, that offenders pay for installation and maintenance of the interlocks. However, like so many products rushed to market prematurely, Leandra's Law exhibits numerous defects imperiling its constitutionality.

The court faces the issues to be considered from the State's failure to establish determinate ignition interlocking costs. The first is whether the indeterminate nature of the cost of installing and maintaining ignition interlocks invalidates the requirement defendants pay for the devices, given the cost is statutorily classified as a fine and therefore constitutes a criminal punishment. That issue informs a related, New York constitutional concern whether the State violated New York constitutional law by failing properly to promulgate a final interlock cost list. Moreover, the court will examine whether the lack of a statutory metric for determining a defendant's ability to pay for the ignition interlock violates equal protection because it may lead to arbitrary enforcement. Also at issue on equal protection grounds is whether requiring defendants to interlock every auto they own or operate is justifiable.

Section 4(a) of the amended Vehicle and Traffic Law § 1198 requires those convicted finance ignition interlock installation and maintenance unless the sentencing court determines they cannot afford to do so. Accordingly, failure to pay for the interlock may prompt imprisonment.
It should be noted that the interlock costs are indeterminate. This indeterminacy stems from the intentionally open-ended manner by which the State chose to calculate them. The New York Division of Probation and Correctional Alternatives, a subdivision of the Division of Criminal Justice Services created a regulatory scheme whereby private companies, following an application and approval process, contracted with the State to provide and maintain interlock services. The prices they charge conform to a maximum fee/charge schedule with respect to all operator's costs associated with such devices. DUI was involved.

Because not everyone sentenced to interlocking can afford it, the Department had to contrive a means to pay for interlocking for indigent drivers. Rather than having local governments finance them, the Department insisted that the "qualified manufacturers" pay for them.
During the application process, manufacturers supply proposed fee structures that must take into consideration and be based upon an anticipated ten percent (10%) waiver of the fees by sentencing courts due to operator unaffordability. The ten percent figure derives from the Department's speculation based upon the experience of other states.


To Be Cont...

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July 28, 2014

Typically, a bottle of Aguardiente Antioqueno has an alcohol content of 29%

This wrongful death action arises out of an automobile accident due to drunk driving that occurred sometime between the hours of 9 and 10 p.m. when a man went to a bar to celebrate the end of tax day. The celebration was for the employees and spouses of the man’s accounting firm. Ten to fourteen peopled attended the celebration. The owner of the bar and a waitress, who served drinks to the party, were also present. The record reveals that the celebrants ate appetizers and drank alcohol throughout the night. Prior to arriving at the bar, the man drank a beer at his office. After arriving at the party, the man continued to drink alcohol. Specifically, the waitress indicates that the man was served approximately six vodka and cocktails. Also, a complimentary bottle of Aguardiente Antioqueno, was served to the party. Typically, a bottle of Aguardiente Antioqueno has an alcohol content of 29%.

At trial, two testified that the man took at least one shot of the Aguardiente on the night in question. Another testified that around 1:00 a.m., the criminal man appeared to be intoxicated. The wife of the man also attended the celebration to be her husband's designated driver. However, she took shots of Aguardiente, drank vodka and cocktails. The woman subsequently appeared intoxicated. Based upon the time of the accident, it appears that the two left around 1:00 a.m.

The driver of the dump truck testified that he was transporting asphalt. Prior to starting the task, he performed a 20 to 25 minute inspection of the truck. Specifically, he examined the interior and exterior of the vehicle. He determined that the lights on the vehicle were in satisfactory condition, the tires did not have physical damage and had a satisfactory tread depth and pressure, the wheels and rims of the vehicle were in satisfactory condition, the steering was in satisfactory condition and there was no overdue preventive maintenance required on the vehicle. He completed three trips prior to the accident.

At 2:19 a.m., the dump truck driver left the yard again with a load. He was traveling at approximately 35 to 40 miles per hour in the middle lane when he heard a very loud pop that sounded to him like his rear tire had blown out. Suddenly, the vehicle began to pull to the left with a good amount of force. At that instant, he concluded that if he tried to fight the pull of the truck, it might tip over, spilling its contents onto the roadway. Therefore, he lightly applied the brakes and veered into the left lane. He testified that seconds after the tire blew; he called his dispatcher via a blue tooth device to let him know about the blown tire and his location. He testified that the call lasted only a few seconds. He was in the left lane when the man's vehicle drove into the rear of the truck. He testified that he was driving approximately 10 to 15 mph when he was struck by the man's SUV. He testified that he was unsure of how much time elapsed between the time the tire blew out and the time the man's vehicle struck the rear of the truck. He testified that he had on his headlights, four way flashers, flickering lights and warning lights at the time of impact.

Another witnessed testified that the man's vehicle drive into the rear of the truck at approximately 2:30 a.m. The witness was driving his car on the night of the accident. He recalled that the weather conditions were regular and that it was not snowing or raining. He did not notice any defects or objects on the road and estimated he was traveling at about 50 mph. On the expressway, he saw only two vehicles, an SUV and a truck. He observed that the SUV was over 500 feet from the truck at the time he observed it. Subsequently, he saw the SUV in the left lane traveling at 55-60 mph that was approximately 600 feet from the truck. He estimated that approximately 10 seconds elapsed from the time he saw the SUV to the time of the accident. After seeing both vehicles, he slowed down to 20 mph to allow the SUV to pass him and move over to the middle lane. However, the man's SUV continued to travel in the left lane towards the truck at 55-60 mph. The SUV passed the witness' car approximately 400 feet from the truck and he testified that he did not observe the SUV attempt to slow down, brake or stop prior to the accident. He also did not saw the SUV attempt to swerve to avoid the collision. Incidentally, the accident investigation squad also did not found any skid marks from the man's vehicle at the site of the accident. He was 200 feet in front of the accident when it occurred and drove by the incident site at approximately 5 mph. He further testified that the lighting in the area enabled him to see the truck when he was about 500 feet from the vehicle. The truck was observable from the street lights on the expressway, the headlights from the witness' car and the headlights from the man's SUV. Finally, the witness testified that there were no objects or vehicles in the left lane that could have blocked the man's view of the truck.
A medical examiner performed an autopsy on the man and discovered that the man had a blood alcohol level of .26%, which is over three times the legal driving limit and DWI.

Subsequently, the motion of the opponent for decision without trial in its favor is granted. Based on records, the operator of a motor vehicle approaching another motor vehicle from the rear is obligated to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle. Further, a rear-end collision with a stopped or stopping vehicle creates a case of negligence against the operator of the rear vehicle, thereby requiring that operator to deny the conclusion of negligence by providing a non-negligent explanation for the collision. DUI was involved.

In opposition, the complainant contends that the truck was illegally stopped in the left lane without any warning lights. The court notes that the operator of the truck was faced with an emergency when he stopped or was stopping in the left lane on the highway, namely, that his tire blew out.

Lastly, while the complainant is correct that there is a lower standard of proof in wrongful death actions, and the complainant is entitled to every inference that can reasonably be drawn from the evidence in determining whether the case is made, the complainant is still obligated to provide some proof from which negligence can reasonably be reliant.

Furthermore, the motion of the bar company for decision without trial in its favor is denied. The bar company failed to satisfy its initial burden of negating the possibility that it served alcohol to a visibly intoxicated person. In addition, proof of visible intoxication can be shown by circumstantial evidence, including expert and eyewitness testimony. Therefore, the branch of the motion which seeks to dismiss the conscious pain and suffering claims is granted.

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July 27, 2014

People v. Fountain

People v. Fountain

Court Discusses Whether the Defendant Evinced a Depraved Indifference to Human Life
The defendant was indicted for manslaughter in the second degree and criminal negligent homicide in connection with the deaths of two pedestrians, assault in the first degree in connection with serious physical injuries inflicted upon another pedestrian and driving while intoxicated. At the trial the investigating officer testified that the defendant told him that he was driving thirty miles per hour when he hit the victims. Another officer testified that the defendant had a .23 blood alcohol content and he observed that the defendant had an unsteady on his feet, slurred speech and his breath smelled of alcohol. The surviving witness testified that he was struck by the defendant when he was in the crosswalk with the light in his favor. At the trial, it was brought out that the lighting conditions were good and the defendant car was in proper mechanical condition. Further, autopsy report revealed that victims who died injuries were consistent with being struck by an automobile. The defendant was acquitted of the manslaughter and criminally negligent homicide counts by the trial judge. The defendant was convicted in the Supreme Court, Queens County, of assault in the first degree and operating a motor vehicle while intoxicated, DWI, by a jury and driving while intoxicated by a non-jury trial. The defendant appealed.

The Appellate Division of the Supreme Court reduced the conviction to assault in the third degree and vacated the sentence on assault in the first degree. The case was remitted to the Criminal Term for the defendant to be resentenced on the reduced conviction. Evidence showed that that the defendant acted recklessly while in an intoxicated condition when he drove through an intersection in violation of a traffic signal and that his actions caused physical injury to another. As a result, the evidence was sufficient to show assault in the third degree but was insufficient to show that the reckless conduct occurred under circumstances evincing a depraved indifference to human life and thus did not sustain conviction for assault in the first degree.

The minority however, felt there was sufficient evidence to show that the defendant’s conduct was reckless and evinced a depraved indifference to human life merely because he drove through an intersection in violation of a traffic signal at approximately 30 miles per hour while pedestrians were rightfully crossing the street. DWAI was in play.

Our colleagues in the majority conclude that the People failed to prove that defendant's conduct evinced a depraved indifference to human life. We feel, however, that under the circumstances of this**816 case, where it was shown that defendant, while intoxicated, drove through an intersection in violation of a traffic signal at approximately 30 miles per hour while pedestrians were rightfully crossing the street, there existed a sufficient basis from which the Trial Justice could conclude, as he did, that defendant's conduct was reckless and evinced ‘a depraved indifference to human life.’

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July 22, 2014

People v Murphy

People v Murphy

Court Discusses Whether the Sentence Imposed was Excessive in Driving While Intoxicated Offenses

The defendant was convicted of aggravated driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2-a) (b), driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2), and driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3). The defendant was sentenced to a definite term of one year on each count that would run concurrently. The defendant appealed the sentence on the ground that it was excessive. The defendant was granted a stay of execution of the sentence pending decision of the Appellate Division.

The Appellate Division of the Supreme Court reduced the sentence to to a definite term of incarceration of six months in the interest of justice as the sentence was excessive when looking at her background of the case. Further, the matter was remitted to the trial court to review the weight of the evidence pursuant to section 470.15(5) of the Criminal Procedure Law albeit that the court respected the verdict of the jury as they had the opportunity to view the witness, hear the testimony and observed the defendant’s demeanor.

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July 21, 2014

Rodriguez v. Wolfe

Rodriguez v. Wolfe

Court Discusses Whether Forum Non Conveniens Precluded it from Exercising Quasi in Rem Jurisdiction

The decedent who was a passenger in one of the motor vehicles involved in a car accident died in Florida after the defendant was DWI driving while intoxicated. The defendant pled guilty and was sentenced for vehicular manslaughter. The administrator of the decedent’s estate sought to attach insurance policy issued to the defendant in connection with the cause of action arising out of accident in Florida. The decedent was a member of the United States Navy who resided in Florida but was a domiciled in New York prior to entering the Navy. The decedent’s administrator who was his father was a domicile of New York as well as the fact that the estate was being processed in New York, demonstrated that the estate was a resident of New York. The criminal defendant however opposed the motion on the ground that New York was not the appropriate forum but Florida was the forum to bring the motion.

The trial court then considered the decisions of Seider v. Roth, 17 N.Y.2d 111 after it established that a New York resident was seeking to acquire quasi in rem jurisdiction by attaching the defendant's insurance policy. The decision of Donawitz v. Danek, 42 N.Y.2d 138, Shaffer v. Heitner, 433 U.S. 186, O'Connor v. Lee-Hy Paving, 437 F.Supp. 994 and Torres v. Tow Motor Division of Caterpillar were considered by the court in analyzing Seider. Since the decedent's estate sought no personal jurisdiction over the defendant as such the insurance policy was at the heart of the cause of action. Therefore, the court could exercise quasi in rem jurisdiction by attaching the insurance policy issued to the defendant which provided an obligation to defend the claim in New York. Furthermore, any hardship experienced by the witnesses in appearing at a New York trial involving an automobile accident in Florida could not be greater than the loss sustained by the administrator of the decedent's estate in his individual capacity. The defendant’s argument that the doctrine of forum non conveniens precluded the court from exercising quasi in rem jurisdiction by attaching insurance policy was unmeritorious.

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July 18, 2014

Lynch-Fina v. Paredes

Lynch-Fina v. Paredes

Court Discusses Whether Section 388 of the Vehicle and Traffic Law was Limited to only Negligence

The plaintiff, who was the administratrix of the estate of the decedent, who was a young infant bought an action against the defendants who were the owner of the motor vehicle and the driver of the motor vehicle. The driver of the motor vehicle pled guilty to manslaughter in the second degree. The owner of the motor vehicle requested summary judgment as the liability under section 388 of the Vehicle and Traffic Law imposed on her as owner only extended to negligent acts rather than negligent and reckless conduct. The defendant used the case of Ingle v. Mark, 58 Misc.2d 895 where there was a refusal by the criminal court to make the owner guilty of punitive damages because the driver had acted in a grossly negligent manner.

The court held that contrary to the defendant’s argument the statute was not only limited to negligent conduct but also to reckless and gross negligent conduct. If the court were to allow a holding based on the defendant’s argument, it would result in absurdity and impose an inconsistent standard with authorities such as O'Neill v. Hamill, 22 A.D.2d 691 which held that evidence of DWI driving while intoxicated, as a statutory violation, would be prima facie proof of negligence, sufficient to impose liability upon a finding of a causal connection. The purpose of section 388 of the VTL was to ensure that where injury or death was caused when the owner consented or permitted the driver to operate their motor vehicle, they will be financially responsible. Additionally, the word negligence in the section was board to cover both gross negligence and reckless acts. Therefore, the proposed interpretation of the statute by the defendant would defeat the purpose it sought to accomplish.

The case of Ingle v Mark which the defendant cited was distinguishable. In Ingle it held that section 388 cannot to be used to make an owner liable for punitive damages based on reckless conduct or morally culpable conduct. However, in the present case the defendant wanted to be shielded from responsibility where the driver acted recklessly or was grossly negligent when the acts rationally and realistically fell within the scope of the statute.

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July 14, 2014

People v James

People v James

Court Discusses Whether People v Rice Interpretation of Section 1163 (a) of the VTL was Correct

The defendant was arrested on suspicion of driving while after he was pulled over. The criminal defendant was pulled over after he changed lanes without signalling, the officer observed that the defendant had bloodshot eyes and his breath smelled of alcohol. The defendant was arrested and taken to the station house where a breathalyzer test was done and his blood alcohol level exceeded the legal limit. The defendant was charged with two counts of driving while intoxicated in violation and one count of failure to signal a turn. The defendant requested to suppress all the evidence that flowed from the initial stop which included the the Intoxicated Driver Testing Unit videotape and breathalyzer test as there was no probable cause. The defendant relied on People v Rice 11 Misc 3d 539 as the initial stop of changing lanes without signalling by itself was not an infraction under the Vehicle and Traffic Law.

The case of Rice stated the VTL does not require signalling for every lane change. Therefore, based on Rice the defendant argued that there was no infraction when he moved from one lane to another without signalling where it was made with reasonable safety. However, the court declined to follow the principles laid down in Rice based on the legislative history and the plain language of the section 1163 of the VTL which mandated signalling prior to all lane change. At the trial the People relied on the testimony of the arresting officer who testified that he saw the defendant pulled over into the parking lane without signalling. He stated at as a result of the traffic infraction he pulled of the defendant and realized that he showed visible signs of intoxication. The defendant was as a consequence placed under arrest and charged with DWI driving while intoxicated.

The court declined to follow the decision of Rice which was identical to the defendant’s case and supported the defendant’s arguments. In Rice, the officer stopped the defendant after he failed to signal before he changed lanes. There was no testimony as to whether it was safe to change the lanes. Section 1163 (a) of the VTL states that vehicle must not move left or right until the movement can be made with reasonable safety and a person shall turn their vehicle without giving the appropriate signal. In Rice the court stated that there was a distinction between move and turn. A turn was defined as a movement from a direct course to the right’ or left. A turn can also include a U-turn or entry from a public roadway to a private road or driveway. It further stated that an appropriate signal was only required when the car was about to make a turn and a change of lanes was not a turn but a move from left to right. The court in the instant matter concluded that failing to signal was by itself a traffic infraction under Vehicle and Traffic Law § 1163 (a), regardless of whether the lane change could be made with reasonable safety. The signalling requirement and the reasonable safety requirement applied to both actual turns and other vehicular movements such as lane changing. Under the statute, drivers wishing to turn or change lanes must not only signal their movement at all times, but must also refrain from making their turn or lane change unless and until they can make their movement with reasonable safety.


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July 14, 2014

Fellow Officer Rule...cont

The "Fellow Officer Rule" authorizes a receiving Officer to assume that the information provided by the sending Police Officer is reliable and accurate. The "Fellow Officer Rule" is not however without its limitations. Although hearsay is admissible in pre-trial suppression hearings, when a "receiving officer" accepts information from a "sending officer," the acceptance of the information must be based upon the personal knowledge of the "sending officer." When the information of the "sending officer" is not based upon personal knowledge, but rather based upon the knowledge of a civilian witness, this information must be shown to be both credible and reliable.

In a case, the Court adopted the two prong analysis concerning the reliability of eyewitnesses in establishing probable cause for a warrantless arrest. The Criminal Procedure Law utilizes the phrase "reasonable cause" instead of "probable cause" CPL 70.10(2). As it has emerged through case law, the probable cause, or, reasonable cause to arrest an individual has become more of a standard of common sense.

"Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay. The Court of Appeals in a case stated that: "In passing on whether there was probable cause for an arrest, we consistently have made it plain that the basis for such a belief must not only be reasonable, but it must appear to be at least more probable than not that a crime has taken place and that the on ear rested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice."

In another case, the Second Department, applied this "common sense" standard for making an arrest in drinking and driving cases. "Whether, viewing the facts and circumstances as they appeared at the time of the arrest, a reasonable person in the position of the officer could have concluded that the motorist had operated the vehicle while under the influence of intoxicating liquor."

Turning to the instant matter, the Police Officer is an experienced Police Officer. Drawing upon his experiences, both personal and professional, the Police Officer observed that defendant was standing directly next to a vehicle with extensive front end damage from an accident and that the vehicle was still in the roadway.

Moreover, defendant stated to the Police Officer that he was "coming back from school to visit his girlfriend." Further observations by the Police Officer showed defendant to have slurred speech, an odor of alcohol and glassy, bloodshot eyes. The Police Officer also observed defendant perform Field Sobriety Tests. Notwithstanding the Police Officer having no personal knowledge of defendants operation of the vehicle, for all the reasons stated herein, the Criminal Court concludes that considering the totality of the evidence presented,

The Police Officer had probable cause to place defendant under arrest for Driving While Intoxicated. At the conclusion of testimony, it is clear that the statements were spontaneously made in response to legitimate preliminary and pre-custodial inquiries which were investigatory in nature. Thus, the statements at issue contained in the 710.30 notice will be admissible at trial.

July 13, 2014

Fellow Officer Rule

In November 2007, defendant was charged with violating one count of Section 1192.2 of the New York State Vehicle and Traffic law (Driving While Intoxicated [DWI]), a misdemeanor, and one count of Section 1192.2(a) of the New York State Vehicle and Traffic law (Aggravated DWI), also a misdemeanor.

A Nassau County Criminal lawyer said that a pre-trial hearing was ordered to determine defendant's motion to suppress. Thus, in October 2008 a hearing was held to determine the admissibility at trial of evidence obtained against the defendant. The People produced the arresting officer, as a witness to testify. The Police Officer is a member of the Nassau County Police Department. The criminal defendant did not call any witnesses.

Based upon the credible evidence advanced at the hearing, the Court concludes the following: In November 2007 the Police Officer was working the night tour of duty. He was in a marked police vehicle, in uniform and working alone. At approximately 12:15 A.M. He received a radio call of a motor vehicle accident in the vicinity of East Shore Road in Great Neck. Upon his arrival the Officer observed a vehicle with extensive front end damage in the middle to left lane of traffic on the northbound side. The defendant was standing directly next to the vehicle. The Officer asked defendant where he was coming from and defendant replied he was "coming back from school to visit his girlfriend."

The Police Officer was informed by the assisting Officer, that defendant was the driver of the vehicle involved in the accident. The Police Officer testified that the assisting officer had received this information from an eyewitness however the Officer could not identify the eyewitness.

In furtherance of his investigation, the Police Officer observed the defendant to have slurred speech, an odor of alcohol and glassy, bloodshot eyes. The Police Officer proceeded to observe the defendant perform Standard Field Sobriety tests administered by Assisting Officer. The Field Sobriety Tests were performed on the side of the road, at night. The Police Officer testified that there was sufficient light to perform the tests.

After defendant's performance on the Tests, defendant was placed under arrest.
The Court finds that Police Officer lawfully approached defendant after receiving a radio call of a motor vehicle accident. Upon his arrival to the location of the accident, the Police Officer observed defendant standing outside a motor vehicle. This motor vehicle was in the roadway and had extensive front end damage. The Police Officer, as part of his initial investigation engaged defendant in conversation whereby defendant stated he was "coming back from school to visit his girlfriend." DWAI was obvious.

The Police Officer observed defendant to have slurred speech, an odor of alcohol and glassy, bloodshot eyes. Based upon his observations and experience concerning indications of alcohol, the Police Officer observed the assisting Officer administer Tests. The results of the Tests showed indicia of intoxication. Notwithstanding the fact that the Police Officer had no personal knowledge of defendant's operation of the motor vehicle, he had received information concerning defendant's operation of the vehicle from the assisting Officer.

To Be Cont...

July 9, 2014

People v. Carroll

People v. Carroll

Court Discusses Whether the Defendant was Permitted to Inspect Grand Jury Minutes
The defendant was indicted for driving an automobile in a reckless, culpable and negligent manner, thereby causing another's death, and misdemeanor of driving automobile while intoxicated. The defendant requested an order granting him inspection of grand jury's minutes or dismissing indictment filed on November 30, 1956.

The trial court denied the defendant to inspect the minutes of the grand jury on one indicted for driving automobile in reckless, culpable and negligent manner, causing another's death, and misdemeanor of DWI driving while intoxicated as he was not entitled to inspect the minutes. The judge then examined the charge which the defendant was indicted for by the grand jury. The charge of reckless driving, within statute defines the offense of driving automobile in reckless and negligent manner, thereby causing another's death, as running or operation of an automobile under circumstances showing driver's reckless disregard of consequences.

Culpable negligence, within criminal http://criminaldefense.1800nynylaw.com/statute defines the offense of driving automobile in culpable and negligent manner, thereby causing another's death, as something more than slight negligence necessary to support civil action for damages, but to disregard the consequences and to have an indifference to others' rights. The count of indictment, charging the defendant with driving an automobile in reckless and culpable and negligent manner, thereby causing another's death, was dismissed, in absence of proof before grand jury of such reckless and culpable negligence in the defendant's operation of his automobile.

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July 9, 2014

Matter of Wiebke v Wiebke and Matter of McFarland v Smith

This is a custody and visitation proceeding pursuant to Family Court Act article 6 wherein the father appeals from an order of the Family Court of Kings County dated 9 November 2009, which awarded sole custody of the subject children to the mother and only awarded him visitation from Monday at 6 P.M. to Wednesday at 6 P.M. on alternate weeks, with additional visitation upon agreement of the parties.

The criminal court affirms the order, without costs or disbursements.

Friederwitzer v Friedewitzer and Matter of Francois v Hall held that an award of custody must be based upon the best interests of the child, and there is no prima facie right to the custody of the child in either parent. Eschbach v Eschbach established that in considering questions of custody, the court must make every effort to determine what is in the best interest of the child, and what will promote the child's welfare and happiness. Moreover, it should be noted that he best interests of the child are determined by a review of the totality of the circumstances.
Matter of Francois laid down the factors to be considered which include the quality of the home environment and parental guidance, the ability of each parent to provide for the child's emotional and intellectual development, and the financial status and ability of each parent to provide for the child. The relative fitness of each parent, as well as the effect an award of custody to one parent might have on the child's relationship with the other parent should be considered.

Further, consideration should be given to any prior award or agreement as to custody as held in Eschbach v. Eschbach. While not determinative, the court should consider the child's expressed preference as an indication of what is in the child's best interest.

Furthermore, if domestic violence is alleged, the court must consider the effects of such violence upon the child akin to the rulings in Matter of Julie v Wills and Matter of Moreno v Cruz and in accordance with Domestic Relations Law § 240[1].

In making a custody determination, the court may also consider the recommendation of a court-appointed expert, and the position of the attorney for the child as was done in Matter of Edwards v Rothschild, Matter of Rolon v Medina, Matter of Turnure v Turnure and Matter of Greene v Gordon.

Since weighing the factors relevant to any custody determination requires an evaluation of the testimony and the sincerity of the parties involved, such an evaluation is best made by the trial court as in the case of Eschbach v. Eschbach. A trial court's determination regarding an award of custody should not be disturbed "unless it lacks a sound and substantial basis in the record" as in Matter of Faunteleroy v Mercado.

Matter of Wiebke v Wiebke and Matter of McFarland v Smith similarly held that the determination of visitation is entrusted to the sound discretion of the trial court, and such determination should not be set aside unless it lacks a sound and substantial basis.

In the case at bar, the criminal trial court, after having had the opportunity to evaluate the testimony, consider the recommendations of a forensic expert, interview the children in camera, and consider the position of the attorney for the children, determined that the children's best interests would be served by an order awarding sole custody of the children to the mother and visitation to the father from Monday at 6 P.M. to Wednesday at 6 P.M. on alternate weeks. That determination is supported by the record, and should not be disturbed on appeal.

July 6, 2014

The Court orally denied the defendant's motion...cont

Accordingly, the report of the defendant's blood alcohol content to the third decimal point on the video recording is not so prejudicial to the defendant as to deprive him of a fair trial. The defendant's motion for a mistrial therefore is denied.

In another DWI case, the defendant was charged with the offenses of driving an unregistered vehicle and driving while intoxicated, both offenses arising out of the same incident. On the first charge, he was convicted in the Criminal Court, Queens County, and sentenced to pay a fine of $25 or, in the alternative, to serve five days. The fine was not paid and the defendant was committed to serve the five days. On the latter charge the defendant was indicted for DWI driving while intoxicated as a felony. Upon his plea of guilty to the lesser charge of an attempt, he was sentenced to a term of one year.

Since these offenses were committed as parts of a single incident or transaction, the aggregate of definite terms of the sentence imposed therefor may not exceed one year. The defendant has asserted on this appeal that he was indigent at the time the $25 fine was imposed and therefore the alternative sentence of five days must be considered as a definite term of imprisonment contributing to an aggregate term in excess of one year. If his assertion of indigence is true, he would be entitled to have his sentence modified to comply with the Penal Law.

The judgment should therefore be without prejudice to an application by the defendant to the County Supreme Court to establish his inability to pay the $25 five and to seek modification of the one-year sentence. The other points raised by the defendant are without merit.

July 3, 2014

Criminal Procedure Law

In this proceeding, a man seeks to enjoin the district attorney from prosecuting an indictment which was filed by the grand jury. The man asserts that the district attorney lacks jurisdiction to proceed.

The matter was started when the man was arrested and charged with assault in the second degree, a class D felony. He was also charged with two class A misdemeanors which includes resisting arrest and DWI and obstructing governmental administration in the second degree. The man was then arraigned upon the felony complaint in the criminal court.

The man's attorney appeared in the court and the assistant district attorney made an oral application to the court for an order reducing the matter to a misdemeanor complaint by striking the charge. Then, the court responded by transferring the matter to a different part, and it is apparent that both the parties and the court itself took it to mean that the prosecution's application had in fact been granted.

Subsequently, the parties again appeared in the court. The prosecutor served the man with notice that the matter was going to be presented to the grand jury. The matter was then postponed. The court admonished the prosecutor that the case was reduced and was still in misdemeanor form. But, the assistant district attorney did not argue with the court's assertion that the case was in misdemeanor form.

After that, the man made an oral motion to dismiss the accusatory instrument. The court, as well as both of the parties, apparently treated the accusatory instrument in question as a misdemeanor complaint or information subject to dismissal by the court on speedy trial grounds. The assistant district attorney expressed no opposition to the motion.

Then, the grand jury voted to indict the man for the crimes of assault and DWAI in the first degree, assault in the second degree and resisting arrest. The indictment was filed and the man was arraigned upon the indictment. The man thereafter made a motion to dismiss the indictment.

The prosecution also asserted that the grand jury retained jurisdiction to indict the man on felony charges in spite of the fact that the court had previously dismissed an accusatory instrument which had been premised on the same criminal transaction. Consequently, the Supreme Court denied the motion.

The court found that the man's arguments are basically without merit. Neither statutory nor constitutional double jeopardy principles are at stake. Moreover, there is no constitutional or statutory provision which prohibits the grand jury from indicting a suspect on charges which were previously dismissed by the local court.

Sources revealed that the Criminal Procedure Law prohibits the bringing of a new prosecution based upon charges which had been contained in an indictment or Superior Court Information which had previously been dismissed on the ground that the offender had been denied his right to a speedy trial. However, the parallel provision of the Criminal Procedure Law which governs the dismissal of misdemeanor complaints or information on speedy trial grounds conspicuously lacks a similar terms.

To Be Cont...

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June 29, 2014

People v Navarrette

People v Navarrette

Court Discusses the Interpretation of the Word Operation in Section 600(2)(a) of the Vehicle and Traffic Law

The defendant was charged with a class B misdemeanor, attempted leaving the scene of an incident without reporting, under section 110.00 Penal Law and section 600 (2) (a)Vehicle and Traffic Law. The complaining witness testified that the defendant parked his car, turned off his engine. He further stated that he approached the motor vehicle as the defendant opened the door to exit; he was hit by the door, which flipped his bicycle over, and he was injured on the street. The complainant was hurt and bleeding and the defendant refused to give him his driver's license information. The defendant left the scene, leaving his parked car without reporting the incident. At the close of the prosecution’s case, the defendant requested that the charge be dismissed pursuant to section 330.30 of the CPL. The defendant argued that the People failed to prove a substantial element, that is, he was operating the motor vehicle at the time of the accident. However, the People contended that the met their burden of proof once it was proven that the criminal defendant had recently operated the motor vehicle.

According to the section 600(2)(a) of the VTL, a person who operates a motor vehicle and knowingly or having caused person injury to a person caused by the operation of the motor vehicle by such a person provide their driver’s license and insurance identification card and if no police officer is in the vicinity of the accident, he must report the accident to the police station as soon as physically possible. The People contended that the board meaning of operation that applied to driving while intoxicated provisions applied to leaving the scene of an incident charges. However, a boarder interpretation was needed with a charge for driving while intoxicated because of public safety. An intoxicated person merely needed to be sitting around the wheel while the engine was running or had an intent to operate the vehicle in order to prove operation according to Matter of Prudhomme v Hults, 27 AD2d 234 [3d Dept 1967]. But section 600(2)(a) of the VTL triggers an obligation on the driver to report the DWI incident and its proximate injuries arise out of the actual operation of the motor vehicle. A driver that parked his car carelessly and caused injury to a pedestrian or motorist does not fall within the reporting requirements.

In conclusion, the defendant was entitled to the dismissal of the charge of leaving the scene of an incident without reporting (section 600 [2] [a] of the Vehicle and Traffic Law) where the defendant was not actually operating the motor vehicle at the time the complainant bicycle collided with the vehicle's open door. While the broad meaning of operation applicable to driving while intoxicated provisions encompassed situations involving a person about to operate or who has just finished operating a motor vehicle, Vehicle and Traffic Law § 600 (2) (a) triggered the obligation to report an incident only when the incident and injuries arose out of the actual operation of the motor vehicle. Here, http://www.newyorkdwilawyer24-7.com/new-york-dui-lawyer.htmldefendant had parked his car before the complainant collided with the door, and thus had ceased operating the vehicle well before the incident.

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June 26, 2014

People v. Philbert

People v. Philbert

Court Discusses Whether the Defendant was given a Clear and Unequivocal Refusal Warning from a Warning Card

The defendant was charged with driving while intoxicated pursuant to section 1192 of the Vehicle and Traffic Law after the police officer observed the defendant's slurred speech, bloodshot eyes and disheveled clothing. The defendant was read his Miranda rights and was then asked to submit to a chemical test. The defendant was read his refusal warning from a card and refused to do the test. The card stated that if the defendant refused to submit to a chemical test it may result in a revocation of the defendant’s license or operating privileges, whether or not he was convicted of the charges for which he was arrested for. He was further warned that the refusal would be introduced into evidence against him. The defendant after his refusal chose to submit to the test. However, the defendant eventually refused to submit to the chemical test after a failed attempt in taking the test according to the instructions of the officer. The defendant then sought to suppress the refusal warning.

Section 1194(4) of the V.T.L of the states that refusal to submit to a chemical test is only admissible in trial where the warning was sufficient, clear and unequivocal language of the effect of the refusal to submit to a test in prosecution of section 1192. The police officer recited the warning on the card before he asked the defendant to take the chemical test, however, according to Kowanes v. Department of Motor Vehicles, 54 A.D.2d 611 mere recital of the warning and subsequent refusal does not automatically result in a revocation of the defendant’s license. In 1980 the legislature amended the, section 1194(2) of the statute to provide for immediate mandatory suspension and future revocation upon refusal to take the test and after proper warnings had been given. However, the law in 1981 was later amended to provide for immediate suspension and subsequently revocation where there was a refusal to take the test after proper warning was given whether or not he is found guilty of the charge for which he is arrested. The defendant was not properly warned about the immediate and serious penalties in failing to submit to a chemical test. The difference between possible future revocation and immediate suspension may well make a difference in an individual's decision whether or not to take a breathalyzer test. The evidence of a refusal at a trial is used to show consciousness of guilt, therefore an officer should strictly comply with the statute. As a result, where the defendant was not given warning in clear and unequivocal language of fact that his refusal would positively result in immediate suspension of license, evidence of the criminal defendant's refusal to take breathalyzer test was inadmissible in prosecution for DWI driving while intoxicated and would be suppressed.

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June 24, 2014

People v. LeBeau

People v. LeBeau

Court Discusses Lesser Included Offenses of Vehicular Assault

The defendant was arrested and charged after he struck a pedestrian with his taxi after making a U-turn. The defendant admitted to the officer that the cause of the accident as a result of him drinking alcohol, taking cocaine and lack of sleep for a protracted period of time prior to the accident. The defendant was placed under arrest. The pedestrian was taken to the hospital after sustaining serious injuries. The officer also observed that the defendant had alcohol on his breath, bloodshot eyes and slurred speech during questioning. He submitted to a breathalyzer test where he registered a .08 percent blood alcohol content. The defendant was indicted for vehicular assault pursuant to section 120.03 of the Penal Law, DWI driving while impaired by drugs pursuant to section 1192.4 of the Vehicle and Traffic Law and DWAI driving while impaired by alcohol pursuant to section 1192.1 of the VTL.

It was concluded by a nonjury trial that the defendant was guilty of driving while impaired by alcohol and the charge of driving while impaired by drugs was dismissed. The court held that the People did not prove that the defendant was guilty beyond a reasonable doubt of vehicular assault but reserved judgment for the purposes of considering a request by either party to charge the defendant with a lesser included crimes in regards to vehicular assault. The People requested that the court consider reckless driving pursuant to section 1190 of the VTL and assault in the third degree pursuant to section 120 of the Penal Law as a lesser included offence to vehicular assault. The defendant however, objected on the basis that reckless driving and reckless assault required a higher mental culpability that crime charged on the indictment and that the People did not prove that the defendant acted with criminal negligence.

The court has a duty to consider not only the crime charged with but also any other possible lesser included crime or crimes that the evidence supports. In People v Green 56 N.Y.2d 427 it was held that a two prong test should be applied by trial judges in determining whether a lesser count was, in law, a lesser included crime. One prong is a strict statutory test while the other is purely an evidentiary test based on the evidence in each case. In considering the first prong of the statutory test, the greater crime charged was vehicular assault. The crime of vehicular assault requires proof of criminal negligence which involved a failure on the part of the defendant to perceive a substantial and unjustifiable risk that such result will occur or that such circumstances existed. While the People’s lesser count of reckless driving and assault in third degree involved recklessly causing physical injury to another were not lesser included offenses of crime of vehicular assault. The mental state of recklessness in the offense of reckless driving required an awareness and conscious disregard of consequences.

However, the People’s alternative of assault in third degree, involved a person, with a culpable mental state of criminal negligence, which caused physical injury to another by means of deadly weapon or dangerous instrument, was a lesser included offense of vehicular assault. There was evidence to support the finding that the defendant, who was indicted for crime of vehicular assault, committed lesser crime of assault in third degree, as proof established that the defendant operated taxicab while under influence of alcohol, without adequate sleep and after using cocaine, and the defendant made uncontrolled U-turn at more than reasonable rate of speed which cause his vehicle to be mounted on the sidewalk by more than ten feet before striking the pedestrian.

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June 21, 2014

Application of Mackell

Application of Mackell

Court Discusses Whether the District Attorney was Permitted to Request that the Defendant Shave for a Line up

The District Attorney made an application to the court requesting that the respondent be permitted to shave his beard under the direction of the prison warden for the purposes of appearing in a line-up. The respondent was alleged to be one of two men to have committed robbery. At the time of the arrest the respondent was clean shaven but since he was incarcerated the defendant grew out his facial hair and refused to shave. The District Attorney asserted that the respondent would be unrecognizable with his beard and he was using it as a disguise which would result in identification being difficult if not impossible.

The respondent’s privilege against self-incrimination would not be violated if he would be subjected to participate in a compulsory lineup. There was distinct difference between requiring accused to display his bodily features and compelling him to testify against himself. Where an accused is required to perform physical acts or perform demonstrations, his constitutional privileges will not be infringed. For example in Holt v United States, 218 U.S. 245, the defendant was required to put on a blouse to see if it fits and it was held that his Fifth Amendment rights were not violated. In United States v. Wade, 388 U.S. 218, the criminal defendant was asked to put strips of tape on each side of his mouth, like of the person that committed the robbery and utter words allegedly uttered by the robber in a line-up without his lawyer being informed. He was identified as the culprit. It was held that compelling the defendant to utter words which the robber allegedly said was not compulsion to utter statements of a ‘testimonial’ nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt. In Breithaupt v. Abram, 352 U.S. 432, it was stated that the interest of the individual must be balanced against the interests of the society where the defendant’s blood was withdrawn while he was unconscious person in a fatal automobile accident. In People v. Strauss, 174 Misc. 881 which was compared with the instant case where the District Attorney applied for an order requiring that the defendant be forcibly shaved and the hair on his scalp trimmed for his appearance in court. The court granted the application as the trial court can direct the defendant where to sit, the direction he should face and stand and strip him of artificial covering.

The respondent in this case the application was denied because there was no proceeding against the defendant in Queens County. He was only a suspect where there was no probable cause for his arrest and was in custody on entirely unrelated charge, the court did not have power to order a suspect's beard forcibly removed prior to lineup appearance. DWAI was not charged.

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June 20, 2014

People v Bain

People v Bain

Court Discusses Whether the Evidence was Legally Insufficient for Conviction
The defendant indicted and convicted for manslaughter in the second degree, vehicular manslaughter in the second degree, and driving while intoxicated after an accident that resulted in his wife’s death. The appealed the conviction on the ground that the evidence was legally insufficient and that the People failed to establish the chain of custody for the blood evidence recovered.

The Appellate Division of the Supreme Court did not consider the sufficiency of the evidence as the defendant failed to preserve his contentions for appellate review for vehicular manslaughter in the second degree. The defendant’s Queens County Criminal Attorney did not argue that the evidence was insufficient at trial to rebut the presumption that the defendant’s operation of the while intoxicated caused the death of his wife. However, it was agreed by the court that the evidence adduced at court was sufficient to convict the defendant of vehicular manslaughter in the second degree beyond a reasonable doubt and the verdict was not against the weight of the evidence.

The defendant’s other contention was in relation to the chain of custody relating to the blood evidence required. However, this ground was without merit as a deficiency in the chain of custody did not affect the admissibility but only affected the weight of the evidence as stated in the People v Hawkins, 11 NY3d at 494. However, the charge of driving while intoxicated was the dismissed as it was included in the charge of vehicular manslaughter in the second degree.

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June 17, 2014

People v Bici

People v Bici

Court Discusses Whether the Defendant was Prejudiced with the Admission of an Abstract into Evidence

The defendant was arrested of driving while intoxicated, aggravated unlicensed operation of a motor vehicle in the third degree, and unlicensed operation of a motor vehicle. He was arrested after the police officer observed the criminal defendant weaving out of lanes and caused another driver to take evasive actions because of his driving. The defendant was pulled over by a police officer who discovered that the defendant had alcohol on his breath, slurred speech and bloodshot eyes. The defendant admitted to the police officer that he could drink and drive when the officer asked him if he was drinking. He was asked for his driver’s license and he provided the officer with a license from Connecticut. An investigation showed that the defendant had lost his driving privileges in New York a mere three days prior for driving while impaired DUI. The defendant was arrested and taken to testing facility. At the facility the defendant revealed that he would not submit to a chemical test. He was given the refusal warning and still refused to submit to the test. The defendant agreed to perform a series of coordination tests which were videotaped and both the arresting officer and the officer that administered the test were present. The tests concluded that the defendant was intoxicated. The defendant was requested that his arrest-scene statements, his refusal to submit to chemical testing, and a videotape of his physical coordination tests be suppressed as they were a product of an unlawful stop and arrest. The defendant’s motion to suppress the evidence was denied.

At the trial the defendant objected to his driving abstract being admitted into evidence. The abstract stated that the defendant was convicted prior for driving while impaired DWI. The People stated that the unchallenged abstract showed that the defendant was aware that his license was suspended three days prior. The judge directed the jury that the fact that he was convicted of driving while impaired does not mean that he had a propensity to drive while under the influence of alcohol and the prior conviction was only to be considered with respect to the defendant’s knowledge of his suspension. The jury convicted the defendant of all the three offenses. The defendant appealed the conviction on the basis that the suppression motions should have been granted, that the admission of evidence of the prior conviction was fatally prejudicial to the defense, and that the convictions were against the weight of the evidence.

The Appellate Division of the Supreme examined the evidence to ascertain if the defendant’s constitutional rights were violated. The court affirmed the conviction as there was probable cause for the stop and the arrest. The arresting officer’s testimony was credible as observed that the defendant was repeatedly swerving from lane to lane over a short distance and almost colliding into another motor car. According to People v Ellis, 169 AD2d 838, 839 [1991] it was held that where the defendant was driving in an erratic manner, it constituted a sufficient reason to justify an initial stop by an officer. Further, when the officer realized that the defendant had bloodshot eyes and alcohol emanating from his defendant’s breath established probable cause to believe it was more likely than not, that the defendant had committed a crime, that is, driving while impaired. The offense that the officer believed that was committed needs not to be the ultimate charge. Therefore, the motion was properly denied.

The Appellate Division concluded that his abstract was highly prejudicial and should have been inadmissible as it showed that the defendant had a tendency to drive while under the influence of alcohol. The court, however, declined to review the ground in the interest of justice as the defendant’s license was suspended three days prior to being arrested. The defendant failed to object to the instructions given to the jury which addressed the objection to the admission. The court concluded that conviction was not against the weight of the evidence. The testimony of the People’s witness appeared to be truthful and consistent to the material facts. The jury had the opportunity to view the videotape and saw that the defendant showed signs of intoxication. Additionally, the jury could infer that the defendant knew his license was suspended the mere fact that it took place three days before he was arrested.

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June 13, 2014

People v Dzvonyk

People v Dzvonyk

Court Discusses Whether the Defendant’s Constitutional Right was Violated after Failure to give Refusal Warning in his Native Language.

The defendant, who was a Russian immigrant, was arrested and charged with three counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs, two counts of Driving While Intoxicated DWI, and one count of Aggravated DWI. The defendant was arrested after the police came to the scene of an accident which the criminal defendant was involved in. One of the officer observed that the defendant’s breath smelled of alcohol, bloodshot eyes, slurred speech and was unsteady on his feet. The defendant was arrested and taken to the precinct. At the precinct, the defendant agreed to submit to a chemical test where he registered a .233 blood alcohol content. The defendant then requested to suppress the results of the chemical test because it was involuntary as the police officer did not give the warning in his native language, thus violating his federal constitutional rights.

At the suppression hearing the defendant claimed that the failure of the police to provide a Russian interpreter during the blood test violated his right of due process and equal protection since he did not understand that he could refuse to take the test. The People admitted into evidence the video tape of the defendant being asked to submit to the chemical test along with the refusal warning and the arresting officer testified on behalf of the People. The police officer testified about his observations of why he arrested the defendant, mainly his bloodshot eyes, slurred speech, unsteady feet and alcohol on his breath. A video of the administration of the test was admitted which showed that the defendant was initially confused or hesitant when asked if he would submit to the test. The defendant then nodded yes to submit to the test. It took several attempts to provide a breath sample but there was no evidence on the tape that the officer coerced or threatened the defendant to take the test.

At the hearing, the People had the burden to show that the police had probable cause to act in the manner that he did. The burden then shifted to the defendant to show that the police acted illegal in arresting and charging him for the crime alleged. In determining whether there was probable cause to believe that the defendant had committed a crime, the observations made by the officer showed that the defendant show signs that he was intoxicated were essential. Therefore, the officer had probable cause to suspect that the defendant was intoxicated while driving. Further, the People proved that the chemical test was performed within two hours after his arrest in accordance with section 1194 of the VTL was violated. The defendant asserted that the results of the test should be suppressed because he was not instructed about his ability to refuse in his native language. While the assistance of an interpreter is preferred to speak to a person whose native language is not English, but the defendant appeared to have understood the request for a breath sample. The defendant clearly understood that request by the fact that he provided a breath sample. Therefore, the People met there burden in proving that the conduct of the officer was proper.

The defendant did not argue that the test was not conducted in compliance with the VTL but he asserted that the test is invalid because there was not a Russian interpreter or a recording of the request in Russian, thus violating his constitutional right to due process and equal protection. The argument was without merit. According to the People v. Smith, 18 NY3d 544, 548 driving is a privilege and not a fundamental right and, as such, a motorist does not have a constitutional right to refuse to submit to a chemical test. Whether the defendant’s right of due process and equal protection was violated after his right to refuse the chemical test was denied was addressed in People v Kates, 53 NY2d at 595. In Kates it was held that the distinction between the driver who was capable of making a choice and the driver who is unable to do so because he was unconscious under the VTL and thus such a distinction between drivers did not violate the equal protection clause. Kates can be applied to the instant case because the defendant's argument was that he was incapable of refusing to submit to a chemical test because a language barrier prohibited him from understanding he could refuse to submit to such a test. However, according to Kates that did not violate his due process right and equal protection clause.

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June 4, 2014

People v Cabrera

People v Cabrera

Court Discusses Whether the Conduction of a Checkpoint was Unconstitutional
The defendant was arrested for driving while intoxicated DWI after being stopped at a police vehicle checkpoint. The defendant requested a pre-trial suppression of his breathalyzer results on the ground that the conduction of the checkpoint was unconstitutional.

At the hearing, the sole witness for the People, the officer who conducted the arrest, testified that he was a competent police officer who conducted over one hundred driving while intoxicated arrests. The officer stated that he received instructions from his supervisors and they were also, on the scene. His instructions were to stop every four or five cars going in the westbound direction and had stopped approximately 20 to 25 vehicles. The officer also stated that before he stopped the defendant he merely asked the other drivers for their driver’s license and look for the registration stickers. However, when the defendant was pulled over the officer stated that he smelled alcohol on the defendant’s breath, he had a red face and watery eyes and the defendant admitted to drinking two beers. The defendant then exited the car where the officer stated that was a little unsteady. He was arrested and submitted to a breathalyzer test. The defendant’s Queens County Criminal Lawyer relied on the case of the People v. Scott (63 NY2d 518 [1984]) to show that the checkpoint was illegal as it was unclear the purpose and parameters of the checkpoint. It was asserted by defense counsel that the main focus of the checkpoint was whether or not the drivers’ licenses and registration were valid rather than to promote public safety issues. The effect of the checkpoint was to detect and prosecute regulatory offenses under the VTL rather than driving while intoxicated offenses that were in the interest of public safety.

The criminal trial judge cited the Matter of Muhammad F., 94 NY2d at 141 which held that checkpoint violated the Fourth Amendment prescription against warrantless and suspicionless stops, therefore, it has to be shown that checkpoints were conducted in a non-discriminatory manner by conducting the checkpoints under rigid protocols formally set out by their superiors and that the officers did not exercise individual discretion as to which cars to stop or what questions to ask. The case of the People v Jackson , 99 NY2d was also cited to show that a vehicle should not merely be stopped in furtherance of general crime control but there ought to be programmatic objective.

Therefore, the People failed to prove the actual purpose of the checkpoint through the testimony of the officer as there was no basis to assess how the seizure addressed the public concerns. It could be said that the checkpoint was set up was to prevent drunk driving as it was an area prone to dangerous activities, however, the court could not draw such an inference. The officer’s testimony did not enlighten the court about why that particular area was chosen, what security or safety concerns were to be addressed. There was evidence that the stopping of the motor vehicles were not discretionary as he stopped every fourth or fifth car. But the overall purpose of the checkpoint was unknown as it might have been prohibit general criminal activities. As such, the breathalyzer result was suppressed.

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June 4, 2014

People v. Coniglio

People v. Coniglio

Court Discusses Whether a Dying Declaration was Admissible in a Murder Trial

The defendant was indicted for two counts of murder and one count of attempted murder. The defendant requested a motion to suppress statements made by the deceased and by himself, and the gun and bullets found in defendant's automobile. The motion to supress the dying declaration made by the deceased was not a true suppression motion as it called for the evidentiary ruling on the admissibility of the statement made. A suppression of evidence at a hearing was based on whether constitutional rights were violated by improper acquisition of evidence. It did not touch upon trial relevance of evidence, or admissibility, but function is simply to bar or admit on constitutional grounds.

The Dying Declaration Hearing

The deceased informed one of the police officer on the scene of the crime that the defendant shot her and her and killed her husband. She also told the officer where he could be found and that she was going to die from the injuries he inflicted on her. The dying declaration by the deceased could not be introduced into evidence unless it appears that declarant was in extremis; that is declarant was under sense of impending death, without any hope of recovery; and that declarant, if living, would be competent as witness. The defendant’s Queens County Criminal Attorney relied on the People v. Ricken 242 App.Div. 106, 273 N.Y.S. 470 to reject the admission the declaration into evidence. In Ricken the declarant stated that he did not think he will live, and it was held that there was no hopeless expectation of death. However, in the instant case the declarant clearly stated that she was going to die which showed a hopeless expectation of death as she lost all hope of recovery.

It was concluded that where the declarant, when found on floor with bullet wounds in chest and head, stated that defendant murdered her husband and she was going to die too, victim's statement was admissible as dying declaration. The fact that she died several hours after making the statement because she had an operation to save her life did not change statement's character or effect as dying declaration. There was no evidence that the statement by the victim was either reflective or contrived.

Suppression Hearing

The defendant requested to supress evidence found in his motor vehicle which was found by a police officer. The defendant was arrested after the defendant’s motor vehicle matched the description given of a vehicle that left the scene of an accident. The arresting officer who stopped the defendant’s car observed that he had alcohol emanating from his breath, unsteady feet and bloodshot eyes. The defendant had also peed on himself. The officer then went into the car after the defendant told him that his registration and identification could be found in the glove compartment. The officer found a loaded gun with three live rounds and two spent shells on the floor of the driver’s seat while opening the glove compartment. The defendant was read his Miranda rights and when asked if he was willing to make any statements, he replied no. However, when writing up the arrest record the defendant asked the officer where he found the gun because he could not find it. He further stated that he wanted to get rid of the gun. The statements made were admissible because they were not solicited from the defendant but they were voluntarily made.

The court also held that the search was incidental to the lawful arrest as it was not limited to arrestee's person but also applied to area within his immediate control. The officer went into the defendant’s automobile legally and was justified in seizing the loaded weapon having found that the floor of the motor vehicle. There was probable cause for stopping the defendant as his automobile matched the description given after he left the scene of an accident. Further, when the defendant was stopped by the officer he was in an intoxicated state, therefore, probable cause existed as DWI driving while intoxicated was also a crime.

The People had duty to go forward with proof that probable cause existed to arrest and search, and once this was done, burden shifted to the defendant to show illegality of search. Where the defendant challenged the admissibility of the physical evidence he had ultimate burden of proving that evidence should not be used against him. The defendant gave the officer permission to get his registration and identification from the glove compartment; the gun found by officer on floor under glove compartment was admissible. Consent was given freely and voluntarily in justifying the lawfulness of the search. Therefore, motion to suppress the physical evidence was denied.

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June 2, 2014

The Court orally denied the defendant's motion

The defendant was charged with Driving While Intoxicated Per Se, Vehicle and Traffic Law, Driving While Intoxicated, Turning Movements and Required Signals, and Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles. After a trial by jury, the defendant was convicted of Driving While Intoxicated Per Se, Driving While Intoxicated and Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles.

The DWAI http://www.newyorkdwilawyer24-7.com/new-york-dwai-lawyer.htmldefendant moved prior to trial to preclude the People from eliciting the result of the defendant's breathalyzer test for blood alcohol content as a three decimal point reading. The defendant contended that the New York Department of Health Rules and Regulations regarding the chemical analyses of blood, urine, breath or saliva for alcoholic content require that the result of a breathalyzer test be reported only to the second decimal point. The People did not oppose the defendant's application and agreed to introduce evidence of the criminal defendant's breathalyzer test result as a two decimal point reading. Thereafter, the video recording of the defendant's breathalyzer test was admitted into evidence and published to the jury. The recording, however, displayed the defendant's breathalyzer test result as a three decimal point reading. The defendant objected and moved for a mistrial, claiming that the error was so prejudicial that it deprived him of a fair trial. The Court orally denied the defendant's motion, finding that the report of the defendant's breath test to the third decimal point was a violation of a Department of Health rule which affected only the weight of the evidence and not its admissibility.

Unlike the 15 minute observation requirement, the rule that a breathalyzer test result be reported to the second decimal point does not implicate the reliability of the test. The failure to observe the defendant to ensure, for example, that he has not placed anything in his mouth before the test obviously may impact the accuracy of the result. In contrast, the report of a breathalyzer test result beyond the second decimal point is a ministerial error which is unrelated to the procedure or accuracy of the test. As such, the fact that a breath test result is reported to the third rather than the second decimal point is irrelevant to its admissibility. If anything, the failure to comply with the Department of Health reporting rule impugns the credibility of the witness who recorded the breath test result, not the test result itself. Consequently, the admission into evidence of the video recording displaying the defendant's blood alcohol content as a three decimal point reading is not error which the fact finder is bound to disregard.

To Be Cont...

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May 31, 2014

Ruggerio v. Aetna Life & Cas. Co.

Ruggerio v. Aetna Life & Cas. Co.

Court Discusses Whether the Defendant was Indemnified against Liability arising from an Accident

The plaintiff was involved in an accident with a taxi operator at a time when the operator did not possess a license to operate a taxi and his operator license was suspended as a consequence of driving while intoxicated DWI. The plaintiff had obtained judgment on a previous occasion against the insurance company of the defendant based on two separate cause of action. The first cause of action involved vicarious liability of the insurance company as a result of the negligence of one of their drivers. The second cause of involved the negligence of the insurance company in failing to determine whether the driver was qualified to operate a taxi and assigning him with a taxi when he was intoxicated. The plaintiff initiated an action pursuant to the former section 167 (subd. 1, par. [b] ) of the Insurance Law to recover insurance proceeds pursuant to a judgment obtained by plaintiff against defendant's insured. However, the Supreme Court held that the policy which the defendant possessed contained a standard exclusion for liability arising out of the ownership, maintenance, operation or use of an automobile as such the policy was inapplicable to both causes of action. There was no harm done to the plaintiff until the driver went behind the wheel of the taxi. The plaintiff appealed the decision.

The Appellate Division of the Supreme Court affirmed the decision of the trial court as the circumstances of the accident fell within the exclusion clause of the policy contained for liability arising out of ownership, maintenance, operation or use of an automobile. An insurance policy is a contract between parties and it is interpreted with the intent of parties as expressed in the policy. The insurance company of the criminal defendant was vicariously liable through their negligence in hiring a driver who was incompetent and unqualified driver. While the injuries suffered by the plaintiff was linked it the negligence of the defendant, it was determinative of the underlying liability of the insured.

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May 29, 2014

People v. Condarco


Double Jeopardy

In absence of New York case law regarding to whether the mandatory suspension required by Vehicle and Traffic Law § 1193.2(e)(7)(b) was remedial or punitive in nature, the court looked at other cases in different jurisdictions such as the State v. Zerkel, 900 P.2d 744 [Alaska App.1995] and the State v. Nichols, 169 Ariz. 409, 819 P.2d 995. It was concluded that where the statute ordered mandatory suspension of the defendants’ driver's license at their arraignment for driving while intoxicated DWI was remedial in nature rather than punitive, and thus prosecution of the misdemeanor charge of operating motor vehicle while intoxicated did not violate double jeopardy. The suspension was designated to promote highway safety and to protect public at large from injury.

Separation of Powers

The court's suspension of the defendants privilege to drive, pursuant to the VTL which requiring suspension of driver's license at arraignment on misdemeanor charge of driving while intoxicated, did not violate separation of powers doctrine, notwithstanding claim that suspension was administrative or executive act.

Therefore, it was concluded that the statute did not infringe on the defendants’ constitutional rights.

May 28, 2014

People v Guaman

People v Guaman

Court Discusses Whether the Judicial Hearing Officer at a Suppression Hearing was Biased
The defendant was charged with two counts of driving while intoxicated DWI and one count of aggravated driving while intoxicated. The defendant requested a suppression hearing to suppress the breathalyzer results. The hearing was presided over by a judicial hearing officer on May 10, 2007. The prosecution presented one witness and closed its case and the defense presented one and rested. The hearing officer credited the prosecution’s witness’s testimony and recommended that the defendant’s request to suppress the breathalyzer results be denied. The defendant informed the People and the officer of his intention to reopen the hearing upon receipt of the missing Rosario material. The case was adjourned to June 14, 2007 for further proceedings.

On July 5, 2007 the defendant requested a de novo suppression hearing on the basis that judicial hearing officer was a biased fact finder. The defense used the conversations which were on record to show that the officer demonstrated bias towards the defendant’s Queens County Criminal Attorney by stating that he usually believed the police officers and that the defense counsel was not very satisfying. The defendant’s Queens County Criminal Lawyer used the conversation to show that there was a tendency to believe the evidence of the police office and resulted in the hearing officer crediting the police officer’s account rather than the defendant’s witness. The defendant further stated that the judge had a personal dislike for the defendant’s counsel which he demonstrated with the aid of the People v Oberoi in which the defense counsel appeared in front of the judge to conduct a pre-trial suppression hearing. According to the transcript the judge prevented the counsel to during cross-examination of the People's witnesses, from pursuing a line of questioning and did not allow defense counsel to make a record of his objections. The judge denied the motion and stated that if the case was sent back he hoped he would not be the counsel for the defendant.

The court had the power to review the recommendations of the judicial hearing officer who conducted the pre-trial proceedings by accepting, rejecting or modifying the recommendations in whole or in part. The court also had the power to review the conduct of the presiding officer if the proceeding was tainted in manner that offended due process, was unfair or where the results of the trial were doubted. In the instant case the defendant requested for a hearing to start afresh without the judicial hearing officer presiding over the matter albeit that the defendant did not object to the alleged conduct of the officer or move for recusal before the officer.

The recusal of a judicial officer is a matter of conscience and personal to the judge presiding over the matter as it not automatic unless there is a statutory ground for disqualification under Judiciary Law 14. There was no statutory ground for the recusal of the judicial officer in the instant case. The defendant needed to show that the judge’s bias towards the defendant and his counsel affected the outcome of his motion to suppress. The first point of bias was that the judge favor’s the evidence of the police officer rather than the defendant’s witness, however, the record showed that when the judge made his remarks the it was during the course of a hotly contested hearing. The record showed that the judge was fair and impartial and was not skewed in favor and against either party. The evidence was marshaled even handedly without misstatements of the facts in the record. The remark made by the judge that he usually believes the police witnesses over civilian witnesses did not show a predisposition to bias as the defendant’s counsel interpretation of the remarks were misleading. The judge, by examining the evidence simply found that the evidence of the police witness was more credible than that of the defendant’s witness. The judge under section 710.60 of the Criminal Procedure Rules was required to record the findings of fact, its conclusions of law give reasons for his conclusion, which was done by the judge by marshaling the evidence, and finding the police witness credible.

The defendant’s second argument of bias was unfounded. The defendant’s counsel supplied a previous exchange which was insufficient to show that he was bias because he disliked him. In People v Cline, 192 AD2d 957, 959 the appellate court found that although the trial judge had some years earlier informed defense counsel in a prior proceeding “ not to appear before him again,” the defendant had failed to establish that the trial court's impartiality was compromised.

Therefore, the defendant’s request for a de novo hearing was denied. The defendant may however, renew his request before the judicial hearing officer. The defendant was allowed to reopen the hearing to cross-examine the police officer regarding the command log entries.

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May 26, 2014

People v. Condarco

People v. Condarco

Court Discusses Whether Suspension of a Driver’s License is a Punitive or Remedial in Nature
The defendants were arrested and charged for driving while intoxicated DWI while having a blood alcohol level that is over the legal limit of .10. In each case, the defendant’s license was suspended at the arraignment pursuant to Vehicle and Traffic Law § 1193(2)(e)(7)(a) and (b). The defendants’ Queens County Criminal Attorney moved to dismiss the dockets on the ground of double jeopardy under section 170.30(1)(f) of the CPL as the suspension of the defendants license constituted as a penalty. The following issues were examined by the trial judge:

1. Whether the statute violated due process right with suspension procedure according to the principles laid down in Pringle v. Wolfe, 164 Misc.2d 733.
2. Whether the statute violated equal protection right since the length of prosecution for Vehicle and Traffic Law § 1192.2 offenses varies throughout the state.
3. Whether a person will be subjected to double jeopardy if their driver’s license was mandatorily suspended and also prosecuted for the same offense.
4. Whether suspension violated the separation of powers doctrine as it was an administrative or executive act.

Due Process

The statute requiring suspension of a driver's license at misdemeanor arraignment based on driver's blood-alcohol level did not violate due process, as the State was required to plead sufficient information with factual allegations supporting the misdemeanor charge, and the defendant was given opportunity to contest allegations. Where the violation of due process argument was successful by the New York Criminal Lawyer was where the underlying accusatory instrument on which the prosecution was commenced was either a simplified traffic information or a uniform traffic information.

Equal Protection

The VTL requiring the suspension of a driver's license at an arraignment based on blood-alcohol level of the driver charged with misdemeanor offense did not violate equal protection, despite the assertion that the varying length of prosecutions for such offenses throughout the State resulted in varying lengths of defendants' license suspensions. There was the statutory speedy trial requirement under section 30.30 of the CPL which was same statewide, and defendants were, to some extent, responsible for determining length of prosecution by plea negotiations, non-appearances etc.

To Be Cont...

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May 24, 2014

McArdle v. New York City Housing Authority

McArdle v. New York City Housing Authority

Court Discusses Whether the Judge Acted Prudently in Exercising his Discussion
The plaintiff who was the parent of an infant brought an action to recover damages for false imprisonment and assault committed by the defendant. The infant, who was a 19 years old, was arrested by a security guard employed by the defendant on July 15, 1972 at 12:30 A.M. The security guard charged the infant with driving an automobile while intoxicated
dwai, driving recklessly and resisting arrest. The plaintiff was released on bail later on the same day. The charges against him were dismissed on October 28, 1972. The plaintiff’s Queen’s County Personal Injury Attorney served the defendant with a notice of claim in which they claimed a total of $500,000 for compensatory and punitive damages for false imprisonment and an assault allegedly committed by the security guard on July 15, 1972.

The plaintiff requested to extend the time for service of their notice of claim to the plaintiff due to the failure of their Queen County Personal Injury Lawyer to know when their cause of action accrued. Additionally, it was asserted that the complainant was an infant and was therefore under disability to assert his claim. The motion to extend the time to serve the notice of the claim was granted by the Special Term for a period of 20 days after the entry of the order. A clerical error by the plaintiff’s attorney to learn about the order, led to the notice of claim being served after the time-enlargement had expired. The plaintiff served a summons on august 23, 1973. The defendant served a notice of appearance to state that the claim was not served in a timely manner according to section 50-e of the General Municipal Law. The defendant sought to dismiss the action for noncompliance with the statute in October 1973. The plaintiff made a request to further enlarge the time to comply with the statute. The Special term granted the cross motion of the plaintiff to extend the time by another 20 days for the service of the notice of claim. The defendant appealed the decision.

The Appellate Division of the Supreme Court held that the Special term did not act prudently in granting the plaintiff cross motion to further enlarge the time to serve the notice of claim. The complaint was over 19 years old at the time when the claim of false imprisonment and assault accrued and almost 21 when the request to enlarge the time to serve the notice of claim, therefore, the reason given about his infant disability was unsubstantiated. In addition, there was no affidavit of the merits as to the possible liability of the criminal defendant or in any way adequately support his huge claim for personal injuries. Further, the second motion for time enlargement, was made more than a year after alleged claims against the defendant accrued, it was time-barred.


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May 22, 2014

People v. Vargulik

People v. Vargulik

Court Discusses Whether Failure to Comply with Discovery Demand Should Result in Suppression of Chemical Results

The defendant was indicted for operating a motor vehicle while under the influence of alcohol, vehicular manslaughter and criminal negligent homicide. The defendant was the driver of a motor vehicle that killed a passenger in her car after she crashed into a tree. Three beer cans were recovered from the car, one unopened and two empty cans. The defendant went to the hospital to receive treatment and was later arrested. She consented to an Alco-Sensor” test where .15 percent blood alcohol content was recorded. The defendant requested an omnibus motion to suppress the results of the blood test on the ground that there was insufficient evidence for probable cause in the absence of the chemical test. The People attempted to introduce evidence that indicated that the defendant had consumed alcohol which was probable cause for the arrest after the results of the blood test. The defendant’s Queens County Criminal Attorney objected to the introduction of the blood test into evidence because of the prosecution’s failure to provide the report of the breath test to the defendant in response to the discovery demand, pursuant to section 240.40 of the Criminal Procedure Law. This resulted in the court concluding that the DWI test result was prohibited from being introduced into evidence. The People appealed the decision.

The Appellate Division of the Supreme Court reversed the decision and remitted the matter, ordering a new hearing to determine whether the results of the blood test should be suppressed. The failure of the prosecution to comply with the discovery demand was an error. But the error could be cured by an adjournment as requested by the defendant’s Queens County Criminal Lawyer since it was an unintentional failure to comply with the defense’s discovery demand. In remedying nondisclosure the degree of prosecutorial fault must be considered but the overriding concern must eliminate the prejudice that the defendant may face while protecting the interest of the society according to the People v Kelly 62 N.Y.2d 516. The trial judge abused his discretion with the sanction imposed of prohibiting the introduction of evidence regarding the administration of the “Alco-Sensor” breath test after nondisclosure of the People as it was a drastic remedy.


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May 21, 2014

People v Noreiga

People v Noreiga

Court Discusses Whether the Warrantless Search of the Defendant’s Motor Vehicle was Legal
The defendant was arrested and charged with two counts of driving while intoxicated, one count of failing to obey a traffic control device and one count of consumption or possession of alcoholic beverage in a motor vehicle.

The defendant was pulled over after making an illegal U-turn prohibited by signs and asked for his license and registration. The police officer observed that the defendant had a strong order of alcohol on his breath, bloodshot and watery eyes. The defendant denied drinking alcohol to the police officer but stated that the passengers were drinking. The defendant took a breathalyzer test and registered a 0.188 blood alcohol content and he was arrested and his car impounded. While the defendant was incarcerated, the arresting officer went to the vehicle to “secure it” and found two unopened bottles and four bottles opened that contained alcohol. The defendant request a Mapp/Dunaway hearing to suppress the results of the breathalyzer test and to suppress the six beer bottles found in the motor vehicle.

At the trial the court determined whether there was probable cause for the arrest. The officer initially stopped the defendant after he made an illegal U-turn. Therefore, the traffic infraction committed by the defendant was probable cause for the initially stop. After the defendant was stopped, the officer observed signs of intoxication such bloodshot eyes and the strong smell of alcohol on his breath. These observations gave the officer probable cause to believe that the defendant had committed an offense, that is, driving while intoxicated. Therefore, it was reasonable for the officer to request that the defendant take a chemical test which he agreed to take. The DWI defendant’s blood alcohol content of 0.188 exceeded the legal limit which led to the arrest of the defendant for driving while intoxicated. Another a breathalyzer test was administered to the defendant. Since the stop and arrest of the defendant were lawful, the defendant's motion to suppress the test result was denied.

The criminal defendant’s other contention was the suppression of the alcohol found in his motor vehicle while impounded. The defendant asserted that the search and seizure was illegal. The People on the other hand, maintained that the search was legal. The search took place while the defendant was at the station house when the arresting officer went to lock up the motor vehicle. While securing the vehicle the officer saw beer bottles in it that were both opened and unopened. Under the Fourth Amendment it is unreasonable to seize evidence unless the evidence was within the plain view of the officer’s sight according to People v Spinelli, 35 NY2d 77 [1974] and the property was recovered as a result of an inventory search. Under the plain view doctrine, an object may be seized without a warrant where the police was lawfully in the position to view the object, the police had lawful access of the object and the object’s incriminating nature was apparent. Therefore, the People had to prove that the officer inadvertently saw the beer.

In the instant case, it was clear that the officer did not inadvertently see the beer bottles. But the People failed to prove that the officer had lawful access to the motor vehicle when he entered the vehicle to seize the beer. There was no evidence that it was urgent to enter the vehicle without a warrant to secure the bottles as the motor was already in police custody. The People have failed to justify the seizure by the officer based on the plain view doctrine and the defendant's motion to suppress the beer bottles recovered from the vehicle was granted.


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May 18, 2014

People v. Blajeski

People v. Blajeski

Court Discusses Whether there was Probable Cause to Suspect the Defendant for Driving While Intoxicated DWI

The defendant was arrested for driving while intoxicated after parking in a drug prone area. The defendant was found drug prone area with in a vehicle with two other males while the engine was running at a curb. The police observed that the defendant had blood shot eyes, slurred speech and his breath smelled of alcohol after he was questioned by the police. The defendant was also found in possession of cocaine and diazepam, a prescription drug after being searched. The Supreme Court suppressed the findings of the search due to lack of probable cause to suspect that he was participating in criminal activity. The People appealed the decision.

The Appellate Division of the Supreme Court held that there was probable cause to suspect that the defendant was engaged in illegal activities because of the observations by the police officer. Since the vehicle was already stopped, the police officer needed only an articulable reason to warrant brief inquiry as to why defendant had stopped at location. The police officer's observation that the defendant had signs of intoxication such as bloodshot eyes, slurred speech and odor of alcohol on his breath, while defendant was in motor vehicle with motor running, gave the officer probable cause to arrest the defendant for violation of Vehicle and Traffic Law. Thus, the drugs seized on the defendant's person were admissible as it was incidental to the defendant's arrest.

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May 14, 2014

People v. Niedzwiecki

People v. Niedzwiecki

Court Discusses Whether a Polish Immigrant Received Clear and Unambiguous Refusal Warning

The defendant was a polish immigrant who was arrested by the police for DWI driving while intoxicated. The defendant was initially stopped by the police after he operated his vehicle without his headlights and was weaving while driving. The defendant was read his Miranda rights in English even though it was evident that he had a strong foreign accent. The defendant was asked to submit to a breathalyzer test and requested the assistance of a Polish “translocator”. The criminal defendant refused to submit to a breathalyzer test and later requested to supress his refusal because the warning was not unequivocal in a language that he could understand.

The defendant who was only in the United States for a year and a half showed a limited knowledge of the English language which he had acquired from studying for three months at high school. The defendant had lived in a Polish community where he was not required to use English. The defendant’s family and friends were also Polish and facilitated his continued use of his native language. Even though the defendant knew little English, when he was confronted with the language of section 1194 of the Vehicle and Traffic Law Language, he was requested the assistance of a translator. The law requires that the request to do a breathalyzer test must be clear and unequivocal language to inform the defendant about his rights and consequences of his refusal. The evidence that the defendant refused to do submit a breathalyzer test can only be admitted into evidence where there was a strict adherence to the guidelines stipulated by section 1194 of the VTL. Section 1194(2) is recited verbatim by using language that is familiar to only members affiliated with the legal profession. Thus, the defendant would not be able to understand the legal ramifications flowing from refusing the breathalyzer test, since he was not proficient in English.

A person will only be deemed to refuse the test where the refusal warning was clear and unequivocal. The actions of the defendant will only constitute a refusal only if he was warned against it as stated in White v. Melton, 60 A.D.2d 1000. Mere silence is not enough to constitute a refusal if the defendant was not told by the officer that the refusal would be introduced into evidence. In the instant case, the officer had realized that there was a language barrier when the defendant was arrested. The police efforts to secure someone from personnel present who could speak Polish did not satisfy their duty to inform the defendant of his rights and consequences of refusal to submit to breathalyzer test, and thus, his refusal was inadmissible on grounds that warnings given him were not clear and unequivocal language required by statute.

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May 12, 2014

People v. Blackman

People v. Blackman

Court Discusses Section 160.50 of the CPL to Determine Whether the Defendant’s Record should be Sealed

The defendant requested to seal her record and to return her prints pursuant to section 160.50 of the Criminal Procedure Law. The defendant was charged with driving while intoxicated DWI and driving while intoxicated in violation of section 1192(3) of the Vehicle and Traffic Law. The defendant was also charged with disorderly conduct, a violation of Section 240.20 of the Penal Law which she pled guilty to with the imposition of a conditional discharge sentence. The defendant asserted that her fingerprints and photograph be returned when both were taken when she was charged for driving while intoxicated since she pled guilty to a non-printable offense of disorderly conduct. The defendant stated that she was entitled to the benefit of section 160.50 of the CPL as the criminal proceeding was terminated in her favor. The defendant relied on the cases of People v. Flores, 393 N.Y.S.2d 664, People v. Miller, 394 N.Y.S.2d 1006, and Dwyer v. Guido, 54 A.D.2d 956, which returned the accused fingerprints, photographs and sealed the records.

The court rejected the decision of the cases which the defendant relied on based on opinions published to interpret the provision after the decision of Flores and Miller. Section 160.50 of the CPL states that upon the termination of a criminal action or proceeding in favor of such a person, the record of the action or proceeding shall be sealed. The interpretation of the phrase in favor of such a person was the crux of the case. The legislature gave circumstances of what was considered in favor of such a person in subdivision 2 of section 160.50 CPL where there was a termination of a criminal action or proceeding against the defendant. The subdivision gave seven instances which did not include pleading to a reduced or lesser charge than what the defendant was initially charged. The case of Dwyer and Flores can be distinguished as the dockets and/or accusatory instruments on which prints and photographs were taken were dismissed and guilty pleas entered on separate non-printable accusatory instruments. Furthermore, the Dwyer case was decided under section 79-e of the Civil Rights Law and did not involve section 160.50 CPL and pre-dated the adoption of section 160.50 CPL. Therefore, the Legislature had not yet defined the phrase in favor of such person and there was room for a court to interpret such phrase and look to the intent of the Legislature. Where the defendant pled guilty to the charge of disorderly conduct, a nonprintable offense, which was added to same accusatory instrument containing original charge of driving while intoxicated
DWAI, a printable offense, it could not be said that proceeding on that accusatory instrument was terminated favorably to the defendant so as to entitle her to return of her fingerprints and photographs and sealing of record.

The legislature explicitly and specifically set forth circumstances under which proceeding could be deemed terminated favorably to the defendant, for purposes of entitling her to return of photographs and fingerprints and sealing of record, there was no longer any room for judicial interpretation or room for the court to seek the intent of the legislature. The court was bound by the legislature's mandate as to meaning of statutory phrase terminated in favor of such person, and if THE legislature was guilty of oversight, it was up to that body to correct it.

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May 12, 2014

People v. Trujillo

People v. Trujillo

Court Discusses Whether the Sentenced Imposed by the Court on a Persistent Offender was Excessive

The defendant was convicted of driving while intoxicated and sentenced to definite term of imprisonment of one year based on his criminal history and probation violation. The defendant had a long criminal history beginning from 1979 where he was charged with assault in the second degree, grand larceny, and leaving the scene of an accident, he was sentenced to period of probation as he was a youthful offender. In 1983 he was convicted of the class “C” felony of attempted criminal sale of a controlled substance in the third degree and sentenced to a sentence of five years of probation to run concurrent with a six-month term of imprisonment. In 1984 he was arrested for driving while intoxicated on three separate occasions but was convicted of one count of driving while intoxicated DWI and one count of driving while impaired. He received a sentence of probation and a fine. The defendant appealed the sentenced imposed of one year imprisonment for driving while intoxicated.

The majority in the Appellate Division of the Supreme Court held that the defendant should be sentenced to five years of probation with special drug and alcohol abuse conditions. The matter was remitted to the Criminal Term to implement the special conditions. The record showed that the defendant was gainfully employed and participated in a program to combat his alcohol abuse. Albeit that the defendant violated his probation by driving while intoxicated immediately after his release from prison, it was in the interest of justice to amend his sentence. It would not have been beneficial to the community or the defendant if he was incarcerated as it would impede his rehabilitation.

The minority was of the Appellate Division believed that the court should not exercise discretion as the defendant had adequate opportunities to rehabilitate himself. The probationary sentence would be meaningless if the defendant were to be given another chance. The defendant started his third probationary period by being arrested for driving while intoxicated as such the defendant should face the consequences for his conduct.


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May 9, 2014

People v Kanhai...cont


The exhibits which the defendant sought to prohibit were business records as the New York Police Department and the New York State Police Crime Laboratory were classified as businesses under the section 4518 (a) of the CPLR. The exhibits related to the field unit inspection tests, were conducted on three different dates, as a routine course of business for the Police Department to evaluate whether the breath testing machines were accurate. The calibration tests were contained in another exhibit which were conducted as a routine course of business to maintain the operability and accuracy of the machine. The records of the breath machines where kept pursuant to the New York State Department of Health Rules and Regulation which stated that the proper and adequate records of methods and procedures, analyses, and results shall be maintained by each agency or criminal laboratory using breath analysis instruments, including but not limited to operational check list, calibration test records, and certifications for standards and ampoules. Therefore, the business documents which the People relied on were kept for regulatory purposes rather than for the purpose of litigation. The tests on machine were to ensure that accurate results were registered when taken as such it was used for administrative purpose or regulatory reasons.

The exhibits were admissible under the business document rule as they were recorded for administrative purpose even though the documents were relied on during litigation. In the People v Foster 27 NY2d 47 52 [1970] the defendant challenged the admission of the speedometer deviation record into evidence to prove the reliability of the speedometer. It was held that the tests were made at regularly scheduled intervals, and were classic examples of records made and kept in the regular the police business of maintaining highway safety. Although the records were later used in litigation, this possible future use did not defeat their admissibility as business records. The main purpose of the exhibits in this case was for police business in maintaining the safety of the highway. As a result, they were not testimonial in nature as the records were not kept for litigation but being used in litigation proceeding was incidental. The proper operation of the breath machine was not only important to an accused charged but also to someone who was pulled over on suspicion of driving while intoxicated.

Therefore, Certified copies of calibration test result records, field unit inspection test reports, and the simulator solution lot analysis by the police department technicians and scientists on the breath analysis instrument used in the defendant's breath alcohol test were admissible against the defendant, charged with driving a motor vehicle while impaired by alcohol DWI, even without an opportunity for the defendant to cross-examine the technicians or scientists who prepared the records. The certified documents at issue satisfied the business records exception to the hearsay rule (CPLR 4518 [c]) since the police department and police laboratory qualified as businesses (CPLR 4518 [a]), the tests were performed prior to the defendant's arrest at regularly scheduled intervals as a routine course of business to maintain the operability and accuracy of the instrument used, and records of the results were required to be maintained under state law. Although Crawford v Washington held that admission of testimonial evidence from a presently unavailable witness whom the accused had no prior opportunity to cross-examine violates the accused's Sixth Amendment right of confrontation, New York's statutory embodiment of the business record hearsay exception survived the decision in Crawford.


May 5, 2014

People v Kanhai

People v Kanhai

Court Discusses Whether Business Records are an Exception to the Hearsay Rule under the Principle of Crawford v Washington

The criminal defendant was arrested and charged for one count of of driving a motor vehicle while impaired by alcohol DWI under section 1192(1) of the Vehicle and Traffic Law. At the defendant’s bench trial, the defendant objected to the use of the exhibits which contained statements of individuals who were not called to testify. The defendant also objected to the use of the certified copies of field inspection reports, and the simulator solution lot analysis by police department technicians and scientists on the breath analysis instrument used in defendant's breath alcohol test. The defendant relied on the Crawford v Washington 542 US 36 [2004], in his objections as the admission of the statements into evidence violated his Sixth Amendment of the United States Constitution. The defendant argued that since he was not permitted to cross-examine the maker of the statements, who were the actual technicians, the documents were impermissible hearsay. According to defendant, the Crawford eliminated that the business records are an exception to the hearsay rule.

In Crawford, it was held that an accused’s right of confrontation was violated when testimonial evidence was admitted without the defendant’s having an opportunity to cross-examine the witness. In Crawford it stated that unless the witness was unavailable at trial, and the defendant had an opportunity to cross-examine the witness otherwise, the statements made out of court were inadmissible. However, there was no definition of the term testimonial evidence. The court re-examined the principle of a business records taking into consideration the Crawford decision. Historically, business records were an exception to the hearsay rule and they were not testimonial in nature. They were looking for DWAI.

The People sought to introduce the exhibits under the business records which was considered as an exception to the hearsay rule under section 4518 (c) the Civil Procedure Law Rules. In New York business records became a part of the exception to hearsay in order to overcome the problems associated with the common law rules which severely hampered proof of many valid claims. Business records were permitted into evidence under section 4518 of the CPLR because it recognized that it would be impractical to produce all persons who were involved in the making of the record and that the records made were routinely in the course of business, thus they could be considered trustworthy. There was no requirement that the maker of the statement was had to be unavailable to admit the statement into evidence on the ground that it was a business record.

To Be Cont....

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May 3, 2014

Reilly v. Hults

Reilly v. Hults

Court Discuses the Revocation of Driver’s License after Refusing to Submit to a Chemical Test
The Motor Vehicle Commissioner appealed the annulment of the revocation of the defendant’s license by the Commissioner after he refused to submit to a chemical blood test to determine the alcohol content of his blood for driving while intoxication DWI. The commissioner appealed to review and annul the findings of the Supreme Court dated October 20, 1961, under article 78 of the Civil Practice Act.

The Appellate Division of the Supreme Court reversed the lower court decision and reinstated the Commissioner’s decision of May 5, 1961 to revoke the defendant’s license. During the hearing of May 5, 1961, the referee disclosed that stricter standards contained in section 71-a of the former Vehicle and Traffic Law where it was found that a person refused to submit to a chemical blood test after being arrested on reasonable grounds that he was driving in an intoxicated state. The operator’s rights at the hearing which the defendant’s license was revoked were not prejudiced by the erroneous references to section 1194 of Vehicle and Traffic Law as to blood tests, where stricter standard contained in the former statute pertaining to refusal to submit to chemical tests following an arrest for driving while intoxicated was the sole standard considered by referee, by all interested parties testifying, and by defendant’s Queen County Criminal Attorney. However, there was a procedural error at the first hearing held on on February 10, 1961 where the defendant and his Queen County Criminal Lawyer were not present. The new hearing on May 5, 1961 gave the defendant full opportunity to be heard, proceeding at prior hearing was irrelevant upon review of subsequent hearing, and the defendant’s cross-motion should have been granted to the extent of striking from answer the paragraphs relating to earlier proceedings. The denial of the defendant’s motion did not prejudice him.

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May 1, 2014

People v. Viano

People v. Viano

Courts Discusses Whether Failure to File a Special Information was Fatal to a Felony Charge of Driving While Intoxicated

The defendant was indicted with driving while intoxicated as a felony, pursuant to Vehicle and Traffic Law § 1192(3). The defendant was previously convicted for driving while intoxicated prior which elevated the charge from a misdemeanor to a felony. However, the prosecution failed to file a special information regarding the defendant’s prior conviction at the same time as the indictment, pursuant to section 200.60 of the Criminal Procedure Law. The trial judge, after the defendant’s Queens County Criminal Attorney objected, granted the request of the prosecution to file the special information prior to the close of the People's case. The defendant was convicted and appealed.

The Appellate Division of the Supreme Court affirmed the conviction after considering the procedural defect. The failure of the prosecution to file the special information which was required based on the defendant’s prior conviction for driving while intoxicated at the same time as a subsequent indictment for that offense was a non-jurisdictional, procedural defect even though there was an elevation from a misdemeanor to a felony. The trial judge exercised his discretion prudently in allowing the prosecution to file the special information regarding a prior driving while intoxicated conviction prior to the close of the People's case in a subsequent driving while intoxicated prosecution.

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April 28, 2014

People v Batista

People v Batista

Court Discusses Whether the Defendant Fulfilled the Requirements for the Judge to give the Jury a Missing Witness Charge Instruction

The defendant was arrested and indicted for driving while intoxicated as a felony DWI, unlicensed operation of a motor vehicle and unlawful possession of marijuana. The charges arose when the defendant drove into a parked car after reversing through an intersection. The accident was witnessed by the owner of damaged car and another person came to call the police. The police officer upon arrival observed that the defendant had bloodshot watery eyes, slurred speech, was unsteady on his feet and had a strong odor of alcohol on his breath. The defendant took a chemical test and registered a .141 blood alcohol content. The defendant also did not have a valid license to operate the motor vehicle and possessed marijuana. A jury convicted the defendant of counts and he appealed. The defendant appealed on the grounds that the court failed to give a missing witness charge and prosecutorial misconduct.

Missing Witness Charge

The Appellate Division of the Supreme Court denied the appeal on this ground because he did not fulfil the three preconditions for the missing witness instruction. The defendant argued that the prosecution only made one witness available for the trial, that is, the complainant. The defendant indicated that there was another person the prosecution could have offered, such as the person who called the police. He further asserted that several other persons could have been called as the neighbors in the community gathered around the defendant’s car so he could not flee the scene. As a result, he contends that he was entitled to a missing witness charge for all the persons who were present after the accident.

According to the People v Savinon, 100 NY2d 192, 196 [2003] the missing witness instruction was to allow a jury to make an unfavorable interference based on a party’s failure to call a witness, who would usually support their version of the events. According to People v Kitching, 78 NY2d 532 where a party asserted that there was an entitlement to a missing witness charge, it must be shown prima facie that the uncalled witness was knowledgeable about a material issue pending in the case, that the witness could be expected to provide testimony favorable to the party who did not called him, and that the witness was available to that party. The opposing party must defeat the request to the missing witness charge by accounting for the witness absence or showing that the charge was not appropriate. The burden of defeating the charge can be met by showing that the witness was not knowledgeable of material facts or that the witness was unavailable. In the instant case the defendant did not show a prima facie entitlement to the missing witness charge. The person who would have been other witness would not have knowledge of the material facts as the complainant was the only person who witnessed the entire accident, while the other persons came after the accident. Additionally, what was witnessed by the other potential witnesses, would have been cumulative to the complainant’s testimony. Further, the defendant did not establish that the witnesses were available or under the control of the People. Both parties had access to the witness who called the police as he was a stranger to both side and was equally available to both sides. Therefore, the defendant was not entitled to the missing witness charge instruction.

Prosecutorial Misconduct

The defendant asserted that there was prosecutorial misconduct after the prosecution questioned the arresting officer about the defendant being silent at the scene of the crime when he was asked questions. The officer testified that the defendant did not answer and was belligerent was he asked him what happened. The DWI defendant requested a mistrial based on the prosecution elicited testimony from the police officer concerning the defendant’s pre-trial silence. The motion was denied and a curative instruction was given to the jury. The court instructed the jury to strike out the evidence of the arresting officer and to consider the evidence as the criminal defendant had a right to remain silent.

The Appellate Division of the Supreme Court denied the defendant’s motion to set aside conviction on this ground it was a harmless error have little or no effect on the jury’s verdict. The defendant had a constitutional right to remain silent at the time of his arrest. However, when the defendant remained silent the officer was merely investigating the scene of the accident as the defendant was not under arrest. The defendant’s inability to answer questions and his aggressive demeanor was evidence of his intoxication. The cases in which the defendant cited were to support the use of silence to impeach his trial testimony but the defendant did not testify. The officer testified about the defendant’s silence and belligerence to show his level of intoxication. Further, the trial judge gave instruction to disregard the evidence as to the officer as the defendant has a right to remain silent. As such, the defendant suffered no harm and there was an overwhelming evidence of guilt at his trial.

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April 26, 2014

People v Bolson

People v Bolson

Court Discusses Whether a Family Member can be classified as a victim within the meaning of Section 390.30 (3) (b) of the CPL

The defendant was convicted of driving while intoxicated but acquitted of manslaughter and vehicular assault. The defendant’s Queens County Criminal Attorney during the sentencing hearing made an objection regarding the inclusion of a victim impact statement in the presentence report by the family of the deceased. It was argued by the defendant’s counsel that report was not necessary because the defendant was acquitted on the charges involving the deceased. It was further contended that the letter was improperly communicated to the court by the deceased family and should not be considered by the court in determining his sentence.

Section 390.30 (3)(b) of the Criminal Procedure Law states that a presentence report must contain a victim impact statement which gives the victim an opportunity to outline their version of the offense. The term victim is not defined in the CPL but it should be construed in its most obvious and natural sense. Victim according to the Merriam-Webster's Collegiate Dictionary means one that is acted on adversely by force or agent. Therefore, the deceased’s family would be considered a victim as they were acted on adversely by the actions of the defendant and as such they had a right to write the letter to the Probation Department to state their version of the accident, how it had impacted their lives and the appropriate punishment. The Probation Department and the court had the discretion to determine what weight should be attached to the comments when considering sentencing. The CPL (390.30(1)) directs the Probation Department the gather information regarding the circumstances of the offense, the defendant’s criminal history and social history. Additionally, the Department may gather any other information that is relevant to sentencing and information that the court orders.

A trial judge in sentencing a convicted person faces a challenge and difficult task. In Williams v New York, 337 US 241 [1949] it was stated that the trial judge can exercise his discretion in sentencing by using sources and types of evidence available to him to assist him in deciding the appropriate sentence. According to United States v Grayson, 438 US 41 [1978] an inquiry into the defendant’s life was essential to arrive at a fair and proper sentence. The court in considering the fair and proper sentence may look at offences which the defendant was not convicted for as stated in Williams v New York. In the instant case, the court was not precluded from hearing evidence regarding the charges he was acquitted of and other evidence whether positive or negative that can assist in arriving at an appropriate sentence.

The defendant’s Queens County DWI Lawyer asserted that driving while intoxicated in this case is a victimless crime and the defendant was not responsible for the death of the deceased. Even though the court was not of the belief that the defendant was responsible for the death of the deceased and the injuries suffered beyond a reasonable doubt due to his intoxication, he could not escape some of the liability. The information supplied by the deceased’s family to determine an appropriate sentence gave the defendant a procedural right to refute any negative evidence which will affect him adversely and to present positive information he wanted the court to consider. As a result, the court considered the victim impact statement and the defendant’s response to the statement to give it the appropriate weight it deemed fit.

The court further held that the CPL 380.50 (2) (a) (2); (b) provided for a limited right for the victim of felonies to address the court at the time of sentencing. Thus, the court was not precludes from considering a letter expressing the views of the victim's family, since the court had the discretion to consider such a communication, the family had the right to communicate its views to the Department, and the prosecutor had an implied right to bring the letter to the attention of the court as enounced in the People v Rivers (262 AD2d 108, 108-109 [1st Dept 1999]). In Rivers the court accepted a letter from the family of a slain police officer even though the defendant was acquitted of the charge involving the police officer’s death.

There was a failure by the prosecution to follow the appropriate procedure to bring to the court. The CPL (Title L) sets out the procedure in communicating the letter to the court regarding sentencing. The purpose of the section was to allow both sides to communicate before the day of sentencing. Therefore, the defendant, however, was not prejudiced in respect of his rights. The defendant had a full and fair opportunity to be heard in opposition. As such, the letter was still included in the presentence report.

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April 25, 2014

Feng v. Tao

Feng v. Tao

Court Discusses Summary Judgment Motion in a Four Chain Car Accident

The plaintiff was involved in a four-car chain car accident while stationary at the red light. The first defendant requested summary judgment as he asserted that he was not liable for the injuries the plaintiff suffered as his motor vehicle which was behind the plaintiff was propelled into the vehicle. The defendant also claimed that the fourth driver was convicted for driving while intoxicated DWI as a result the accident occurred because of his negligence in failing to maintain a proper lookout, failing to maintain a proper speed and failing to keep a safe distance from the vehicle in front. The third driver moved for a cross motion for summary judgment as they were not liable for the accident as the drunken driver struck their vehicle.

The criminal defendant who was driving the last vehicle testified at the hearing that he had limited memory of the incident but he had four bottles of beers before leaving his job. He stated that he struck the third vehicle while driving very slowly. He did not remember whether the vehicle in front of him was stationary or whether there was any other vehicle in front of the vehicle he struck. He was arrested for driving while intoxicated and pled guilty to the charged. The driver of the third vehicle stated that he was at a complete stop because the vehicle in front of him came to gradual stop. The third driver further stated that his vehicle was struck after being stationary for about 5-6 seconds causing him to propel into the second vehicle. The second driver testified that he was behind the plaintiff’s vehicle waiting for the red traffic signal at the intersection ahead of him. After making a complete stop he stated that his vehicle was struck by the third driver after which the fourth driver was arrested.

The second driver relied on a copy of the pleadings; a copy of plaintiff's amended verified bill of particulars; a copy of the police accident report and copies of the transcripts of the examinations before trial of the four drivers involved in the accident for summary judgment. The plaintiff’s Queens County Personal Injury Attorney opposed the motion for summary judgment by the second driver because the moving papers contain no evidence in admissible form to support the motion. Counsel maintains that the deposition transcripts were not signed by the respective parties and as such not in the admissible form. In addition, the plaintiff’s counsel asserted that the third driver’s cross-motion is an improper vehicle for seeking affirmative relief from a non-moving party. The Personal Injury Queens County Attorney of the fourth driver also contended that the deposition transcripts were inadmissible because they were not properly executed in compliance with section 3116 of the Civil Procedure Law Rules. Therefore, there was not sufficient evidence which was admissible to show an entitlement to summary judgment. The counsel for the second driver stated that he was entitled for summary judgment as he lawfully stopped at a red traffic signal when his car was rear-ended by the third vehicle which propelled his vehicle into the plaintiffs' vehicle. The sole proximate cause of the accident was the fourth driver’s negligence when he rear ended the third driver’s motor vehicle because he was intoxicated. Drug possession was not charged.

The movants who requested summary judgment had to show an evidentiary basis for the court to grant summary judgment. Where the movants showed an entitlement to summary judgment then the burden shifted to the opposing party to show why summary judgment should not be granted. The law created a prima facie case for negligence on the part of the driver where there was a rear end collision. Therefore, the driver must prove non-negligent operation. The third driver testified that he was stationary when his motor vehicle was struck by the fourth driver. The second driver also gave the same explanation when he was struck by the third defendant. In multiple-car, chain-reaction accidents the courts have recognized that the operator of a vehicle which has come to a complete stop and is propelled into the vehicle in front of it as a result of being struck from behind is not negligent inasmuch as the operator's actions cannot be said to be the proximate cause of the injuries resulting from the collision. Therefore, the court found that the plaintiff and the fourth driver failed to show triable issues as the intoxicated driver was the proximate cause of the accident.

In addition, the criminal court held that the contentions of the plaintiff and the fourth driver regarding the admissibility of the deposition transcripts were baseless. The transcripts were certified by the court reporter and the respective parties did not raise objections regarding the accuracy. Thus, the transcripts were admissible albeit they were not signed by the parties but they adopted the deposition. Therefore, the second and third vehicles involved in the four-car chain reaction automobile accident were not liable to driver of first car, in personal injury action filed by driver against the owners of the three other cars involved in the accident; owners of the second and third cars both testified that they were completely stopped at a red light when they were rear-ended, and the owner of the fourth car, was the proximate cause of the multi-car accident.

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April 24, 2014

Nassau County Police Form 38

In this Criminal action, at about 3:40 on the morning in October 1989, defendant was involved in an automobile accident on Grand Avenue in Balwin, Nassau County. A Police Officer responded to the scene and approached the defendant's vehicle.

A Nassau County Criminal lawyer said that the Police Officer told the defendant to relax and not move because there was a piece of glass imbedded in his neck. When an ambulance arrived, defendant walked to the ambulance which drove him to the hospital. Defendant testified that he lost consciousness on his way to the hospital. Clearly, however, he was not handcuffed or in any other way restrained.

At the hospital, the defendant was taken to the Emergency Room. The Police Officer who rode with him in the ambulance accompanied him to the Emergency Room and remained with him. The Police Officer testified that there came a point at which he read the defendant the Nassau County Police Form 38 warning as to the consequences of his refusal to submit to a blood test and the defendant indicated that he understood. The defendant wrote "consent" on the form and signed it.

Although the defendant denied reading or having read to him the Form 38, he acknowledged the authenticity of his signature on the document. The signature reflects that the defendant was under some stress and the defendant testified that he would periodically lose consciousness.

After being treated, the defendant was driven to Police Headquarters for processing. At approximately 8:55 A.M. he was asked a series of questions from Police Form 79 by the Desk Sergeant in the Police Officer's presence. The defendant signed at the bottom of the form indicating he had read the answers and they were accurate.

The defendant contends that his consent to a blood test was not voluntary and that the results of the test should be suppressed. His argument rests on the false assumption that he had a right to refuse. Section 1194 (subd. 2(a)) provides that a person who operates a motor vehicle in this state is deemed to have consented to a chemical test of his blood, breath, urine or saliva. The New York Court of Appeals has applied a jurisprudence holding that a defendant has no constitutional right to refuse to submit to a proper request for blood, breath, urine or saliva except as granted by statute. Instructively, the argument that evidence of a refusal should be suppressed where the refusal was not knowing and intelligent has been rejected by the Appellate Division, Second Department, on the grounds that, "This interpretation would lead to the absurd result that the greater the degree of intoxication of an automobile driver, the less the degree of his accountability." This rationale applies equally to consent.

The court notes that there was no issue raised at the hearing as to Officer Swain's probable cause to arrest the defendant for driving while intoxicated. With respect to the statements on the form 79, the defendant was clearly in custody and, as the People concede, the statements cannot be used affirmatively at trial. However, defendant seeks to preclude their use for impeachment, arguing that they were involuntary.

In a case law, the United States Supreme Court held the statements suppressible for Miranda violations could nevertheless be used for impeachment purposes should a defendant testify. However, for statements to be so used, they must be voluntary. While no Miranda warnings were given in this case, there is no evidence that the statements to the desk sergeant were other than voluntary. This DWI rule and its rationale look like a privilege and sound like a privilege, but it is not one of the privileges recognized under New York law.

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April 22, 2014

State of Massachusetts...cont


In a case law, the Supreme Court concluded that the State of Massachusetts had denied the defendant his Sixth Amendment confrontation rights by permitting a certified laboratory report of the analysis of a substance seized from the criminal defendant to be offered into evidence without the necessity of presenting the analyst as a witness. Noting that "there is little reason to believe that confrontation will be useless in testing an analyst's honesty, proficiency, and methodology", the Supreme Court excluded from the reach of the business records rule the product of "regularly conducted business activity the purpose of which is the production of evidence for use at trial" as inherently testimonial. However, the Court also recognized that there exist "business and public records which are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because-having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial-they are not testimonial".

In another case law, the Court of Appeals invoked a dictum that not everyone "whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case" to underscore its conclusion that "merely machine-generated graphs, charts and numerical data" produced without any "conclusions, interpretations or comparisons" involving "subjective analysis" are non-testimonial within the meaning of the case law. Under this formulation, the records at issue herein remain nontestimonial for purposes of the Confrontation Clause.
Concededly, police department personnel responsible for calibrating and maintaining breath test machines are not "independent of law enforcement," and the business records rule may not be employed to shield from scrutiny records "calculated for use essentially in the courts, not in the business". Further, while in New York, "law enforcement agencies constitute businesses for purposes of CPLR 4518a”, business records lose their exemption from the hearsay bar "if the regularly conducted business activity is the production of evidence for use at trial". The test is first whether the documents qualify as business records and then whether they are also non-testimonial in the jurisprudence, whatever the state law definition of business records and the specifics of the foundation rules necessary to admit such records may be. This is in the DUI case.

While the purpose of accurate breath-alcohol measuring machines is to produce evidence that may be used at trial, the calibration and maintenance documents in relation to the machines are not testimonial. Calibration and maintenance records are created "in recognition of their necessity in the event of litigation and constitute a part of the foundational predicate for the admission of BAC test evidence". However, such records do not result from structured police questioning, they are not created in response to any effort at gathering incriminating evidence against a particular accused, they reflect objective facts without discretionary aspect, they do not involve opinions or conclusions relevant to a particular investigation, and they do not constitute "a direct accusation of an essential element of any offense".

Defendant's argument that the blood alcohol test result was inadmissible because the presence of numerous persons moving between the observing police officer, seated 5 to 10 feet from defendant, prevented the officer from maintaining a "continuous observation" of defendant for the 15-minute period prior to the test, is also without merit. Proof of the requisite "continuous observation" is not a predicate condition to admit breathalyzer test results; rather, it "goes only to the weight to be afforded the test result, not its admissibility". Moreover, the observation requirement is not strictly construed."

Neither the statute, the regulations nor the exercise of reason call for [a] constant vigil", and defendant does not claim that during the 15-minute period prior to the test, he placed anything in his mouth or that any other event occurred that implicated the test's accuracy.
In fulfilling our responsibility to conduct an independent review of the weight of the evidence, the Court accorded great deference to the jury's opportunity to view the witnesses, hear the testimony and observe demeanor. "Weight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable. If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions.

Based on the weight of the credible evidence, the court then decides whether the was justified in finding the defendant guilty beyond a reasonable doubt". Upon our review of the record, the Court was satisfied that the verdict was not against the weight of the evidence.

April 20, 2014

State of Massachusetts

In this DWAI case, defendant was convicted of driving while intoxicated per se and speeding. At the trial, a Nassau County police officer testified that he was trained to estimate the speed of a moving vehicle and that, in March 2007 at 4:58 A.M., he observed defendant traveling at about 90 miles per hour on the Long Island Expressway. The officer confirmed that estimate by a laser device and by his speedometer during the subsequent pursuit. The officer stopped defendant and noted that defendant exhibited several indicia of intoxication. Defendant admitted having had "one drink." The officer administered a series of field sobriety tests, all of which defendant failed.

A Nassau County DWI lawyer said that the officer arrested defendant at 5:23 A.M. and transported defendant to the Nassau County Police Department's Central Testing Unit, where defendant again failed a series of sobriety tests and consented to a chemical test of the alcohol content of his blood. The test, conducted at 7:24 A.M. by an Intoxilyzer 5000 EN breath test instrument, produced a reading of .11 per centum by weight.

Defendant sought to introduce expert testimony as to the range of individual variation within the general population from the 2,100:1 "conversion" or "partition" ratio used in the Intoxilyzer 5000 EN to derive the concentration of alcohol in a person's blood from the quantity of alcohol vapor detected in a breath sample.

Defendant did not challenge the instrument's reliability, but sought to lay the foundation for a jury argument that defendant's individual ratio might differ so significantly from the mean as to diminish the evidentiary weight to be accorded the test results. The District Court precluded the evidence, apparently on relevancy grounds.

The scientific accuracy of "breath testing instruments" approved by the New York State Department of Health is "no longer open to question", and the Intoxilyzer 5000 EN is one of those approved instruments. A consequence of the general acceptance in the scientific community of the reliability of the results of blood alcohol testing by such instruments is that it is no longer necessary to establish, through foundational evidence, the reliability of the test results by means of expert testimony. The presumption of reliability extends to the scientific premises underlying the operation of breath test instruments, including the validity of the partition or conversion ratio.

Although the fact, if not the magnitude, of conversion ratio variability is well established, as a general rule, evidence of such variability may not be introduced to challenge the reliability of instruments that determine blood alcohol levels from the analysis of breath samples. In the District Court, defense counsel, conceding that "[n]obody knows what defendant's ratio was," argued, in effect, that the mere theoretical possibility that defendant's personal conversion ratio so differed from the ratio employed by the Intoxilyzer 5000 EN as to meaningfully diminish the weight to be accorded the test results. Therefore, counsel argued, evidence of conversion ratio variability within the population should be admissible without proof of criminal defendant's own conversion ratio.

The Court disagreed.

Absent proof by defendant that his personal conversion ratio differs so significantly from the mean as to materially undermine the weight to be given the test result, it cannot be said that the test so erroneously recorded his blood alcohol content as to render his conviction wrongful. "Evidence, although technically relevant, will be excluded if it is too slight, remote, or conjectural to have a legitimate influence in determining the fact at issue". Thus, the District Court did not abuse its discretion in rejecting defendant's offer of proof which, while involving matters not theoretically irrelevant, was not shown to have probative value above the "slight, remote, or conjectural" and amounted to little more than an invitation to speculate.

To Be Cont....

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April 16, 2014

Pursuant to the foregoing undisputed facts...cont


Pursuant to the foregoing undisputed facts, the plaintiff has cross moved for summary judgment. A party moving or summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue, but once a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action.

Pursuant to the foregoing undisputed facts, the plaintiff has met its prima facie burden of establishing its entitlement to a judgment as a matter of law within the parameters set forth in the Suffolk County Code and the criminal defendant has failed to raise any issues of fact which would warrant the denial of such relief.

However, by way of motion the defendant seeks summary judgment and dismissal of the plaintiff's complaint averring that the forfeiture sought is excessive compared to the offense committed. In support of the motion, the defendant has proffered an appraisal of the subject vehicle, a 1967 Chevrolet Chevelle, which valued the car at $48,000.00. Said appraisal was based solely upon information given by the defendant and does not consider the damage the vehicle sustained at the time the defendant was arrested.

In a case, the Court of Appeals addressed this issue when the defendant therein contented that the forfeiture of her car as a result of a DWI conviction was excessive. "Inasmuch as a punitive forfeiture of an instrumentality of crime `violates the Excessive Fines Clause if it is grossly disproportional to the gravity of the defendant's offense, the Court rejected defendant's claim that the forfeiture of her car constituted an excessive fine.

In determining gross disproportionality, the Court considered such factors as the seriousness of the offense, the severity of the harm caused and of the potential harm had the defendant not been caught, the relative value of the forfeited property and the maximum punishment to which the defendant could have been subject for the crimes charged and the economic circumstances of the defendant

On the facts of this case, the Court concluded that the forfeiture of defendant's car was not at all disproportionate to the gravity of her offense. The offense with which she was originally charged driving while intoxicated is a very serious crime. Grievous harm to innocent victims could have been caused by defendant's driving with a blood alcohol level of .15% while speeding and weaving in and out of lanes, had she not been caught and stopped. Given the gravity of the crime of drunk driving DUI, it is difficult to imagine that forfeiture of an automobile for such crime could ever be excessive."

It is apparent that the facts of the matter at bar are clearly similar to the underlying facts of a case and as such would require the same holding; that is, that the fine of forfeiture is not excessive and a violation of the State and Federal Constitutions as the defendant asserts. Accordingly, his motion for summary judgment and dismissal on such ground is denied.

April 16, 2014

Commissioner of Motor Vehicles ...cont

Through cross-examination at the hearing it became apparent that e-tickets differ in a number of important respects from UTTs. First, with e-tickets there is only one document: the simplified traffic information. Everyone receives a duplicate original of the e-ticket with the arresting officer's electronic signature affixed. Second, the e-ticket is printed in one color. Third, it is one-sided. While in the court's view, it would be advisable for the Commissioner of Motor Vehicles to more specifically delineate regulations regarding the form of electronic tickets as has been done with UTTs, the e-tickets still "conform substantially to a paper ticket"36 and are not a basis for dismissal since on its face the e-ticket "substantially conforms to the requirement therefor prescribed by" the Criminal Procedure Law, Vehicle and Traffic Law and the Commissioner's regulations.

While the simplified informations charging these defendants with DWI are sufficient, it is respectfully suggested that the Legislature and the Commissioner of Motor Vehicles work with dispatch to address some of the concerns raised by this opinion. While the bill recently passed by our State Senate may be a first step in this process, our common-law traditions dictate that further steps should be taken.

Since the Criminal Procedure Law and Vehicle and Traffic Law defer in great measure to the Motor Vehicle Commissioner's rule-making authority, the most expedient changes may be accomplished by amending the rules relating to e-tickets. Specifically, the rules should describe in detail the form of the ticket to make it clear that it is one-sided and in one color. The rules should set forth a type size and location on the e-ticket for notice with regard to how one may appear and answer a ticket as well as sanctions which may be imposed for failure to appear. More importantly, the rules should require that the last act by an officer issuing an e-ticket should be to click on an "I affirm" button on the computer which is preceded on the screen by a form notice which mirrors that on the simplified information that indicates it is "affirmed under penalty of perjury." As Lieutenant Casper candidly admitted at the hearing, there is no reason why the software can't be reprogrammed to accomplish such an affirmation.
While such rule changes may be sufficient where prosecutions are based on simplified informations alone, they may not go far enough in those cases where a supporting deposition is prepared to accompany the e-ticket. In those cases, the court respectfully suggests that the Legislature needs to make a number of amendments to the Criminal Procedure Law and Vehicle and Traffic Law. First, since the more restrictive definition of "electronic signature" was deleted from ESRA solely because of compatibility concerns in commercial applications, that or similar language should be incorporated into a Criminal Procedure Law definition of "electronic signature" to appear in section 1.20.That definition would then define such a signature not only for e-ticket supporting depositions, but could also be used in conjunction with other accusatory instruments and papers filed with the criminal courts. The CPL article defining verification should be amended to refer to the new protections in CPL 1.20 for electronic signatures and then explicitly state that a verifying signature can be signed electronically as long as those safeguards are in place.

Obviously, the most important facet of an electronic signature used in our criminal courts must be the insistence that the electronic signature can be affixed only by a knowing and purposeful act by the person intending to sign the document. That could be accomplished by clicking on a form notice indicating the signer's acknowledgment that "false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law."46 Such an act would be similar to what computer users do when they install a new program on their computers and agree to the terms of the software developer in order to activate the program. Or, the individual could sign a pressure sensitive screen after viewing the document and reading a verification notice or being sworn by a court, notary or desk sergeant. That process would be similar to that undertaken by customers who pay with a credit or debit card at some retail outlets. It would appear that in the latter cases, the person before whom the individual swore to tell the truth would also have to electronically sign the document. It would seem prudent to also add to articles 100, 150 and 170 of the Criminal Procedure Law, as well as section 207 of the Vehicle and Traffic Law which presently does not reference either simplified informations or e-tickets—rather by its terms it covers issuance of a "uniform traffic summons and complaint."

Until the suggested changes to the TRACX protocol regarding the timing of electronic signatures being affixed to supporting depositions are made, prosecutions by electronic ticket using only such signatures on supporting depositions may be seriously flawed. At the very least, in cases such as these wherein a conviction becomes a predicate for a felony prosecution with its attendant potential for civil disabilities (such as the loss of the right to vote), general orders for troopers and arresting officers should require them to send a hard copy of the supporting deposition to the court with a second handwritten signature affixed following the perjury notice and just before or after the electronic signature. While our laws should be flexible enough to account for technological innovations which foster greater accountability, increased information availability and fiscal responsibility, our common-law traditions dictate that a defendant's due process rights deserve at least an equal footing.

Because the supporting depositions filed with the court in each of these cases bear original signatures, the motions to dismiss the DWI charges are denied.

April 14, 2014

Commissioner of Motor Vehicles

In this Criminal action, DWI charges were commenced by filing simplified traffic informations and supporting depositions rather than misdemeanor informations. Under our law as it applies in this case, simplified information is "a written accusation by a police officer filed with a local criminal court, which charges a person with the commission of one or more traffic infractions and/or misdemeanors relating to traffic, and which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges. It serves as a basis for commencement of a criminal action for such traffic offenses, alternative to the charging thereof by a regular information, and, under circumstances prescribed in section 100.25, it may serve, either in whole or in part, as a basis for prosecution of such charges."

If requested, sworn facts will be provided in a supporting deposition from the arresting officer which must "contain allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged."6 Importantly, this deposition must be "subscribed and verified."7 The facts, however, need not be handwritten. Our highest court has sanctioned the use of "fill in the blank" supporting depositions in DUI cases noting that "the factual statements in the deposition are communicated by check marks made in boxes next to the applicable conditions and observations signifying the complainant's allegations as to the existence of those conditions and the truth of those observations."

It is within this legislative and common-law context that, as the millennium approached, several segments of state government began thinking about the opportunities presented by maturing computer technologies. The New York State Police and Department of Motor Vehicles started studying e-tickets and the efficiencies of data entry, transfer and retrieval which they presented.

The advent of the Electronic Signatures and Records Act (ESRA), recognized that Courts had entered a new era in the public and private sectors "relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities," and the rules accompanying the legislation were intended "to be flexible enough to embrace future technologies that comply with ESRA" by giving "governmental entities the greatest latitude to determine the most effective protocols for producing, receiving, accepting, acquiring, recording, filing, transmitting, forwarding and storing electronic signatures and electronic records within the confines of existing statutory and regulatory requirements regarding privacy, confidentiality and records retention." The electronic records encompassed by the statute include "information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities."

Accordingly, the court finds no difficulty in accepting the statutory propositions that "the use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand," and that "[a]n electronic record shall have the same force and effect as those records not produced by electronic means." What troubles the court is that with regard to accusatory instruments certain additional statutory safeguards and procedural protocols may be in order.

During the hearing, it became clear that in early 2001, the New York State Police, the Department of Motor Vehicles (DMV), the Division of Criminal Justice Services (DCJS), the Office of Court Administration (OCA), the State Magistrate's and Court Clerk's Associations among others became involved in a project to explore the possibility of using e-tickets to replace handwritten uniform traffic tickets. After reviewing the concerns and needs of all affected parties, the State Police chose Traffic and Criminal Software (TRACX) to be used for the project and a pilot program was initiated in Warren County in November 2001.Following a successful refinement process there, the DWAI program was made available statewide. TRACX was used by the State Police in both of the cases before this court.

To Be Cont....

April 10, 2014

New York Vehicle and Traffic Law 1192...cont


The Court notes that Section 270-25 defines an offense as a violation of New York Vehicle and Traffic Law 1192, Operating a motor vehicle under the influence of alcohol or drugs, Subdivision 2, 3, or 4, or 1192-a, Operating a motor vehicle after having consumed alcohol; under the age of 21; per se, or a violation of New York Navigation Law 49-a, Operation of a vessel while under the influence of alcohol or drugs.

The criminal defendant man was notified to appear for a post seizure hearing on July 3, 2006. On such date he did not appear with counsel and after inquest the Neutral Magistrate determined that Suffolk County was entitled to retain possession of the vehicle.

Pursuant to the foregoing undisputed facts, the complainant woman has cross moved for summary judgment. A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact.

Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue but once a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action. Pursuant to the foregoing undisputed facts, the complainant woman has met its prima facie burden of establishing its entitlement to a judgment as a matter of law within the parameters set forth in the Suffolk County Code and the defendant man has failed to raise any issues of fact which would warrant the denial of such relief. However, by way of motion the defendant man seeks summary judgment and dismissal of the complainant’s complaint averring that the forfeiture sought is excessive compared to the offense committed. In support of the motion, the defendant has proffered an appraisal of the subject vehicle, a 1967 Chevrolet Chevelle which valued the car at $48,000.00. The said appraisal was based solely upon information given by the defendant and does not consider the damage the vehicle sustained at the time the defendant was arrested.

In a related case, the Court of Appeals addressed the issue when the defendant therein contented that the forfeiture of her car as a result of a DWI conviction was excessive. Inasmuch as a punitive forfeiture of an instrumentality of a crime violates the Excessive Fines Clause if it is grossly disproportional to the gravity of the defendant's offense, the Court of Appeals reject the defendant's claim that the forfeiture of her car constituted an excessive fine. In determining gross dis-proportionality, the Court of Appeals consider such factors as the seriousness of the offense, the severity of the harm caused and of the potential harm had the defendant not been caught, the relative value of the forfeited property and the maximum punishment to which the defendant could have been subject for the crimes charged and the economic circumstances of the defendant.

On the facts of this case, the County Court concludes that the forfeiture of the defendant's car was not at all disproportionate to the gravity of her offense. The offense with which she was originally charged — driving while intoxicated — is a very serious crime. Grievous harm to innocent victims could have been caused by the defendant's driving with a blood alcohol level of .15% while speeding and weaving in and out of lanes, had she not been caught and stopped. Given the gravity of the crime of drunk driving, it is difficult to imagine that forfeiture of an automobile for such crime could ever be excessive.

It is apparent that the facts of the matter at bar are clearly similar to the underlying facts of a related case by the County of Nassau and as such would require the same holding; that is, that the fine of forfeiture is not excessive and a violation of the State and Federal Constitutions as the defendant asserts. Accordingly, his motion for summary judgment and dismissal on such ground is denied.

April 8, 2014

New York Vehicle and Traffic Law 1192

The matter at bar is a civil forfeiture proceeding wherein the complainant woman who is claiming authority also happens to be a Suffolk County Attorney seeking the forfeiture of a 1967 Chevrolet owned by the defendant man.

The defendant man was arrested on June 23, 2006 for driving while intoxicated (DWI). He submitted to a blood test after being transported to the Hospital and it was determined that his blood alcohol level was 19%. Prior thereto, on January 11, 1984, the defendant man was convicted of driving while intoxicated (DWAI) in violation of Vehicle and Traffic Law section 1192.2. The said law prohibits any person to operate a motor vehicle while such person has 0.08 alcohol level in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva. Based upon his arrest and prior conviction, his vehicle was seized pursuant to Article IV Chapter 270 of the Suffolk County Code. On October 26, 2006 he pled guilty to driving while intoxicated (DWI) and was sentenced to sixty days incarceration.

Suffolk County Code provides that any property which constitutes the proceeds of an offense, the substituted proceeds of an offense or an instrumentality of an offense shall be seized by any peace officer, acting pursuant to his or her special duties, or police officer may upon probable cause to believe that an offense, as defined in this article, has been committed, and may be forfeited as hereinafter provided.

The seizing agency shall send notification of the seizure to all titled owners, registrants on file with the New York State Department of Motor Vehicles by certified mail, return receipt requested, within five business days of the seizure. Such notification shall inform the recipient that there will be a hearing promptly scheduled before a neutral Magistrate to determine whether probable cause existed for the defendant man's warrant less arrest, whether the County is likely to succeed on the merits of the forfeiture action, whether retention is necessary to preserve the vehicle from destruction or sale during the pendency of the forfeiture proceeding, and whether any other measures would better protect the County's interest during the proceeding including, but not limited to issuance of a restraining order prohibiting the sale, transfer, or loss of the vehicle with the imposition of appropriated criminal penalties for violation of said restraining order; taking of a bond; and/or use of an interlock device.

When a hearing is held, the neutral Magistrate shall review the documents supporting the arrest and any other relevant documents and take any testimony to determine whether the seizing agency has sustained its burden of proof. If the seizing agency has met its burden of proof, the neutral Magistrate shall authorize the continued retention of the property by the seizing agency pending a judicial determination of any civil forfeiture action. Nothing herein shall be construed to preclude a party with a legal interest in the seized property from commencing an action or proceeding in a court of competent jurisdiction for its return. The Suffolk County Executive shall designate neutral Magistrates to conduct hearings.

To Be Cont...

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April 7, 2014

.395 grams of cocaine beneath the front passenger seat...cont


Here, the evidence adduced at trial distinguishes this case from the cases relied upon by the defendant. In a related case, the criminal defendant, who was concerned about being arrested for the theft of a snowplow blade, led police on a 2½ to 4 mile chase while driving in and out of an oncoming lane of traffic. Ultimately, the defendant drove his van into another vehicle, killing a passenger. Also, there was evidence that the defendant was attempting to evade the other cars inasmuch as he crossed over the double solid line and back numerous times. The Court of Appeals determined that the evidence was legally insufficient to establish depraved indifference murder. Here, by contrast, the record does not suggest that the subject accident was the result of the defendant's attempt to flee from the police, and there was factual proof that the defendant had several opportunities to cease his procession towards oncoming traffic.

Under the facts presented here, the defendant's action of driving his vehicle towards oncoming traffic on the parkway for approximately five miles constituted reckless conduct which carried with it a grave risk of death and evinced a depraved state of mind. The negation of this intent, by extreme intoxication, is not supported by the record. Thus, the court cannot conclude that the evidence of the defendant's guilt of murder in the second degree was legally insufficient to support that conviction. Moreover, upon the independent review, the court is satisfied that the verdict of guilt as to depraved indifference murder was not against the weight of the evidence.
Likewise, the evidence was legally sufficient to establish the defendant's guilt of criminal possession of a weapon in the second degree, and that the verdict of guilt as to that crime was not against the weight of evidence. Contrary to the defendant's contention, the hearing court properly denied that branch of his omnibus motion which was to suppress the physical evidence seized from his vehicle. The evidence adduced at the suppression hearing demonstrated that the search of the defendant's vehicle was authorized as a warrantless search falling within the automobile and emergency exceptions to the warrant requirement. Further, the defendant was not deprived of the effective assistance of counsel, as defense counsel provided meaningful representation. The sentence imposed was not excessive.

April 6, 2014

.395 grams of cocaine beneath the front passenger seat...cont

At around midnight, the defendant man went to a nightclub in Hempstead with his girlfriend, a friend of his girlfriend and another individual. After drinking alcohol at the nightclub, the defendant and the individual left and went to a nearby parking lot. The friend of the girlfriend testified that the defendant did not appear intoxicated at that time. According to the friend of the girlfriend, the defendant stated in the parking lot that he lost his shit, presumably referring to drugs, and the defendant became upset. The criminal defendant went into the trunk of his car and searched for something. The defendant then began arguing with his girlfriend. At approximately 3:15 A.M., several witnesses heard gunshots, but no one reported having seen the defendant fire a gun. The defendant then angrily ordered the friend of his girlfriend to leave with his girlfriend, which she did, driving the defendant's girlfriend home. The defendant and the individual then entered the defendant's vehicle, with the criminal defendant driving. When police officers arrived at the parking lot only minutes later, at about 3:20 A.M., the defendant had left, and the officers recovered several 9-millimeter shell casings in the parking lot.

Thereafter, at approximately 3:30 A.M., the defendant's vehicle was seen traveling west in the eastbound lanes of the Southern State Parkway at a speed of 70 to 75 miles per hour.

According to numerous witnesses, the defendant's vehicle traveled in the wrong direction from about exit 19 to exit 13, a distance of approximately five miles. A witness observed the defendant driving directly at him while changing lanes. That witness had to immediately pull his vehicle onto the shoulder to avoid a collision. This witness saw that the defendant continued driving the wrong way, and the witness observed the other vehicles on the parkway split apart in order to get away from the defendant. The witness testified that the defendant was steadily going, not braking, nothing. He was just going. He was speeding. Meanwhile, another witness, a Police Sergeant was also driving in the proper direction in the left eastbound lane of the parkway. As the Police Sergeant passed exit 14, he observed the defendant's vehicle driving towards him at a very, very high rate of speed, which caused him to violently turn his steering wheel to the right to avoid a collision. The defendant's car came within inches of the Police Sergeant’s vehicle. According to him, the defendant made absolutely no effort to get out of the way. DWAI and DWI are in play here.

Near exit 13, the defendant's vehicle, without ever having slowed down, collided with the victim's vehicle, killing the victim instantly and incinerating the victim's vehicle. When emergency services and police arrived on the scene and attempted to remove the defendant from his damaged vehicle, the defendant was agitated and his breath emitted a strong odor of alcohol. Following the defendant's arrest, a blood sample taken from him at 4:49 A.M., just over an hour after the accident, indicated that his blood alcohol content was 0.19%.

To Be Cont....

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April 3, 2014

Syracuse office of the Department of Motor Vehicles... cont


The question of whether constructive notice should be assessed to the state in the context of this case depends not only on "whether an inquiry would have revealed the fact, but whether, acting as an ordinarily prudent person would have done, the person to be charged was called upon, under the circumstances, to make inquiry".

It was the duty of the employees of the Onondaga program to comply with the criminal procedures which had been established for its operation. Those procedures included built-in safeguards which, in the normal course, would have disclosed the prior conviction. That it was not disclosed was primarily attributable not to any failure on the part of employees of the program but rather in part to the failure of others and in part to the novel circumstances here presented.

This is not to say that the procedural operation was unreasonably defective. While it is suggested that additional procedural steps should have been devised so as to guarantee that no interim license would be improperly issued, judicial inquiry must be limited to the question of whether the approved procedure was reasonably geared to the acceptance of only those qualified for participation. The Court found that it was. The issuing office was required to review the computer abstract of the applicant's driving record which ordinarily would have revealed all prior convictions. The renewal portion of the applicant's license was also to be examined.

Had the Onondaga Town Justice adhered to proper procedure in fulfilling his responsibilities, the employees of the Onondaga program would have been aware of the claimed impediment to the driver’s application..

The procedures adopted for this experimental drivers' program reflect the policy judgment of the state's managerial and executive personnel acting within the province of their professional capacities. The soundness of the established method of operation is beyond review for the reason that such review would constitute a judicial incursion into the immunized area of basic policy decision-making of a coordinate branch of government. DUI is always an issue.

Nor may it be said here that circumstances were such when the driver was granted the interim permit that there was no reasonable view under which it should have been granted. It remains the law that the "risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation". The perceptible risk here was not beyond that contemplated by the Legislature and Executive in authorizing the program. Thus there arose no duty to the claimant which was breached by the issuance of the interim license.

April 2, 2014

Defendant Man cites a case ...cont


In support of the instant cross motion, the Defendant Man cites a case wherein the Court of Appeals found the Nassau County civil forfeiture law unconstitutional for failing to meet the due process requirement for a prompt, post seizure retention hearing before a neutral magistrate after giving adequate notice to all Defendants whose cars had been seized for possible forfeiture. The Nassau County statute did not mandate a hearing but made it available to those who requested it. The subject section of the County Code was amended and enacted providing that the seizing agency shall send notification of the seizure to all titled owners, registrants on file with the New York State Department of Motor Vehicles by certified mail, return receipt requested within five business days of the seizure. It is without dispute that the County provided the notification in a timely manner, afforded the criminal defendant a post seizure hearing and as such, met the due process requirements.

The Defendant Man also submits, in support of the subject cross motion, that the procedure in appointing Judicial Hearing Officers to preside over the post-seizure hearings is in violation of the laws of the State. However, it has consistently been held that the granting of adjudicatory powers in an administrative agency does not encroach upon judicial power and does not otherwise violate the state constitution. Furthermore state constitution specifically provides that nothing in the state constitution shall be construed to preclude a party with a legal interest in the seized property from commencing an action or proceeding in a court of competent jurisdiction for its return. Based upon the foregoing, the Defendant's cross motion for dismissal on such grounds is also denied.

Finally the Defendant seeks dismissal alleging that Chapter 270 of the County Code is unconstitutional because it violates the excessive fines clauses of both the State and Federal Constitutions. In a related case, the Court of Appeals addressed this issue when the Defendant therein contented that the forfeiture of her car as a result of a DWI conviction was excessive. Inasmuch as a punitive forfeiture of an instrumentality of a crime violates the Excessive Fines Clause if it is grossly disproportional to the gravity of the Defendant's offense, the Court reject the Defendant's claim that the forfeiture of her car constituted an excessive fine. In determining gross dis-proportionality, the Court consider such factors as the seriousness of the offense, the severity of the harm caused and of the potential harm had the defendant not been caught, the relative value of the forfeited property and the maximum punishment to which the Defendant could have been subject for the crimes charged and the economic circumstances of the Defendant. On the facts of the case, the Court concludes that the forfeiture of the Defendant's car was not at all disproportionate to the gravity of her offense. The offense with which she was originally charged — driving while intoxicated (DWI) — is a very serious crime. Grievous harm to innocent victims could have been caused by the Defendant's driving with a blood alcohol level of .15% while speeding and weaving in and out of lanes, had she not been caught and stopped. Given the gravity of the crime of drunk driving, it is difficult to imagine that forfeiture of an automobile for such crime could ever be excessive.

It is apparent that the facts of the matter at bar are clearly similar to the underlying facts of a related case and as such would require the same holding; that is, that the fine of forfeiture is not excessive and a violation of the State and Federal Constitutions as the Defendant asserts. Accordingly, his cross motion to dismiss on such ground is also denied. DWAI was an issue.
The Court notes that the lien holder of the subject vehicle, the Car Company Financial Services of America partially opposed the Complainant's motion for summary judgment objecting to the County's assertion that it is liable for any storage fees accumulated from the date of seizure prior to the vehicle being released to it. It is well settled that the Car Company does not, at this time, have a possessory right to the subject vehicle and a such, to obtain its release, it must comply with the requirement that all storage fees must be paid as set forth in the County Code.

April 1, 2014

People served a response to the request...cont


During the pendency of the motion, the People served a response to the request for a bill of particulars. Like the Defendant, they appear to regard a bill of particulars as device for clarifying the pleadings as if it were a discovery device. In opposition to the motion, they assert they are not responsible for filing a supporting deposition but make no argument concerning continued prosecution by simplified traffic information on account of the apparent failure of the court clerk to appreciate the existence of the demand for supporting depositions, the ensuing failure of the court to order that the complainant police officer serve and file supporting depositions, and the inevitable failure on the part of the complainant police officer to comply. Insofar as the People served a response to the request Criminal Defendant seeks an order compelling compliance with her request for a bill of particulars, they urge, in effect, that the application should be denied as moot because they have now responded.

In reply, the Defendant tacitly objects to the People's response to her request for a bill of particulars. She does so by asserting that she remains in need of responses to each of the items she demanded.

Simplified information is a peculiar form of accusatory instrument that is authorized in limited, statutorily specified cases as an alternative to prosecution by long form information. Prosecutions by simplified traffic information are governed by somewhat different standards than those applicable to prosecutions by long form information, the most notable being that pleading requirements are far less factually demanding. But, when a criminal defendant accused by simplified traffic information elects to be put on notice of more factual detail, he or she, upon timely request, is entitled as of right to a supporting deposition, such as a verified statement containing factual allegations augmenting the statements of the accusatory instrument and which support or tend to support the charge. The request for supporting depositions is made, not of the People, but of the court, and, upon a timely request, the court must order the complainant police officer to serve the supporting depositions within 30 days of the court's receipt of the request, and to file with the court the supporting depositions and proof of their service. Failure to timely serve the supporting depositions renders the simplified traffic information for which they were demanded defective and, indeed, divests the court of jurisdiction to proceed with the prosecution by the simplified accusatory documents. And because what is at issue is a defendant's absolute right to timely receive the factual detail provided by timely demanded supporting depositions, court errors in directing that supporting depositions be supplied do not undo that loss of jurisdiction.

It is true that the Criminal Defendant, apparently ignorant of the requirement that the request for supporting depositions be made to the court, did nothing to highlight to the clerk, who opened the envelope in which the then-separate request for a bill of particulars and the demand for supporting depositions arrived, that action by the court was required. It is also true that a defendant who even inadvertently engages is misdirection can be estopped from complaining that a supporting deposition was improperly served. But, even though it appears that she sent the documents to the clerk for mere filing, there is no indication that the Defendant consciously hid the then-separate demand for supporting depositions behind the request for a bill of particulars to which it is now stapled so as to mislead and deceive the clerk. And since the demand is in writing, since it prominently recites the section of the criminal procedure law pursuant to which it was made, and since it was mailed within 30 days of the date the Defendant was first directed to appear in this court, the request for supporting depositions is timely and properly made. The failure to order supporting depositions and the inevitable failure of the complainant police officer to serve them thus render the six simplified traffic information for which the Criminal Defendant requested supporting depositions fatally defective, requiring their dismissal. The second branch of Defendant's motion is denied as without merit.

March 31, 2014

People served a response to the request

The Defendant stands accused, by long form information, of criminal possession of a controlled substance on account of an incident. That charge is designated as count 1. She also stands accused by seven simplified traffic information, each specifying an appearance date of June 29, 2005 and each joined together with the long form information under this docket, of DWI, reckless driving, driving above the posted speed limit, failing to maintain her driving lane, failure to yield to an emergency vehicle, passing a red light, and driving without her headlights illuminated. These incidents are alleged to have occurred at the same time and place, and on the same date, as the alleged Penal Law violation. A D.W.I. supporting deposition and bill of particulars pertaining to the alleged violation of Vehicle and Traffic Law is annexed to the accusatory documents. The Defendant was arraigned on all counts.

The criminal court file does not bear the highlighted notation that, as a general rule, is made by the clerk when a defendant, either at arraignment or thereafter by mail, serves a demand for a supporting deposition. In the court file, however, is a request for a bill of particulars, behind which is stapled a demand for supporting depositions, behind which is stapled, in turn, the envelope, addressed to Clerk, District Court, in which both documents arrived at the court clerk's office. It is apparent that the two documents, although sent in the same envelope, were stapled together after their arrival in the clerk's office, but no cover letter notifying the clerk of the action requested accompanies either of these documents. Each bears the endorsement of the Defendant's attorney of record, and each is noticed, first, to the District Attorney and second, to the Clerk, District Court. Each document is dated July 28, 2005, but only the first page of the requests for a bill of particulars bears the court clerk's time-date stamp. Although not completely legible, the time-date stamp appears to read August 1, 2005, 3:05 p.m. The four-page request for a bill of particulars calls for production of records of analysis of any chemical test administered to the Defendant, specified information about the person who conducted any such test, specified information about any person who interpreted the test to determine the Defendant's blood alcohol content, specified information about the chemicals used during the test, specified information about the machine used to conduct that test, schematic diagrams of any such machine, and other specified information about the conduct of the test. The demand for supporting depositions bears the summons numbers of the simplified traffic information other than that by which the Criminal Defendant is charged with violating Vehicle and Traffic Law. The court has not ordered that the complainant police officer serve and file supporting depositions. Moreover, the People did not timely respond to the Defendant's request for a bill of particulars.

The Defendant moves for the relief noted above. In support, she annexes a copy of the affidavit attesting to service by mail of the demand for supporting depositions and the request for a bill of particulars on the District Attorney, and on the clerk of the court. Insofar as she seeks dismissal of counts 3 through 8, she points to the failure of the People to supply supporting depositions, and urges that as a result of the District Attorney's failure to supply the supporting depositions, the six traffic tickets must be dismissed. Insofar as she seeks an order compelling compliance with the request for bill of particulars, the Criminal Defendant posits that she needs a response in order to prepare for trial, and points out that the People have not refused to comply.


To Be Cont...

March 30, 2014

Syracuse office of the Department of Motor Vehicles... cont

The experimental licensing program here will furnish no basis for the state's liability in the absence of a breach of duty to the claimant supported by proof that the DWAi program was the product of inadequate study or that it lacked any reasonable basis, or that it was improperly operated.

No evidence was offered to challenge the rationality of the criminal program and thus our focus turns to that part of the trial court's determination of negligence relating to its operation. In that connection the court found that the screening process was inadequate to discover the nature of the risk to be assumed in granting an interim permit to the driver. The essence of this contention revolves about the failure of the issuing agency to be aware of his prior conviction for driving while intoxicated a factor which, it is argued, would have disqualified the driver under both the commissioner's operating guidelines and the applicable statutes.

The guidelines provided that no person should be accepted into the program who did not have a valid license or whose license had been revoked prior to the revocation or suspension order constituting the basis for his participation. Such a directive was compatible with the statutory provision that upon a mandatory license revocation, no new license may be issued "for at least six months after such revocation".

Since the license was necessarily was revoked by the Onondaga Town Justice, it is claimed that he was not a qualified participant. In the view taken of this case, it is unnecessary to decide the issue of the eligibility of the driver. The Court noted only that the guidelines permit a contrary interpretation, since he was a properly licensed driver on the date of his arrest in the Town of Cicero and he was not convicted until after the conviction in the Town of Onondaga. Moreover, the authority to have included the Town of Onondaga conviction as part of the "basis for (his) participation" in the program cannot be questioned.

It is charged that the state knew or should have known of the prior conviction by virtue of the arrival of the certificate of conviction at the department's Albany office two days before the issuance of the interim license to the driver.

The Court disagrees.

There is no dispute that the employees of the Onondaga program did not have actual notice of the conviction and in consideration of the complexities of the departmental operation and its consequent reliance upon computerization, we will not premise a finding of notice upon the presence of the certificate on a clerk's desk in Albany.

To BE Cont...

March 30, 2014

.395 grams of cocaine beneath the front passenger seat...cont

After the criminal defendant was removed from his vehicle, the police began conducting an inventory search of the vehicle. The discovery of several 9-millimeter rounds in the trunk, however, transformed the search from inventory to investigatory, during which the police recovered a 9-millimeter semiautomatic pistol, what was later determined to be .395 grams of cocaine beneath the front passenger seat, and 41 rounds of 9-millimeter bullets contained in a partially loaded magazine and a box in the trunk. The gun recovered from the defendant's vehicle matched the shell casings found in the parking lot near the nightclub.

The criminal defendant's contention that the evidence was legally insufficient to support his conviction of murder in the second degree and criminal possession of a weapon in the second degree is unpreserved for appellate review. In any event, viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt of those crimes beyond a reasonable doubt. A person is guilty of depraved indifference murder when, under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.

The court disagree with the dissenting colleague's view that there was no evidence that the defendant deliberately and purposefully proceeded the wrong way down the parkway, in recognition of the grave risk to human life, and with utter disregard for the consequences. Rather, viewing the evidence in the light most favorable to the prosecution, as the court must, the testimony of the witnesses who observed the defendant speeding directly at them on the parkway, causing those witnesses to swerve in order to avoid a collision, demonstrates that the defendant's mental state was one of depraved indifference to human life.

The defendant asserts that his blood alcohol content and intoxication rendered him unable to form the mental state of depraved indifference to human life. To the contrary, the evidence demonstrated that the defendant helped the individual leave the nightclub. In addition, the girlfriend’s friend testified that when the defendant left the nightclub, the defendant looked okay to him, didn't look like intoxicated and that the defendant seemed like he could handle himself. The evidence did not establish that the defendant was too intoxicated to form the culpable mental state necessary to prove depraved indifference. Thus, the record supports a view of the evidence that the defendant was coherent and able to form the requisite mens prior to leaving the parking lot.

To Be Cont...

March 26, 2014

Defendant Man cites a case

The Defendant Man was arrested for driving while intoxicated (DWI). He submitted to a breathalyzer test which determined his blood alcohol level to be .147%. Prior thereto, the Defendant Man was convicted of driving while intoxicated (DWI) in violation of Vehicle and Traffic Law. Based upon his arrest and prior conviction, his vehicle was seized pursuant to the County Code. The Defendant Man subsequently was charged by way of a felony complaint with driving while intoxicated (DWI) and he pled guilty to operating a motor vehicle while under the influence of alcohol as a felony.

The County Code provides that any property which constitutes the proceeds of an offense, the substituted proceeds of an offense or an instrumentality of an offense shall be seized by any peace officer, acting pursuant to his or her special duties, or police officer may upon probable cause to believe that an offense, as defined in this article, has been committed, and may be forfeited as hereinafter provided.

The seizing agency shall send notification of the seizure to all titled owners, registrants on file with the New York State Department of Motor Vehicles by certified mail, return receipt requested, within five business days of the seizure. Such notification shall inform the recipient that there will be a hearing promptly scheduled before a neutral Magistrate to determine whether probable cause existed for the defendant's warrantless arrest, whether the County is likely to succeed on the merits of the forfeiture action, whether retention is necessary to preserve the vehicle from destruction or sale during the pendency of the forfeiture proceeding, and whether any other measures would better protect the County's interest during the proceeding.

The Defendant Man was notified to appear for a post seizure hearing. At his request the hearing was re-scheduled. On such date he appeared with counsel and after the hearing the proffered evidence, the Administrative Hearing Officer determine that the County was entitled to retain possession of the vehicle for DUI.

Pursuant to the foregoing undisputed facts, the Complainant Woman has moved for summary judgment. A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue, but once a prima facie showing has been made, the burden shifts to the criminal party opposing the motion to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action.

Pursuant to the foregoing undisputed facts, the Complainant Woman has met its prima facie burden of establishing its entitlement to a judgment as a matter of law within the parameters set forth in the County Code and the Defendant Man has failed to raise any issues of fact which would warrant the denial of such relief. However, by way of cross motion, the Defendant Man seeks dismissal of the Complainant Woman's complaint on various grounds including that he was denied due process and that chapter 270 of the County Code is unconstitutional.


To Be Cont...

March 23, 2014

Syracuse office of the Department of Motor Vehicles... cont


The driver was convicted in the Town of Cicero for having driven while his ability was impaired by alcohol DUI. In accordance with procedures established by the commissioner, the Cicero Town Justice forwarded the driver’s driver's license and a certificate of conviction to the Syracuse office of the Department of Motor Vehicles, from which the Onondaga program was operated. He did not, however, immediately forward the renewal section of the license, which should have contained a record of previous convictions.


At the time of the Onondaga conviction the town justice neither took possession of driver’s license nor did he note the conviction on the renewal section. In disregard of a departmental directive to mail certificates of conviction to the Syracuse district office the town justice mailed that of the driver to the department's Albany office where it was received on August 27, too late to be reflected on the computer abstract of his driving record which was furnished to the Syracuse office. Thus, when the driver was tentatively approved for the Onondaga DWI program, the district director's office was unaware of the conviction in the Town of Onondaga for which his license was subject to mandatory revocation.

The trial court's assessment of the state's negligence may be divided into two parts, the first of which pertained to purported statutory violations. The court found that the commissioner failed to establish the Onondaga program "by regulation"; failed to consult with and utilize the expertise of the board concerning the operation of the program; and accepted candidates into the program who were not referred by the board. Additionally, the court found that participation by any person who stood convicted of driving while intoxicated was statutorily prohibited.

The trial court was clearly in error in holding that one convicted of driving while intoxicated was automatically ineligible for the Onondaga program. Quite the opposite was true. That the legislative goal was to experiment with only the more serious violators is evident from the statutory requirement that participation was limited to those whose driver's licenses were "subject to either mandatory or permissive suspension or revocation and against whom there is a tentative order of suspension or revocation ". Qualified candidates included those persons who stood convicted under section 1192 of the Vehicle and Traffic Law of driving while intoxicated, DUI, or driving while ability was impaired by the consumption of alcohol.

Any person participating in a program was permitted to retain his driver's license, provided he complied with the program's "attendance (and) other requirements". In approving the legislation, the Governor stated, inter alia: "The bill, by establishing an alternative to license suspensions or revocations, will extend the concept of driver improvement through driver training, and will allow for a comparison between the effectiveness of license suspension or revocation and that of mandatory participation in criminal rehabilitation sessions".

It is apparent that the implementation of any program under such broad statutory authority was fraught with danger. One of the expressed legislative and executive intentions was to permit those whose right to operate a vehicle would otherwise have been withdrawn, to continue to drive upon the public highways with the prospect that the educational programs attendant on that permission would prove a better alternative to those then available. It was by "comparison" that the ultimate determination of "the most effective methods of improving driver skills and attitudes" would be made.

To Be Cont...

March 21, 2014

Vehicle and Traffic Law § 1192(8) ...cont

This history reflects that the Legislature recognized the harsher penalties that had been applied when a person had a prior in-state conviction, as opposed to a prior out-of-state conviction, and intended to remedy that discrepancy. "This bill would eliminate one of the loopholes that allows repeat DWI offenders to face lesser penalties simply because prior convictions occurred out of state". The stated purpose of the amendment was "[t]o ensure that a prior out-of-state conviction for operating a motor vehicle while under the influence of alcohol or drugs shall be deemed to be a prior conviction for the same action as if it had occurred in New York State".

Although the legislative history does not specifically discuss a time limitation, it is significant that the Legislature chose to continue applying the date originally used to allow for consideration of out-of-state criminal convictions. The most sensible interpretation of the enabling language is that the Legislature chose to remedy this differential treatment going forward, by continuing to apply the previous statutory scheme to out-of-state convictions occurring prior to November 1, 2006, and applying the statute as amended to out-of-state convictions occurring after that date. The People's argument that "convictions" in the enabling language refers to current New York convictions is belied by the use of that November 29, 1985 to October 31, 2006 time frame.

In addition, if "convictions occurring on or after November 1, 2006" was meant to refer to current New York convictions, the enabling language establishing the effective date of the statute as November 1, 2006 would be redundant. Treating "convictions" as prior out-of-state convictions also avoids any potential ex post facto problem arising from the People's proposed interpretation of the statute.

The enabling language of the 2006 amendments should be interpreted consistently with the language of the statute itself. The subdivision is entitled "Effect of prior out-of-state conviction" and throughout the subdivision the only references are to prior convictions-when a prior out-of-state conviction will be deemed a prior conviction under New York law. Moreover, use of the prior out-of-state convictions is necessary at the inception of the case, for charging purposes, in order to make the initial determination of whether a defendant can be indicted for misdemeanor or felony DWI. Based upon all of the above considerations, the most reasonable interpretation of the statute and its enabling language is that out-of-state convictions from prior to November 1, 2006 cannot be used to elevate a DWAI offense to a felony.

In light of this disposition, it is not necessary to address defendant's argument concerning whether the conduct underlying his Georgia conviction would have been the equivalent of a misdemeanor under Vehicle and Traffic Law § 1192. In addition, defendant's cross appeal is dismissed, since he was not adversely affected by the Appellate Division order within the meaning of CPL 450.90(1).

Accordingly, on the People's appeal, the order of the Appellate Division should be affirmed. Defendant's DUI appeal should be dismissed upon the ground that the order from which the appeal is taken is not adverse or partially adverse within the meaning of CPL 450.90(1).

March 21, 2014

Intoxilyzer 4011AS...cont


Secondly, in the above-mentioned case the prosecution had consistently provided a qualified chemist to testify to the theory and workings of the breath testing equipment. In the instant case, the prosecution never presented to the Court testimony as to the theory or workings of the Intoxilyzer 4011AS.

Further, in the above-mentioned case, the Criminal Court went on to say that in light of the heavy volume of such cases, proof by expert testimony should not be required to establish the general reliability of the machine. However, the Court stated that the testing of the machine and its various components was not adequate to prove the reasonable accuracy beyond a reasonable doubt. Accordingly, with no other evidence of intoxication or impairment, there would have been insufficient proof to sustain a conviction.

The Court also noted that the police agency took two samples of the defendant's breath, each resulting in the same reading and this duplication of sampling was some evidence supporting the accuracy of the reading. Coincidentally, this mandated that when a breath test is taken, a second sample should also be taken and preserved for future testing by the defendant. However, only one sample was taken in the instant case.

The Criminal Court noted the widespread and successful use of radar in the Armed Services as well as on ships and aircraft and at airports. In addition, the Court emphasized that the question of the reliability of radar speed meters has been passed upon by several lower Courts in New York State. Neither of these factors is currently present.

Of the three local superior court judges who have reviewed the evidence in reference to reliability and admissibility of the Intoxilyzer 4011AS test result, only one has held that it is no longer necessary to produce an expert in an Intoxilyzer 4011AS case. In another related case, an acting County Court Judge found that the Intoxilyzer was reliable. However, he had as a basis the testimony of a qualified expert. Conversely, in another case, neither judge received into evidence the Intoxilyzer 4011AS test results.

Since the readings of .14 are the results of a statutory test, they are admissible and the Vehicle and Traffic Law expressly so provides. Of course, there must be adequate proof that the test was so conducted and the apparatus of such a nature and such operating condition that it produced a reasonably accurate result. Unfortunately, having had no expert testimony presented, the Court in the case at bar is without any record to make its own determination as to the instrument's reliability. Likewise, although this Criminal Court believes the Intoxilyzer 4011AS might be acceptable equipment, there are no statutory or appellate court mandates requiring its test results to be accepted into evidence. Accordingly, the objection of defense counsel to the admissibility of the test result is sustained.

Since the test result is not admissible, the observations of the deputies are the only evidence before the Court. The defendant's driving pattern, breath, flushed face and staggered gait are some proof of alcohol ingestion. Contrariwise, the defendant's polite and courteous demeanor and the lack of other incriminating observations by the deputies tend to exculpate the defendant. The defendant's tremoring hands can be explained as nervousness upon being stopped by a police officer.

Although both deputies stated that they believed that the defendant was intoxicated, upon cross examination neither deputy could articulate what intoxication meant. Nor could either deputy distinguish between an individual being intoxicated and being impaired by the use of alcohol.

Accordingly, the Court finds the criminal defendant not guilty of driving while intoxicated (DWI). However, the Court finds beyond a reasonable doubt that the defendant was guilty of driving his vehicle while impaired by the use of alcohol in that his consumption of alcohol diminished to an appreciable degree his ability to operate his vehicle in a manner like that of an ordinary, prudent and cautious person in full possession of his faculties, using reasonable care under like conditions.

Concomitant with the decision the Court calls upon the Appellate Court and the Legislature of New York to urgently give direction to the trial courts in the important area of testing suspected drunken drivers.

March 20, 2014

Intoxilyzer 4011AS

A Monroe County Sheriff's Deputy observed the criminal defendant's vehicle changing lanes without signaling while traveling northbound on Route 15 in the Town of Brighton. The deputy pulled over and approached the defendant's vehicle. From outside the defendant's car the deputy noticed the defendant's hands were trembling as he looked through his wallet for his driver's license. The deputy smelled the strong odor of an alcoholic beverage on the defendant's breath. The deputy observed the criminal defendant swaying slightly as he exited his vehicle. He also noticed the defendant's face was flushed and he once again observed the odor of an alcoholic beverage. The deputy testified that the defendant was polite and courteous.

The Deputy then radioed for the Sheriff Department's mobile DWI processing van which arrived within 20 minutes. The van operator observed that although the criminal defendant's face was pale, his cheeks were flushed and he swayed when he walked. The van operator then tested the defendant's breath on a CMI Intoxilyzer 4011AS instrument. At this point in the trial defense counsel objected to the introduction into evidence of the test result on the grounds that the People must present expert testimony to establish the reliability of the Intoxilyzer 4011AS.

The court allowed the prosecution to offer proof of the test results but reserved on the objection made by defense counsel. The People presented a very thorough memorandum citing several reasons why expert testimony is not necessary at the time of trial on the reliability of the Intoxilyzer 4011AS. The first ten pages of the memorandum set forth the background and development of the Intoxilyzer 4011AS. In addition, Federal and New York State legislative and administrative recognitions of the reliability of the Intoxilyzer 4011AS were set forth. However, the Court must only consider New York State statutory and administrative authority.

The prosecution maintains that the admission of test results on an Intoxilyzer certified by the Department of Health without the necessity of expert testimony is mandated by the Vehicle and Traffic Law.

The court shall admit evidence of the amount of alcohol or drugs in the criminal defendant's blood as shown by a test administered. However, the court refers only to the qualifications and competence of individuals to conduct and supervise chemical analysis of a person's blood, urine, breath or saliva and does not acknowledge specifically any type of equipment, let alone an Intoxilyzer 4011AS.

If the Legislature had desired that Courts admit evidence ascertained from specific breath testing equipment, the statutes would read accordingly. Since criminal statutes are to be construed strictly, the Court cannot surmise that the results of an Intoxilyzer 4011AS are to be allowed into evidence on anything other than a common law evidentiary basis.
The defense points out that the Intoxilyzer 4011AS does not have a history equivalent to the Breathalyzer test.

In a related case, the District Court of Nassau County took judicial notice of the Court's own records which indicated that the equipment before the Court was consistently used by the Nassau County Police Department. This is not the present situation. In the Brighton Town Court, only the Monroe County Sheriff's Department uses the Intoxilyzer 4011AS. The Brighton Police Department and the New York State Police use the Breathalyzer test. Accordingly, there is no wide acceptance or lengthy history of use of the Intoxilyzer 4011AS by local law enforcement agencies.


To Be Cont...

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March 20, 2014

Syracuse office of the Department of Motor Vehicles

A victim was seriously injured and his wife was killed as a result of a collision near Syracuse in August 1973. An eastbound vehicle operated by a driver, to whom an interim driver's license had been issued two days earlier, crossed into the westbound lane and collided with the oncoming victim’s vehicle, as a consequence of the accident, the driver was convicted of driving while intoxicated (as a felony) and criminal negligent homicide.

A New York Criminal attorney said that it is claimed that the state is responsible for the injuries to the victim and the death of his wife because its agents and employees were negligent in establishing and operating the Onondaga County DWI Counter-Attack Program (Onondaga Program) in violation of the statutory authority for its creation, and were further negligent in issuing the interim driver's license to the driver who, it is said, was not a proper candidate for such a license. The cases were tried in the Court of Claims on the issue of liability only, the parties having stipulated to reserve the issue of damages for later trial in the event liability was found. The trial court determined that the state's agents and employees were negligent; that such negligence was the proximate cause of the injuries to the victim and the death of his wife; and that the claims were not proscribed by the doctrine of sovereign immunity.

The Court reversed and dismissed the claims.

In an effort to improve highway safety, the Legislature in 1968 enacted article 21 of the Vehicle and Traffic Law to provide for the creation, by regulation, of "Experimental Driver Rehabilitation Programs" by the Commissioner of Motor Vehicles. Broad authority was given to the commissioner "to institute studies and experimental programs designed to determine the most effective methods of improving driver skills and attitudes towards DWAI in order to reduce traffic violations and motor vehicle accidents".

The legislation also provided for the appointment by the commissioner of a Driver Rehabilitation Advisory Board, the function of which was to advise the commissioner with respect to the nature and content of educational courses to be offered in conjunction with a program and to establish criteria for the selection of candidates. Participation in a program was restricted to those persons referred by the board.

The board was appointed in 1969 and thereafter, the commissioner established five separate experimental programs; one each to be operated in New York City, Monroe County, Nassau County, Suffolk County, and another for operation in Onondaga, Erie and Westchester Counties. The Onondaga program was a cooperative venture of the Department of Motor Vehicles, Onondaga Community College and the Automobile Club of Syracuse.

To Be Cont...

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March 18, 2014

Vehicle and Traffic Law § 1192(8) ...cont

The subdivision further provides that, if the out-of-state conduct would have been a violation of section 1192 had it occurred instate, but would not have constituted a misdemeanor or a felony dwi, the conduct will be deemed a prior conviction of driving while ability impaired for purposes of determining the appropriate penalties.

The enabling language accompanying the amendment specifies that "[t]he provisions of [Vehicle and Traffic Law § 1192(8) ], as it existed prior to the amendment made by this act, shall apply only to criminal convictions occurring on or after November 29, 1985 through and including October 31, 2006 and provided, further, that the provisions of [Vehicle and Traffic Law § 1192(8) ] as amended by this act shall apply only to convictions occurring on or after November 1, 2006".

The amendment took effect on November 1, 2006.

The dispute centers on the meaning of the term "convictions" in the enabling language-whether it applies to domestic or prior out-of-state convictions. "When presented with a question of statutory interpretation, our primary consideration is to ascertain and give effect to the intention of the Legislature". Although the text itself is generally the best evidence of legislative intent, where "the language is ambiguous, we may examine the statute's legislative history". Here, the enabling language presents such an ambiguity. In order to best understand the 2006 amendments, it is helpful to trace the evolution of this subdivision. The initial version of this DUI provision, Vehicle and Traffic Law § 1192(7), was enacted in 1985 to allow prior out-of-state convictions for driving under the influence of drugs or alcohol to be considered when determining appropriate penalties for subsequent New York offenses. Until that time, prior out-of-state convictions had not been considered for penalty purposes. Under section 1192(7), all such prior out-of-state convictions were treated as traffic infractions, rather than misdemeanors or felonies, regardless of the level of the crime in the other state or the degree of any equivalent violation in New York. The enabling language of the legislation provided that the "act shall take effect on the one hundred twentieth day next succeeding the date on which it shall have become a law and shall apply to out-of-state convictions occurring on or after such date".

Since the statute was enacted August 1, 1985, its effective date was therefore November 29, 1985.When this provision was renumbered from subdivision (7) to Vehicle and Traffic Law § 1192(6) in 1988, the statutory language remained largely the same. However, the bulk of the enabling language was incorporated into the body of the DWAI statute-providing that the subdivision would only be applicable to convictions occurring on or after November 29, 1985. The primary difference in the statutory language was the omission of the term "out-of-state." The subdivision was again renumbered to Vehicle and Traffic Law § 1192(8), where it appears today.

As noted above, the 2006 amendments ended the practice of treating all prior out-of-state convictions as mere traffic infractions under New York law. Rather, for purposes of determining penalties, a prior out-of-state conviction is now treated as a conviction of the equivalent conduct under New York law. In addition, the amendment again moved the date restrictions, this time from the statute to the enabling language.


To Be Cont...

March 14, 2014

Vehicle and Traffic Law § 1192(8)

Defendant was indicted for driving while intoxicated (DWI) as a felony and for obstructing governmental administration in the second degree for acts committed. As the basis for elevating defendant's driving while intoxicated charge to a felony, the People filed a special information charging that defendant had a 1999 conviction for driving with an unlawful alcohol concentration in the state of Georgia, which would have been a violation of Vehicle and Traffic Law § 1192(2) had it occurred in New York.

A New York New York criminal attorney said that defendant moved to dismiss the indictment raising several arguments, including that the date of the Georgia conviction rendered it ineligible to serve as a predicate for elevating the charge to driving while intoxicated as a felony. County Court denied the motion, finding that the legislative intent behind Vehicle and Traffic Law § 1192(8) was to treat prior out-of-state convictions as if they were prior convictions for the same actions occurring in New York State. The same DWAI court denied defendant's motion to suppress the evidence against him and defendant ultimately pleaded guilty to driving while intoxicated as a felony in full satisfaction of the indictment.

The Appellate Division reversed, vacated the plea, dismissed the first count of the indictment for felony driving while intoxicated without prejudice to the People to represent appropriate charges, reinstated the second count of the indictment for obstructing governmental administration and remitted to County Court for further proceedings on that second count. The Court determined that, based on the language of the 2006 amendment to Vehicle and Traffic Law § 1192(8) and its enabling language, convictions occurring prior to the effective date of the statute, including defendant's 1999 Georgia conviction, could not be used to raise a driving while intoxicated (DWI) offense from a misdemeanor to a felony. The Court, however, upheld County Court's suppression ruling. A Judge of this Court granted both parties leave to appeal.

The Court affirmed.

At issue here is the interpretation of Vehicle and Traffic Law § 1192(8), as amended in 2006. The statute reads as follows:

"A prior out-of-state conviction for operating a motor vehicle while under the influence of alcohol or drugs shall be deemed to be a prior conviction of a violation of this section for purposes of determining penalties imposed under this section provided, however, that such conduct, had it occurred in this state, would have constituted a misdemeanor or felony violation of any of the provisions of this section".

To Be Cont....

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March 10, 2014

Buffalo traffic lights ...cont

This is the statutory authority for the establishment of the driver rehabilitation program. A strong question exists as to whether or not the DWI Counter-Attack Program followed its statutory mandate. The Court was unable to find, nor was it directed to any, regulations issued by the commissioner establishing the rehabilitation program. Section 521(1) provided that '(T)he commissioner may establish, By regulation', such program. Thus, a rehabilitation program could only have been legally constituted by regulation. The regulations provided in 15 NYCRR Parts 132 and 133 only apply to driver improvement clinics as established by § 521(2) of the Vehicle and Traffic Law and obviously have no relationship to the regulations required under § 521(1) of the Vehicle and Traffic Law.

In its motion, the defendant also contended that the issuance of the temporary driver's license could not have been a proximate cause of the accident. Certainly, it was not the sole proximate cause of the accident but, in my opinion, it does have a sufficient nexus in time and act to be a proximate cause. Obviously, the accused could have been driving his car on that day without a license. However, the Courts have often said that '(I)t was reasonable to expect that the owner would comply with the provisions of the Vehicle & Traffic Law; and, it is just as possible that accused would not have operated his vehicle on the fateful day if he had not had the temporary license.

The purpose of the program was laudatory but certainly the Legislature did not envision that its safeguards would not be established by the Department of Motor Vehicles; or, that it was establishing an unprotected revolving door program for the reissuance of a license. I find a cause of action to be stated in these pleadings under both of the theories discussed herein. Of course, the fact that I find a cause of action exists at this point is not binding on the trial court. As was stated in a case, '(F)actual issues were presented by the affidavits and other evidence submitted by the parties on the motion which precluded a determination before trial.’
In its motion, the defendant also contended that the Court lacked jurisdiction of the subject matter of the suit. For the same reasons that I found the causes of action to exist, I find that this Court has jurisdiction over the subject matter of this claim.

The Court ruled grants said motion with respect to claimants' request to amend the claim of the victim to reflect the correct date of the accident. With respect to that part of the motion which requests an examination before an employee of the State of New York, it is denied insofar as a specific employee is named for the examination. The State is ordered to provide an individual with knowledge of the operation of the program and approval of accused for participation in the program.

Finally, the claimants have requested discovery and inspection of numerous records and papers of the State of New York and its agencies. This part of the motion is granted in part. The Court directed that all records pertaining to the defendant in the possession of the Department of Motor Vehicles and all records in the possession of the Department of Motor Vehicles pertaining to any and all investigations conducted in regard to his qualifications for the DWAI Counter-Attack Program be produced for utilization on the examination before trial.
Issuance of a driver’s license is not a matter of right; rather, it is a privilege to those who were found to be fit in driving.

March 8, 2014

A valid contract requires a meeting of the minds..cont

The man acknowledged his signature upon a single page affixed to the general DUI release, but asserts that he was never shown the previous page which contains the general release provisions. He further notes that nothing on the signature page indicates the existence of prior pages or that he is releasing the county from liability.

The opponent however maintain that the man was advised to retain his attorney and was given an opportunity to review all the release pages although it concedes that he was not provided with a copy to take home as it is the county attorney's practice to mail the forms sometime thereafter.

The court then adopts the man's recitation of the facts surrounding his signing of the release. The assistant county attorney also testified that many matters are scheduled on her impound calendar and that she is very busy and efficient in her approach to accomplish documents to release a vehicle which she undertakes immediately after the individual hearing.

Based on records, it is more probable than not that the man's attention was not directed to the actual release provisions page. It is conceded that neither the county nor the hearing officer verbally advised the man that he was releasing them from liability.

The county contends that they advice the man to hire an attorney and it is sufficient basis to uphold the general release even if he did not understand it or see all its provisions. Sources revealed that a general release is a contract, arising out of a settlement and it is thus governed by the principles of contract law.

The court then stated that there must be consideration, and the man must have entered the contract voluntarily and with an understanding to the terms of the contract. A valid contract requires a meeting of the minds between the parties, and it applies to the general release. In that instance, the issue was not settled by mutual agreement as the vehicle release was affected solely via administrative determination.

The court also found that the hearing officer's direction to sign a release was consistent with the man's contention that it was a document to release the car not to release the county from liability.

The court also disagrees as the law avers that it is well settled that the meaning and coverage of a general release necessarily depends upon the controversy being settled and upon the purpose for which the release was given. A release may not be read to cover matters which the parties did not intend to cover.

Further, the man contends that his opponent was negligent in its seizure, towing and storage of his impounded motor vehicle. The county however produced no witnesses to disagree with the man's negligence related testimony but avers that it does not know the pre-seizure condition of the vehicle and has no knowledge of what happen to it while in its custody and control.

The DWAI opponent also asserts that the man has not borne his burden of proof to prove the elements of a negligence cause of action. Moreover, they stated that such posture is also unfounded in fact and law.

The man further testified that his vehicle was operational though not optimally operable. The county's agent, its police officer, formally charged the man with operating a motor vehicle on a public highway in an intoxicated condition.

The man's establishment of damages is more difficult but he presented four paid bills. Two are for replacing two engine drive belts ($67.55) which were removed, ($175) for towing from the impound yard and ($20) transportation charge to retrieve the keys for the vehicle which were not sent to the impound yard.

The court awards the man for a total of $262.55. Pursuant with the law, the man also seeks recoupment of damage to the front end utilizing two estimates.

Consequently, the clerk is directed to enter a decision for $948.09 plus costs and interest from the complaint date for the man, as against his opponent. It is noted that the man would have been entitled to recover the towing and storage charges paid to the county, but at that same were not requested in his complaint or at trial.

March 6, 2014

Buffalo traffic lights ...cont

The courts have been reluctant to interfere with the administrative operation of government because they believe it is best to maintain 'the administration of municipal affairs in the hands of state or municipal executive officers as against the incursion of courts and juries'. However, the immunity is not unqualified and liability has been found on occasion for acts performed within the sphere of governmental function. The courts have found DUI liability when they were presented with facts which demonstrated that something more than mere error or negligence transpired; or, when the State has manifested intent to protect a certain class of people.

The most relevant decision to the instant case is the decision wherein the Court decided that the City of Buffalo was not liable for an automobile accident which, according to the claimant, had been caused by an unsafe clearance interval between traffic light changes. The interval had been established for all Buffalo traffic lights after due deliberation by the Board of Safety of the City.

In the opinion of the Court, the facts in the case at bar go beyond negligence or error in the decision making process. If the case merely involved the ordinary decision by the Commissioner, or one of his agents or employees, to grant to revoke a license, The Court dismissed the suit for '(N)o government could function thus hedged in by law suits.' Much more exists herein.

The DWI Counter-Attack Program for Onondaga County was established under Sections 520 through 523 of the Vehicle and Traffic Law. Section 521(1) provided for the establishment of 'Driver rehabilitation programs' and Section 521(2) provided for the establishment of 'Driver improvement clinic programs'. As driver’s license had been suspended by the Town Justice of the Town of Cicero, his contact with the counter-attack program could only progress under Section 521(1) of the Vehicle and Traffic Law. Subdivisions (b) and (d) of Section 521(1) provided for the return of revoked or suspended licenses; or, permitted the retention of license against which there was a tentative order of suspension or revocation.

Under § 522 of the Vehicle and Traffic Law the Commissioner of the Motor Vehicle Department was required to establish a driver rehabilitation board which was charged with the responsibility of developing criteria for the selection of persons to be referred for participation in the driver rehabilitation program. (§ 522(2)(c) and the selection of those persons to be referred § 522(2)(d).)


To Be Cont....

March 5, 2014

New York Public Health Law § 2805-d...cont


This court will not consider the plaintiffs' claims that any of the defendants acted negligently in not administering intra-arterial t-PA. Suffice it to say, it is not disputed that in 2003 that drug was experimental and not approved by the Federal Drug Administration. Accordingly, it was not a generally accepted treatment in the medical community and a doctor's failure to use it simply may not be considered negligent and serve as grounds for a finding of medical malpractice. Not only has this court been unable to unearth a case allowing the failure to employ experimental drugs or procedures to serve as the basis for a finding of negligence, curiously, the cases which have addressed this issue have found, inter alia, issues of fact as to whether the use of experimental drugs or procedures was negligent.

In view of the defendants involvement with plaintiff’s case after the three-hour window for the administration of t-PA expired, their actions or inactions could not have proximately caused plaintiff’s alleged injuries. The complaint against them is dismissed.

The plaintiffs have raised a material issue of fact with respect to the physicians, as well as the hospital's liability for plaintiff’s alleged injuries. There is also an issue of fact as to whether the administration of t-PA was contraindicated by plaintiff’s condition. Both the physicians were involved in plaintiff’s care during the critical three-hour window. There is an issue of fact as to whether the doctor was negligent in her advising the other physician and implementing proper treatment for plaintiff and, whether the hospital was negligent in leaving a resident doctor alone to care for plaintiff, a critically ill young woman, when time was of the essence.

Nevertheless, the doctor’s failure to perform an MRA on December 8, 2003 cannot serve as grounds for negligence as it was not set forth in the plaintiffs' Bills of Particulars. In any event, the conclusions relied upon by the plaintiffs' expert are entirely speculative, i.e., that an MRA would have shown a vertebral artery dissection and treatment thereof could have prevented or mitigated plaintiff’s injuries.

Accordingly, the court held that, upon the foregoing papers, this motion by the criminal defendant for an order pursuant to CPLR 3212 granting him summary judgment dismissing the complaint against him' is granted. This cross-motion by the defendant for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them, is granted. The motion by the defendants, for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them is granted to the extent that the complaint against the defendants is dismissed. This motion by the defendants, for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them, is denied.

March 4, 2014

New York Public Health Law § 2805-d...cont


The court in deciding the case said that, on a motion for summary judgment pursuant to CPLR 3212, the criminal proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference.

The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury.' Thus on a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby.

Pursuant to New York Public Health Law § 2805-d, a cause of action for lack of informed consent is limited to cases involving non-emergency treatment, procedure or surgery or a diagnostic procedure involving an invasion or disruption of the patient's body. Thus, the "plaintiff must allege that the wrong complained of arose out of some affirmative violation of plaintiff’s physical integrity."

If the moving defendant only establishes that he did not commit medical malpractice, in opposing the motion, the plaintiff must establish the existence of a material issue of fact with respect to only that issue. Similarly, if the moving defendant establishes a lack of proximate course, the plaintiff need establish only the existence of a material issue of fact with respect to that issue. However, if the moving defendants establishes both a lack of negligence as well as proximate cause, in opposing the motion, the plaintiff must establish an issue of fact as to both of those issues. "General allegations of medical malpractice which are conclusory in nature and unsupported by competent evidence tending to establish the elements of medical malpractice" do not suffice. The plaintiff’s expert must set forth the medically accepted standards of care and explain how they were departed from. And, the plaintiffs expert must address all of the key facts relied on by the defendant's expert. An expert's affidavit which lacks evidentiary support in the record or is contradicted thereby is not sufficient to raise a triable issue of fact. "An expert may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion. “To establish proximate cause, the plaintiff must present 'sufficient evidence from which a reasonable person might conclude that it was more probable than not that' the defendant's deviation was a substantial factor in causing the injury." The plaintiffs expert need not" 'quantify the extent to which the defendant's act or omission decreased the plaintiff's chance of better outcome or increased the injury, as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiff's chance of a better outcome or increased the injury. However, the defendant may establish a lack of proximate cause if she/he establishes an "intervening act which is extraordinary under the circumstances and not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct which may well be a superseding act which breaks the causal nexus. This was not medicaid fraud.

In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee, and may not be held concurrently liable unless its employees committed independent acts of negligence or the attending physician's orders were contraindicated by normal practice such that ordinary prudence required inquiry into the correctness of the same." Where, however, there is evidence that allegedly negligent medical decisions were made by a hospital's employee, both may be liable. Indeed, a hospital may be held liable for punitive damages when a plaintiff establishes that it failed to have an attending physician with adequate experience to address the serious nature of a critically ill patient's condition evaluate and treat him/her in a timely fashion and for failing to provide proper supervision to the attending resident.

Where a general physician refers a patient to a specialist for treatment of a specific condition and is led to believe that that expert has assumed such care, the general physician is absolved of liability. Finally, "summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting expert opinions. Such credibility issues can only be resolved by a jury." The plaintiffs' claim for lack of informed consent pursuant to Public Health Law § 2805-d(2) is dismissed. The emergent circumstances here preclude such a claim.
The plaintiff's expert criticizes the defendants for diagnosing a drug overdose. She notes that the only way to definitively do that is to determine blood levels which was never done. S/he also notes that her condition waxed and waned and her MRI had visible bilateral changes on the pons, which are not indicative of a drug overdose. The plaintiffs' expert also opines that there was no basis for considering an infection in light of the sudden dramatic onset of symptoms including altered consciousness, extensor posturing and other neurological signs.


To Be Cont...

March 4, 2014

Buffalo traffic lights

The claims on which the instant motions are based developed from an automobile accident, when a car driven by the accused struck a vehicle operated by the victim. His wife was a passenger in the vehicle. She died as a result of injuries received in the accident. The gravamen of both claims is that the State, through its agents, or employees, was at least partially and proximately at fault for the accident because the Motor Vehicle Department negligently and without authorization issued a temporary driver's license to the accused in August 1973 under its experimental DWI Counter-Attack Program in Onondaga County.

A New York DWI lawyer said that after filing the Notices of Claim, Claimant moved for an examination before trial of the District Director of the DWI Counter-Attack Program; for the discovery and inspection of various State documents; and, for permission to correct the date of the occurrence of the accident. The State then filed a cross-motion to dismiss both claims, alleging that they failed to state a cause of action and that the Court lacked jurisdiction over the subject matter.

Both counsel provided the Court with briefs and factual evidence through affidavits. The Court considers and weighs evidence submitted with or in opposition to a motion to dismiss. Courts utilize two standards for deciding motions to dismiss for failure to state a cause of action depending on whether or not extrinsic evidence is offered with the motion. If no evidence is presented, the Court construes the pleading liberally and presumes that the DUI allegations pleaded are true. The sole question is whether the pleading states a cause of action. However, if evidence is offered, as was the case herein, the test used is not whether the pleading states a cause of action but whether a cause of action exists.

As previously stated, the State's motion to dismiss pursuant to CPLR 3211(a), paragraph 2 and 7, asserts that this Court does not have jurisdiction over the subject matter and that the claimant has failed to state a cause of action. The State contends that it cannot be held responsible for the tortious acts of its employees or its agents performing a purely governmental function requiring the exercise of discretion or judgment of a quasi-judicial nature; and, further, that the alleged negligence, if there was any, was not a proximate cause of the accident.

In analyzing the State's potential liability for the acts of its employee or of its agents, the Courts have woven a complex web of decisions. While the Court of Claims Act, Section 8, waived the State's immunity for liability ' in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations', this language has generally been interpreted not to be a complete waiver of immunity. The waiver has been considered complete for 'proprietary' functions. However, the Courts have, in varying degrees, given credence and force to the defense of immunity for causes of actions which arose from the DWI performance of 'governmental' functions. There can be no question that the issuance of a driver's license was the performance of a governmental function and, therefore, that the case does not fall within the category where the State has clearly waived its immunity. Thus, the facts must be carefully scrutinized to ascertain whether they come within or without the perimeters established by law for the State's defense of immunity.


To Be Cont....

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March 2, 2014

New York Public Health Law § 2805-d

A New York Criminal Lawyer said that, in this action, the plaintiffs seek to recover damages for medical malpractice and lack of informed consent. They allege that the defendants were negligent in failing to timely diagnose and treat the plaintiff stroke symptoms as a result of which she suffered a stroke which has left her with permanent "locked-in" syndrome, a condition which renders her unable to speak or to move below the neck. The defendants seek summary judgment dismissing the complaint. They maintain that when they treated her, plaintiff did not present with stroke symptoms which are required before the drugs tissue Plasminogen Activator ("t-PA") can be administered intravenously and that by the time that her stroke was diagnosed, the three-hour window of time in which that drug could have been given expired. In addition, a number of the defendants allege that they had no contact with her until after the three-hour window for the administration of t-PA expired, thus requiring dismissal of the complaint against them. As for their failure to administer the drug t-PA intra-arterially which has a six-hour window for its administration, the defendants maintain that that drugs was experimental and had not been approved by the Federal Drug Administration and accordingly, their failure to administer it cannot serve as grounds for a finding of malpractice.

A New York Drug Crime Lawyer said that, the plaintiffs maintain that the defendants unreasonably delayed in diagnosing her stroke in light of which the time in which both intravenous as well as intra-arterial t-PA could be administered expired with devastating consequences. The plaintiffs also maintain that the hospital, per the defendant failed to establish appropriate protocols and procedures for caring for a patient who presents with possible stroke symptoms and that the hospital also failed to enforce them which contributed to their failure to timely diagnose and treat plaintiff.

A New York DWI Lawyer said that, in their complaint and Verified Bills of Particulars, the plaintiffs fault the defendants for failing to be aware of or recommend that plaintiff discontinue Ephedra; failing to recognize the significance of her heaviness and tingling; failing to refer her to an appropriate specialist; failing to obtain a complete history regarding the onset of her symptoms; failing to appreciate the significance of blood pressure readings and the toxicology report; and, failing to timely diagnose her stroke and to administer t-PA. On their Amended Bill of Particulars, the plaintiffs fault the defendants for not following the doctor’s recommendations, failing to order further diagnostic tests, attributing the plaintiff's condition to a drug overdose and failing to obtain appropriate consults by specialists. The plaintiffs also allege that the doctor failed to diagnose a stroke on the December 12, 2003 MRI/DWI. The plaintiffs also fault the doctor and the hospital for not establishing and/or following appropriate standards and protocols for treating patients with stroke symptoms.
The issue in this case is whether the motion for summary judgment dismissing the complaint should be granted. Arraignment was next.

To Be Cont....

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March 1, 2014

A valid contract requires a meeting of the minds

A man seeks to recover $1,492 from his opponent for damages obtained of his automobile while in their exclusive possession and control. The opponent then interposed an application, seeking dismissal to the complaint upon the sole ground of release of liability.

The matter started when the man was sleeping in his car while parked on the roadside. A county police officer arrested him under suspicion of DWI driving while under the influence of alcohol. The officer subsequently breathalyzed the man on the roadside and on the precinct with a 0.00 reading results.

The officer disputed the sufficiency of the breath samples provided and the accuracy of the

Afterward, the man's driver's license was statutorily revoked and his vehicle was impounded. While not conceded, the county does not challenge the man's assertion that he requested a blood test to confirm he was not drunk, and was refused.

During the man's criminal refusal hearing, the police officer failed to appear and man's license was reinstated. Subsequently, at man's request, a vehicle seizure/return hearing was held.
Sources revealed that the parties could not reach a consent agreement for the vehicle's return as the county insisted that the man install an alcohol ignition disconnect device in the vehicle which the man refused.

After an abbreviated hearing, the hearing officer ordered the county to return the vehicle to the man premised upon a finding of a defective complaint and the county's failure to set forth probable cause for the arrest and impound.

The hearing officer also required the man to pay the county's storage and towing charges. After subsequent prompting by the county’s attorney, the hearing officer also directed the man to sign a release to obtain the impounded vehicle.

Immediately after the hearing, the man signed a signature page for a general release offered to him. The statute of limitations for the county to seek forfeiture of the man's vehicle has expired.

At some point, the man went to the impound lot to retrieve his vehicle. The man alleges that his vehicle was damaged while under their care and no longer was operable.

The man contacted the police department's claims office and was directed to file a detailed claim which was done. After almost eight weeks, the claims department had not forwarded the claim to the risk/management department for an insurance policy review.

The claims department employee in charge of the matter admitted that, despite over a dozen telephone call assurances that the file was being investigated, the issue was not forwarded to the county's risk management department. It was also admitted that the entire claim investigation consisted of only one telephone call to the impound yard.

Based on DUI records, the threshold dispositive factual issue involves the man's contention that he did not actually sign a completed general release of claims form, rather he signed only a signature page which he believed was required to release his vehicle from the impound yard.

To Be cont...

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February 26, 2014

Two Hour Rule in VTL 1194(2)(a)...cont


Consent to taking a test which may lead to unscientific results should not make the test results competent or relevant. Courts should determine that such unscientific evidence is irrelevant and thereby should not be admitted into evidence at trial. Gamesmanship by the police, prosecutors, defense attorneys and even the courts should not override the legislatively mandated rule of two hours from arrest which arguably is based upon some scientific rationale.

A review of the scientific rationale and the legislative history of this section might lead courts to a different, more rational, conclusion. Namely, that stale test results may not be competent evidence, or that bad science makes bad law. New York unlike the federal criminal courts still follows the "Frye" test in dealing with the issue of whether evidence is scientifically reliable. "While foundation evidence concerns itself with the adequacy of the specific procedures used to generate the particular evidence of DUI to be admitted, the test pursuant to poses the more elemental question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally.

The courts routinely accept evidence of the BAC of a person at the time of the test. Additionally, the Breathalyzer test has been in public use since 1954 and has been widely accepted and adopted by law enforcement agencies for use in testing BAC. The BAC test clearly is the most important single piece of evidence from which the condition of the person at the time of the incident will be inferred. The court holds a special duty to ensure that evidence of such a "conclusive" nature is not shown to the trier of fact unless it is certain that the test results are competent evidence. "The longer the delay between the time of the incident and the sample collection, the more difficult it becomes, scientifically, to draw reasonable inferences from one 'data point,' back to the 'driving' time".

This court believes that there is ample scientific evidence that the delay between the time of the arrest and the time the chemical test for DWAI is given might significantly reduce the reliability of the evidence if that time period is too great. Our Legislature determined that as long as the test was given within two hours of the arrest then the results would be competent evidence. If courts extend this time period under the guise that the defendant was not "arrested" for a substantial period of time after a stop or accident and then hold that the Two Hour Rule only applies to cases where the defendant has not consented to take the test, then courts would be receiving evidence that may not have an adequate scientific basis. Hence the chance of prejudicing the defendant might outweigh any probative value of the evidence and therefore should not be admitted into evidence.

The Legislature adopted the Two Hour Rule in VTL 1194(2)(a) to assist prosecutors in prosecuting drunk driving charges by eliminating the requirement of proving the scientific reliability of a BAC test in every prosecution. Therefore, a BAC test taken within two hours from arrest may be relevant evidence on the issue of intoxication at the time of driving. While two hours from the time of arrest may have been an arbitrary rule, it has some scientific rational to sustain it. A more scientifically relevant rule may be to extend the Two Hour Rule to perhaps three hours from the operation of a motor vehicle, but that is not the law. Only the Legislature may change the Two Hour Rule of VTL § 1194(2)(a).

In view of the Court of Appeals decision in Atkins admitting evidence of a BAC test taken after two hours from arrest which was consented to within two hours of arrest, this court will not suppress the BAC test results taken after two hours from arrest at this time. However, since the BAC test was consented to and administered more than two hours from arrest, the People will not be entitled to the statutory presumption of VTL § 1195.1 that BAC tests properly administered pursuant to VTL § 1194 will be admitted into evidence.

Instead, the People must now prove at a hearing by expert testimony the scientific reliability of such BAC test administered more than two hours from arrest. Moreover, the People must also establish by clear and convincing evidence that the defendant who consented to take the test more than two hours from arrest, did so in a voluntary manner.

The VTL mandates that "every person operating a motor vehicle which has been involved in an accident shall, at the request of a police officer, submit to a field breath test" (VTL § 1194.1[b] If the field test indicates that the operator has consumed alcohol then the police may direct that the operator submit to a chemical test pursuant to Vehicle and Traffic Law section 1194.2(a) which provides that: any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test administered by or at the direction of a police officer (1) [who has reasonable grounds to believe that the operator was operating a motor vehicle under the influence of drugs and is given] within two hours after such person has been placed under arrest or (2) within two hours after a field Breathalyzer test.

Accordingly, the court held that, in view of the Court of Appeal's 4-3 split decision in a 1995 case decision, this court upon the application of the People has reconsidered its decision of June 6, 1995 which suppressed the results of a Breathalyzer test, and hereby sets it aside.
Under VTL § 1194.2 and the New York State Department of Health Regulations regarding the administration of blood and Breathalyzer tests it is mandated that the BAC test shall be administered within two hours of arrest.

February 25, 2014

Aetna Ins. Co. v Capasso...cont


Ultimately, pursuant to the termination letter of 27 June 2007, the Contract between the parties was terminated without cause. Contract ¶ 11(a)(i) allows the Contract to be terminated "for any reason by the COUNTY on thirty (30) days notice to the CONTRACTOR."

As the movant, it is NS's burden to establish irreparable harm, likelihood of success on the merits and a balancing of the equities in its favor akin to Aetna Ins. Co. v Capasso, W.T. Grant & Co. v Srogi and Hightower v Reid.

It was held in Peterson v Corbin and Nalitt v City of New York that a preliminary criminal injunctive relief is a drastic remedy which will not be granted unless a clear right thereto is established under the law and the undisputed facts upon the moving papers, and the burden of showing an undisputed right rests upon the movant. In Abinanti v Pascale, Hoeffner v John F. Frank, Inc. and Carman v Congregation De Milta of New York, Inc., it was held that the failure to meet the requisite showing mandates denial of the preliminary injunction motion.

Economic loss which is compensable by money damages does not constitute irreparable harm so as to warrant the granting of a preliminary injunction for DWI.

It is NS’s contention that the improper termination of its Contract with Nassau County threatens to destroy its ongoing business concern which constitutes irreparable harm based on the ruing in Reuschenberg v. Town of Huntington.

However, the court notes that such is not the case where the business is disrupted but not destroyed akin to Newport Tire & Rubber Co., Inc. v. Tire & Battery Corp., Jack Kahn Music Co., Inc. v. Baldwin Piano & Organ Co. and Jackson Dairy, Inc. v H. P. Hood & Sins, Inc.

In the case at bar, the record apply demonstrates that the towing and impound business realized by NS was one of three facets of its business; to wit: towing, general automotive repairs and collision repair. While the Contract with Nassau County has been terminated, that has not impacted NS's remaining on the rotational towing lists of various municipalities from which it derives income. Nor has NS lost any of the other parts of its business.

NS claims in its post-hearing memorandum of law that NS has sustained "incalcuable exponential damages" which is "a minimum of approximately $500,000.00 generated per year in body work as well as there are additional moneys which cannot be specifically calculated from referrals from the very same people that the Plaintiff corporation did body work for since they had their car towed by the Plaintiff.

The court finds that its damages are limited to the period between the first termination letter and 30 days after receipt of the last termination letter, from January to approximately July 2007. Based on its long-standing business relationship and experience with the County, its damages should be calculable, if the Contract was not properly terminated or it is determined that Nassau County had no cause to terminate it. The court notes that NS's loss including lost profits, if any, can be determined, even if by approximation.

The court finds it unclear that the Contract was properly terminated for cause. Many of the complaints which were the subject of the original termination letter of 10 January 2007 occurred prior to the renewal of the Contract on 4 May 2006. Thus, Nassau County may well have waived its right to terminate on known instances of wrongdoing which did not rise to the level of refusal to renew or termination under the second of the three towing and impound agreements which were entered into between the DUI parties.

In choosing to renew the contract with NS, Nassau County waived its right to pursue termination for the pre-renewal breaches as was also held in Inter-Power of New York, Inc. v. Niagra Mohawk Power Corp., Awards.Com, LLC v. Kinko's Inc., and ESPN, Inc. v. Office of the Commissioner of Baseball.

The question as to whether the two termination for cause letters were proper in terms of their service, contents and grounds are valid and enforceable is rendered academic for the purpose of the hearing inasmuch as they have been superceded by a binding termination notice which became effective thirty (30) days from its receipt which is conceded. The court finds that thirty days after receipt of the 27 June 2007 termination letter, the Contract between NS and Nassau County was effectively terminated.

The Court will not address or credit the conspiracy theory offered during the hearing in addressing the merits of NS's position. NS contends that, at least, in part, the determination of the NCPD to terminate NS's towing and impound contract has its genesis in a zoning dispute with the Village of Thomaston where NS's business is located. No credible proof was adduced to establish any link between Nassau County's decision to terminate the Contract and the zoning dispute which caused the Village to sue its own Board of Zoning Appeals over a variance granted to NS. The implication of NS's DWAI conspiracy claim is that the variance was granted to allow it to expand. Such expansion would be unnecessary if the Contract was terminated. Thus, the Village involved itself in causing NS to lose its towing and impound contract with Nassau County to obviate the expansion.

As consequence of the contract termination, the granting or denial of the preliminary injunction will not have any impact on the parties one way or the other.

The credible evidence has not demonstrated that NS is entitled to a preliminary injunction. As a matter of law, the court denies the application.

February 21, 2014

Two Hour Rule of VTL § 1194(2)(a)

A New York DWI Lawyer said that, this court now holds that in this prosecution of Vehicle and Traffic Law ("VTL") section 1192 for operating a motor vehicle while impaired or intoxicated by alcohol, upon objection of the defense, the prosecution must establish, at a hearing by expert testimony, scientific evidence that a Blood Alcohol Content (BAC) test taken more than two hours after the arrest of the defendant is competent, reliable and probative of the fact that the defendant was impaired or intoxicated when he operated a motor vehicle before such results may be admitted as relevant evidence at the trial.

A New York DWAI Lawyer said that, recently, the Court of Appeals allowed a BAC test for drugs to be admitted into evidence when the defendant consented to take the test within two hours of arrest, and where the test was actually administered two hours and twenty-eight minutes after the arrest. More recently the Judge denied a motion to suppress the results of a BAC test administered after two hours, and held that Atkins eliminated the Two Hour Rule when a defendant expressly consents to take the BAC test. However, the Judge stated that it was unclear whether Atkins only applies where the defendant consents to take a BAC test within two hours of arrest. Both Judge and this court believe that the Court of Appeals in Atkins has created more questions than answers to the VTL § 1194 Two Hour Rule. Hence a review of the Two Hour Rule is appropriate to understand and place Atkins in its proper perspective.

The issue in this case is whether court erred in suppressing the results of the Breathalyzer test.
Under VTL § 1194.2 and the New York State Department of Health Regulations regarding the administration of blood and breathalyzer tests it is mandated that the BAC test shall be administered within two hours of arrest. The Two Hour Rule actually benefits the prosecution in that it creates a presumption that the BAC test results are admissible. Absent such a rule the prosecutor would need to establish by expert testimony the scientific relevancy of the test in every drunk driving prosecution. Since the Court of Appeals in Atkins will allow evidence of a BAC test taken more than two hours from arrest to be presented in a trial, the People lose their presumption of the scientific reliability beyond two hours from DUI arrest and must now establish same at a pre-trial hearing.

Prior to the Court of Appeals in Atkins all of the Appellate Divisions and the various trial courts have rendered numerous disparate published decisions regarding the interpretation of the Two Hour Rule. Despite the conflicting views the Court of Appeals in Atkins a 4-3 majority memorandum decision sheds little guidance on the interpretation of the Two Hour Rule. Only the dissent discusses the issues. In affirming the unreported decision of the First Department Appellate Term's affirmance of an unreported New York County Criminal Court decision, the Court of Appeals relied upon.

The trial court held that "the requirements of the Vehicle and Traffic Law § 1194 are not relevant and therefore the test results will only be admissible if obtained with the defendant's consent or pursuant to a court order". The trial court then held that Criminal Procedure Law section 60.75 imposed a "requirement that an individual be separately charged with a violation of before the more lenient requirements of will be applied to the use of the test results on the trial of the Penal Law charges". As a result the trial court only held a hearing on the issue of whether the defendant's consent to the removal of his blood was knowing and voluntary under the circumstances in which it was given.

In short, the case was not about interpreting the proper use of the Two Hour Rule of Vehicle and Traffic Law section 1194. In fact, the trial court never made a finding as to how long after the arrest the chemical test was given to the defendant or if the test was offered or given more than two hours after arrest. The Appellate Division, Third Department has reached opposite conclusions with two different panels, one panel holding the test results not be admissible and another more recent panel, following Mills, supra, held that the People had no duty to prove that it is worth noting that the Court of Appeal's in its recent Atkins decision does not even cite the Mills case nor does it address the conflict within the Departments on the Two Hour Rule.

In order to have some consistency and reliability, evidence should not be admissible, regardless of waiver or consent, if it is not probative, competent or relevant, i.e., scientifically acceptable. The criminal law as developed by the Legislature in Vehicle and Traffic Law section 1194 and in the N.Y.S. Health Department Regulations is that a BAC shall be given two hours from arrest. This standard, albeit an artificial one, should not mean two hours and twenty-eight minutes or two hours and forty-one minutes. Nor should the rule allow the courts to disregard the thirty-nine minutes a defendant sat in a police car after an accident, albeit "voluntarily" before being "arrested" thereby extending the time to two hours and thirty-nine minutes as the Forth Department allowed in It should be noted however, also involved an accident and a death, but the defendant was only convicted of Driving While Intoxicated under the VTL. Again, hard facts make bad law.


To Be Cont...

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February 15, 2014

Defendant was also sentenced for driving while intoxicated ... cont


In the instant matter, it appears that the defendant was sentenced for driving while ability impaired, relating to an incident occurring on October 2, 1988. The defendant's license and/or privileges were suspended due to this conviction. On that same date, the defendant was also sentenced for driving while intoxicated for an incident occurring on April 2, 1989. The defendant's license and/or privileges were revoked due to this conviction. However, prior to the October 2, 1989 imposition of those sentences, on April 17, 1989, the defendant's license and/or privileges were also administratively revoked for his refusal to submit to a chemical test of his breath relative to the incident which had occurred on April 2, 1989, one of the drunk driving incidents for which the defendant was ultimately convicted and sentenced on October 2, 1989.

Based upon this factual scenario, it appears to the court that the particular revocation at issue here should be deemed to be a conviction-related fact. Although the particular revocation did not eventuate as a direct result of the defendant's conviction, it certainly did arise out of an incident for which the defendant was ultimately convicted. Certain distinctions which might validly be drawn between judicial and administrative revocations and/or suspensions are neither apposite nor dispositive here given the particular factual circumstances of this case. Moreover, a defendant's refusal to submit to a chemical test creates an inference and is demonstrative of a consciousness of guilt on the defendant's part. It appears to the court that it is to this type of inherent inferential prejudice that CPL 200.60, as interpreted by the Court of Appeals is addressed.

Based upon the foregoing, the court concludes that the conviction-related facts pertaining to the administrative revocation of the defendant's license should properly have been charged in the special information previously filed herein.

However, in this case, the appropriate remedy for the People's failure to have done so is not a dismissal of either count 2 or the entire indictment. The procedural protection provided by CPL 200.60 is intended to afford a defendant an opportunity outside the trial jury's presence the element that raised his crime in grade. The special information procedure is intended only to afford a defendant the option to keep the trial jury from hearing about earlier convictions and conviction-related facts, an option the Legislature obviously believed promoted a fair trial. Here, the defendant has not yet been arraigned upon the special information in its present form nor has a trial jury been empanelled to consider his case. To permit the amendment of the instant indictment and the special information herein in order to afford the DUI defendant his opportunity to prevent the trial jury from hearing and considering evidence on the factual allegation he finds offensive would not either adversely impact the defendant's trial preparation nor change the theory of the prosecution's case.

In a proper case, there is no infirmity in the prosecutor's later amendment of the special information, transferring from the indictment to the special information all facts to be established through proof of the prior conviction. In this case, amendment and not dismissal is clearly the appropriate remedy.

Finally, there is no basis for dismissing the DWAI indictment herein. As previously determined by the court, the evidence presented to the Grand Jury was legally sufficient to support both counts of the instant indictment. Moreover, the evidence presented to the panel was not so prejudicial as to impair the integrity of either the Grand Jury proceeding or its findings.

Based upon the foregoing, the defendant's application to dismiss the second count of the instant indictment is denied. The People's cross motion to amend the second count of the indictment and further to amend the special information herein, so as to transfer from the indictment to the special information the factual references to the defendant's license having been suspended or revoked on April 17, 1989 based upon his refusal to submit to a chemical test is granted. The defendant's further application to dismiss the entire indictment for want of legally sufficient evidence, based upon the alleged presentation of prejudicial matter to the Grand Jury thereby impairing the integrity of the Grand Jury's proceedings, is in all respects denied.

February 12, 2014

Defendant was also sentenced for driving while intoxicated

The defendant man operated a motor vehicle upon a public highway while knowing or having reason to know that his license or privilege of operating a motor vehicle in this state or his privilege of obtaining a license issued by the commissioner was suspended or revoked, and the suspension or revocation was based upon a refusal to submit to a chemical test pursuant to section eleven hundred ninety-four of the Vehicle and Traffic Law, and the defendant was operating the motor vehicle while under the influence of alcohol or drugs in violation of the Vehicle and Traffic Law.

Essentially, the defendant contends that the above emphasized portion of the second count's factual allegations violates both the letter and spirit of Criminal Procedure Law (CPL 200.60), as interpreted by the Court of Appeals. More specifically, the defendant argues that, by this language, the jury at trial will have knowledge that the Defendant has a prior DWI arrest, in the very least, because of his refusal to submit to a chemical test. This, the defendant argues, is blatantly unfair, unquestionably prejudicial and precisely the evil CPL 200.60 was designed to outlaw. Further, by the defendant's reckoning, the relatively recent Court of Appeals decision is expansive enough to encompass this defendant's alleged refusal to take a chemical test as one of several conviction-related facts. Therefore, the defendant suggests, the People's failure to include the allegedly offending phrase in the special information previously filed herein renders the indictment count legally defective and subject to dismissal. Finally, the defendant argues that presenting evidence of the defendant's alleged refusal to take a chemical test to the Grand Jury at the same time as the panel was considering the other evidence and facts of this case created a prejudice which rendered the entire proceeding defective, thus warranting a dismissal of the second count if not the entire indictment.

The People, through the affirmation of Assistant District Attorney vigorously oppose the defendant's motion. Fundamentally, the People's position is that the special information procedure adopted by CPL 200.60, even as expansively interpreted by the Court of Appeals applies only to a particular defendant's prior convictions and to those circumstances used as enhancing elements which are directly related to or result from the fact of such previous convictions. The People assert that the alleged license revocation at issue here is not conviction related, but rather is a revocation based upon an administrative proceeding involving the Commissioner of Motor Vehicles, which revocation would remain in effect regardless of whether or not the defendant was ultimately convicted. A defendant is not entitled to plead to special information regarding an administrative proceeding. A defendant is only afforded the protection of CPL for DUI conviction related facts and not for administrative ruling not founded upon that conviction. Thus, the People argue, indictment count 2 is not defective; there has been no violation of CPL 200.60.

In the alternative, the People move to amend indictment count 2 and the special information previously filed herein, essentially seeking to move the allegedly offensive factual allegation from the indictment to the special information.

The court has reviewed and considered the defendant's notice of motion and the affirmation in support thereof; the affirmation in opposition and cross motion by Assistant District Attorney; and the defendant's reply affirmation. Based upon that review and consideration, the court finds by its plain terms, section 200.60 of the Criminal Procedure Law establishes a special information procedure to be utilized where the fact that the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter. The Court of Appeals extended the reach of the section to cover those situations where the enhancing element of the higher grade offense is not the prior conviction itself, but rather a fact related to the prior conviction. The Court of Appeals clearly expresses its view that the statute is intended to be protective, by providing a defendant with an opportunity to shield himself from the likelihood of prejudice resulting from a trial jury's knowledge that the defendant is a repeat offender, a likelihood which limiting instructions cannot be relied upon to eliminate. Moreover, the court expressed its further view that, in any given set of factual circumstances, the practical operation of the statute's procedural mandates must give effect to the statute's protective purpose. DWAI could be charged.

To Be Cont...

Continue reading "Defendant was also sentenced for driving while intoxicated" »

February 12, 2014

Pursuant to the foregoing undisputed facts

The matter at bar is a civil forfeiture proceeding wherein the plaintiff/claiming authority, Suffolk County Attorney seeks the forfeiture of a 1967 Chevrolet owned by defendant.

A Nassau County Criminal attorney said that defendant was arrested in June 2006 for driving while intoxicated. He submitted to a blood test after being transported to the hospital and it was determined that his blood alcohol level was 19%. Prior thereto, in January 1984, criminal defendant was convicted of driving while intoxicated in violation of Vehicle and Traffic Law section 1192.2.

Based upon his arrest and prior conviction, his vehicle was seized pursuant to Article IV Chapter 270 of the Suffolk County Code. In October 2006 he pled guilty to driving while intoxicated and was sentenced to sixty days incarceration.

Section 270-26 of the Suffolk County Code provides that any property which constitutes the proceeds of an offense, the substituted proceeds of an offense or an instrumentality of an offense shall be seized by any peace officer, acting pursuant to his or her special duties, or police officer may upon probable cause to believe that an offense DWI, as defined in this article, has been committed, and may be forfeited as hereinafter provided.

The seizing agency shall send notification of the seizure to all titled owners, registrants on file with the New York State Department of Motor Vehicles by certified mail, return receipt requested, within five business days of the seizure. Such notification shall inform the recipient that there will be a hearing promptly scheduled before a neutral Magistrate to determine whether probable cause existed for the defendant's warrant less arrest, whether the County is likely to succeed on the merits of the forfeiture action, whether retention is necessary to preserve the vehicle from destruction or sale during the pendency of the forfeiture proceeding, and whether any other measures would better protect the County's interest during the proceeding.

The Court notes that Section 270-25 defines an offense as "a violation of New York Vehicle and Traffic law 1192, Operating a motor vehicle under the influence of alcohol DUI or drugs, Subdivision 2,3, or 4, or 1192-a. Operating a motor vehicle after having consumed alcohol; under the age of 21; per se, or a violation of New York Navigation Law 49-a, Operation of a vessel while under the influence of alcohol or drugs."

Defendant was notified to appear for a post seizure hearing. On such date he did not appeared with counsel and after inquest the Neutral Magistrate, determine that Suffolk County was entitled to retain possession of the vehicle.

To Be Cont..

February 11, 2014

DCJS' regulation...cont

The State's failure to provide adequate legal guidance to judges making indigency determinations threatens defendant's right to equal protection of the law. Equal protection of law demands that similarly situated persons receive equal treatment under the law. The state denies equal protection "when it treats persons similarly situated differently under the law, and this difference may be created by the grant of a preference as well as by the imposition of a burden. That said, legislative enactments are presumed constitutional unless they imperil exercise of a fundamental right or lack a rational basis:

The State's failure to afford judges any guidance for determining indigency invites chaos. Similarly situated defendants statewide have no assurance their financial circumstances will receive similar treatment because every court enjoys essentially standard less discretion in determining ability to pay. Indeed, courts need not even consider the financial history information the Department obliges defendants seeking a waiver to complete for determining waiver eligibility. Such is a textbook equal protection violation, because the State provides no principled way for apportioning criminal fines among similarly-situated defendants.

We next consider whether the requirement that defendants install an interlock device in every auto they own or operate violates the equal protection clauses of the federal and New York constitutions. Vehicle and Traffic Law § 1193(1)(b)(ii) demands that "the court shall also sentence such person convicted of a violation of subdivision two, two-a or three of section eleven hundred ninety-two of this article to a period of probation or conditional discharge, as a condition of which it shall order such person to install and maintain, in accordance with the DUI provisions of section eleven hundred ninety-eight of this article, an ignition interlock device in any motor vehicle owned or operated by such person during the term of such probation or conditional discharge imposed for such violation of section eleven hundred ninety-two of this article and in no event for less than six months."

Notwithstanding the supplicant posture rational basis scrutiny obliges (discussed above), the Court is skeptical of the all-auto requirement, for reasons the Pennsylvania Court of Common Pleas provided when addressing the same requirement in a Pennsylvania ignition interlock statute. After determining that licensed driving was a privilege (not a right) under Pennsylvania law and submitting the requirement to a rational basis equal protection analysis, the Court dispatched the all-auto requirement: Applying the above analysis to Act 63, we are satisfied that to treat offenders differently based upon the number of vehicles owned by each creates an arbitrary classification which does not bear a fair and substantial relationship to the object of the legislation. Legislation that prohibits a multiple DWI offender from operating a vehicle that is not equipped with an ignition interlock device would be reasonable. Legislation that prohibits the offender from operating a vehicle equipped with the ignition interlock device unless every vehicle the offender owns is also equipped with such a device is neither reasonable nor does it bear a rational relationship to the ultimate goal of limiting the driving privilege of the offender. Likewise, to require the offender to actually own a vehicle that is equipped with the device in order to secure a restricted license bears no reasonable relationship to the object of the legislation.

In sum, the Court holds the defendant cannot be obliged to pay for any ignition interlock device to be installed on any automobile he or she owns or operates. The reason for this is twofold. First, the State has failed to provide adequate notice of the costs related to interlock installation and maintenance. Second, no final, determinate interlock cost list has been properly filed with New York’s Secretary of State, as New York’s constitution requires. If the State seeks to have interlocks installed in defendant's automobile(s), it must find alternative funding sources to do so. Additionally, the Court holds that Part 358.8 of Title 9 NYCRR and Vehicle and Traffic Law § 1198(4) are unconstitutional to the extent that they require the Court to make indigency determinations without a statutory metric for ascertaining indigency. Accordingly, the Court will grant no indigency waivers. Lastly, the Court holds that Vehicle and Traffic Law § 1193(1)(b)(ii)'s requirement that defendant install interlocks in every car he owns or operates is unconstitutionally overbroad and therefore limits the installation requirement to any car a defendant chooses to operate.

Accordingly, the court held that, the Criminal Defendant is sentenced to pay a $500 fine and a $395 surcharge-victim fee. His driver's license is revoked for six months. He is given a conditional discharge to take and complete successfully a Drunk Driving Program authorized by New York State within one year. Moreover, for a six month period, he is prohibited from operating an automobile without an ignition interlock. He has ten (10) business days from today to have an ignition interlock installed in any auto he chooses to drive. He may have a twenty (20) day extension of his license.

February 8, 2014

DCJS' regulation

Because not everyone sentenced to interlocking can afford it, the Department had to contrive a means to pay for interlocking for indigent drivers or, "operators". Rather than having local governments finance them, the Department insisted that the "qualified manufacturers" nominally, at least pay for them: The new law establishes that the court, upon determining financial "unaffordability" to pay the cost of the device, may impose a payment plan with respect to the device or waive the fee. New Vehicle and Traffic law statutory provisions require that where the cost is waived, DCJS through its regulation shall determine who bears the costs of the device or through such other agreement which may be entered into. Accordingly, DCJS' regulation requires qualified manufacturers, and not local governments or taxpayers to bear such costs.

Here, the ambiguity lies in the fact that the State failed to provide constitutionally-required notice of the interlock fine amounts facing DWI convicts, given DCJS can, at its discretion, raise interlock rates. Because the Defendant hasn't been afforded such notice, lenity forbids the Court from ordering him to finance interlock installation and maintenance. Instead, the State must find an alternative funding source for any interlock device the Defendant is required to install and maintain.

Compounding the notice problem is the fact that the "final" price list for interlock services hasn't been filed with New York’s Secretary of State. Instead, the latest filing provides only an estimate of the interlock costs.

Such failure violates New York’s Constitution, which requires that newly-enacted rules be filed with the Secretary of State for effectuation. The publication requirement is simple and obvious: rules and regulations to which citizens are held accountable must be available to them: The Constitution, in the clearest of language, requires that every rule and regulation made by board, bureau, officer, authority or commission except such as relates to the organization or internal management' of such office or agency be filed in the office of the Department of State if it is to be effective. We know that underlying the criminal provision was the desire to have all rules and regulations affecting the public filed in one, easily available, central place. We should not strive to read exceptions into the section or construe it so as to permit the official in charge of the bureau, commission or authority to avoid the necessity of filing by attaching the label order' or statement of policy' or some other term to what is essentially a DWAI rule or regulation. The spirit and design of the constitutional provision are best effectuated by requiring the administrator, if he wishes the rules and regulations of his agency or department to be effective, to file them no matter what label is assigned to them.

That the State has designed the system such that no final cost can be ascertained does not suspend its obligation to publish a statement of those costs, given that it elected to classify them as criminal fines.

The Department might contest the publication requirement related to costs on two grounds, neither of which is persuasive. First, it might argue that the master fee list does not constitute a "rule" per new York State Administrative Procedure Act § 102, which excludes from the publication requirement "any fee which is established through negotiation, written agreement or competitive bidding, including, but not limited to, contracts, leases, charges, permits for space use, prices, royalties or commissions." Accordingly, the Department might contend, the fees needn't be published to be lawful.

But for constitutional notice requirements, this analysis might survive. However, as explained above, due process requires that criminal laws be drafted so as to inform the public of the scope of punishment for those convicted. Failure to notify the public of the master fee schedule is failure to specify the possible fines facing violators of Vehicle and Traffic Law § 1192. Due process requires such publication.

Accordingly, the Department would contend, the ambiguity permitted in this matter concerning reimbursement rates covers should permit a similar gloss in this case, and the publication requirement is satisfied so long as the motoring public has some indication of the interlock costs associated with DWI convictions.


To Be cont...

February 5, 2014

DCJS' regulation

A New York DWI Lawyer said that, this matter is before the Court for sentencing under The Defendant pled guilty to driving while intoxicated pursuant to Vehicle and Traffic Law § 1192(3).

A New York Criminal Lawyer said that, the State enacted Leandra's Law November 18, 2009, roughly one month after the DWI death of 11-year-old girl in New York City. It demands, inter alia, that all first-time, misdemeanor DWI offenders install ignition interlock devices in every automobile they own or operate for at least 6 months. It further requires, barring indigency, that offenders pay for installation and maintenance of the interlocks. However, like so many products rushed to market prematurely, Leandra's Law exhibits numerous defects imperiling its constitutionality.

The issue in this case is whether the Leandra’s Law is constitutional.

The issues to be considered stem primarily from the State's failure to establish determinate ignition interlocking costs. The first is whether the indeterminate nature of the cost of installing and maintaining ignition interlocks invalidates the requirement defendants pay for the devices, given the cost is statutorily classified as a fine and therefore constitutes a criminal punishment. That issue informs a related, New York constitutional concern whether the State violated New York constitutional law by failing properly to promulgate a final interlock cost list. Next, we will examine whether the lack of a statutory metric for determining a defendant's ability to pay for the ignition interlock violates equal protection because it may lead to arbitrary enforcement. Also at issue on equal protection grounds is whether requiring defendants to interlock every auto they own or operate is justifiable.

Section 4(a) of the amended Vehicle and Traffic Law § 1198 requires those convicted finance ignition interlock installation and maintenance unless the sentencing court determines they cannot afford to do so. The DUI law classifies the installation and maintenance costs as a criminal fine. Accordingly, failure to pay for the interlock may prompt imprisonment. Notwithstanding their status as criminal fines, the interlock costs are ultimately indeterminate. This indeterminacy stems from the intentionally open-ended manner by which the State chose to calculate them. The New York Division of Probation and Correctional Alternatives (DPCA) (now known as the Office of Probation and Correctional Alternatives (OPCA), a subdivision of the Division of Criminal Justice Services (DCJS, the Department)) created a regulatory scheme whereby private companies, following an application and approval process, contracted with the State to provide and maintain interlock services. The prices they charge conform to a "maximum fee/charge schedule with respect to all operator's costs associated with such devices".

To be cont..

Continue reading "DCJS' regulation" »

February 2, 2014

Memorandum Decision...cont

Of course for respondent to succeed with this defense, he will have the "burden of demonstrating the identity of issues in the [subsequent civil forfeiture action and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the OATH trial.
Here, the Property Clerk has had a full and fair opportunity to litigate the issue of probable cause for the arrest. After the OATH judge inquired if there were any applications, counsel for the Property Clerk expressly chose not to make any application for a continuance to presumably bring in P.O. on the adjourned date to appear and testify as to what triggered his reasonable suspicion to approach Burnett as he was exiting his parked vehicle. Before being legally saddled with the preclusive effect of a potential issue-determination, fundamental fairness and due process surely underscore the Property Clerk's right to seek judicial review and the same right to an Article 78 DWAI review would apply with equal force to a respondent adversely affected by a Hearing ruling as to any of the three issues which must necessarily be decided therein.

The standard of review in an Article 78 proceeding is whether an administrative tribunal's determination was arbitrary, capricious or an abuse of discretion, was made in violation of a lawful procedure and/or was affected by an error of law. After careful review of the Hearing transcript (annexed to Verified Answer) and documentary evidence, this Court concludes that the OATH decision was neither arbitrary and capricious nor contrary to law. Moreover, the OATH Judge's well-reasoned analysis reflects a fair interpretation and the prescriptive provisions contained in the subsequent January 22nd Order.

When addressing the issue of whether the January 22nd Order, incorporating the holding, solely required the Property Clerk to prove probable cause for an arrest and not reasonable suspicion to stop a perpetrator and search the vehicle prior to an arrest, as Petitioners argue here, the OATH decision astutely noted that the first framed issue pre-supposes that a Criminal Hearing will usually involve a vehicle seized when its driver is being arrested for operating same in violation of law such as driving while intoxicated DWI. Indeed, the class of plaintiffs conspicuously featured in the 2nd Circuit Decision were DUI criminal defendants and/or innocent owners of seized vehicles. Yet, it can never be successfully argued that the seizure of a vehicle as an instrumentality of a crime pursuant to N.Y.C. Adm. Code §14-140, can only lawfully occur when a crime has been committed during the "operation" of the vehicle. Thus, this Court concurs with the OATH decision's conclusion that a judge's "hands should not be tied" by the literal language of these framed issues when addressing a claimant's due process concerns.

Moreover, the OATH judge's inquiry as to the justification for the NYPD's approach to respondent's vehicle appears to be consistent with analysis of the Fourth Amendment's role in civil forfeiture cases: We recognize that the likelihood of illegal seizure is reduced in the context of DWI arrests and that the City's burden in such cases is not onerous. We cannot agree however, that a warrantless arrest is sufficient by itself to ensure the legality of the initial seizure. Some risk of erroneous seizure exists in all cases and in the absence of prompt review by a neutral fact-finder, we are left with grave Fourth Amendment concerns as to the adequacy of the inquiry into probable cause. Our concerns are heightened by the fact that the seizing authority in this case “has a direct pecuniary interest in the outcome of the proceeding.

Finally, because the Property Clerk advised that it was not seeking to retain the vehicle as arrest evidence but was proceeding solely on the basis of forfeiture, the OATH judge never had to resolve the question of whether the January 22nd Order created "an insoluble paradox in cases of vehicles seized solely as arrest evidence." (In any event, the Second Circuit Court of Appeals will be deciding the "arrest evidence" issue imminently.

Accordingly, the Article 78 petition is hereby denied and the stay enjoining the release of the motor vehicle is hereby vacated. The Property Clerk's Office is directed to release the 2000 Lexus to respondent within ten (10) days after issuance of this decision and order. This constitutes the decision and order of this Court. Courtesy copies of this decision and order have been mailed to counsel for the parties.

January 31, 2014

Memorandum Decision...cont

The issue in this case is whether Memorandum Decision issued March 11, 2004 ("OATH decision" as Exhibit 3 to Verified Petition) by respondent is arbitrary, capricious and contrary to law.

Preliminarily, it must be noted that the January 22nd Order at ¶ 7 states, in relevant part: "the decision of the OATH judge will be subject to review in New York State Supreme Court.” As petitioners' counsel correctly noted, "Article 78 criminal proceedings are used to challenge action (or inaction) by agencies and officers of state and local government." So, a party aggrieved by a decision of an administrative tribunal such as OATH generally has legal recourse to seek judicial review of same by means of an Article 78 proceeding. Thus, the district court's use of the term "review" unambiguously supports this avenue of relief for any party adversely affected by a Hearing ruling. Moreover, while a determination of an OATH judge seemingly is an interim order affecting the rights of the parties, pendente lite, it is still a final order issued by an administrative tribunal at the close of a Hearing. And it is precisely the type of action which is properly the subject of judicial review pursuant to CPLR Article 78.

Additionally, this Court finds its consideration of the collateral estoppel issue persuasive in mandating Article 78 review of an OATH decision. Petitioners, in their Memorandum of Law in Support of the Article 78 petition, vigorously argue that an Article 78 proceeding must lie to review an OATH decision; yet, casually, albeit inconsistently, dismiss the notion that an OATH decision has any preclusive effect in any forum (namely, the doctrine of collateral estoppel can never be implicated). The DWI Respondent apparently concurs on this latter point with respect to criminal actions.

In a separate vein and without any legal support, respondent glosses over the potentially preclusive effect an OATH decision could have in a subsequent civil forfeiture action, claiming each party's alleged right to have a de novo determination, inter alia, on the central issue previously determined at a Hearing, viz., probable cause for the DWAI arrest and initial seizure of the vehicle.

However, regardless of their respective positions on this issue, petitioners and respondent overlook the potential collateral estoppel effect on the central issue of probable cause for the arrest and initial seizure. Indubitably, a de novo determination of whether a crime has been committed that warrants forfeiture of seized property will generally occur in a civil forfeiture action after, and regardless of, the disposition of the underlying criminal action.

But, the circumstances underlying the Hearing are factually and legally distinguishable from a civil forfeiture action initiated concurrently with, or subsequent to, a criminal action. In a criminal action, the Property Clerk is neither a party thereto nor a legal representative with any official role or participation in the underlying prosecution. It is the District Attorney's Office which appears on behalf of the People with the requisite burden to prove the commission of a crime beyond a reasonable doubt. Here, the Property Clerk and Burnett were participants at the Hearing before an administrative tribunal and will inevitably share actual identity as parties to a civil forfeiture action initiated pursuant to N.Y.C. Adm. Code §14-140. And unlike the criminal action, the Property Clerk will have the same burden of proving by a preponderance of the credible evidence whether there was probable cause to arrest Burnett and seize his Alcohol filled vehicle as part of its prima facie case to obtain forfeiture of the 2000 Lexus; the identical issue and burden of proof the Property Clerk had to address and bear at the hearing.

Putting the issue of Article 78 review aside for the moment, Burnett and other claimants similarly situated, based upon the manner in which the three-pronged issues were litigated and decided before the OATH judge at the Hearing, could conceivably have the right to plead collateral estoppel as a defense to defeat the civil forfeiture action. This would virtually eliminate the Property Clerk's chances of success. This is so because the issue of probable cause for the arrest and initial seizure of property has to be necessarily decided in the underlying OATH trial regardless of its characterization as a "limited retention hearing" and should be decisive in a civil forfeiture action.


To Be Cont...

January 30, 2014

CPLR Rule 4518,,,CONT

DWI or Driving While Intoxicated foundational documents are not "testimonial." The records are still out of court statements by an absent witness being offered for the truth of the facts asserted in them. They are classic hearsay. In fact, the People recognized as much when they offered the DWI or Driving While Intoxicated documents pursuant to CPLR Rule 4518, New York's business record exception to the hearsay rule. While an easy answer to the question presented would favor admissibility since, as noted earlier, Crawford exempted business records from its definition of testimonial, this should be simplified.

The court notes that the Court of Appeals has consistently recognized that properly authenticated instrument calibration certificates, chemical analysis certificates and weekly test logs prepared by absent witnesses may be admitted in a DWI case pursuant to CPLR Rule 4518(c).

Consistent with the analysis first suggested in Roberts and permitted under Crawford for "non-testimonial" hearsay, the DWI foundational documents can be made available to a fact finder in a criminal case if the judge determines that the documents possess adequate indicia of reliability. Moreover, the reliability of some documents can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In this case, the People have asserted that the criminal DWI documents are business records and that the business records exception is firmly entrenched in our law.

The court finds that the foundational documents at issue here meet all those criteria. First, New York taxpayers need and rely on the labs to make sure that materials purchased with public funds are fit for their intended purpose. Thus, the State has a fiscal interest in making sure the chemicals are properly formulated and that the instruments function appropriately. In addition, the State has a due process interest in assuring itself and the public that the breath testing instruments and chemicals used by law enforcement produce accurate results. Lastly, our courts have held that before results of a breath test may be admitted in a DWI trial, the People must introduce evidence from which the trier of fact could reasonably conclude that the testing device was in proper working order at the time the test was administered to the defendant and that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportion. For all of those reasons, New York State has established routine and periodic testing procedures for both breath test instruments and chemicals.
The fact that reasonable technicians might anticipated that certified copies of the results of their work might be offered into evidence at future trials involving the prosecution of a number of unknown individuals for crimes not yet committed does not mean these documents are inadmissible without their live testimony. Unlike business records created for the sole purpose of litigation which are not true business records and fall outside the hearsay exception, these documents have substantial non-litigation purposes.

In the analogous area of police car speedometer calibrations, our Court of Appeals has held. Of course, records prepared solely for the purpose of litigation should be excluded. However, if there are other business reasons which require the records to be made, they should be admissible. It appears that the speedometer deviation records should be admissible since they were not records made outside of the ordinary course of police department business, solely for the instant litigation. It is generally true that such speedometer tests are made at regularly scheduled intervals, and that the records kept are merely memorials of the fact that the tests were made and what the results were. This is a classic example of making records in the regular course of business; and, it is probably the regular course of police business in maintaining highway safety to make such records at the time of the test. While it is true that such records may later be used in litigation, such was not the sole purpose when they were made, and, therefore, they should not be excluded merely because this was a possible future use. Had proper foundation been laid for admission of the speedometer deviation record as a business entry, it should have been received in evidence as held in people v Foster.

In the Foster case, it was held that in finding admissible "linesheets" created during a wiretap unrelated to the investigation of the defendant trial for assault, the Court of Appeals found they were records made in the ordinary course of police business and they served an important administrative function in the daily conduct of a police surveillance operation. They were required to be made pursuant to a court order; their purpose was to maintain an inventory of the tapes and to safeguard them against tampering; and they were included in the progress reports that were filed regularly with the Judge supervising the wiretap order. Finally, the fact that their preparation was incidental to a police surveillance operation does not make them inadmissible as was held in People v Guidice.

In the case at bar, the People provided a sufficient evidentiary foundation for admission of the documents. Thus they are admissible and the fact finder's focus shifts to the weight to be given them when challenged by a defendant through cross-examination or presentation of proof.

The same cannot be said, however, of the breath test operator's supporting deposition or the "BAC DataMaster State of New York Evidence Ticket", which was printed out by the instrument after the defendant's breath test. Those documents relate directly to this defendant's arrest. They memorialize the breath test that the People offer as circumstantial evidence of the defendant's blood alcohol level at the time he was driving. The deposition was clearly prepared in a formal and solemn manner by a public officer to accuse this specific defendant accusing him of a particular offense. The printout is the hardcopy record of the defendant's breath test. Thus, they are both "testimonial" under Crawford and are inadmissible at trial unless, as occurred here, the breath test operator is present and available for cross-examination by the defendant.

The DWI foundational documents are not "testimonial" under the Confrontation Clause and are admissible as business records in this proceeding.

January 29, 2014

CPLR Rule 4518

The defendant, during his alcohol related driving trial, opposed introduction of the foundational documents customarily offered to validate the admission of the results of a breath test and subsequently objected to the results being admitted due to lack of foundation. The defendant’s basis for the objections was his inability to exercise his constitutional right to confront the witnesses against him as outlined by the Supreme Court in Crawford v. Washington. As this was a bench trial, the court reserved decision and in the interests of judicial economy allowed the evidence to be introduced subject to submission of papers and rendering of this opinion. Following the trial, the court reached a partial verdict on all charges except the per se DWI or Driving While Intoxicated charge.

The court overrules the defendant's objections to the admission of the breath test documents, allows their introduction into evidence and permits the breath test results to be considered by the court as fact finder.

Criminal defendants in New York enjoy co-existing state and federal constitutional rights to confront their accusers. In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him in accordance with the US Constitution, 6th Amendment, NYS Constitution Article 1, § 6. Since 1939, the state's similar constitutional provision has provided that in any trial in any court whatever the party accused shall be confronted with the witnesses against him. This limited right of "confrontation" gave the defendant the opportunity to "reproach" or object to the testimony of a potentially biased witness.

The Crawford majority proclaimed that when assessing the admissibility of what it termed testimonial evidence against an accused the Confrontation Clause commands reliability be assessed in a particular manner, by testing in the crucible of cross-examination. Under Roberts reasoning, on the other hand, reliability of an absent declarant's out-of-court statement could be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. However, the Supreme Court in Crawford found that Roberts’s analysis should not be used when the reliability of "testimonial" hearsay was being considered.
While the sub-set of "testimonial" hearsay will no longer be admitted at trial no matter how reliable it appears unless the defendant has already cross examined the maker of the statement, the court purposefully declined to specifically delineate exactly what the term "testimonial" meant. In doing so, the Crawford majority recognized that such a refusal to articulate a comprehensive definition in this case will cause interim uncertainty. The Court did, however, label a discrete group of four "core testimonial statements" as falling clearly under the Court's rubric of "testimonial" DWI evidence.

The court notes that the term applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. Accordingly, those specific categories of formal and solemn written or recorded statements are inadmissible at trial unless the unavailability of the witness was due to the actions of the defendant.
The Court noted that the text of the Confrontation Clause applies to witnesses against the accused—in other words, those who "bear testimony." "Testimony," in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.

The court notes that not all evidence at trial qualifies as a solemn formal accusation. If, in the "testimonial" context, the phrase "for purposes of establishing or proving some fact" meant "proving any fact", then certainly all nine justices in Crawford would not have exempted "business records" from the definition of "testimonial." Other than the four solemn formal testimonial accusations which form part of the Confrontation Clause's "common nucleus," there was no unanimity regarding how far from the center "testimonial" radiates or even what formula should be employed to define its outer boundary.

While the DWI Court recognized several analytical models, it is important to remember that the Court did not endorse any one of them. Instead, the Court observed that all three frameworks represented "levels of abstraction around” the "core class of testimonial statements." While all of those formulations would include the hearsay the Court placed at the Confrontation Clause's epicenter, aspects of two of the approaches arguably fall outside the "testimonial" circumference and appear antithetical to the Crawford Court's quest for constitutional consistency. Moreover, if used in isolation, they would create chaos.

Crawford's brief suggested that the standard should not only encompass ex parte in-court testimony or its functional equivalent but also cover similar pretrial statements that declarants would reasonably expect to be used in prosecution. The alternative floated by the National Association of Criminal Defense Lawyers in its amicus brief would include all statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

TO BE CONT...

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January 27, 2014

Memorandum Decision

A New York Criminal Lawyer said that, petitioners, Property Clerk of the Police Department of the City of New York and the New York City Police Department commenced this Article 78 proceeding by order to show cause seeking to annul as arbitrary, capricious and contrary to law a Memorandum Decision issued March 11, 2004 ("OATH decision" as Exhibit 3 to Verified Petition) by respondent, New York City Office of Administrative Trials and Hearings ("OATH"), wherein an Administrative Law Judge directed the NYPD to return a motor vehicle the police seized from respondent, as an instrumentality of a crime and which is being held for forfeiture pursuant to N.Y.C. Adm. Code §14-140.

A New York DWI Lawyer said that, upon signing the order to show cause on March 25, 2004, this Court stayed the effect of the OATH decision pending the hearing. On the March 30th return date, this Court continued the stay pending its determination. At the same time, this Court granted the respective parties' oral application for more time to file additional papers as well as copies of briefs filed in a federal appeal perfected this year which will examine an issue not implicated in the OATH decision now under review (i.e., seizure of a vehicle as arrest evidence). Parenthetically, this 2004 federal appeal involves the same parties who participated in an earlier, related appeal of a federal court determination, which had initially granted the City of 'New York’s motion to dismiss.

A New York DUI Defense Lawyer said that, in reversing the district court, the 2nd Circuit Decision, inter alia, ruled that due process requires the NYPD to afford any defendant whose motor vehicle was seized at the time of arrest with the opportunity for a prompt, post-seizure hearing to determine the probable validity and justification for the pre-judgment retention of the vehicle, pendente lite.

A New York Criminal Lawyer said that, in conducting a de novo review of the district court's dismissal of the complaint, the 2nd Circuit Decision concisely framed the issue decided on appeal: Our primary focus today is the City's continued retention of vehicles after their warrantless seizure by the police and prior to ultimate resolution of the forfeiture action in court. It is this intermediate deprivation, lasting months or sometimes years without a prompt hearing before a neutral fact-finder that we deem constitutionally infirm. In resolving this issue, the 2nd Circuit Decision held that in "balancing the factors, due process of law requires that all plaintiffs be afforded a prompt post-seizure, pre-judgment hearing to determine whether the City is likely to succeed on the merits of the forfeiture action and whether means short of retention of the vehicle can satisfy the City's need to preserve the seized property from destruction or sale during the pendency of proceedings." Significantly, the leit motif of Krimstock is the appellate court's recognition that due process affords a claimant a constitutional right to "be given an early opportunity to test the probable validity of the further deprivation, including probable cause for the initial seizure."

A New York DWI Defense Lawyer said that, on remand, the district court eventually issued an Amended Order and Judgment on January 22, 2004 which essentially incorporated the appellate court's holding and established the procedural and substantive parameters for a Hearing. At ¶ 2 of the January 22nd Order, Chief Judge ruled that an OATH judge at a Hearing must decide three issues: "[1] whether probable cause existed for the arrest of the vehicle operator; [2] whether it is likely that the City will prevail in an action to forfeit the vehicle; and [3] whether it is necessary that the vehicle remain impounded in order to ensure its availability either as evidence or for a judgment of forfeiture." The January 22nd Order also ruled that the Property Clerk bears the burden of proof by a preponderance of the evidence as to all three issues.


To Be Cont...

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January 26, 2014

Brighton Henrietta Town Line Road...cont

The court notes that the emergency responder cannot, thus, receive a traffic citation for conduct enumerated under criminal section 1104(b) and the fact that a driver failed to conform to a traffic law would not constitute prima facie evidence of negligence or be viewed as recklessness per se. Assuming this interpretation of the interplay between subdivisions (b) and (e) is correct, it does not follow that section 1104(e) creates a reckless disregard standard of care for unprivileged conduct. Indeed, the logical implication of the dissent's reading of section 1104 is that the standard of care for all emergency driving even if privileged under subdivision (b) is negligence. DUI makes it even worse.

Instead of taking the approach of section 1104(a) and (b)—excusing the driver of an authorized emergency vehicle from complying with certain rules of the road when involved in an emergency operation—the Legislature in section 1103(b) exempted persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway from all the rules of the road, subject to any statutory exceptions. The Legislature subsequently added the due regard/reckless disregard language of section 1104(e). In addition, in 1987 the Legislature created a statutory exception, making specifically applicable those provisions in title VII regarding driving under the influence of drugs or alcohol, DWAI.

The court notes that the provisions are interrelated such that subdivision (e) does not create a reckless disregard standard of care independent of the privileges enumerated in subdivision (b). Subdivision (b) exempts the conduct most likely to lead to a motor vehicle accident severe enough to prompt a lawsuit.

Based on Saarinen and Szczerbiak, the defendants and amici curiae insist, however, the court held that the reckless disregard standard of care applies when the conduct of an emergency vehicle driver involved in an emergency operation causes personal injuries or property damage, regardless of whether that conduct is privileged under Vehicle and Traffic Law § 1104(b). Amicus curiae New York State Division of State Police argues that while the facts of Saarinen involved a police officer who exceeded the speed limit during a chase the Court's holding was broad and unambiguous. However, the “question of statutory interpretation” that the court referred to in the language cited by the State Police was the nature of the standard of care established by section 1104(e) in a situation where the police officer was clearly entitled to its benefit.

The court notes that the dissent devotes several pages to a discussion of the many supposed “practical problems” presented by our interpretation of the statute. Simply put, section 1104(e) establishes a reckless disregard standard of care “for determining civil liability for damages resulting from the privileged operation of an emergency vehicle if the conduct causing the accident resulting in injuries and damages is not privileged under Vehicle and Traffic Law § 1104(b), the standard of care for determining civil liability is ordinary negligence.

The court affirms the order of the Appellate Division, with costs and answers in the affirmative the certified question.

January 20, 2014

Brighton Henrietta Town Line Road...cont


The privileges correspond generally with articles in title VII of the Vehicle and Traffic Law, entitled “Rules of the Road” in accordance with arts 32 [“Stopping, Standing, and Parking”], 29 [“Special Stops Required”], 24 [“Traffic Signs, Signals and Markings”], 30 [“Speed Restrictions”], 25 [“Driving on Right Side of Roadway, Overtaking and Passing, Etc.”], 26 [“Right of Way”], 28 [“Turning and Starting and Signals on Stopping and Turning”].

Subdivision (c) of section 1104 sets out prerequisites or conditions upon the exercise of the privileges listed in subdivision (b): except in the case of police vehicles or bicycles the exemptions granted are available only when the authorized emergency vehicle is making use of prescribed audible and visual signals. Drunk Driving will impair this ability.

Finally, subdivision (e) of section 1104 specifies that “the foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.” Thus, subdivision (e) cautions these drivers to operate their vehicles as safely as possible in an emergency and makes them answerable in damages if their reckless exercise of a privilege granted by subdivision (b) causes personal injuries or property damage. DWAI makes it worse.

In the case at bar, the defendants and the dissent do not see it that way. They understand subdivision (e) to apply the reckless disregard standard of care to all injury-causing conduct of drivers of authorized emergency vehicles involved in emergency operations, whether or not that conduct is exempt under subdivision (b). But subdivision (e) links the reckless disregard standard of care to the foregoing provisions which include the conditions in subdivision (c) and the privileges in subdivision (b).

The dissent complains that we have “interpret[ed] Vehicle and Traffic Law § 1104(e) as if it read: ‘When the driver of an emergency vehicle engages in privileged conduct, that driver will be protected from liability unless he or she acts in reckless disregard of the safety of others' ” (dissenting op. at 236–237, 920 N.Y.S.2d at 280–81, 945 N.E.2d at 473–74). The dissent, however, interprets subdivision (e) to mean “The driver of an authorized emergency vehicle involved in an emergency operation shall be protected from liability unless he or she acts in reckless disregard of the safety of others.” As the dissent acknowledges, though, subdivision (e) is written in the negative; it refers only to “[t]he foregoing provisions”; and the “foregoing provisions” only privilege the conduct identified in subdivision (b), not any and all conduct of a driver. DUI could have been investigated.

The dissent opines that the “evident intent” of the reference to provisions in Vehicle and Traffic Law § 1104(e) was to ensure that the creation of the privileges earlier in the statute would not be misinterpreted as precluding an emergency responder from being held accountable when he or she caused an accident while engaged in privileged conduct.

To Be cont...

January 19, 2014

Aetna Ins. Co. v Capasso

This is a proceeding wherein the plaintiff, NS Auto & Towing, by order to show cause dated 23 April 2007, sought a preliminary injunction to enjoin Defendants, Nassau County and Nassau County Police Department from terminating its towing and impound contract.

On 11 and 12 of June 2007, the issues were set down and witnesses were presented. The plaintiff presented the testimony of Detective SS who submitted an affidavit in opposition to their motion and RS, the mayor of the Incorporated Village of Thomaston. On the other hand, the defendants called NS's principal, SRB, Sgt. IS of the NCPD Legal Bureau and Sgt. RJ, the administrative supervisor of the Sixth Precinct.

Prior to the hearing, an issue arose with regard to documents subpoenaed by NS. Nassau County argued that the subpoena should be quashed because much of the material sought was necessary for an on-going grand jury investigation of NS. In support, an assistant district attorney appeared to urge that the information sought, if disclosed, would negatively impact the work of the grand jury.

The subpoena was quashed and Nassau County was barred from introducing evidence of any incidents which were the part of the basis of the decision to terminate NS's towing and impound contract which were not already disclosed in the opposing papers submitted by Nassau County. Nassau County was limited to proof of incidents which occurred prior to the renewal of the Contract in May, 2006.

The court has these findings of facts:

It is noted that on 4 May 2006, NS, a licensed tow operator in a number of local municipalities, and Nassau County entered into a three year towing and impound contract. This Contract was the renewal of an expired towing and impound contract between the parties and the third overall between them. NS has been on a rotational tow list for approximately 30 years.

The Contract allowed the NCPD to call upon NS to remove and impound a vehicle which was involved in an arrest, placed on a detective hold, involved in a felony DWI or felony unlicensed operation of the vehicle, used as a weapon or involved in a crime or which was to be held for further testing, such as brakes or some other investigation. If the vehicle was involved in an accident or became disabled on a road or highway, the vehicle would be towed pursuant to the local municipality's rotational tow list.

Nassau County is divided into various zones for which towing and impound contracts are given. Pursuant to the terms of the DUI contract with NS, it was permitted to answer calls within its contracted zones as well as adjoining zones.

NCPD sent a letter dated 10 January 2007 terminating the Contract after receiving various complaints against NS. Specifically, the termination letter refers to Contract ¶ 11(a)(ii) and (b)(i) which provide:

“11. Termination. (a) Generally. This Agreement may be terminated ... (ii) for "Cause" by the COUNTY immediately upon the receipt by the CONTRACTOR of written notice of termination...
(b) As used in this Agreement the word "Cause" includes:
...(i) a breach of this Agreement...”
Specifically, the termination letter pointed to NS's breach of ¶ 2(m) of the Contract, which sets forth the impound rates and fixed-sum charges by which the contractor “must abide."
Further, the letter advised NS could no longer provide towing and impound services for zones 1, 4 and 6.

The termination letter was rejected by NS. A second termination for cause letter was sent by Nassau County on 1 June 2007. It was also rejected. Finally, on 27 June 2007, a third termination letter was sent. This letter terminated the Contract without cause pursuant to ¶ 11(a)(i) of the Contract.

The termination was apparently based upon three instances of overcharging although Det. SS, who submitted an affidavit in opposition to NS's motion for a preliminary injunction, could not testify from his personal knowledge of any of them. Indeed, the three instances, which predated the 4 May 2006 renewal of the Contract, were not brought to the attention of the Commissioner of Police prior to the renewal. Apparently, the fact that there was an on-going investigation of DWAI NS at that time was not presented to the Commissioner either.

It is to be noted that Sgt. IS, the Commanding Officer of the Legal Bureau of the Nassau County Police Department, acknowledged that the termination of NS was not as a result of the three instances presented during the hearing of this matter.

In addition, NS contends that the instances presented were with regard to impounds in zone 10 which was in the Sixth Precinct and not an area covered by the Contract. However, it appears that zone 10 is adjacent to the zones allowed under the Contract and, therefore, by its terms, was covered. Sgt. IS testified that he directed the termination letter based upon four complaints which originated in the Sixth Precinct and not the Fifth.

The court finds that with regard to the three subject instances, it appears that none of them relate to overcharges and none seemed to affect the general public and the alleged violations were not fully investigated.

To Be Cont.....

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January 15, 2014

Brighton Henrietta Town Line Road...cont


There are three southbound lanes—two through lanes and a left-hand-turn lane—at the intersection of West Henrietta Road and Brighton Henrietta Town Line Road. YK testified that she was traveling in the left travel lane. She had stopped for a red traffic light, and was just beginning to move forward slowly toward the congested intersection when her car was hit.

In October 2005 and February 2006 YK brought actions, subsequently consolidated, against Monroe County, JD and others, alleging serious injury under New York's No–Fault Law. In May 2008, defendants moved for summary judgment to dismiss the complaints. In July 2008, YK cross-moved for partial summary judgment on liability. The parties disputed whether Vehicle and Traffic Law § 1104 applied, making JD liable for the accident only if he acted with “reckless disregard for the safety of others in accordance with Vehicle and Traffic Law § 1104[e] and Saarinen v Kerr holding that the standard of care under Vehicle and Traffic Law § 1104 is reckless disregard and addressing the conduct required to show recklessness. On 26 September 2008, Supreme Court awarded summary judgment to defendants. Was DUI involved?

The court concluded that JD's conduct was covered by section 1104, and that YK had not raised a triable issue of fact as to whether he acted with reckless disregard.

On 30 December 2009, the Appellate Division reversed the decision. The majority held that the reckless disregard standard in section 1104(e) is limited to accidents caused by conduct privileged [16 N.Y.3d 222] under section 1104(b). Because JD's injury-causing conduct was not exempt under this provision, the majority concluded that the applicable standard for determining liability was the standard of ordinary negligence. DWAI is another issue.

The court further observed that a rear-end collision with a vehicle in stop-and-go traffic creates a prima facie case of negligence with respect to the operator of the rear vehicle. Therefore, partial summary judgment on liability in favor of the person whose vehicle was rear-ended is appropriate in the absence of a non-negligent explanation for the accident. Concluding that Kabir had met her burden on the cross motion and that defendants had not put forward a non-negligent explanation, the court reinstated the complaint against defendants and granted YK’s cross motion for partial summary judgment on liability.
The dissenting judges interpreted section 1104 differently, taking the position that the reckless disregard standard was applicable to any injury-causing conduct of a driver of an emergency vehicle involved in an emergency operation. On 19 March 2010, the Appellate Division granted defendants leave to appeal, and certified to us the question of whether its order was properly made. The court affirms and therefore answers the certified question in the affirmative.

In Riley v County of Broome, Section 1104 was put in place in 1957 as part of what is now title VII of the Vehicle and Traffic Law, which was intended to create a uniform set of traffic regulations, or the rules of the road to update and replace the former traffic regulations, and bring them into conformance with the Uniform Vehicle Code adopted in other states. DWI could have been involved.

Subdivision (a) of this provision empowers the driver of an authorized emergency vehicle when involved in an “emergency operation” to exercise the privileges set forth in this section [1104], but subject to the conditions herein stated. The statute then lists these privileges in subdivision (b): “stop, stand or park irrespective of the provisions of this title [VII]; proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation; exceed the maximum speed limits so long as he does not endanger life or property; and, disregard regulations governing directions of movement or turning in specified directions” (Vehicle and Traffic Law § 1104[b]).”

January 9, 2014

Confrontation Clause ...cont


Contrary to defendant's contention, this case is distinguishable from Bullcoming v New Mexico, in which the Supreme Court held that the Confrontation Clause barred the admission in evidence of a forensic laboratory report certifying the defendant's blood alcohol content. In Bullcoming, the prosecution sought to admit evidence establishing that the defendant was intoxicated which was an element of the crime charged.

In the case at bar, in contrast to Bullcoming, the breath test documents were offered merely to show that the breath test machine functioned properly, which is not an element of DWAI. The Supreme Court stated in Melendez-Diaz that documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records. The breath test documents at issue here are precisely the sort of documents to which the Supreme Court in Melendez-Diaz was referring. Although the footnote in Melendez-Diaz is dicta, the court finds it to be persuasive, and it is indicative of how the Court would rule on the issue. It is also consistent with the Court of Appeals' interpretations of the Confrontation.
Further, it is the defendant’s contention that the court erred in refusing to suppress all evidence obtained by the police following the stop of his vehicle. The court rejects that contention.

The arresting officer stopped defendant's vehicle because it had an unauthorized sticker on the rear window, in violation of Vehicle and Traffic Law § 375 (1) (b) (i). According to defendant, the stop was unlawful because the officer's primary motivation in stopping the vehicle was to investigate an anonymous tip that defendant was intoxicated, and the unauthorized sticker was a mere pretext to allow the officer to accomplish that purpose. Regardless of whether the stop was pretextual in nature, the court properly refused to suppress the evidence in question.

As the Court of Appeals has explained, where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop does not violate the state or federal constitutions and neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant akin to People v Robinson and Whren v United States. The court notes that defendant does not dispute that he committed a traffic infraction in the officer's presence by having the unauthorized sticker on his vehicle's window.

The court reviewed defendant's remaining contentions and concludes that they are either unpreserved for our review or without merit.

January 7, 2014

Brighton Henrietta Town Line Road

This is a proceeding wherein on appeal, the court holds that the reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.
On 20 September 2004 at 3:57 p.m., the defendant, JD, a road patrol deputy in the Monroe County Sheriff's Office, was on routine patrol for DWI in a marked police vehicle when he received a radio dispatch from the Office of Emergency Communications dispatch or “911 center” directing him to respond to a stolen vehicle report at an address in Henrietta, New York. When he received the call, he was heading south on West Henrietta Road, nearing a traffic light at the intersection of West Henrietta Road and Brighton Henrietta Town Line Road, which marks the border between the Towns of Brighton (on the north side) and Henrietta (on the south side). No Drunk Driving.

Thereafter, JD received a second radio dispatch which requested backup for another officer who was responding to a burglary alarm at a location in Henrietta. Because the 911 center categorized the burglary alarm as “classification one”, meaning, “a serious call that needs immediate attention”, JD acknowledged the request, telling the dispatcher that he would assist with the burglary alarm before addressing the stolen vehicle report which was assigned a higher classification and therefore a lower priority. At 4:02 p.m., the dispatcher transmitted information about the burglary call, including the address and the names of cross streets, to the mobile data terminal inside the deputy's vehicle. DUI was not an issue.

JD did not activate the emergency lights or siren on his vehicle. He was traveling at a speed of 25 to 30 miles per hour in a 40–mile–per–hour zone. He does not recall if he speeded up or slowed down after receiving the dispatch. The deputy explained that he was not familiar with the location of the burglary alarm, and due to the amount of traffic during that time of day he didn't want to initiate any emergency equipment without knowing where he was positively going. He therefore touched the terminal and looked down for two to three seconds at the display to view the names of the cross streets. When JD lifted his gaze, he realized that traffic had slowed. Although he immediately applied his brakes, he was unable to stop before rear-ending the vehicle in front of him, which was driven by plaintiff YK.


To Be Cont....

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January 6, 2014

Confrontation Clause

This proceeding is an appeal from a judgment of the Yates County Court rendered 8 December 2009. The judgment convicted defendant, upon a jury verdict, of driving while ability impaired and driving while intoxicated.

The court affirms the judgment appealed from.

On appeal from a judgment convicting him following a jury trial of, inter alia, felony driving while intoxicated DWI Vehicle and Traffic Law § 1192 [2]; § 1193 [1] [c] [ii], defendant contends that County Court erred in admitting in evidence breath test calibration and simulator solution certificates used in verifying the accuracy of the breathalyzer test. According to defendant, the admission of those records in evidence violated his rights under the Confrontation Clause of the Fifth Amendment to the United States Constitution under Crawford v Washington.

The court rejects that contention. The simulator solution certificate is a certified document indicating that a given sample of simulator solution contains a certain percentage of alcohol. The breath test calibration certificate is a certified document indicating that a breath test machine accurately measured a given sample of simulator solution to within plus or minus .01% weight per volume. Breath test calibration certificates are generated by employees of the New York State Division of Criminal Justice Services, while simulator solution certificates are generated by employees of the New York State Police. Both are used to establish that the breath test machine used in a particular case is accurate, a necessary foundational requirement for the admission of breath test results as ruled in People v Merts. Here, the People offered the breath test documents in evidence, and the court admitted them as business records pursuant to CPLR 4518 (c), over defendant's objection that such admission violated his right under Crawford to confront the government employees who certified the results.

Crawford v Washington and People v Brown held that the Confrontation Clause bars the admission of testimonial out-of-court statements made by a witness who is not subject to cross-examination. The United States Supreme Court in Crawford explicitly declined to spell out a comprehensive definition of testimonial, but it stated that some statements qualify under any definition[, including] ex parte testimony at a preliminary hearing and statements taken by police officers in the course of interrogations. Since Crawford was decided, courts have struggled to come up with a comprehensive definition of the term "testimonial," but one factor that must be considered is the degree to which a statement is deemed accusatory, i.e., whether it seeks to establish facts essential to the elements of the crimes as ruled in People v Encarnacion, Melendez- Diaz v Massachusetts and People v Rawlins.

In the case at bar, the statements contained in the breath test documents are not accusatory in the sense that they do not establish an element of the crimes. Indeed, standing alone, the documents shed no light on defendant's guilt or innocence as ruled in People v Damato and People v Bush. The only relevant fact established by the documents is that the breath test instrument was functioning properly. The functionality of the machine, however, neither directly establishes an element of the crimes charged nor inculpates any particular individual. Thus, as held in People v Freycinet, the government employees who prepared the records were not defendant's accusers in any but the most attenuated sense and the breath test documents were properly admitted in evidence over defendant's objection based on the Confrontation Clause.

To Be Cont...

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January 3, 2014

Confrontation is one means of assuring accurate forensic analysis.... cont

One could also contend, as the court in another case, that the calibration and testing records are prepared for reasons other than litigation and therefore should enjoy business record protection. The Green court, in overturning a lower court ruling finding that such records are testimonial, observed that the breathalyzer intoxilyzer maintenance and reference solution testing records "have a primary business purpose" apart from use in litigation:

The first document at issue here is a portion of a maintenance record, showing that approximately three months before the subject arrest the breath testing instrument in question was serviced and certified as accurate. That the document has an incidental use as proof in court of the reliability of the instrument does not alter the fact that the document has a primary business purpose that would exist even in the absence of any litigation.

The random tests that the State Police perform serve the legitimate business purpose of quality assurance. The testing is done by the State Police in Albany before a lot is distributed if for no other reasons [sic] than to prevent the shipment of defective solutions, to eliminate the need for testing by the individual agencies involved, and to facilitate returns to the manufacturer should a problem be detected. The records kept by the State Police are mandated, as "memorials of the fact that the tests were made and what the results were."
The certifications tell each distributee that the particular shipment they have received has been tested and is approved for use. In this court's opinion, the business purposes served by these records would exist even in the absence of any litigation.

That last statement could serve as the mantra of a rent-seeking bureaucrat who values process as an end in itself, regardless of outcome. These records are not created for their own sake and have "an incidental use in court"; rather, as noted above, the entire purpose of calibration and solution testing is to provide reliable evidence for prosecuting DWI suspects. But for the need to prove DWI In court, these procedures and records would not exist.

The records in question also lack the presumption of neutrality typical business records enjoy because they are created by law enforcement personnel for law enforcement personnel and therefore may not be prepared with the same objectivity as records created by a third party truly indifferent to the outcomes of criminal prosecutions. Even if those State Police employees conducting the tests do not know the defendants against whom the records will be used, it is not unreasonable to assume, because they play for the same team, that they hope for convictions.

Confrontation is one means of assuring accurate forensic analysis. While it is true, as the dissent notes, that an honest analyst will not alter his testimony when forced to confront the defendant, post, at 2548, the same cannot be said of the fraudulent analyst. And, of course, the prospect of confrontation will deter fraudulent analysis in the first place.

The Court does not seek to cast aspersions upon the State Police or their technicians in making these observations but rather to underscore the fact that we must beware of putting too much trust in the man behind the curtain. Doing so threatens to undermine one of the fundamental trial protections defendants have enjoyed since the founding.

Accordingly, the defense's Motion to preclude is granted.

December 30, 2013

Confrontation is one means of assuring accurate forensic analysis

Defendant, charged with driving while intoxicated (DWI) and aggravated driving while intoxicated (Aggravated DWI) per Vehicle & Traffic Law § 1192-2 and 1192-2(2)(a), moved pretrial to preclude on Confrontation Clause grounds intoxication evidence from the Datamaster intoxilyzer showing her blood alcohol level to be .23.

A New York Criminal attorney said that she objects to the People's attempt to establish the Datamaster's reliability by using written certifications in lieu of live testimony. The first document in question is a "CERTIFICATE OF PHOTOSTATIC COPY OF RECORD OF ANALYSIS — SIMULATOR SOLUTION signed by an Inspector of the State Police Crime Laboratories, Forensic Investigation Center, attaching a "CERTIFICATION OF ANALYSIS 0.10% BREATH ALCOHOL SIMULATOR SOLUTION" and purporting to establish that the simulator solution document is an exact photocopy of one made in the regular course of business of the Crime Laboratory and that it is the Crime Laboratory's regular course of business to make such records at the time the events recorded in them occur or "within a reasonable time thereafter."

The simulator solution certificate provides that, "[s]imulator solution lot number 08370 has been certified to contain the appropriate concentration of ethyl alcohol and is hereby approved for use" and is signed by the operatives of the New York State Police Forensic Investigation Center.

The Sixth Amendment's Confrontation Clause "guarantees a defendant's right to confront those who "bear testimony"' against him. Testimony includes, inter alia, "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use later at trial."

At the same time, New York's business records rule has long provided that documents kept in the regular course of business may be admitted in court notwithstanding hearsay concerns. It provides that [a]ny writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.

For reasons discussed below, the Court finds that both the simulator solution and calibration records are testimonial for Sixth Amendment purposes and therefore inadmissable absent live testimony by those who prepared them. First, the calibration certification is clearly testimonial pursuant to case law because it is "quite plainly" an affidavit like the documents at issue there
Additionally, both the calibration and solution testing records are clearly "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use later at trial" and, as such, are testimonial.

The Court's decision contradicts most other New York courts which have considered this issue. They have found both calibration and solution records non-testimonial for Confrontation Clause purposes..

The rationale for denying the records testimonial status is threefold. First, they are non-testimonial because they are not prepared specifically for use in court or in gathering incriminating information against a particular individual. Second, they are business records created systematically pursuant to state statute that are not aimed at a particular individual or prosecution and which memorialize execution of a ministerial duty not requiring judgment or opinion. Third, the records provide only indirect or foundational evidence against defendants; that is, evidence is only testimonial if it goes directly to establishing a fact used to prove defendant's guilt, not indirectly to establish the reliability of the devices used to adduce facts.
Documents kept in the regular course of business may ordinarily be admitted at trial for DUI despite their hearsay status. But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. In a court’s Decision, an accident report provided by an employee of a railroad company did not qualify as a business record because, although kept in the regular course of the railroad's operations, it was "calculated for use essentially in the court, not in the business. The analysts' certificates-like police reports generated by law enforcement officials-do not qualify as business or public records for precisely the same reason.

To Be Cont...

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December 27, 2013

New York State Route 104

A New York Drunk Driving Lawyer said that, the defendant was charged with common-law (DWI) driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3) on September 14, 2002 at 12:48 A.M. The defendant was arrested after entering a sobriety checkpoint operated by the Webster Police Department on the eastbound section of New York State Route 104 just prior to the Dewitt Road overpass. A Scott hearing was conducted on June 18, 2003 to determine if the sobriety checkpoint was properly conducted. More particularly the defense argues that the location of the sobriety checkpoint was not properly selected.

A New York DWI Lawyer said that, in his memorandum of law defense counsel states that "Sergeant SMALL testified that although WEBSTER POLICE Chief authorized the checkpoint, there was no discussion between himself and the chief as to exactly where the checkpoint would be placed. That was left to the unfettered discretion of Sergeant SMALL as supervisor of the checkpoint detail. "Sergeant SMALL allegedly selected the location according to the Directive, based upon the history of past violations, as well as safety considerations."
The issues in this case are whether the location of a sobriety checkpoint be based on empirical evidence of prior driving while intoxicated arrests and whether the location of a sobriety checkpoint be specifically authorized by the chief of police.

In his memorandum of law, correctly indicates that the Webster Police Directive issued for September 13, 2002 to September 14, 2002 "states history of past violations was taken into consideration, and Sergeant SMALL also testified as such." However, a review of said paragraph IV of General Order 504, to which that directive is attached, reads as follows: "IV. ESTABLISHING, CANCELLING ROADBLOCKS AND CHECKPOINTS "A. Criteria to be used in planning a roadblock, although not all inclusive, are the following: "1. Site Selection: "a. Sites must be approved by a supervisor prior to commencing the checkpoint or road block. The site must be in an area that will minimize the risk to the public and/or the police. "c. The supervisor will ensure that all guidelines established by this order are in effect and are communicated to the officers manning the checkpoint or roadblock. In the case of a sobriety checkpoint, the supervisor will include a brief, written directive which will outline the site(s) selection, the time(s), the system of vehicle selection (example: every car, every other car). "2. The supervisors site selection for roadblocks for checkpoints will take into consideration the time of day, type of roadway, weather conditions, volume of traffic, the specific purpose of the detail, the number of personnel available, the amount of safety equipment available and the availability of adequate supervision."

Nothing in said General Order requires that site selection be based on prior alcohol related arrests or incidents. It would appear that such a consideration is not required by either case law or by general police practice. For example, the Sample Set of Sobriety Checkpoint Guidelines Written for the New York City Police Department, relative to site selection, states: "Since public relations and deterrence are a primary purpose of the checkpoint, the incidence of DWI arrests and accidents is not controlling." Therefore, the sobriety checkpoint in question cannot be invalidated because of a lack of empirical evidence of prior alcohol related arrests or accidents at that site.

The relevant general order requires that the site of the sobriety checkpoint "must be approved by a supervisor prior to commencing the checkpoint or roadblock." Sergeant Small of the Webster Police Department testified that he was the road patrol supervisor on the evening/morning the sobriety checkpoint in this case was set up, and which resulted in the arrest of the defendant. Based on the Webster Police Department General Order, Sergeant Small had the requisite authority to set up the roadblock on New York State Route 104 as same came through the Town of Webster by the Dewitt Road overpass. There is nothing in General Order 504 of the Webster Police Department which requires the chief of police to establish the specific site of a sobriety checkpoint at any given time. Nor is there anything in any controlling case law which would require the chief of police to micromanage that part of his department's operation.

Defense counsel's reliance on the 2002 case is misplaced. In that case the court stated that "the existence of a set of guidelines was never even mentioned during the course of the suppression hearing." In this case the existence of police department guidelines on the issue of sobriety checkpoints was never an issue. The defense contends that the police did not properly follow their own guidelines or at best misapplied them. Nevertheless, the instant sobriety checkpoint set up by the Webster police eastbound on New York State Route 104 cannot be invalidated based on the fact that said location was not selected by the proper Webster police official.

The motion of the defendant to suppress any and all evidence derived from the sobriety checkpoint is hereby denied. The evidence elicited at the Scott hearing established that the site of said sobriety checkpoint was not improperly selected. No prior empirical evidence of alcohol related arrests or accidents at a particular site are required before that site can be used for a sobriety checkpoint. Nor did the facts establish that a proper Webster police official failed to pick the site selected for said roadblock.

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December 25, 2013

Highway Officer ...cont


Governmental action which provides benefits or privileges to some but not to all persons or which denies benefits or privileges to some but not all persons can violate the U.S. Constitution's protection against the denial of equal protection. In a 1983 case, the Court considered whether a federal agency's failure to provide social security benefit instructions in the Spanish language violated equal protection guarantees and stated: Where governmental action disadvantages a suspect class or burdens a fundamental right, the conduct must be strictly scrutinized and will be upheld only if the government can establish a compelling justification for the action. Where a suspect class or a fundamental right is not implicated, the challenged action need only be rationally related to a legitimate governmental purpose.
The Highway Officer's decision not to offer defendant an opportunity to perform coordination tests was based on the officer's belief, formed from attempting to converse with defendant, that defendant did not speak and understand English and, therefore, the highway officer determined he was not able to personally communicate to defendant his instructions concerning the correct manner to perform the tests. The defendant's national origin had no bearing on the Highway Officer's actions. For example, for many Hispanics born in the United States English is their first language or, if not, they nevertheless do understand English. Accordingly, English speaking Hispanics are offered the coordination tests. Likewise, people of many other non-United States national origins who do speak and understand English are offered the tests. Rather, it is those persons who do not understand English to whom the highway Officer did not offer the coordination tests. The officer's actions in not offering coordination tests because of a language barrier would have also been the same had the defendant been deaf or too intoxicated to understand English, regardless of defendant's heritage.

Accordingly, the actions of the Highway Officer did not single out defendant for denial of the opportunity to perform coordination tests because of his ethnicity. Nor did the officer's actions result in denying those of a particular ethnicity the opportunity to perform coordination tests, as many of defendant's ethnicity do speak and understand English and are given the opportunity to take the tests. The class of persons thus affected by the Highway Officer’s actions is simply those who do not understand English. Yet, governmental actions based on classifications which are not on their face based on a suspect class, in this case ethnicity, could result in disadvantaging a particular group.

Here, this court finds that the Highway Officer's decision not to offer the coordination tests to defendant because of the officer's perception that defendant did not understand English was not an action based upon ethnic classification, but rather based on ability to understand the English language. Furthermore, defendant does not even claim that the Highway Officer had intent to discriminate against Hispanics.

Accordingly, that action must satisfy the legitimate governmental purpose test. The Highway Officer testified at trial that he did not offer the coordination tests to the defendant as defendant clearly did not understand English. He testified that he did not attempt to explain those tests in English because the coordination test instructions were very specific and required contemporaneous demonstration of the tasks to be performed. Indeed the coordination test instruction sheet used by the Highway Officer contains 30 lines of instructions to be read to the person being asked to perform the tasks. The Highway Officer further testified that he could not rely on another person who might speak defendant's language to translate his instructions to the defendant because he could not be sure the translator would be sufficiently fluent in defendant's language and be able to accurately translate the instructions or provide the required demonstration. The Highway Officer testified that he had to determine whether defendant was able to perform the coordination tests and could not accurately do so under these circumstances.

Further, the People assert that, for the New York City Police Department to be able to offer coordination tests to non- English speaking arrestees, the Department would have to have interpreters fluent in many different languages available at all times of day or night who are able to be dispatched quickly to the DWAI testing facilities in each borough of the City when needed. Multiple interpreters of each language would be needed because there may be a number of tests to be administered at a particular time in one particular borough while interpreters of the same language may be needed in other boroughs. The cost for establishing such interpreting services would clearly be substantial.

Additionally, even though a Spanish speaking officer, the arresting officer, was present at the DUI testing facility, the Highway Officer explained that interpreting the coordination test instructions was far more complex than his asking the Spanish speaking officer to explain to defendant that he has to blow continuously into the Intoxylyzer machine to accurately obtain a breath sample. As stated above, the written coordination test instructions consist of 30 lines of instructions with simultaneous demonstration by the officer. Accordingly, the Highway Officer explained that he could not be sure that the Spanish speaking officer could correctly translate the coordination test instructions without his having been properly trained to do so.
Defendant contends that the failure of the New York City Police Department to provide translation services to non-English speaking persons in order to perform the DWI coordination tests violates his right to due process. It is well established that "procedural due process imposes constraints on governmental decisions which deprive individuals of "liberty" or "property" interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." While the determination by the police that an individual has been driving while under the influence of alcohol or drugs can result in an arrest and deprivation of liberty, the investigation of suspected intoxicated driving by the police, in the field or at the intoxicated driver testing facility, is not a judicial, quasi-judicial or even an administrative proceeding. Accordingly, there is no authority for the proposition that due process applies to the conduct of such investigations.

Wherefore, the court held that the defendant's motions to suppress the videotape of the breathalyzer test and to set aside the verdict of guilty are in all respects denied.

December 23, 2013

New York City Office of Administrative Trials and Hearings ....cont


The New York City Office of Administrative Trials and Hearings on March 8, 2004, the Department petitioned to retain possession of the vehicle pending forfeiture of the defendant’s 2000 Lexus, seized upon the arrest of the defendant for felony possession of marijuana. The judge analyzed the necessity of retaining the defendant’s vehicle by the Police Department. The Police Department argued that it was necessary to do so because the criminal case was still pending and, thus, it was necessary to maintain an unbroken chain of custody so as to preserve the integrity of the evidence for the criminal case. Moreover, the Police Department maintained that public safety was at issue here, not just because of the severity of the crime in terms of the amount of drugs that the defendant possessed, but also his long history of prior drug arrests. The Police Department argued that a bond would not be appropriate in such a situation and that it should be permitted to retain the vehicle during the pendency of the forfeiture proceeding. The O.A.T.H. court decided that the Department was not entitled to retain the vehicle, and ordered its release, because of a failure to adduce sufficient evidence of probable cause for the arrest. The Department offered no evidence to show how the arresting officer came to know that the vehicle contained marijuana. That is, the record contained no indication of the factual basis for the suspicion, if any, that brought the arresting officer to stop, question or search the defendant. The Department did not adduce any evidence which showed that the officer's actions were consistent with Fourth Amendment principles.

Civil Practice Law and Rules Article 78 Proceeding

Under section 78 of the CPLR the Department sought relief to quash the decision under the OATH hearing. The Department reiterated that the O.A.T.H. court acted in excess of its jurisdiction in requiring the Department to establish probable cause of the initial stop. The Krimstock order required only that the Department establish probable cause for the arrest. The defendant who was represented by legal aid responded that the O.A.T.H. court's decision was not reviewable by way of CPLR Article 78. Rather, only the presiding judge in the forfeiture action can give interim relief from release pending forfeiture. Moreover, the O.A.T.H. court was correct in denying the petition for retention of the motor vehicle, because the Department had failed to meet its burden under Krimstock to show both probable cause for the initial warrantless seizure, and likelihood of success on the merits. The Supreme Court denied the Department's Article 78 petition as the initial stop of arrestee was not valid, and thus order that vehicle should be released. The Department appealed the decision.

Appellate Division

The court examined the Administrative Code provisions relating to the seizure of vehicles and the standards relating to due process. A brief overview of the case Krimstock v. Kelly 306 F.3d 40 [2d Cir., 2002] was required by the court. In Krimstock, the plaintiffs were arrested for driving while under the influence and had their vehicles seized as a result and retained as instruments of an offense. A class action suit was initiated challenging the constitutionality of the forfeiture as the statute violated their due process rights. It was held that due process required a person to be afforded a post seizure hearing before a judicial or officer to show the likelihood of success on the merits in the forfeiture action. The court should enable the claimant to test the probable cause of the initial seizure. The case remanded to the magistrate court where it was held that the court should determine whether there was probable cause for the arrest, whether the property clerk will be successful in the forfeiture action and whether the impoundment will ensure the availability of the evidence or the forfeiture judgment. The burden is on the property clerk to prove every element of the DWI.

Therefore, the previous court did not exceed the jurisdiction ordering the defendant to show probable cause. It held that the officers lacked factual basis for initial stop of vehicle and such there was not entitlement to seize vehicle.

December 21, 2013

New York City Office of Administrative Trials and Hearings

Property Clerk of the Police Dept. of the City of N.Y. v Burnett

Court Discusses the Krimstock v. Kelly Principle after the Seizure of Motor Vehicle
On February 16, 2004, the defendant was arrested on three drug charges: felony possession of a controlled substance, Viagra, with intent to sell; felony possession of more than 16 ounces of marijuana; and misdemeanor possession of marijuana in a public place. At the time of the defendant’s arrest, his 2000 Lexus was seized by the Police Department under voucher number B161371, because the drugs were found in the vehicle. At the time of the arrest the defendant provided paperwork that the vehicle belonged to the defendant. At the time of the arrest, the vehicle had a retail value of $24,550.00.

The Krimstock Hearing

The defendant who was unrepresented by a Nassau County Criminal Attorney, in accordance with his new rights requested a post-seizure retention hearing. The Krimstock hearing was held for the Police Department to prove that probable cause existed for the arrest of the vehicle operator. The defendant offered only an unsworn statement that the police officer never pulled him over, but, rather, approached him as he came out of the car, which was parked. The Police Department maintained that the arrest report, which indicated that the defendant was arrested for criminal possession of a controlled substance and large quantities of marijuana, provided sufficient evidence to establish the first prong of the Krimstock analysis, namely, that there was probable cause for the arrest. The judge questioned the police officer's observations that led to the arrest, maintaining that, to validate the arrest, evidence was necessary to demonstrate why the officer initially stopped the defendant. The Police Department, believed that the arresting officer observed marijuana sales inside the vehicle as he was a member of the Manhattan Gang Unit who monitored neighborhoods that were at high risk of drug sales. The trial judge ordered that the department was required to show probable cause for the arrest.

The New York City Office of Administrative Trials and Hearings (O.A.T.H.) Hearing

To Be cont....

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December 15, 2013

Highway Officer

A New York Criminal Lawyer said that, defendant was stopped by police officers assigned to the Triborough Bridge and Tunnel Authority after he went past the toll booth in a " cash only" lane without paying the required toll. Based on his apparent intoxication defendant was then taken to the New York City Police Department's 45th Precinct where driving while intoxicated driving testing is routinely conducted. There he was shown a video-tape in the Spanish language which explained the breathalyzer test and he consented to take the test. After being given the breathalyzer test he was not offered an opportunity to perform the standard coordination tests.

A New York DWAI Defense Lawyer said that, after the trial jury was sworn defendant claimed that his rights had been violated by the New York City Police Department Officer (hereinafter "the Highway Officer") who administered the breathalyzer test to determine defendant's blood alcohol content and who decided not to administer coordination tests to defendant because that officer did not believe that defendant understood English. Defendant moved to dismiss the charges and this court reserved decision. This court did permit defendant to explore the failure to administer coordination tests during cross-examination of the Highway Officer before the jury. Defendant re-renewed the motion to dismiss at the close of the evidence and this court again reserved decision.

A New York DWI Lawyer said that, after the jury's verdict finding defendant guilty of the crime of (DWI) Driving While Intoxicated Per Se, VTL § 1192.2, defendant moved for various forms of relief. Defendant moved to suppress the videotape of the administration of the breath test and moved to set aside the verdict and dismiss the charges based on claimed violations of defendant's Constitutional rights to due process and equal protection. The People oppose those motions.

The issue in this case is whether defendant’s rights to due process and equal protection clause have been violated.

The court held that, defendant's motion to suppress the videotape of the breath test on the ground that defendant was not also offered an opportunity to take coordination tests is denied. Any motion to suppress physical evidence based on claimed violations of defendant's constitutional rights must be made before the trial commences absent good cause. Here, defendant knew prior to trial that he had not been offered the coordination tests because of a perceived language barrier. Defendant never moved to suppress the videotape of the breath test prior to trial and such motion is now untimely.

Nevertheless, defendant did claim during trial that the failure to offer him the coordination tests violated his due process and equal protection rights, developed an evidentiary record concerning the Highway's Officer's actions, and sought dismissal of the charges during the trial. While a defendant has no burden to prove or disprove anything at trial, it is well recognized that defendant does have the right to obtain and present evidence at trial should defendant choose to do so. If defendant was unable to present evidence at trial, his claim that governmental actions unconstitutionally prevented him from gathering or preserving such available evidence, a court could be asked to determine whether such actions were proper. Accordingly, defendant can move to set aside the jury's verdict and have the court determine whether the officer's actions violated defendant's Constitutional rights and, if so, whether such resulted in a verdict that, as a matter of law, would need be reversed on appeal.

Defendant was tried before this court and a jury on charges of Driving While Intoxicated Per Se, VTL § 1192.2; Driving While Intoxicated, VTL § 1192.3 and Driving While Ability Impaired, VTL § 1192.1. The jury was instructed that they were to consider the Per Se count first and, if they found defendant guilty of that count, they were not to consider any of the remaining counts. The jury found defendant guilty of the Per Se count. Importantly, under the Per Se count, as charged to the jury, a blood alcohol level of .08 of one per centum or more at the time of the operation of the vehicle constitutes the commission of the offense regardless of how the consumption of alcohol affected defendant's ability to operate that vehicle and regardless of whether defendant exhibited characteristics associated with intoxication. However, the jury was instructed that, in determining whether defendant did operate the vehicle while having .08 of one per centum of alcohol in his blood, they could consider defendant's physical condition and any indicia of intoxication. Therefore, the relevance of defendant's physical condition to the Per Se count, as might have been revealed had he been offered the coordination tests and should he have agreed to perform those tests, was slight. As is well known, a person may consume alcohol to the extent of having a blood alcohol level of .08 of one per centum or more and not outwardly exhibit signs of intoxication beyond having an odor of alcohol and bloodshot eyes, DUI. Accordingly, if the arresting officer's action in not having offered defendant the opportunity to perform coordination tests due to the fact that defendant did not appear to understand English did violate defendant's rights, this court would have to further consider the remedy to which defendant would be entitled due to the minimal relevance of such tests to the charge on which defendant was convicted.

To Be Cont....

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December 7, 2013

People v. Persaud

People v. Persaud

Court Discusses the Elements of Attempted Assault and Reckless Endangerment in a Driving While Intoxicated Matter

The defendant on November 30, 1997 drove his construction van into the front of a restaurant after the owner refused to serve him because he appeared intoxicated. After driving his van into the front of the restaurant, he then backed up and crash into the restaurant a second time and almost hitting the owner and several employees. The defendant was later arrested by two policemen who heard the crash after being identified by the owner of the restaurant. The defendant was charged with Reckless Endangerment in the First Degree, Reckless Endangerment consecutively in the Second Degree, Criminal Mischief in the Second Degree, Attempted Assault in the First Degree, Attempted Assault in the Second Degree, Operating a Motor Vehicle While under the Influence of Alcohol, DUI, and Unlawfully Operating a Motor Vehicle. The defendant was convicted of Reckless Endangerment in the First Degree, Criminal Mischief in the Second Degree, Attempted Assault in the Second Degree, and Operating a Motor Vehicle While under the Influence of Alcohol. The defendant appealed on the grounds of that the evidence was insufficient to prove guilt beyond a reasonable doubt of Attempted Assault in the Second-Degree and First-Degree and Reckless Endangerment because the prosecution did not prove that the defendant showed an indifference to human life, that his conduct created a grave risk of death, or that he intended to cause physical injury. Secondly, the defendant argued that there was insufficient evidence to prove guilt of Criminal Mischief in the Second Degree as a matter of law because no expert testimony or documentary evidence was introduced supporting the value of the damages.

The evidence relating to the defendant’s arrest and conviction were analyzed by the court to ascertain whether it was insufficient to prove guilt. Firstly, the defendant’s behavior after being arrest was observed by a police officer suggested that he was intoxicated. The officer observed that the defendant had slurred speech, watery eyes, and a strong smell of alcohol on his breath. As a result, a breathalyzer test was administered in the presence of another police office where he registered .10% blood alcohol content.

The defendant’s conduct of after being refused alcohol showed that he intended to cause injury to the complainant. The charge of Second-Degree Attempted Assault required intent that could be inferred from the conduct of the defendant. A rational jury could infer that the defendant had an intention to inflict serious physical injury to the complainant, who had refused the defendant alcohol. The defendant asserted that based on the evidence it was factually impossible to be charged with attempted assault. However, factual impossibility is not a defense to such a charge because the offense of deliberately performing a prohibited act and impossibility does not negate intent. Therefore, the verdict for attempted assault in the second degree was sustained. Felony DWI was in play.

However, the defendant could not be convicted of both attempted assault and reckless endangerment based on the same acts. A person who intentionally acted to cause serious physical injury could not simultaneously act recklessly to consciously disregard a substantial and unjustifiable risk that would cause serious physical injury. A person is guilty of first degree reckless endangerment if he or she shows a depraved indifference to human life by recklessly engaging in activities that creates grave risk of the death of another person. Therefore, the evidence was insufficient to prove beyond a reasonable doubt that the defendant’s actions created a grave and imminent risk to result in the death of the restaurant owner and other employees of the restaurant. Accordingly, the charge of reckless endangerment in the first degree was dismissed. However, the charge of Endangerment in the Second Degree and Criminal Mischief were upheld.


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December 1, 2013

People v. Maxwell

People v. Maxwell

Court Discusses Pleading to a Lesser Offence

The Defendant, who was driving while intoxicated, was involved in a collision that resulted in the death of another person. The defendant was indicted for criminal negligence in operation of a motor vehicle resulting in death and driving while intoxicated as a misdemeanor. He then pleaded to a lesser offence of assault in the second degree, upon the recommendation of the District Attorney. He was convicted of assault in the second degree and sentenced to serve one year and six months to three years in state prison. The defendant then appealed his conviction of assault in the second degree.

The Appellate Division of the Supreme Court reversed the conviction and the plea of guilty was vacated and the matter was remitted to the lower court. Assault in the second degree was not a lesser crime than criminal negligence in the operation of a motor vehicle resulting in death or a charge where a lesser punishment is given. Hence, the court did not have the jurisdiction to accept the plea of guilty of assault in the second degree where the defendant was indicted for driving under the influence DUI and criminal negligence in operating a motor vehicle resulting in death. The recommendations made by the District Attorney pursuant to statute were inconsistent with the Penal Law.

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November 26, 2013


Finally, subdivision (e) of section 1104 specifies that “the foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others”. Thus, subdivision (e) cautions these drivers to operate their vehicles as safely as possible in an emergency and makes them answerable in damages if their reckless exercise of a privilege granted by subdivision (b) causes personal injuries or property damage.

But defendants and the dissent do not see it that way. They understand subdivision (e) to apply the reckless disregard standard of care to all injury-causing conduct of drivers of authorized emergency vehicles involved in emergency operations, whether or not that conduct is exempt under subdivision (b). But subdivision (e) links the reckless disregard standard of care to “the foregoing provisions,” which include the conditions in subdivision (c) and the privileges in subdivision (b).

The dissent complains that we have “interpreted Vehicle and Traffic Law § 1104(e) as if it read: ‘When the driver of an emergency vehicle engages in privileged conduct, that driver will be protected from liability unless he or she acts in reckless disregard of the safety of others' ”. The dissent, however, interprets subdivision (e) to mean “The driver of an authorized emergency vehicle involved in an emergency operation shall be protected from liability unless he or she acts in reckless disregard of the safety of others.” As the dissent acknowledges, though, subdivision (e) is written in the negative; it refers only to “the foregoing provisions”; and the “foregoing provisions” only privilege the conduct identified in subdivision (b), not any and all conduct of a driver.

Further, the dissent opines that the “evident intent” of the reference to “foregoing provisions” in Vehicle and Traffic Law § 1104(e) “was to ensure that the creation of the privileges earlier in the statute would not be misinterpreted as precluding an emergency responder from being held accountable when he or she caused an accident while engaged in privileged conduct”. Thus, such emergency responder “cannot receive a traffic citation” for conduct enumerated under section 1104(b); and “the fact that a driver failed to conform to a traffic law” would not “constitute prima facie evidence of negligence,” or “be viewed as recklessness per se”. Assuming this interpretation of the interplay between subdivisions (b) and (e) is correct, it does not follow that section 1104(e) creates a reckless disregard standard of care for unprivileged conduct. Indeed, the logical implication of the dissent's reading of section 1104 is that the standard of care for all emergency driving even if privileged under subdivision (b) is negligence.

The Legislature certainly knew how to create the safe harbor from ordinary negligence envisioned by defendants and the dissent. For example, the Legislature might simply have structured section 1104(a) and (b) along the lines of section 1103(b). As originally adopted in 1957, this provision stated in relevant part that “unless specifically made applicable, the provisions of this title [VII] shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway but shall apply to such persons and vehicles when traveling to or from such work”.

Thus, rather than taking the approach of section 1104(a) and (b)—excusing the driver of an authorized emergency vehicle from complying with certain rules of the road when involved in an emergency operation—the Legislature in section 1103(b) exempted “persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway” from all the rules of the road, subject to any statutory exceptions. Subsequently, the Legislature “softened the outright exemption” in section 1103(b) by adding the due regard/reckless disregard language of section 1104(e). In addition, in 1987 the Legislature created a statutory exception, making “specifically applicable” those provisions in title VII regarding driving under the influence of drugs or alcohol.

This discussion confirms that these provisions are interrelated such that subdivision (e) does not create a reckless disregard standard of care independent of the privileges enumerated in subdivision (b).

Additionally, we note that this is the first time we have been asked to decide the question presented by this appeal. This is not entirely surprising: subdivision (b) exempts the conduct most likely to lead to a motor vehicle accident severe enough to prompt a lawsuit; for example, speeding or running a red light. Defendants and amici curiae insist, however, that in our prior decisions, particularly, we have held that the reckless disregard standard of care applies when the conduct of an emergency vehicle driver involved in an emergency operation causes personal injuries or property damage, regardless of whether that conduct is privileged under Vehicle and Traffic Law § 1104(b). Amicus curiae New York State Division of State Police, for example, argues that “while the facts of involved a police officer who exceeded the speed limit during a chase the Court's holding was broad and unambiguous,” quoting the following passage: “Faced squarely with this question of statutory interpretation for the first time, we hold that a police officer's conduct in pursuing a suspected lawbreaker may not form the basis of civil liability to an injured bystander unless the officer acted in reckless disregard for the safety of others”.

Finally, the dissent devotes several pages to a discussion of the many supposed “practical problems” presented by our interpretation of the statute. Simply put, section 1104(e) establishes a reckless disregard standard of care “for determining civil liability for damages resulting from the privileged operation of an emergency vehicle”; if the conduct causing the accident resulting in injuries and damages is not privileged under Vehicle and Traffic Law § 1104(b), the standard of care for determining civil liability is ordinary negligence.
Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question should be answered in the affirmative.

November 26, 2013

Appellate Division reversed... cont


Finally, subdivision (e) of section 1104 specifies that “the foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others”. Thus, subdivision (e) cautions these drivers to operate their vehicles as safely as possible in an emergency and makes them answerable in damages if their reckless exercise of a privilege granted by subdivision (b) causes personal injuries or property damage.

But criminal defendants and the dissent do not see it that way. They understand subdivision (e) to apply the reckless disregard standard of care to all injury-causing conduct of drivers of authorized emergency vehicles involved in emergency operations, whether or not that conduct is exempt under subdivision (b). But subdivision (e) links the reckless disregard standard of care to “the foregoing provisions,” which include the conditions in subdivision (c) and the privileges in subdivision (b).

The dissent complains that we have “interpreted Vehicle and Traffic Law § 1104(e) as if it read: ‘When the driver of an emergency vehicle engages in privileged conduct, that driver will be protected from liability unless he or she acts in reckless disregard of the safety of others' ”. The dissent, however, interprets subdivision (e) to mean “The driver of an authorized emergency vehicle involved in an emergency operation shall be protected from liability unless he or she acts in reckless disregard of the safety of others.” As the dissent acknowledges, though, subdivision (e) is written in the negative; it refers only to “the foregoing provisions”; and the “foregoing provisions” only privilege the conduct identified in subdivision (b), not any and all conduct of a driver.

Further, the dissent opines that the “evident intent” of the reference to “foregoing provisions” in Vehicle and Traffic Law § 1104(e) “was to ensure that the creation of the privileges earlier in the statute would not be misinterpreted as precluding an emergency responder from being held accountable when he or she caused an accident while engaged in privileged conduct”. Thus, such emergency responder “cannot receive a traffic citation” for conduct enumerated under section 1104(b); and “the fact that a driver failed to conform to a traffic law” would not “constitute prima facie evidence of negligence,” or “be viewed as recklessness per se”. Assuming this interpretation of the interplay between subdivisions (b) and (e) is correct, it does not follow that section 1104(e) creates a reckless disregard standard of care for unprivileged conduct. Indeed, the logical implication of the dissent's reading of section 1104 is that the standard of care for all emergency driving even if privileged under subdivision (b) is negligence.

The DWI Legislature certainly knew how to create the safe harbor from ordinary negligence envisioned by defendants and the dissent. For example, the Legislature might simply have structured section 1104(a) and (b) along the lines of section 1103(b). As originally adopted in 1957, this provision stated in relevant part that “unless specifically made applicable, the provisions of this title [VII] shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway but shall apply to such persons and vehicles when traveling to or from such work”.

Thus, rather than taking the approach of section 1104(a) and (b)—excusing the driver of an authorized emergency vehicle from complying with certain rules of the road when involved in an emergency operation—the Legislature in section 1103(b) exempted “persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway” from all the rules of the road, subject to any statutory exceptions. Subsequently, the Legislature “softened the outright exemption” in section 1103(b) by adding the due regard/reckless disregard language of section 1104(e). In addition, in 1987 the Legislature created a statutory exception, making “specifically applicable” those provisions in title VII regarding driving under the influence of drugs or alcohol.

This discussion confirms that these provisions are interrelated such that subdivision (e) does not create a reckless disregard standard of care independent of the privileges enumerated in subdivision (b).

Additionally, we note that this is the first time we have been asked to decide the question presented by this appeal. This is not entirely surprising: subdivision (b) exempts the conduct most likely to lead to a motor vehicle accident severe enough to prompt a lawsuit; for example, speeding or running a red light. Defendants and amici curiae insist, however, that in our prior decisions, particularly, we have held that the reckless disregard standard of care applies when the conduct of an emergency vehicle driver involved in an emergency operation causes personal injuries or property damage, regardless of whether that conduct is privileged under Vehicle and Traffic Law § 1104(b). Amicus curiae New York State Division of State Police, for example, argues that “while the facts of involved a police officer who exceeded the speed limit during a chase the Court's holding was broad and unambiguous,” quoting the following passage: “Faced squarely with this question of statutory interpretation for the first time, we hold that a police officer's conduct in pursuing a suspected lawbreaker may not form the basis of civil liability to an injured bystander unless the officer acted in reckless disregard for the safety of others”. A weapon was not found.

Finally, the dissent devotes several pages to a discussion of the many supposed “practical problems” presented by our interpretation of the statute. Simply put, section 1104(e) establishes a reckless disregard standard of care “for determining civil liability for damages resulting from the privileged operation of an emergency vehicle”; if the conduct causing the accident resulting in injuries and damages is not privileged under Vehicle and Traffic Law § 1104(b), the standard of care for determining civil liability is ordinary negligence.
Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question should be answered in the affirmative.

November 25, 2013

Appellate Division reversed


A New York DWI Defense Lawyer said that, the court concluded that defendant’s conduct was covered by section 1104, and that plaintiff had not raised a triable issue of fact as to whether he acted with reckless disregard. On December 30, 2009, the Appellate Division reversed, with two Justices dissenting. The majority held that the reckless disregard standard in section 1104(e) is limited to accidents caused by conduct privileged under section 1104(b). Because defendant’s injury-causing conduct was not exempt under this provision, the majority concluded that “the applicable standard for determining liability was the standard of ordinary negligence”. The court further observed that “a rear-end collision with a vehicle in stop-and-go traffic creates a prima facie case of negligence with respect to the operator of the rear vehicle”; therefore, “partial summary judgment on liability in favor of the person whose vehicle was rear-ended is appropriate in the absence of a non-negligent explanation for the accident”
Concluding that plaintiff had met her burden on the cross motion and that defendants had not put forward a non-negligent explanation, the court reinstated the complaint against defendants and granted plaintiff’s cross motion for partial criminal summary judgment on liability. The dissent interpreted section 1104 differently, taking the position that the reckless disregard standard was applicable to any injury-causing conduct of a driver of an emergency vehicle involved in an emergency operation. On March 19, 2010, the Appellate Division granted defendants leave to appeal, and certified to us the question of whether its order was properly made.

The issue in this case is whether the Appellate Division erred in granting defendants leave to appeal, and whether its order was properly made.

The court affirms and therefore answers the certified question in the affirmative. Section 1104 was put in place in 1957 as part of what is now title VII of the Vehicle and Traffic Law, which was intended to “create a uniform set of traffic regulations, or the ‘rules of the road’ to update and replace the former traffic regulations, and bring them into conformance with the Uniform Vehicle Code adopted in other states”. Subdivision (a) of this provision empowers the driver of an “authorized emergency vehicle” (defined in Vehicle and Traffic Law § 101) when involved in an “emergency operation” in Vehicle and Traffic Law § 114–b) 4 to “exercise the privileges set forth in this section [1104], but subject to the conditions herein stated. The statute then lists these privileges in subdivision (b): “1. Stop, stand or park irrespective of the provisions of this title [VII]; “2. Proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation; “3. Exceed the maximum speed limits so long as he does not endanger life or property; “4. Disregard regulations governing directions of movement or turning in specified directions” (Vehicle and Traffic Law § 1104[b] ).
Subdivision (c) of section 1104 sets out prerequisites or conditions upon the exercise of the privileges listed in subdivision (b): except in the case of police vehicles or bicycles “the exemptions herein granted” are available only when the authorized emergency vehicle is making use of prescribed audible and visual signals. Drug possession was not involved.

To Be Cont....

November 22, 2013

Appellate Division reversed

A New York DWI Lawyer said that, at 3:57 p.m. on September 20, 2004, defendant a road patrol deputy in the Monroe County Sheriff's Office, was on routine patrol in a marked police vehicle when he received a radio dispatch from the Office of Emergency Communications dispatch or “911 center” directing him to respond to a stolen vehicle report at an address in Henrietta, New York. At the time, he was heading south on West Henrietta Road, nearing a traffic light at the intersection of West Henrietta Road and Brighton Henrietta Town Line Road, which marks the border between the Towns of Brighton (on the north side) and Henrietta (on the south side).

Defendant soon received a second radio dispatch, which requested backup for another officer who was responding to a burglary alarm at a location in Henrietta. Because the 911 center categorized the burglary alarm as “classification one” meaning “a serious call that needs immediate attention” the deputy acknowledged the request, telling the dispatcher that he would assist with the burglary alarm before addressing the stolen vehicle report, which was assigned a higher classification and therefore a lower priority. At 4:02 p.m., the dispatcher transmitted information about the burglary call, including the address and the names of cross streets, to the mobile data terminal inside the deputy's vehicle.

A New York Drunk Driving Lawyer said that, defendant did not activate the emergency lights or siren on his vehicle; he was traveling at a speed of 25 to 30 miles per hour in a 40–mile–per–hour zone, and does not recall if he speeded up or slowed down after receiving the dispatch. The deputy explained that he was not familiar with the location of the burglary alarm, and “due to the amount of traffic during that time of day, he didn't want to initiate any emergency equipment without knowing where he was positively going.” He therefore touched the terminal and “looked down for two to three seconds” at the display “to view the names of the cross streets.” When the deputy lifted his gaze, he realized that “traffic had slowed.” Although he immediately applied his brakes, he was unable to stop before rear ending the vehicle in front of him, which was driven by plaintiff. There are three southbound lanes—two through lanes and a left-hand-turn lane—at the intersection of West Henrietta Road and Brighton Henrietta Town Line Road. Plaintiff testified that she was traveling in the left travel lane. She had stopped for a red traffic light, and was just beginning to move forward slowly toward the congested intersection when her car was hit.

A New York Criminal Lawyer said that, in October 2005 and February 2006 Plaintiff brought actions, subsequently consolidated, against Monroe County, defendant and others, alleging serious injury under New York's No–Fault Law. In May 2008, defendants moved for summary judgment to dismiss the complaints, and in July 2008, Plaintiff cross-moved for partial summary judgment on liability. The parties disputed whether Vehicle and Traffic Law § 1104 applied; making defendant liable for the accident only if he acted with “reckless disregard for the safety of others”.

To be Cont...

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November 19, 2013

Due Process Clause,,,,, cont


Recognizing there is no constitutional jury trial right for a "petty" offense does not, however, resolve all the constitutional issues raised by the use of CPL 400.40 in this case. To complete the analysis, an assessment of recent Supreme Court and Court of Appeals cases involving postconviction judicial involvement in enhanced sentencing proceedings is in order. In 2000, the Supreme Court extended to state court proceedings its year-old holding that
"under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.""the constitutional proposition that drives our concern in no way call[s] into question the principle that the definition of the elements of a criminal offense is entrusted to the legislature. The constitutional guarantees that give rise to our concern in no way restrict the ability of the legislatures to identify the conduct they wish to characterize as criminal or to define the facts whose proof is essential to the establishment of criminal liability. The constitutional safeguards that figure in our analysis concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment; these are the safeguards going to the formality of notice, the identity of the factfinder, and the burden of proof."35

One of the defendant's most virulent objections to the court's use of CPL 400.40 is his allegation that employing the procedure violates fundamental rights by convicting him of an offense without ever having been formally accused of a third DWI or tried for that crime. That position is unsustainable for several reasons.

The court having concluded that either a Harris or a CPL 400.40 hearing was appropriate, the People proffered sworn testimony and exhibits that the defendant was the same individual who had previously been twice convicted of DWAI in the past 10 years. Their first witness was the arresting officer who identified the petitioner as the person he had arrested in the case now before the court. He noted the date of birth and testified he brought the defendant to the Monroe County Jail for processing on his arrest. Next the People called a police identification technician whom the court found over objection was qualified to render an opinion as an expert in fingerprint comparison. Also over objection, the court allowed fingerprint cards from the present arrest and two prior arrests in a local town court to be admitted pursuant to CPL 60.60 (2). The witness then testified that he concluded based on his training and experience and having found at least 10 points of similarity between the known inked prints and the fingerprint cards that appeared on all three cards. The People also introduced certificates of conviction from that town court indicating that petitioner was convicted of DWAI before, which are both dates within 10 years of the DWAI of which he stands convicted in this court. Comparing all the documents admitted and considering the credible testimony of the witnesses based not only on the words they spoke but their nonverbal communication and demeanor in court, this court found both as a factfinder and as a judicial officer that the People had proven that petitioner had in fact been convicted twice of DWAI within the 10 years preceding the commission of the present offense. Thus, he stood before the court having been convicted of a misdemeanor DWAI.

It has been said that any courtroom advocate's arguments can be distilled into the three reasons which our kindergarten teachers gave us for the decisions they made in our first years in school: "[W]e do it because that's the rule"; "we do it because that's the way it has always been done"; and "we do it because if we didn't, that just wouldn't be fair." By any of those standards, the procedure utilized by this court under the specific facts of this case was appropriate and not in violation of the defendant's statutory or constitutional rights.

First, the court has adhered to the "rule" established by the New York Legislature when it chose how to separately address due process issues in the case of local court prosecutions of habitual offenders by enacting legislation which has now become CPL 400.40. Second, this court has followed "what has always been done" in applying the recidivist sentencing exception recognized by our courts since colonial times. Lastly, to have proceeded in any other fashion would have been patently unfair. In the face of that legislative history and common-law tradition accepting the defendant's position would preclude the imposition of the sentence which the court has imposed and the defendant so desperately needs: three years of probation supervision with abstention from alcohol and mandated treatment with the possibility of six months in jail hanging over the defendant's head if he were to be convicted of violating his probation. Drug possession was not an issue.

Our highest Court has recognized the sui generis nature of our comprehensive laws addressing the issue of drinking and driving.55 It seems that each year, new provisions are added to this complex statutory scheme which are intended to make our highways safer by deterring alcohol impaired driving and providing offenders with opportunities to successfully confront issues of alcohol abuse in their lives. When individuals repeatedly violate those laws, the public may reasonably expect that the Legislature has the right to direct and courts have the responsibility to consider enhanced penalties for habitual offenders. As they increase the number of statutory provisions addressing recidivists, it is hoped that the Legislature will soon specifically address the practice and procedure prosecutors and the courts should utilize in these cases given the conflicting judicial opinions on this issue.

November 17, 2013

Due Process Clause

In this DWI case, defendant was originally charged with common law driving while intoxicated (DWI), but he waived his right to trial by jury on that charge and was convicted after a bench trial of the offense of driving while his ability to do so was impaired by alcohol (DWAI).

Following the verdict and before sentencing, it was brought to the court's attention that in the past 10 years the defendant had been convicted twice of DWAI. Since our law provides that a third violation of any subdivision of Vehicle and Traffic Law § 1192 within such a time period may constitute a crime, and because no accusatory instrument charging the defendant with misdemeanor DWAI (third DWAI) had been filed with the court, an issue arose regarding whether the court had the authority to consider sentencing the defendant as a third DWAI offender.

This court finds neither federal nor state constitutional provisions preclude the entry of such a misdemeanor conviction following a trial verdict. In addition, while New York's commonlaw tradition and its statutory scheme both reflect a historical sensitivity to issues connected with the use of prior convictions in criminal prosecutions, the New York Legislature has chosen to balance due process interests by allowing the issue of recidivist sentencing to be addressed postverdict by the judge in local court cases such as this. Thus, while the court is aware of several decisions which have reached a contrary conclusion, this court holds that when a defendant with two Vehicle and Traffic Law § 1192 convictions within the past 10 years is tried on a DWI charge resulting in an acquittal and a verdict of guilty is returned as to DWAI, it is appropriate to follow the provisions of Criminal Procedure Law § 400.40 in determining whether the DWAI conviction is one for a violation or a misdemeanor.

Article 400 outlines "Pre-sentence Proceedings" for all levels of offenses and contains the "[p]rocedure for determining prior convictions for the purpose of sentence in certain cases." By its terms, CPL 400.40 applies "[w]here a conviction is entered for an unclassified misdemeanor or for a traffic infraction and the authorized sentence depends upon whether the defendant has a previous judgment of conviction for an offense."5 In cases where a court is considering imposing a sentence applicable only to such a recidivist, a statement alleging the prior conviction(s) must be filed and the defendant is given an opportunity to admit, deny or stand mute regarding its contents. Unless the defendant admits the prior convictions, a hearing must be held "before the court without a jury. The burden of proof is upon the people and a finding that the defendant has been convicted of any offense alleged in the statement must be based upon proof beyond a reasonable doubt by evidence admissible under the rules applicable to trial of the issue of guilt."

Consequently, the design and legislative history of CPL 400.40 clearly demonstrate that the factual setting within which this court finds itself is precisely the circumstance CPL 400.40 was intended by the Legislature to address. A number of issues, however, still need to be resolved. First, the question of a right to a jury trial needs to be dealt with since all of the other reported cases which have previously decided the issues before the courts have been decided primarily on a defendant's right to a jury trial. In addition, this court should account for the constitutional concerns raised in recent Supreme Court and Court of Appeals cases and evaluate whether CPL 400.40 can be used to designate the level of offense as a misdemeanor.
Defendants who are initially charged with misdemeanor or felony DWI have a constitutional right to a jury trial. The same cannot be said, however, for a person initially charged with a third DWAI. Such a person has no constitutional right to a jury trial since a third DWAI is classified as a "petty" offense for purposes of constitutional jury trial analysis. Marijuana was not found.

More than 15 years ago, the Supreme Court found that a state's statutory scheme denying a jury trial in certain drunk driving cases was constitutional.21 While the court evaluated the array of sentencing options available to a judge following conviction22 and recognized that "a prison term of six months or less will seldom be viewed by the defendant as trivial or petty," it nonetheless found that "the disadvantages of such a sentence, onerous though they may be, may be outweighed by the benefits that result from speedy and inexpensive nonjury adjudications." In holding that crimes punishable by six months or less in jail are presumptively "petty" offenses, the Supreme Court noted that the presumption may be overcome if a defendant "can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a `serious' one." The Court of Appeals has adopted this presumptive constitutional analysis.

To Be cont.....

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November 16, 2013

People v. McNair

People v. McNair

Criminal Court Discusses Electronic Monitoring as a Special Condition to a Probation Sentence

On October 27, 1993 at approximately 2:30 in the morning, a police officer pulled the appellant's car over for speeding and running a red light Poughkeepsie, New York. The appellant was subsequently arrested for driving while intoxicated DWI, and aggravated unlicensed operation of a motor vehicle in the first degree, both felonies. On January 11, 1994, the appellant waived his right to be prosecuted by indictment and pled guilty under Superior Court Information in Dutchess County Court to driving while intoxicated as a felony in satisfaction of the pending charges against him. On February 24, 1994, County Court sentenced the appellant to five years probation which included six months imprisonment. A special condition of the probationary sentence imposed that appellant serve up to one year of electronic monitoring following the completion of his jail term. The trial judge advised the defendant at sentencing that the electronic monitoring could be terminated by the appellant's probation officer prior to the completion of one year. The court also directed that the appellant attend the Victim Impact Panel at the earliest opportunity following his release from jail, pay a $1,000.00 fine, a $150.00 mandatory surcharge and the $5.00 crime victim's assistance fee. The appellant took an appeal to challenge the electronic monitoring portion of his probationary sentence as it was unauthorized and illegally imposed. On February 6, 1995, the Appellate Division, Second Department affirmed in a memorandum decision. The Appellant then appealed to the Court of Appeals on the ground that the court was not empowered to highly restrict a defendant's freedom of movement for substantial periods of time in the absence of any statutory authorization.

The Court of Appeals examined the reason for the court including the special condition of electronic monitoring. The trial judge stated that the appellant was convicted on prior occasions for driving under the influence and the he had lost the trust of the court. Therefore, the use of the electronic monitoring was primarily to assure the court that the roadways were safe from the appellant’s driving. Public safety was the biggest consider when the court imposed this special condition. The case of Letterlough, 86 N.Y.2d questions regarding public safety may not be considered in determining special probation conditions under the catch all phrase of section 65.10(2) (1) of the Penal Law. Section 65.10(2) (1) of the Penal Law allows a sentencing court to impose probationary conditions that is reasonably related to rehabilitation. The aim of the electronic monitoring was to keep the appellant under the Probation Department's surveillance but it did not serve the goal of deterrence by stoping the appellant from drinking and driving. The only rehabilitative benefit to surveillance was purely incidental as it restricted the appellant’s movement and thereby reduced his opportunity to commit a crime.

Therefore, the Court of Appeals reversed the decision of the Appellate Division of the Supreme Court. It held that sentencing court exceeded its authority under probation statute's catch-all provision, in ordering one year of electronic monitoring. A ruling that upheld electronic monitoring would inevitably lead to the uneven and invasive application of the electronic monitoring technology as courts around the State experiment with this unregulated sentencing tool. The matter was remitted for further proceeding on the superior court information.

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November 12, 2013

CPL 360.25 (1) (e).... cont


The courts may look behind the words of a statute when the law itself is doubtful or ambiguous. The purpose and object of a statute may properly be considered as an aid to its interpretation. Where there is doubt as to the meaning of the language of a statute, various extrinsic matters throwing light on the legislative intent may be considered by the courts. Resort may be had to any authoritative source of information, including documents, and the court may also make use of general facts of common knowledge or public notoriety. Further, statements of the draftsman of the statute are properly considered in determining the legislative intent.

The court finds that the "plain meaning rule" is not applicable to the case at bar as the phrase "same conduct charged" contained in CPL 360.25 (1) (e) may arguably admit more than one meaning. Therefore, it is appropriate for the court to interpret CPL 360.25 (1) (e) to give effect to the Legislature's general purpose.

People v. Beirati interpreted CPL 270.20 (1) (e), a section of the CPL which prescribes one of the grounds for a challenge "for cause" of a prospective juror for a criminal case involving charges by way of indictment in superior court, not by way of an information. In 1987, CPL 270.20 (1) (e) was worded similar to CPL 360.25 (1) (e), and read as follows:

"A challenge for cause is an objection to a prospective juror and may be made only on the grounds that he served on the grand jury which found the DUI indictment in issue or served on a trial jury in a prior civil or criminal action involving the same conduct charged in such indictment."

In the Beirati case, the issue presented was whether a prospective juror who had previously served on a jury, where the indictment charged in the previous case was a crime of attempted murder, was subject to challenge "for cause" in a subsequent trial for a different defendant charged by an indictment for attempted murder pursuant to CPL 270.20 (1) (e). The court concluded that the People's challenge "for cause" should be denied. The court in Beirati found the phrase the "same conduct charged" to mean more than the same general type of accusation. The court held that the "same conduct charged" was to be narrowly interpreted to mean "same alleged incident and the same acts in connections therewith alleged to have been committed."

The court notes that CPL 270.20 (1) (e), which is applicable to charges by way of an indictment was amended because of the Beirati decision. However, the Legislature did not amend CPL 360.25 (1) (e), which is applicable to charges by way of an information.

Was the Legislature's failure to amend CPL 360.25 (1) (e) to be viewed as a legislative oversight or is such failure to amend an indication that such exclusion was intentional? The hoary maxim of statutory construction "expressio unius est exclusio alterus," literally means the expression of one is exclusion of the other and was legislatively canonized in New York in McKinney's Consolidated Laws of NY, Book 1, Statutes § 74. It states, in relevant part, that: The failure of the Legislature to include a matter within a particular statute may be construed as an indication that its exclusion was intended.”

Thus, a court cannot read into a statute a provision which the Legislature did not see fit to enact. However, when legislative intent is clear, an omission in a statute may be considered an inadvertence and supplied by the courts and words obviously omitted by mistake may be supplied to prevent inconsistency and unreasonableness.

In the instant case, the court holds that the Legislature's failure to amend the phrase "same conduct charged" used in CPL 360.25 (1) (e) was caused by the Legislature's inadvertence and not by design. The Legislature found the phrase "same conduct charged" used in CPL 270.20 (1) (e) to be ambiguous. The same exact phrase is used in CPL 360.25 (1) (e). CPL 360.25 (1) (e) creates the same ambiguity that CPL 270.20 (1) (e) did prior to the 1989 amendment. Certainly the Legislature could not have intended the statute dealing with misdemeanors to have a broader reach of juror disqualification than the statute dealing with felony.

Noteworthy is the fact that the federal courts have consistently followed a general rule that prior jury service on a similar case arising out of a separate and distinct set of circumstances, even though the offenses charged are the same offenses, is an insufficient basis for a challenge for cause, unless it can be shown that such prior service actually biased the prospective juror.

The DWAI court holds that the phrase "same conduct charged" does not merely mean the same type of charge. Rather, said phrase should be narrowly interpreted to mean the same earlier exposure to the facts, involving the same defendant. To give this statute any other construction, would give an ambiguous phrase scope beyond that intended by the Legislature.
The court observes that the juror should have been questioned about his ability to render an impartial verdict despite his past experience as a juror. The prospective juror should not have automatically been discharged for service merely because he sat on a previous DWI or Driving While Intoxicated trial. Accordingly, it was an error for this court to excuse this prospective juror "for cause," pursuant to CPL 360.25 (1) (e).

Moreover, this error was a reversible error, as set forth in CPL 270.20 (2), applicable to this case pursuant to CPL 360.25 (2), because the People had exhausted their peremptory challenges before jury selection was complete.

Based upon the foregoing, this portion of the defendant's motion to set aside the verdict is hereby granted. The court reverses the verdict and a new trial is ordered.

In the second portion of the defendant's motion to set aside the verdict, the defense counsel claims that the People committed reversible error by (1) in summation telling the jury that the defendant's testimony was a "nice, pretty tale" or "nice tale," or "less than the truth" or "worthless" or "didn't happen" as a matter of "fact," and also vouching for the People's witnesses; (2) commenting on the defendant's silence and persisting even after objection was sustained; (3) denigrating the defense and defense counsel. The People claim that the People's arguments made in summation were fair comments based on the evidence presented at trial and were made in response to the arguments presented during defense counsel's summation.
The defendant's second ground for setting aside the verdict is also pursuant to CPL 330.30 (1). Again, a trial court's power to set aside a verdict under this section arises only where an appellate court would be required, as a matter of law, to reverse or modify the judgment of conviction as ruled in People v Tomas. As set forth previously, appellate review on the law requires the issue be preserved. Thus, this court must examine whether the defendant preserved for appellate review his challenges to the People's summation.

The defense counsel failed to specifically object to most of the comments made by the prosecutor during summation or seek further relief. Accordingly, the alleged improprieties in the prosecutor's summation were largely unpreserved for appellate review.

The court denies defendant’s motion to set aside the verdict.

In the third argument raised by the defendant, in its motion to set aside the verdict, the defense counsel argues that the verdict should be set aside pursuant to CPL 330.30 (2), due to juror misconduct. The defense claims that juror misconduct occurred because a juror allegedly relied on per-drink alcohol content data that was not in evidence. The People claim that defense counsel's affidavit of the juror's alleged misconduct is hearsay and the alleged misconduct merely a sharing of the juror's past experience.

CPL 330.30 (2) permits the court, after rendition of the verdict, but before sentencing, upon motion of the defendant, to set aside a verdict if:

"during the trial there occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict."

In order to set aside a verdict based upon juror misconduct, the defendant must demonstrate a substantial risk of prejudice- exists when a juror's or the jury's conduct colors the views of the other jurors as well as his/her own.

In the instant case, this portion of the defendant's motion to set aside the verdict based upon juror misconduct was only supported by an affidavit of defense counsel. No explanation was offered as to why affidavits could not be obtained from the juror who allegedly acted inappropriately or from jurors that observed other jurors acting inappropriately.

Accordingly, the court dismisses the defendant's motion to set aside the verdict based upon juror misconduct.

November 8, 2013

Mothers Against Drunk Driving ,,,cont

The record before the court establishes that defendant, based upon his successful completion of the shock incarceration program, has been awarded a certificate of earned eligibility and has been granted release on parole effective February 16, 1989. The temporary restraining order prevented his release. Defendant’s impending release has engendered much criticism from the families and friends of the victims and others including Mothers Against Drunk Driving (MADD). Most of such communications convey requests, pleas and/or demands that the court undo what has hitherto been done and substitute its judgment for that of the screening committee which permitted him, as a then-eligible inmate, to participate in the shock incarceration program. Suffice it to say that this court is required to decide the issue raised before it and the record before the court raises no issue of substitution of judgment for an administrative decision made over seven months ago.

The issue in this case is whether upon the amendment of the Correction Law on September 1, 1988, officials of the New York State Department of Correctional Services were required to immediately remove defendant and anyone else of like circumstance from the shock incarceration program. Stated another way, did it become illegal on and after September 1, 1988 for defendant to participate in the program.

The court's analysis starts with the premise that the petitioner has standing to initiate this challenge since a District Attorney is entrusted with the responsibility to insure that criminal sentences imposed in his county are carried into effect.

Correction Law § 865(1) as amended reads: 1. "An eligible inmate" means a person sentenced to an indeterminate term of imprisonment who has not reached the age of twenty-six years, who will become eligible for release on parole within three years, who has not previously been convicted of a felony upon which an indeterminate term of imprisonment was imposed and who was between the ages of sixteen and twenty-six years at the time of commission of the crime. Notwithstanding the foregoing, no person who is convicted of any of the following crimes shall be deemed eligible to participate in this program: (a) a violent felony offense as defined in article seventy of the penal law, (b) an A-1 felony offense, (c) manslaughter in the second degree, vehicular manslaughter in the second degree, vehicular manslaughter in the first degree and criminally negligent homicide as defined in article one hundred twenty-five of the penal law, (d) rape in the second degree, rape in the third degree, sodomy in the second degree, sodomy in the third degree, attempted sexual abuse in the first degree, attempted rape in the second degree and attempted sodomy in the second degree as defined in articles one hundred ten and one hundred thirty of the penal law and (e) any escape or absconding offense as defined in article two hundred five of the penal law.

Persons convicted of violent sex crimes are not allowed to participate in the shock incarceration program to obtain early release. The crime of vehicular manslaughter is an offense as, or more, serious than those which currently preclude participation in the shock incarceration program. To be found guilty of vehicular manslaughter, the defendant must be found to have been driving while intoxicated DWI and have committed negligent homicide. Yet, while persons convicted of negligent homicide are not allowed to participate in the shock incarceration program, persons convicted of the including offense of vehicular manslaughter are. This bill corrects this incongruity in the law. Persons who have been convicted of vehicular manslaughter are guilty of a very serious offense and should not be allowed the benefits of a shortened period of imprisonment through the shock incarceration program.

It is a basic tenet of statutory construction that absent an unequivocal expression of a contrary legislative intent, statutes and amendments are construed prospectively. A retroactive statute is defined as "one which takes away or impairs vested rights acquired under existing law"
In construing a statute the court first looks to the language of the statute to determine if retroactive application was intended. Here the amendment is silent except to indicate that its effective date is "immediately upon signature into law". "Although it is not an inflexible one, there exists a presumption that statutes are intended to operate prospectively only and are directed towards the future. It is to be presumed that a law was intended to furnish a rule of future action to be applied to cases arising subsequent to its enactment. Retroactive operation of a statute is not favored and before a retroactive construction will be found, a clear expression of legislative intent must be found.

The court finds no words manifesting any intent on the part of the Legislature that the amendment to Correction Law § 865 be given retroactive operation. Looking to the memorandum submitted by the amendment's sponsors, there is no indication that a retroactive application was intended. The court as part of its research reviewed the Governor's bill jacket kept with reference to the subject amendment and among the numerous letters submitted both in support of and in opposition to the legislation, only one correspondent addressed the retroactivity issue. The respondent DCS, in a letter dated August 30, 1988 to the Governor's counsel, stated, "Please note that inmates presently in the shock incarceration program who have been convicted of vehicular manslaughter in the first or second degree will not be removed from the program solely on account of such conviction".

The Legislature was acutely aware of the "incongruous" situation whereby inmates convicted of vehicular manslaughter, such as respondent Flaherty, were permitted legally to apply for and participate in shock incarceration with the outcome being a significant reduction in the length of their minimum periods of imprisonment. The Legislature, in eliminating the eligibility of such inmates, acted prospectively. It failed to state that a retroactive application of the more restricted eligibility requirements was intended. The court cannot supersede the Legislature's prerogative and direct retroactive application of the amendment in this case. Since respondent, at the time that his eligibility for the program was determined, satisfied all of the minimum requirements, respondent Department of Correctional Services acted within the scope of its delegated authority in admitting him into the program. The court holds that the respondent Department of Correctional Services after September 1, 1988 was not obligated to review his eligibility status for the purpose of imposing the more stringent eligibility requirements enacted by the Legislature. Having been found duly eligible to participate in the shock incarceration program, respondent was and is entitled to any benefits which accrued based upon his participation therein.

Accordingly, the court held that the petition is dismissed without costs.

November 7, 2013

Fourth Amendment interests...cont


It is unquestionable that a roadblock or checkpoint stop is a seizure within the meaning of the Fourth Amendment but it is also true that there is only a diminished expectation of privacy in an automobile. The permissibility of a particular practice is a function of its "reasonableness," which is determined by balancing its intrusion on the Fourth Amendment interests of the individual involved against its promotion of legitimate governmental interests. Of importance in that analysis are the governmental interest involved and the effect of the procedure in relation to it, on the one hand, and, on the other, the degree of intrusion of the procedure on the individual subjected to it, measured in terms of both its subjective effect and the degree of discretion vested in the officials charged with carrying it out.

The importance of the governmental interest here involved is beyond question. The carnage caused by drunk drivers is well documented and needs no more detailed recitation.

Moreover, in light of the specific procedures devised and promulgated to law enforcement personnel by the head of their department, the Sheriff, and the way in which the particular roadblock was being operated when defendant was stopped, the courts below could properly conclude that it did not intrude to an impermissible degree upon the privacy of motorists approaching the checkpoint, that it was being maintained in accordance with a uniform procedure which afforded little discretion to operating personnel, and that adequate precautions as to safety, lighting and fair warning of the existence of the checkpoint were in operation. The fact that the plan contemplated situations in which not every car would be stopped for DWI did not affect its validity in view of the specific nondiscriminatory pattern of selection it called for.

Nor is the plan invalid because of its deterrent purpose, the shifting of checkpoints after short periods of time, or the question raised by criminal defendants concerning its efficiency.

The value of roadblocks in decreasing drunk driving is attested by both the United States Department of Transportation and the Governor's Alcohol and Highway Safety Task Force. A 1983 paper on Safety Checkpoints For DWI Enforcement issued by the Department of Transportation's National Highway Traffic Safety Administration's Office of Alcohol Countermeasures emphasizes the importance of informing the public about DWI checkpoint operations as the chief means of deterring driving while intoxicated and the Governor's Task Force found that the systematic, constitutionally conducted traffic checkpoint is the single most effective action in raising the community's perception of the risk of being detected and apprehended for drunk driving. Moreover, the Supreme Court has held deterrence to be a legitimate governmental purpose not only with respect to legislation.

Nor is constitutionality affected by the shifting and temporary nature of the checkpoints. The fact that the Supreme Court has approved permanent roadblocks but disapproved roving patrol stops is not determinative. What is critical is the intrusiveness of the checkpoint in relation to the governmental purpose involved. The subjective effect upon a vehicle driver approaching a roadblock is unrelated to whether it is permanent or was established but a few minutes before the driver approached it; in either instance his or her observation of it will be measured in minutes if not seconds. The likelihood of there being the kind of fright or annoyance that invalidates a random stop made by a roving patrol is obviated in the case of a temporary checkpoint by the visible signs of authority which the checkpoint entails--signs announcing the purpose, lighting, and identifiable police vehicles and the observable fact that there is a uniform system for stopping cars as held in United States v. Hernandez and Little v. State. No drug of any kind was found.

The court notes that the only subjective difference between temporary and permanent checkpoints is that because its location is known in advance the latter can be avoided entirely by using a different route, but that difference is minimal as concerns anxiety, especially since a temporary checkpoint can also be avoided. Of greater importance on the other side of the equation is the fact that both the detection and deterrence purposes would be adversely affected, if not forestalled entirely, were drunk driving checkpoints required to remain in one place, the known and permanent location of the checkpoint making it easily avoidable.

Nor, finally, is there sufficient question about the productivity of DWI checkpoints to require invalidation of the procedure. The contrary argument is based on the effectiveness of the procedure as a means of apprehension and ignores entirely its deterrent effect. There can be no question that substantial reductions have occurred since 1980 in the deaths, injuries and damage resulting from drunken driving.

Thus, the Report of the Subcommittee on Drunk Driving of the Assembly Transportation Committee contains findings that highway fatalities from 1980 to 1983 decreased by 21%, while the risk of being in an accident, as measured by vehicle miles traveled, increased by 5.5%; alcohol-involved fatal accidents decreased 25% from 1981 to 1983; all accidents have declined by less than 1.5% since 1980, while reported alcohol-involved accidents have fallen at almost ten times that rate (14.5%); accidents during bar hours have declined 21.3% since 1980, while nonbar hour accidents actually have increased 3.6%; and fatal accidents during bar hours have decreased 33% since 1980, while nonbar hour fatal accidents have decreased only 11%.
The extent to which those results stem from legislative reforms during that period as distinct from the deterrent effect of roadblocks and other educational and public information programs aimed at combatting the problem is not revealed, but in our view is not of constitutional moment. It is enough that such checkpoints, when their use becomes known, do have a substantial impact on the drunk driving problem. The State is entitled in the interest of public safety to bring all available resources to bear, without having to spell out the exact efficiency coefficient of each component and of the separate effects of any particular component as ruled in Mackey v. Montrym. There being a reasonable basis for concluding that, considering both its detection and its deterrence effect, the DWI checkpoint procedure in question is a valuable component of the program to control drunk driving, the court concludes that it is a sufficiently productive mechanism to justify the minimal intrusion involved.

In consideration of the reasons stated above, the court affirms the decision of County Court, Genesee County denying defendant’s motion to suppress the evidence obtained at the roadblock.

November 6, 2013

BAC admissible at trial ...cont


Upon a review of the log photos, taken over a 16-year period, one can readily see that the subject guide rail has sustained physical damage. As explained, it is not unusual for the wing blade of a state owned snowplow to come into contact with the box beam rail or with one or more of the support posts. Furthermore, snow and salt plowed against the guide rail system contribute to corrosion of the metal guide rail system. The photo taken in August 1979 clearly depicts that a post and its angle bracket have separated from the box beam rail and are angled downward. The witness testified that very near this damaged post was the weld which he believed failed as a result of improper fabrication. In photos taken in May 1984, according to him, the height of the box beam rail has changed. From the weld towards the eastern terminus it appears to be lifted upward somewhat. Further, in these photos, the post that appeared to be angled downward in the 1979 photo is down on the ground, and the post immediately to the west of this downed post is separated from the box beam rail and is angled downward. He also noted that there appears to be rust on the face of the box beam near the weld. DWI was involved.

Credibility is a critical issue in any claim before the court. Weighing evidence and assessing veracity of conflicting testimony is a task for which there is no precise or flawless test. There are no juries in the Court of Claims and therefore the court's responsibilities include deciding witness credibility and resolving factual disputes. This task is placed in sharper focus when the court is presented with expert testimony; testimony which is intended to aid the factfinder by helping to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror. The court, however, is not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross-examination. The court may reject an expert's opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion. Put another way, the court when faced with conflicting expert testimony is entitled to accept the theory that, in its view, best explains the point in issue and is supported by the evidence.
Considering all of the testimony, the photographic evidence as well as the demonstrative evidence offered by the experts, this court accepts that portion of the claimant's expert's opinion concerning the state's construction of the subject guide rail contrary to the specific design specifications, as well as its failure to maintain the subject guide rail pursuant to the Department of Transportation's own Highway Maintenance Guidelines. The court finds that the point of impact between the claimant decedent's vehicle and the box beam guide rail was at the location of the much referred to weld, and that said weld was faultily applied thereby allowing invasive and corrosive rust to weaken the rail system. Furthermore, as is evidenced by the several photo log photographs, the subject box beam guide rail was left in disrepair for many years leading up to this accident as evidenced by the downed and disconnected support posts, missing support posts and the elevation of the box beam rail above its intended height. Although there was no evidence of any prior reported motor vehicle accident having occurred at the subject location, clearly there was some source of trauma to this guide rail system that went unreported.

It is well established that the state is under a nondelegatory duty to maintain its roadways in a reasonably safe condition for motorists who obey the rules of the road. The state is required to build a reasonably safe roadway consistent with the standards applicable at the time of design and construction. Yet, there is generally no obligation by the state to upgrade the structure which was originally built in compliance with applicable law solely because of changes in design specifications and standards. Where appropriate, it must erect and maintain guide rails. The state is not an insurer of the safety of motorists, and negligence cannot be inferred from the mere happening of an accident.

In claims based upon negligent design, the state is entitled to qualified immunity for claims arising out of its highway planning decisions, unless its study was plainly inadequate or lacked a reasonable basis. There are "[s]trong policy considerations" behind this doctrine, and it should therefore not be "lightly discounted"

To prevail, a claimant must prove that the injuries he or she sustained were proximately caused by the state's negligence. Generally, liability will not attach unless the state had either actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition. The court finds that the defendant had both actual and constructive notice of the dangerous and defective condition that existed on State Route 44/55 where this accident occurred. The court further finds that defendant's negligent construction and maintenance of the subject guide rail was a proximate cause of the claimant's decedent's accident.

Having found that both the defendant State of New York and the claimant's decedent were negligent and that their negligence was a proximate cause of the happening of this accident, it is for the court further to decide what percentage of the whole each party was responsible. While this court recognizes that operating a motor vehicle while in an intoxicated state is indisputably a serious violation of the law, this would preclude recovery by the claimant only if there were no other proximate cause to the happening of the accident. "The fact that decedent's ability to drive was impaired does not exonerate the State from liability on the ground that its negligence was not one of the proximate causes of the accident". As in a case, the claimant's decedent's criminal act of driving while intoxicated was not the only cause of his accident. Undoubtedly, his reflexes were slowed, his judgment impaired, which combined with the state's negligent construction and maintenance of its guide rail system, caused his death.

Accordingly, the court apportions liability 20% attributable to defendant and 80% attributable to claimant and will set the matter down for a trial on the issue of damages as soon as practicable.

November 6, 2013

People v. Aguayo

People v. Aguayo

Court Discusses Waiver of a Defendant’s Right to Appeal

The criminal defendant appealed his conviction related to two respective judgments for driving while intoxicated as a felony on one indictment and enterprise corruption and criminal possession of stolen property in the fourth degree on another indictment after pleading guilty and waiving his right to appeal. Later, the defendant wished to change his plea from guilty but was denied by the trial court. The defendant appealed the decision and whether his sentence was excessive.

The Appellant Division affirmed the decision of the lower court as a motion to withdraw a guilty plea was within the discretion of the court. There was no evidence to suggest that the defendant was coerced as the he made an intelligent decision on his own volition. Additionally, the defendant claimed that the voluntariness of his plea was a result of being denied effective legal assistance. But the appellate court was precluded from reviewing the circumstances of his assertion of being denied effective legal assistance. However, it was shown that the defendant received an advantageous plea and the defendant at the plea allocation stated that he was satisfied with the legal representation provided for him. The waiver of his right of appeal precluded the court from reviewing whether the sentence was excessive.

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November 5, 2013

Fourth Amendment interests

Pursuant to a written directive of the County Sheriff, a roadblock was established for the purpose of detecting and deterring driving while intoxicated or while impaired and as to which operating personnel are prohibited from administering sobriety tests unless they observe listed criteria, indicative of intoxication, which give substantial cause to believe that the operator is intoxicated, is constitutionally permissible, notwithstanding that the location of the roadblock is moved several times during the three- to four-hour period of operation, and notwithstanding that legislative initiatives have also played a part in reducing the incidence of driving while intoxicated in recent years.

The criminal defendant pleaded guilty to driving while impaired after denial of his motion to suppress the evidence obtained at the roadblock. The court affirms the order of the County Court, Genesee County, affirming his conviction.

The relevant facts are as follows:

On 25 September 1982 at about 2:00 a.m., the defendant, while driving on Route 5 in the Town of LeRoy, came up to a roadblock established pursuant to a directive of the Sheriff of Genesee County. He was directed to pull to the side and there was requested by Chief Deputy Sheriff M to produce his license, registration and insurance card. Observing that defendant fumbled a bit with his wallet, that his eyes were watery and bloodshot and that there was a strong odor of alcohol, M asked whether defendant had been drinking. After defendant responded that he had just left a bar, he was asked to step out of his car. As he did so he was unstable on his feet and was unable successfully to perform heel-to-toe and finger-to-nose tests. Based on those facts and an alco-sensor breath screening test, which defendant agreed to take, M concluded that defendant was intoxicated and placed him under arrest.

The roadblock had been established pursuant to a March 5, 1982 memorandum of the County Sheriff which called attention to the deaths, injuries and losses occasioned by intoxicated drivers and the need to employ every lawful means to deter and apprehend the drunken driver.
The directive established procedures for site selection, lighting and signs; avoidance of discrimination by stopping all vehicles, or every second, third or fourth vehicle; location of screening areas off the highway to which vehicles would be directed; the nature of the inquiries to be made, with specific direction that unless the operator's appearance and demeanor gave cause to believe him or her intoxicated sobriety tests not be given. It listed the factors to be considered and stated that neither the odor of alcohol alone nor any one of the listed factors would suffice as a basis for sobriety tests. It also directed that checkpoint sites be prescreened and that from two to four locations be used during a four-hour period.
Under that procedure roadblocks were established once each month between midnight and 3:00 a.m., at locations selected in advance by senior personnel. Of the predetermined sites, four had been selected for use on September 25, 1982, the roadblock at each location being maintained for some 20 to 30 minutes before moving on to the next. DWi is often charged.

The defendant was stopped at the third location in use that night. At that location warning signs were set up on the shoulders facing traffic from both directions some 300 feet in advance of the checkpoint, two police vehicles exhibiting flashing roof lights were placed so that their headlights illuminated the signs, and flares were placed in the center of the road. The checkpoint was manned by 10 persons, 6 from the Sheriff's office and 4 from the auxiliary police, and all vehicles approaching from either direction were stopped. In addition, two patrol cars were stationed in the area to follow and observe for possible violations any vehicle that avoided the roadblock by making a U-turn.

Defendant moved to suppress the evidence obtained at the roadblock. After a hearing the Town Justice denied the motion, finding that it had been operated in a uniform, nonarbitrary and nondiscriminatory manner.

The County Court affirmed the decision finding the State's interest in curbing drunken drivers great and the operation of the roadblock sufficient to allay feelings of fright or annoyance and to circumscribe sufficiently the discretion of the personnel engaged in the operation.

On appeal to this court, it is the defendant’s contention that deterrence is an improper purpose, that a temporary roadblock is constitutionally impermissible, and that it has not been shown that less intrusive means of enforcement would not be effective.

The court affirms the decision.
\To Be cont....

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November 5, 2013

BAC admissible at trial

Claimant, as limited administratrix of her late husband's estate, seeks damages for his wrongful death which allegedly occurred when, as he drove his automobile along a New York State highway, he left the lane of travel colliding with a guide rail, causing his automobile to flip over and land on its roof, resulting in claimant's decedent's instant death. The claim alleges negligence on behalf of the State of New York in the construction and/or maintenance of the guide rail system situated alongside of a state owned roadway. Defendant argues the accident occurred due to driver-alcohol impairment. Furthermore, defendant contends that the subject guide rail was not designed to withstand the force of the collision involved in this accident, and that any maintenance failure did not contribute to the cause of this accident.

A New York Criminal attorney said that the subject accident occurred in December 1997 in the Town of Lloyd, Ulster County, New York. Shortly before that time, claimant's decedent had driven to claimant's residence. Upon arriving at the apartment complex's parking lot, he remained in his vehicle. Soon after his arrival, claimant appeared on her stoop with two of their three children. Decedent remained momentarily then drove from the lot in his automobile. No conversation occurred between claimant and decedent and no explanation was offered regarding why he left so abruptly. Shortly after decedent drove away, claimant heard two loud successive "bangs." She immediately called 911 reporting that there had been an accident in which she believed her husband was involved. She then left her apartment and ran to the scene of the accident which was a short distance.

A New York DWI lawyer said that claimant observed, much to her horror, that it indeed was her husband who had been involved in the accident as she saw his auto lying on its roof off the side of the road. As she remained roadside, a number of motorists stopped to look. One such person went to the decedent's auto and opened the driver's door, at which time, claimant saw her husband in the vehicle "bent over." Immediately thereafter, claimant left the scene with one of her daughters who had become distraught at the sight. She later went to the Hospital in Poughkeepsie where her husband was taken by ambulance. There he was pronounced dead on arrival. No evidence was submitted to suggest he endured any pain and suffering.

The blood alcohol content (BAC) of decedent at that time proved to be.14%. This evidence was offered by the defendant to reflect the negligence of the decedent in the operation of his vehicle and thereby his contribution to the happening of the subject accident. At trial, claimant questioned the admissibility of the blood test results suggesting defendant's failure to establish the required chain of custody regarding the blood sample taken. Furthermore, claimant objected to the introduction of this evidence based upon the failure of the police agency involved to comply with New York State Vehicle and Traffic Law § 1194 (2) (a) (1). The court reserved decision and invited counsel to brief the issues upon submission of their post trial memoranda.

In view of the fungible nature of a blood sample, the proponent of the admission of the blood test results has the burden of establishing the chain of custody and the failure to do so may be excused only where the circumstances provide reasonable assurances of the identity and unchanged condition of the sample. Here, the emergency room technician who drew the blood from decedent gave it to Town of Lloyd Police Officer who had responded to the hospital with the department issued blood sample kit. Police Officer sealed and signed the sample and returned it to his department's secure evidence room. Thereafter, the sample was submitted by the Town of Lloyd Police Department to the New York State Police headquarters and lab at Newburgh, New York. It remained there when it was transported by UPS to the Western Regional Crimes Laboratory located in Olean, New York. There the sample was tested by Forensic Scientist who was assigned to the toxicology section of the lab. He testified that he received the subject blood sample from the lab's evidence clerk. He verified that the sample arrived in a department issued blood sample kit. It was sealed per standard operating procedure and he saw no evidence of tampering. Once he performed a visual check to determine the sample had not spoiled, he conducted a blood alcohol analysis by utilizing the method of head space gas chromatography. This analysis revealed the blood sample to have a level of .14% ethyl alcohol. Claimant, having offered no contrary direct testimony, nor elicited any responses upon cross-examination significantly contrary, the court finds the defendant has established the chain of custody for the subject blood sample and that the test results were accurate.

Vehicle and Traffic Law § 1194 (2) and the New York State Department of Health Regulations mandate that blood and breath tests shall be administered within two hours of arrest. This two-hour rule was enacted in 1941 when the Legislature provided that the results of tests measuring a driver's BAC be admissible at trial if the test was administered within two hours of arrest. "Because the human body rapidly metabolizes alcohol, the two-hour requirement was enacted to ensure that the results of the blood test constituted probative evidence of the defendant's blood alcohol level at the time of operation of the vehicle.

To be cont....

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November 5, 2013

CPL 360.25 (1) (e)

This is a proceeding wherein the defendant moves pursuant to CPL 330.30 and 370.10 for an order setting aside the verdict upon the grounds that (1) the court committed reversible error by improperly allowing the People's challenge "for cause" of a prospective juror and the People's peremptory challenges were ultimately exhausted before jury selection was complete; (2) the defendant was deprived of a fair trial because of the People's prosecutorial misconduct during summation; and (3) improper conduct by a juror during deliberations, out of the presence of the court, may have affected a substantial right of the defendant.

The People oppose the defendant's motion.

The defendant was charged by way of a simplified traffic information, with a violation of Vehicle and Traffic Law § 1192 (2) - operating a motor vehicle while intoxicated per se; that is a blood alcohol content of .08% or more by weight of alcohol in his blood, and Vehicle and Traffic Law § 319 (1)-operating a motor vehicle without insurance in January 2004.

After a two-week jury trial, the jury returned a verdict of guilty on the charge of Vehicle and Traffic Law § 1192 (2) - driving while intoxicated per se in February 2005.

The defendant filed the instant motion to set aside the verdict, pursuant to CPL 330.30 and 370.10 upon the above-mentioned grounds in May 2005.

The defendant has not been sentenced.

In the case at bar, during jury selection, a group of 14 prospective jurors were seated in the jury box, addressed by the court and questioned by the parties. At one point, the People requested that a prospective juror be excluded from service "for cause". As said the prospective juror had served on a previous jury wherein the defendant, in the previous case, had been charged with Vehicle and Traffic Law § 1192 (2) which is the same one as the charge in the instant case.

The defense counsel questioned whether the juror had to be removed as a matter of law. The court indicated "yes." The prospective juror was excused from service, by this court, "for cause," as a matter of law, pursuant to CPL 360.25 (1) (e). After a discussion off the record, the defense counsel stated on the record that he did not consent to the court's ruling. The court's ruling was based upon the plain reading of CPL 360.25 (1) (e). The court found that said ruling was appropriate, especially in light of the recent change in the specific driving while intoxicated statute, in which the defendant was charged.

Prior to the end of jury selection, the People had exhausted all of their peremptory challenges. Moreover, before the entire jury panel was sworn, the defense counsel again stated its objection to the court ruling, allowing the People's challenge "for cause," pursuant to CPL 360.25 (1) (e).

CPL 360.25 (1) mandates the New York statutory grounds for challenges "for cause" of a prospective juror, in a criminal case involving charges by way of an information. CPL 360.25 (1) (e) reads, in pertinent part, that:

"A challenge for cause is an objection to a prospective member of the jury and may be made only on the ground that:

"He served on a trial jury in a prior civil or criminal action involving the same conduct charged; or where a prosecutor's information was filed at the direction of a grand jury, he served on the grand jury which directed such a filing.

Here, the defendant interprets the phrase "same conduct charged" to mean that the prospective juror in the instant case served as a juror in an earlier proceeding involving the same conduct charged, with the same defendant. The People claim that the defendant did not preserve the issue for appellate review and that the court should apply the plain reading of the statute and conclude the "same conduct charged" to mean that the prospective juror served as a juror at a previous trial involving the same type of crime.

The first issue raised by the People is whether a motion to set aside a verdict, pursuant to CPL 330.30 (1), requires preservation of the objection, in the trial record, in order for the court to consider the motion to set aside the verdict.

CPL 330.30 sets forth the statutory grounds upon which a judge may set aside or modify a guilty verdict before sentence. The statute is applicable to the instant case, pursuant to CPL 370.10. Subdivision (1) of CPL 330.30 reads, in relevant part, as follows:

"Any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court."

Thus, CPL 330.30 (1) permits a trial judge to set aside a verdict only as a matter of law. Appellate review on the law requires the issue be preserved as ruled in People v Thomas. Thus, a timely protest is an essential prerequisite for relief under a CPL 330.30 (1) claim of an error of law, unless the error has deprived the defendant of a fundamental right akin to People v Davidson, People v Padro and People v Antommarchi. A question of law is preserved for appellate review when the trial court is apprised of the objection and afforded an opportunity to cure the error as held in People v Wales. This court has found two appellate level cases which held that a timely objection to disqualify a juror is required during jury selection; otherwise no judgment would be safe from attack.

In the instant DWI case, the court finds that defense counsel had put this court on notice that the defense did not agree with the court's ruling to allow the People's challenge "for cause." The record reveals that after this court made the determination to allow the People's challenge "for cause," the defense counsel stated to the court that we're not consenting. Moreover, before the entire jury was sworn, defense counsel again made clear his objection to the court's ruling. Thus, the court finds that the defendant did timely object to the court's ruling.

In order to preserve an erroneous ruling for a challenge "for cause" during jury selection, the New York statutory scheme requires the People to have exhausted their peremptory challenges before completion of jury selection.

CPL 270.20 (2), applicable to the instant case pursuant to CPL 360.25 (2), reads, in relevant part that an erroneous ruling by the court allowing a challenge for cause by the people does not constitute reversible error unless the people have exhausted their peremptory challenges at the time or exhaust them before the selection of the jury is complete. Subdivision (2) of CPL 270.20 further states that the denial of a defendant's for cause challenge is not reversible error unless the defendant has exhausted all peremptory challenges or uses a peremptory challenge against the disputed juror and later exhausts all such challenges.

The statute contemplates remedial action by the appellate court when the trial court improperly grants or denies a challenge for cause.

In the instant case, the record is clear that prior to the end of jury selection, the People had exhausted all of their peremptory challenges and thus the court's ruling is preserved for appellate review.

Accordingly, this court will consider the defendant's argument with regard to the court's interpretation of CPL 360.25 (1) (e).


To Be Cont......

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October 30, 2013

People v Lopresti

People v Lopresti

Court Discusses Vacation of a Practicing Attorney Previous Conviction

The defendant, a practicing attorney and former Assistant District Attorney, in 2006 was charged and indicted for Operating a Motor Vehicle While under the Influence of Alcohol as a felony after being involved in an accident and having.17 blood alcohol content. An element of the charge was in a previous conviction where he pled guilty to driving while under the influence in 2003. The defendant requested that a misdemeanor conviction, he entered a plea of guilty to operate a motor vehicle while under the influence of alcohol, DWI, in 2003 be vacated. The defendant’s reason for vacating the conviction was that he was he was unaware that when he pled guilty that he could be prosecuted for a felony if he was arrest for another driving while intoxicated within ten years. He also stated in his Nassau County Criminal Attorney that represented him was in effective as he did not inform him that if he pled guilty he could be prosecuted for a felony if he committed another offense. In his affidavit, he further asserted that would not have pled guilty if he was properly advised by his attorney. The People provided an affidavit of the New York City Criminal Lawyer that advised the defendant which stated that the defendant was advised of all the repercussions of pleading guilty and possible charges that could arise in the future if he was charged again with the same offense.

The defendant relied on the case of Padilla v. Kentucky, 130 S.Ct. 173 (2010) to show that he was entitled to vacate his plea. The case of Padilla was about a defendant who was not a citizen of the United Stated pleading guilty to possession of an illegal substance. He pled guilty because of the advice that his attorney gave him which stated that he would not be subjected to deportation if he pled guilty. Mr. Padilla was deported and it was found that his attorney was constitutionally ineffective as he was given legal advice that he relied on to his detriment. However, the defendant could not cite any case where the case of Padilla was successfully applied to a case with similar fact as his case. However, the prosecution relied on the case of People v. Lancaster 260 A.D, 2d 660, 661 (3rd Dept.1999) held that if a defendant who was convicted for driving while intoxicated was subjected to enhanced criminal consequences for a crime committed in the future as a collateral consequence of a guilty plea, the defendant did not need be advised about such consequences. The defendant was of the opinion that the ruling in Padilla overruled Lancaster tacitly or even explicitly. No gun was found.

The court did not support the defendant’s reasons to vacate the plea on the grounds of Padilla. It found that Lancaster was not overruled by Padilla and that the cases dealt with two different cases. The defendant in Padilla was ill-advised by an attorney regarding his deportation as a result of a criminal conviction. In contrast with the defendant’s case, the repercussions in this case was not important until the defendant was charged again with committing, in essence, the same offense. The reasoning in Lancaster was relevant to the instant case because the attorney was not required to inform the defendant that entering a plea of guilty would expose him to enhance criminal sanctions if he committed another crime of the same nature.

Therefore, the motion was denied.

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October 28, 2013

Brown v Texas... cont

In the case of Brown v Texas, the People's burden of proof as to the programmatic purpose is derived from the constitutional principle underlying the reasonableness of a suspicionless roadblock stop, i.e., a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. Absent such proof, a court is left "without any basis to assess `the gravity of the public concerns served by the seizure' or `the degree to which the seizure advanced the public interest. The primary programmatic purpose must be determined by examining "the underlying reason for undertaking it" as opposed to the particular manner in which the checkpoint was conducted.

In order to remove the legal stigma of ostensibly violating the Fourth Amendment proscription against warrantless and suspicionless stops, the government bears the burden of satisfying the following, additional requirements. First, a checkpoint must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. The criminal court held that there had to be a plan for officers to follow and by which personnel's actions could be objectively measured. Second, the United States Supreme Court has "insisted that the discretion of the official in the field be circumscribed as held in Delaware v Prouse.

Thus, primarily because of the "legal stigma" attached to warrantless and suspicionless stops, the People bear the burden of proving at a suppression hearing that the particular checkpoint in question was conducted in a non-discretionary manner, that is, the officers did not exercise individual discretion as to which cars to stop or what questions to ask akin to People v Cabrera.

Third, there should be adequate precautions as to safety, lighting and fair warning of the existence of the checkpoint.”

Fourth, the location of a fixed checkpoint should be chosen not by officers in the field, but by officials responsible for making overall decisions as to the effective allocation of limited enforcement resources as held in Matter of Muhammad F. The plan, directive or guidelines, as it were, should emanate from the higher echelons of the police department, sheriff or State Police.

These requirements constitute a substitute for the constitutional norm of individualized suspicion.

It is obvious that the plan should emanate from the higher echelons of the law enforcement agency and officers in the field must conform. In Commonwealth v Anderson, the Supreme Court of Massachusetts held that the Commonwealth must carefully comply with written, checkpoint guidelines and that "substantial compliance" is not the standard for a roadblock seizure. Thus, where the state police guidelines imposed a two-hour limit on the duration of any roadblock unless the troop commander ordered otherwise, and where the supervisor on the scene without the troop commander's authorization extended the duration of the roadblock by 30 minutes, the evidence was held to be lawfully suppressed.

In Commonwealth v Yastrop, the Supreme Court of Pennsylvania ruled that "substantial compliance with guidelines established in two earlier precedents of Pennsylvania's highest court is all that is necessary to minimize the intrusiveness of a roadblock seizure to a constitutionally acceptable level."

The court believes the fairest course is to require law enforcement agencies to adhere to a standard of substantial compliance with their own guidelines. However, not every trivial deviation from written guidelines will turn a sobriety checkpoint into an unreasonable seizure.
In the case at bar, the court concludes that the checkpoint at issue was unconstitutional and represented an unlawful search and seizure.

In the first instance, the DWI Program Notification is more than a mere ministerial act. The DWI Program Notification is the first step in obtaining the requisite "higher echelon" approval of the chosen sites. By requiring the DWI Program Notification to be sent to the Assistant Deputy Superintendent, the State Police have in effect designated the Assistant Deputy Superintendent as the appropriate supervisory level officer with the responsibility for making overall decisions as to the effective allocation of limited enforcement resources.

In the second instance, the DWAI Program Activity Record is more than a redundant collection of post-checkpoint statistics. Not completing this record deprives courts and the State Police alike of the kind of empirical data demonstrating the effectiveness of the means chosen by law enforcement officials.

Based upon the foregoing, the court grants defendant's motion to suppress the results of any chemical analysis of defendant's breath, any and all statements attributed to her and all other evidence allegedly obtained from her.

October 28, 2013

Teri Gottlieb Et Al Respondents,

Teri Gottlieb Et Al Respondents,
V
Jerry B. Stern, Defendant, and
Paramus Auto Mall, Inc., Et Al., Appellants.

Court Discusses Whether an Employer is Vicariously Liable for Tortious Acts Committed by an Employee

The plaintiff brought action against an employee of automobile dealership and the automobile dealership for personal injuries sustained in motor vehicle accident. The injuries sustained by the plaintiff were as a result of the first defendant, who was the employee, driving a motor vehicle owned by the automobile dealership, the wrong way on a one-way street in New Jersey. The employee admitted that he was guilty of driving while intoxicated; as such, he had mistaken the one-way street for an exit. The motor vehicle being driven by the first defendant was given to him by his employer as a marketing tool to be used as a demonstrator vehicle. The employer of the first defendant sought summary judgment against the plaintiff because the first defendant was not advancing the interests of his employer at the time the accident occurred. Summary Judgment was denied by the Supreme Court because there was a failure to show an entitlement to judgment. The second defendant appealed the DUI.

The Appellate Division analyzed the concept of a demonstrator vehicle and whether the employee was advancing the interest of his employer. The first defendant was hired as a sales associate by the second defendant and was given a demonstrator vehicle as a benefit and a marketing tool. He was given the vehicle along with an “Employee Demonstrator Agreement” where it stated that it was provided as a selling tool for the benefit of the dealership and the employee should drive the vehicle for maximum visibility. The agreement further stated that the employee may drive the car to and from community functions, shopping activities or any other similar activities within 50 mile radius marketing area during normal business hours and reasonable off hours. The court considered whether there was an agency relationship between the employee and employer at the time of the accident in order for the employer to be vicariously liable. In New Jersey, the common law dictates that there is a dual purpose rule which states that an employer is vicariously liable where the employee was advancing both the interest of the employer and his personal interest. The second defendant argued that Supreme Court gave the doctrine liberal application because of the identifier on the license plate and their image on the rear bumper. However, the employer failed to show that employee was not advancing their interest while he was driving in the demonstrator vehicle. The accident happened while the first defendant was using the vehicle for his personal use. Under the agreement between the employer and employee, the employee should use the vehicle for maximum visibility. The first defendant under the agreement was permitted to use to vehicle for his personal use within reasonable hours after work to achieve maximum visibility. Therefore, the first defendant in using the car for his personal benefit also advanced the interest of his employer.

The Appellate Division of the Supreme Court affirmed the holding of the lower court as the dual purpose rule precluded the second defendant from achieving summary judgment. The issue was whether the employee of the second defendant’s dealership was advancing their interests while driving company car within dealership's marketing region on his day off. The demonstrator vehicle agreement was dictated the relationship with the employer and employee. The purpose of the vehicle was to attract prospective buyers within the area of the dealership. The license plate and the image on the bumper were not the main considerations of the lower court as asserted by the second defendant. There were triable issues as the dealership could not show that they were not partly responsible for the negligence of the first defendant.

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October 27, 2013

Brown v Texas

This is a proceeding wherein the defendant, ND, charged with operating a motor vehicle while having .08 of one per centum or more by weight of alcohol in her blood (Vehicle and Traffic Law § 1192 [2]) and operating a motor vehicle while in an intoxicated condition (Vehicle and Traffic Law § 1192 [3]), has moved to suppress any statements attributed to her, the results of any chemical analysis of her breath, and all other evidence allegedly obtained from her.

Based upon the People's responding affidavit, which effectively concedes the truth of all allegations necessary to the court's determination of this motion under CPL 710.60 [2] [a] and People v Gruden, and after giving both parties an opportunity to be heard on 17 July 2008, the court denies the People's request for a Dunaway/Scott hearing and decides the instant motion on the papers.

On 2 September 2007 at about 1:00 A.M., defendant's vehicle was stopped at a New York State Police sobriety checkpoint on Fluvanna Avenue in the City of Jamestown. After allegedly displaying certain outward indicia of intoxication and failing four out of five field sobriety tests, defendant was asked to give a breath sample, which resulted in a reading of a .13% blood alcohol content level. Defendant challenges the constitutionality of the checkpoint stop upon the grounds that the New York State Police failed to follow their own self-established, written guidelines.

In addition to establishing a seemingly stringent protocol for the selection of sites, scheduling, briefing, setup, system of stops and interview procedures, the written guidelines of the New York State Police call for the making of certain records and/or reports before, during and after the date of the checkpoint.

When a sobriety checkpoint "is first scheduled," a “DWI (Driving While Intoxicated) Program Notification" message is supposed to be transmitted to Assistant Deputy Superintendent JS, using a prescribed format. This memorandum is essentially a list of particulars pertaining to the planned checkpoint, including time and location, enforcement personnel and system of stop (every vehicle, every third vehicle, etc.).

During the checkpoint, the “DWI Investigative Note Card (TB-38) should be used to record pertinent impairment information" including the officer's observations, the motorist's responses to specific questions and the specific cues, or signs of impairment, observed during field sobriety tests. Not later than two business days following the completion of the checkpoint, a “DWAI Program Activity Record" is required to be received at "Division Traffic Services." This record appears to be a data collection tool, containing useful post-checkpoint information, e.g., the number of vehicles passing through the checkpoint, the number of vehicles stopped and the number of motorists arrested for DWI or Driving While Intoxicated. These guidelines provide that it is imperative that these reports be completed in a timely and accurate manner. These documents are further described as legal records that are often referenced in both criminal and civil proceedings.

The parties' submissions agree on one essential point, to wit: that none of the above-described documents was ever prepared, let alone transmitted to the appropriate official or division of the New York State Police. Thus, the stage is set for the court to consider the legal consequences of an admitted failure to strictly or substantially observe sobriety checkpoint guidelines.

Whether a law enforcement agency's failure to follow its own sobriety checkpoint guidelines renders the stop unlawful under the Fourth Amendment of the United States Constitution or article I (§ 12) of the New York Constitution appears to be a question of first impression.
People v Scott, Michigan Dept of State Police v Sitz, Indianapolis v Edmond, People v Jackson and People v Trotter settled that a roadblock or checkpoint stop is a seizure within the meaning of the Fourth Amendment. As a general rule, a seizure of an automobile, whether on a highway or at a roadblock, requires an individualized suspicion of wrongdoing. The United States Supreme Court has recognized only limited circumstances in which the usual rule does not apply. In general, a sobriety checkpoint aimed at removing drunk drivers from the road does not violate the Fourth Amendment.

ToBe Cont....

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October 5, 2013

VTL § 1194(2)(f)..... cont.

The Court has now reviewed the redacted videotape that the People propose to present at trial. Even a brief review of the People's proposal leads one to doubt the People's assertion that they seek to introduce this evidence solely in order to provide the jury with a visual record of the defendant's appearance and condition. Defendant's videotaped statements are plainly incriminatory in that defendant repeatedly admits that he was drunk, DWI, and concedes that he was in a car. Moreover, although defendant in his videotaped statements denies that he was driving a car at the moment he was arrested by the police, he does so in a manner that at least strongly suggests that he was indeed driving his car immediately beforehand. Thus it would certainly appear that the People want to introduce the redacted videotape both because it provides a visual record of defendant's condition and because it contains extremely damaging admissions by the defendant.

Upon analysis, the People have the better end of the argument. The redacted videotape is clearly extremely probative on the issue of intoxication. The tape will allow the jury to judge for itself--rather than relying on the testimony of police witnesses given more than a year after the fact--whether the defendant appeared and sounded DUI shortly after his arrest. And the videotape in its redacted form does not give any indication either that defendant was asked to take a chemical test or that he refused to take such a test.

Defendant is right to raise the concern that, because it is obvious that the videotape has been redacted, the jury may speculate as to what has been deleted from the tape. However there is no good reason to doubt that an appropriate limiting instruction can be fashioned to meet this concern.

Accordingly, the Court finds that the People may present the redacted videotape as evidence at trial without violating VTL § 1194(2)(f)'s bar against evidence of a refusal.

Separate and apart from the question which of the defendant's statements made on videotape should be barred because they constitute evidence of defendant's refusal to take the chemical test, this case also presents a distinct question as to whether evidence of defendant's videotaped statements should be barred on the ground that his right against self-incrimination was violated.

A statement made by a defendant to the police before the commencement of a criminal proceeding may be used by the prosecution at trial so long as it was made voluntarily. A statement will be regarded as involuntarily made where it is obtained through force or through other means that violate defendant's constitutional right against self-incrimination. Where the defendant's statements are the product of "custodial interrogation" and the defendant is not advised of what are now commonly known as defendant's Miranda rights, evidence of those statements will be suppressed as involuntarily made.

Here there is no question that defendant was in police custody at the time he made the statements recorded on the videotape and that defendant was never given Miranda warnings. It is also clear from the videotape itself that defendant was asked a question by the police. Specifically, after first being advised that he was under arrest for driving while intoxicated, defendant was asked whether he would agree to take the chemical test for alcohol. Thus it can plausibly be argued by the defendant that all of defendant's videotaped statements should be suppressed because they are the product of custodial interrogation undertaken without Miranda warnings.

Thus it appears that defendant made the statements at issue in this case because he was advised by the Spanish language pre-recorded refusal warning that he was under arrest for driving while intoxicated. Where a defendant makes statements in response to being advised of the charges against him, there is no "interrogation" and no violation of his Fifth Amendment rights.

Accordingly, the Court finds that the partial refusal warning that was given to defendant did not constitute interrogation, and that the redacted videotape may therefore be admitted in evidence at trial without violating defendant's right against self-incrimination.
For all the reasons stated herein, the Court holds that the People may not introduce at trial any evidence of defendant's refusal to take the chemical test, but the People may nevertheless introduce into evidence at trial the videotape of the defendant in the redacted form they have proposed. The Assistant District Attorney and defense counsel are directed to alert the trial judge at the outset of the trial herein to the need for jury instructions in accordance with this opinion as to the limited use of the videotape and as to the reasons why it has been redacted. Counsels are urged to prepare proposed language for such an instruction for the trial court to consider in advance of the presentation of evidence at trial.

October 3, 2013

VTL § 1194(2)(f)

A defendant is arrested for driving while intoxicated. He is not given Miranda warnings. He is given inadequate "refusal" warnings in connection with a request by the police that defendant consent to submit to a chemical "breathalyzer test” for the presence of alcohol in his system. Defendant answers (while videotaped) the inadequate refusal warnings by making several non-responsive but incriminatory remarks in what appears to be a mildly drunken fashion. All concerned agree that evidence of the defendant's refusal to take the chemical test is barred at trial by Vehicle and Traffic Law ("VTL") Section 1194(2)(f) because of the inadequate refusal warnings.

A Queens County DWI lawyer said that the open question presented is this: Can the People nevertheless properly present select portions of the videotape at trial in order to prove defendant's DUI intoxication, provided that the videotape is redacted so as to eliminate those passages that indicate that defendant was asked and refused to submit to the chemical test? Or would the presentation of the redacted videotape at trial violate either 1) the statutory bar against evidence of refusal established by VTL § 1194(2)(f), or 2) defendant's right against self-incrimination?

It is now well-settled that where a defendant has been properly arrested based on probable cause for the crime of driving while intoxicated, the police may ask the defendant to consent to submit to a chemical test for the presence of alcohol in the defendant's system, and the defendant has no constitutional right to refuse. This is so because a chemical test does not require defendant to provide evidence of a testimonial or communicative character and therefore does not implicate defendant's right against self-incrimination.

New York's Vehicle and Traffic Law sets up a statutory scheme whereby a defendant who has been arrested for driving while intoxicated will not be forced to take a chemical test for alcohol but will face certain adverse consequences if he refuses to take such a test. Section 1194(2)(b) of New York's Vehicle and Traffic Law requires in substance that a defendant who has been arrested on a charge of drunken driving shall be advised that his (or her) driver's license will be suspended for refusal to take a chemical test whether or not the defendant is subsequently found guilty of the criminal charge. If the defendant nevertheless refuses to take the chemical test, Section 1194 provides that the test shall not be given but that the police shall immediately prepare a written report of the defendant's refusal. Upon arraignment on the criminal charge of driving while intoxicated, the defendant's license will be suspended by the court pending further administrative proceedings regarding the suspension before the Department of Motor Vehicles.

Evidence of a refusal to submit to such chemical test or any portion thereof shall be admissible in any trial, proceeding or hearing based upon a violation of the provisions of eleven hundred ninety-two of this article but only upon a showing that the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal.

The Vehicle and Traffic Law permits evidence of defendant's refusal to be admitted at trial on the theory that such a refusal evinces the defendant's consciousness of guilt. It has become common practice for defendants to request and for the courts to conduct pre-trial hearings on the issue of the admissibility of a defendant's refusal to consent to a chemical test. At such a hearing, pursuant to VTL § 1194(2)(f), the People must show that proper "refusal" warnings that advise the defendant of the adverse consequences that will follow a refusal to take the chemical test--were given and that defendant then refused to take the test. These hearings have presented a variety of issues, such as whether complete warnings were given, and whether the translation of the warnings for a non-English speaking defendant was adequate. Where the People do not prove that sufficient warnings were given, evidence of defendant's refusal is not permitted at trial.

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August 16, 2013

The owner of the car originally testified that he saw the attacker holding a gun

Two men, including the owner, were sitting in a car in the garage when someone approached from behind and ordered them to get out and not to turn around.

The owner of the car originally testified that he saw the attacker holding a gun, but he indicated that he had not looked the attacker's hand. The owner stated that he comply the attacker's command and stepped out of his car. He then saw the car being driven away. But, he was unable to make an identification of the attacker.

On the same morning, one detective was performing a tour of duty with two colleagues. They were working in civilian clothes and operating out of an unmarked detective cruiser. At around 1:30 a.m., they received a radio alarm for the alleged robbery and DWI. The report asserted that the car was being operated by a black male, approximately 23 years old, wearing a full length grayish coat and armed with a hand gun.

At 2:45 a.m., the detective spotted the car. He then observed the black male seated behind the steering wheel, about 20-25 years of age and wearing the described coat. When the car started up, the detective followed the vehicle. Shortly thereafter, the robbed car stopped for a red light, at which point the detective pulled up behind it. He and his two fellow officers come out from their vehicle and walked toward the car with their guns being drawn. The traffic light changed before they reached the car and it began to move. One of the detectives yelled to stop the car. At the same time, two or three patrol cars containing four to six officers arrived at the scene, blocking the car.

According to the testimony, the detective approached the car, of which the offender was the only occupant, he identified himself as a police officer and asked the offender to present his license and registration. The offender removed a vehicle insurance card from the glove compartment and showed it to the officer. The officer asked the offender if he was the owner of the car and he replied that he was not the owner of the car. DWI was suspected.

Apparently, the offender was unable to present a license and registration or any other identification, and was thereupon placed under arrest and taken to the station. Upon arriving at the precinct, the offender was informed of his Miranda rights for the first time. He indicated that he understood his rights and that he was willing to answer the officer’s questions without his attorney.

Subsequently, the offender was then rearrested and charged with the crime of possession of stolen property. DUI was not charged.

Consequently, the offender was indicted for two counts of robbery in the first degree and one count of grand larceny in the second degree. Based on records, count one of the indictment alleged that the offender had forcibly stolen the car from the owner and in the course thereof had used and threatened the immediate use of a dangerous weapon. Moreover, the count two of the indictment alleged that in the course of the stealing, the offender had shown what appeared to be a pistol, revolver or other firearm.

The offender subsequently moved to restrain any statements made by him at the scene, as well as at the precinct, on the ground that he had not been informed of his Miranda rights prior questioning. But, the court denied the motion. The court further ordered that the offender's statements made at the precinct were admissible because it has been made after he had been advised of his rights.

Consequently, the court ordered that a new trial must be limited to the counts supported by the evidence, to wit, robbery in the third degree and grand larceny in the second degree, or any lesser included crimes.

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July 27, 2013

Defendant offered no explanation for the delay.

Defendant was charged with felony drunk driving. Defendant then moved to vacate his 2003 misdemeanor conviction of Operating a Motor Vehicle under the Influence of Alcohol which was entered via a plea of guilty.

According to the defendant, in an affidavit, he was not aware when he pled guilty in 2003 that he could be prosecuted for a felony if he were arrested for another DWI offense within ten years of his conviction; he accused the attorney who represented him of being ineffective because he never told him that a possible future DWI prosecution could be a felony; he never would have pled guilty if his attorney had so advised him; and argued that, under a landmark case which was decided in 2010, he is entitled to have his plea vacated.

According to the defendant’s criminal attorney who represented him in the 2003 misdemeanor conviction, in an affidavit which the People provided, defendant's allegations ring false, and he does advise all his clients that pleading guilty to a DWI charge, or any other charge, may subject them to more serious charges and/or sentences if they are arrested and prosecuted in the future.

After due consideration, the court denied the defendant’s motion.

The latin maxim “Ignorantia legis neminem excusat” or ignorance of the law is no defense or excuse. The aggravated, enhanced or bump-up type crimes involved here are clearly defined in penal statutes, and everyone, including the defendant, is already on notice of all of their elements, regardless of whether their lawyers so advise them. The fact that a person who is convicted of misdemeanor can be liable for a felony if he or she again commits the same crime has been a matter of state law that dates as far back as the Second World War. Since a prior conviction is merely an element of the felony DWI charge, all individuals are on notice of it. No one can validly claim legal ignorance of the elements of a codified crime, including an element that elevates a misdemeanor to a felony. The publication of the law itself serves as notice to all of the elements of any crime where a drug is involved.

Moreover, based on the statements in the affidavit of the defendant’s former lawyer, the minutes of the guilty plea, and the many exhibits annexed to the People's affirmation in opposition, the defendant's allegations about his own lack of knowledge of the law, his claim that he would never have pled guilty in this case if he knew he could be prosecuted for a felony if rearrested, and his accusation about his lawyer’s ineffectiveness, were all unworthy of belief. It must be noted that defendant had 3 convictions already for Operating a Motor Vehicle While under the Influence of Alcohol. Defendant mentioned nothing about these cases, or what his lawyers may have told him about the consequences of future violations of the same statute when he entered his pleas. In fact, despite the defendant's serious record of recidivism for the same offense, and the apparently overwhelming evidence of guilt, his former nonetheless negotiated a disposition with the District Attorney's office, which he also convinced the Court to accept, that did not include a jail sentence, or probation, or even a fine. Defendant was required to complete an alcohol treatment program, which is usually a component of a sentence in DWI cases, but it was one of his own choosing. The lone punitive sanction defendant received involved his performing DWI community service, consisting of spending 150 hours in local schools educating students about the dangers and penal consequence of driving while intoxicated. Not only did defendant leap at the opportunity to accept this very lenient disposition, but, during the plea colloquy, he went out of his way to praise his lawyer when he thanked the Court for their patience, and also for their time, to allow his lawyer to work with the DA's office to bring about the disposition. For defendant to now swear in an affidavit that he would not have accepted the plea deal he fought so hard to obtain if he knew that the conviction would be the basis for a potential future felony prosecution is not only mind-boggling, but clearly rings false. Defendant's claim of being dissatisfied with his former lawyer’s representation was belied by the fact that he retained him again on another felony drunk driving case.

Obviously, defendant's belated decision to bring the motion at bar is a transparent attempt to delay trial. Even if defendant had been unaware that he faced a potential felony prosecution based on yet another DWI arrest at the moment he entered his guilty plea, he received actual notice of that law only moments later in the courtroom when he was given a copy of the document, which he also signed, stating his driver's license was suspended. That document, which was in the court file, lists all the potential penalties of DWI convictions, and specifically advises all defendants who receive this form, and who bother to read it, that a second arrest for misdemeanor DWI within ten years of a conviction for that same crime can result in a felony prosecution. Also in the court file is a document reflecting the fact that defendant completed the New York State Department of Motor Vehicle's Drunk Driver Education program before having his driver's license reinstated, a program that exists to advise defendants convicted of DWI crimes of the penal consequences as well as the societal dangers of recidivist drunk driving. Presumably, defendant would have refreshed his recollection about DWI penalties prior to fulfilling his commitment to educate young students about such penalties. Despite the wealth of knowledge he acquired within hours, days and months of this conviction, defendant never moved to vacate it in the four years prior to his arrest for the felony. More telling, he waited more than four years after his new arrest, and more than fifteen months after hiring his current attorney. Defendant offered no explanation for the delay.

Accordingly, the defendant's motion was denied in all respects.

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July 8, 2013

Drunk driving will not be tolerated

Defendant was charged with criminal felony drunk driving. Defendant then moved to vacate his 2003 misdemeanor conviction of Operating a Motor Vehicle under the Influence of Alcohol which was entered via a plea of guilty.

According to the defendant, in an affidavit, he was not aware when he pled guilty in 2003 that he could be prosecuted for a felony if he were arrested for another DWI offense within ten years of his conviction; he accused the attorney who represented him of being ineffective because he never told him that a possible future DWI prosecution could be a felony; he never would have pled guilty if his attorney had so advised him; and argued that, under a landmark case which was decided in 2010, he is entitled to have his plea vacated.

According to the defendant’s attorney who represented him in the 2003 misdemeanor conviction, in an affidavit which the People provided, defendant's allegations ring false, and he does advise all his clients that pleading guilty to a DWI charge, or any other charge, may subject them to more serious charges and/or sentences if they are arrested and prosecuted in the future.

After due consideration, the court denied the defendant’s motion.

The latin maxim “Ignorantia legis neminem excusat” or ignorance of the law is no defense or excuse. The aggravated, enhanced or bump-up type crimes involved here are clearly defined in penal statutes, and everyone, including the defendant, is already on notice of all of their elements, regardless of whether their lawyers so advise them. The fact that a person who is convicted of misdemeanor can be liable for a felony if he or she again commits the same crime has been a matter of state law that dates as far back as the Second World War. Since a prior conviction is merely an element of the felony DWI charge, all individuals are on notice of it. No one can validly claim legal ignorance of the elements of a codified crime, including an element that elevates a misdemeanor to a felony. The publication of the law itself serves as notice to all of the elements of any crime like possession.

Moreover, based on the statements in the affidavit of the defendant’s former lawyer, the minutes of the guilty plea, and the many exhibits annexed to the People's affirmation in opposition, the defendant's allegations about his own lack of knowledge of the law, his claim that he would never have pled guilty in this case if he knew he could be prosecuted for a felony if rearrested, and his accusation about his lawyer’s ineffectiveness, were all unworthy of belief. It must be noted that defendant had 3 convictions already for Operating a Motor Vehicle While under the Influence of Alcohol. Defendant mentioned nothing about these cases, or what his lawyers may have told him about the consequences of future violations of the same statute when he entered his pleas. In fact, despite the defendant's serious record of recidivism for the same offense, and the apparently overwhelming evidence of guilt, his former nonetheless negotiated a disposition with the District Attorney's office, which he also convinced the Court to accept, that did not include a jail sentence, or probation, or even a fine. Defendant was required to complete an alcohol treatment program, which is usually a component of a sentence in DWI cases, but it was one of his own choosing. The lone punitive sanction defendant received involved his performing DWI community service, consisting of spending 150 hours in local schools educating students about the dangers and penal consequence of driving while intoxicated. Not only did defendant leap at the opportunity to accept this very lenient disposition, but, during the plea colloquy, he went out of his way to praise his lawyer when he thanked the Court for their patience, and also for their time, to allow his lawyer to work with the DA's office to bring about the disposition. For defendant to now swear in an affidavit that he would not have accepted the plea deal he fought so hard to obtain if he knew that the conviction would be the basis for a potential future felony prosecution is not only mind-boggling, but clearly rings false. Defendant's claim of being dissatisfied with his former lawyer’s representation was belied by the fact that he retained him again on another felony drunk driving case. A drug charge was not made.

Obviously, defendant's belated decision to bring the motion at bar is a transparent attempt to delay trial. Even if defendant had been unaware that he faced a potential felony prosecution based on yet another DWI arrest at the moment he entered his guilty plea, he received actual notice of that law only moments later in the courtroom when he was given a copy of the document, which he also signed, stating his driver's license was suspended. That document, which was in the court file, lists all the potential penalties of DWI convictions, and specifically advises all defendants who receive this form, and who bother to read it, that a second arrest for misdemeanor DWI within ten years of a conviction for that same crime can result in a felony prosecution. Also in the court file is a document reflecting the fact that defendant completed the New York State Department of Motor Vehicle's Drunk Driver Education program before having his driver's license reinstated, a program that exists to advise defendants convicted of DWI crimes of the penal consequences as well as the societal dangers of recidivist drunk driving. Presumably, defendant would have refreshed his recollection about DWI penalties prior to fulfilling his commitment to educate young students about such penalties. Despite the wealth of knowledge he acquired within hours, days and months of this conviction, defendant never moved to vacate it in the four years prior to his arrest for the felony. More telling, he waited more than four years after his new arrest, and more than fifteen months after hiring his current attorney. Defendant offered no explanation for the delay.

Accordingly, the defendant's motion was denied in all respects.

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July 3, 2013

Condition of driver is not clear

On January 26, 2011, a man was charged with five counts including, driving while intoxicated (count one), resisting arrest (count two), harassment in the second degree (count three), parking upon pavement (count four), and possession of open containers in a motor vehicle (count five). He moved for suppression of all statements made to a law enforcement officer and suppression of the arrest and all evidence seized pursuant to that arrest. The Court thereafter, conducted a joint Huntley and Probable Cause suppression hearing.

The credible and believable testimony at said hearing established that on December 4, 2011, around 1:00 in the morning, City Department of Environmental Protection (DEP) Police Officers were concluding a security check. While finishing their security check, the two officers observed a slow-moving vehicle traveling on Hasbrouck Road toward the intersection of Hasbrouck Road and State Route 55. The area is rural and unlighted. The vehicle traveled and stopped between four to six times before reaching the stop sign.

Thereafter, the vehicle made a legal right-hand turn. It continued in the same stop and start manner before pulling over to the side of the road. Both officers testified that the defendant did not violate any vehicle and traffic laws and they had no police investigative reason to stop or approach the vehicle.

Both Officers, in their marked DEP police vehicle, testified that when they pulled up behind the defendant's vehicle, they intended to conduct a welfare check. One of the officers stated that a welfare check concerned the welfare or the well-being of a person. Both police officers approached the vehicle, with one of them approaching the driver's side and the other approaching the passenger's side.

The law in New York State is clear that the police may approach a person and request basic information, such as identification and destination, as long as they do so in a non-threatening manner provided that they have an objective credible reason to approach, not necessarily indicative of criminality.

The police interaction may involve approaching an already stopped vehicle or approaching a person in a street encounter.

The Court is mindful and in agreement with the duty of the police to protect and serve. The police have a duty to protect a community not just from criminality but to aid and protect people and property which may need the assistance of the police for safety or injury purposes.
However, as stated above, the police must have an objective credible reason to approach and not mere whim or pretext.

The officer who made the initial contact with the criminal defendant, made no inquiries about the defendant's welfare. He testified that after the defendant said good evening to him, he may or may not have responded to the defendant. In either case, he immediately asked the defendant for his license and registration without making any inquiry as to the welfare of the defendant or his vehicle.

On direct examination, the officer testified that upon the defendant's greeting to him he detected a strong odor of alcohol on his breath. However, on cross examination he undermined his own testimony when he testified that the defendant's greeting to him was fine and that he was okay. Drugs were not found.

The questions that the officer asked of the defendant were not questions that concerned a welfare stop; instead, they were specific questions that were investigative in nature of a DWI stop. These questions were not in regard to the welfare of either the defendant or his vehicle, which was the officers' stated reason for pulling up behind the vehicle and activating his take down lights and spotlight.

It is obvious, to the fact finder, that the officer was not concerned about the welfare of the defendant or his vehicle. He failed to ask any questions regarding the welfare of the defendant as reflected in the candid record of his testimony. He clearly did not ask how the defendant was doing, whether he was lost or injured, whether he was having car problems or whether he needed assistance in any way, shape or form.

The fellow officer also testified that the only reason for approaching the vehicle was to conduct a welfare check to determine if the defendant was lost, looking for cell phone reception, or was injured. However, he testified that he failed to ask any questions concerning the defendant's welfare and, in fact, never asked one single question, at any time that morning including the booking process after the arrest, regarding the defendant's welfare.

Notwithstanding both officers' testimony regarding the welfare check, the officer, upon approaching the driver's window, asked whether the defendant was drinking prior to driving, where the defendant came from and where the defendant was going. These questions were clearly indicative of a DWI investigation, not a welfare check and are designed to solicit incriminating evidence from a motorist.

He testified that activating his vehicle's lights this was a safety measure and that the defendant could have started up his car again and drove off. He also testified that when a police officer activates the police lights, the person is supposed to stop and is not free to leave until the police speak with the person. By his testimony alone the custodial status of the defendant from the very inception was admitted by the police.

Moreover, the fellow officer frankly testified that when he asked for the defendant's license and registration the defendant was no longer free to drive away as the police wanted to conduct further questioning of the defendant. His fellow officer wanted to pursue a police line of questioning despite testifying that he believed the defendant was fine.

Interesting, and as a salient point, the officer testified that when the police lights were activated upon approaching the vehicle that the defendant was not free to leave. By his testimony alone the custodial status of the defendant, from the very inception, was admitted by the police. It was at this point, before the police officers even approached the vehicle that the defendant was, seized and anything said was intended to be used against him.

The testimony surrounding the violation of the Vehicle and Traffic Law is equally inconsistent and incredible. The officers wrote in their report that the defendant violated the traffic law by parking on the pavement. However, neither officer testified that the reason the officers approached the vehicle was because of the defendant parking on the pavement, indeed this was not a Vehicle and Traffic stop. Both officers testified that it was not a vehicle and traffic stop because the officers were only checking on the welfare of the defendant, not that they stopped or approached the defendant for a vehicle traffic law violation.

The police officers' actions are also inconsistent with their testimony that the approach of the defendant's vehicle was solely for a welfare check. All testimony showed that the only questioning of the defendant was to determine whether the defendant was driving while intoxicated (DWI). Neither of the officers' sworn testimony was credible, as a matter of fact, regarding the stop being a welfare check.

After the officer stopped questioning the defendant, at the scene, the fellow officer then proceeded to inform the defendant that he would be administering Field Sobriety Tests (FSTs). Although FSTs are only tests that are not absolutely determinative of a person's actual intoxication level, the tests do serve as useful tools that give police officers reasonable information to determine if a person has been driving while intoxicated (DWI).

Since the officer testified that he observed three or four clues, it is possible that the defendant could have only demonstrated three clues and therefore would be less likely to be intoxicated. The third test successfully administered was the one legged stand test. The defendant initially refused to take the test. Thereafter, the officer admonished the defendant and stated that if he refused to participate in any further testing, he would be under arrest.

The officer placed the defendant under arrest and was read his Chemical Test and Miranda warnings. The officer testified that he informed the defendant three times that the defendant knew what he was refusing. However, the statement is inconsistent with a written report, which was placed into evidence. The report was written by one of the officer but was also reviewed by both officers. One of the officers admitted in his testimony that nowhere in the report does it say that the defendant was asked three more times whether the defendant understood the consequences of refusing to take a Breathalyzer test.

What is especially troubling about the testimony of the officer is that he only recorded some of the incident. He failed to record some of the more important events that occurred during the incident. Most notably, he failed to record the administration of the Miranda warnings, the Chemical Test (Breathalyzer Test refusal) warnings, and the incident that took place at the police station. Moreover, both of the officers' sergeants were also at the scene. They could have easily given the phone to and instructed one of the two individuals to record what was going on.

Moreover, the photographs that the officers arbitrarily took at the scene of the incident were incomplete. They took pictures of the alcohol that the officers found on the floor of the backseat of the defendant's vehicle. However, the officers failed to take pictures of other events that were equally or more important to the case. These events include the defendant performing the FSTs, the defendant's vehicle and how it was situated on the roadway, and the actions that took place at the police station.

Both officers testified that they had no way to secure the liquid in the containers, and the officers testified that they sniffed the contents of the bottle and determined that the bottles contained alcohol. Thereafter, the officers poured out the contents of the containers and stored the bottles to be put in evidence bags at a later time.

The testimony is contradictory. The officer testified that he was trained to secure evidence at the scene of a crime, not to destroy it. Furthermore, it was unbelievable for him to conclude that, out of the three police officers at the scene of the crime, not one of them had the ability to secure two containers of alcohol so that they could be admitted into evidence after proper testing. The officers at the scene had reasonable ways to secure the evidence and chose not to use them. The police intentionally spoiled the evidence. The pouring out of the liquid in the containers is borderline incredible.

The Court finds that the arrest of the criminal defendant was illegal. Said finding is based upon the numerous inconsistencies in the testimony of both police officers, the lack of probable cause to arrest the defendant and that the purpose of the police officers in approaching the defendant's vehicle initially was mere pretext.

Furthermore, the Court finds the testimony of both police officers no credible. As such the prosecution did not meet the required burden of proof necessary for these hearings.
Law enforcers are presumed to be always aware of how to handle situations. When they miss on steps or procedures, the life of other could be at risk.

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June 30, 2013

Prompt Suspension Law comes into play

On December 7, 1988, the Court issued a subpoena duces tecum directing the New York State Police to produce a State Police Breath Test Operator's Training Course Manual and specifically that edition which was used to train a Trooper who was first certified as a breathalyzer test operator on February 5, 1988 and who was the arresting officer in the criminal case referred to above which was a trial of the respondent on Driving While Intoxicated (DWI) charges.
The respondent, Superintendent of the Division of State Police, contends that the subpoena duces tecum may only be used to obtain material which is discoverable under Article 240 Criminal Procedure Law (CPL), but not possessed by the prosecutor, or which constitutes evidence, and that the manual in question is not evidence and not discoverable pursuant to CPL.

The Court cannot agree with the contentions of the petitioner. The manual in question is a specific set of instructions and procedures for the proper performance of chemical and psychophysical tests. It constitutes the most comprehensive evidence in regard to State Police procedure for the arrest and testing of DWI defendants. It is certainly direct evidence of both the procedures that should be followed as well as the consequences of not following those procedures. In the case at hand, the issue is whether the defendant was intoxicated, and the use of the subpoena duces tecum for the purpose of obtaining material evidence of that fact is proper, in the Court's opinion. The defendant is entitled to access to the manual by the subpoena duces tecum for the purpose of proving what the proper procedures in testing were and that his accusers failed to follow those procedures, if that be the case.

In view of the foregoing, the motion to vacate the prior order of the Court which granted a subpoena duces tecum is denied.

In another DWI case, the issue presented is whether a court has the power to issue a hardship license to an out-of-state driver, whose privileges to drive in New York was suspended as a result of his DWI arrest. The Court holds that it does have the authority and power to issue the hardship license.

The defendant man, a license-holder from another State, was charged with driving while intoxicated (DWI), driving while intoxicated per se (DWI perse), and operating a motor vehicle while impaired. His license was suspended at the arraignment and he moves the court to grant a hardship privilege.

On September 23, 2011, the Court held a hardship hearing. The decision is a written confirmation of the oral decision issued that day.

While there are no published decisions dealing with the exact issue presented, there is some statutory precedent for out-of-state defendants being extended the same conditional driving privileges as a New York defendant. New York State Vehicle and Traffic Law provide that an out-of-state defendant may be issued a conditional privilege of operating a motor vehicle as long as the defendant participates in the Drunk Driving Program. No cocaine or marijuana were found.

However, this particular action is to be done at the discretion of the commissioner; the statute does not mention the court. Additionally, the term used throughout this part of the statute is holder of a license, not licensee. Thus, it does not directly answer any possible concerns about conditional privileges for licensees being extended to out-of-state residents who have not been granted licenses by New York State.

The Court of Appeals recognized that the possibility of hardship privilege was an important element of the Prompt Suspension Law. The Court stated that the severity of the license suspension is mitigated by its temporary duration, the availability of a conditional license and hardship relief, and the significant protection of a pre-suspension judicial hearing. Although the Court only spoke in terms of license suspension and not suspending operating privileges, it still appears probable that any invoking of the Prompt Suspension Law would, by extension, raise the possibility of hardship relief.

The third department has further held that the Prompt Suspension Law does apply to out-of state residents. Specifically, that court reasoned that, although the prompt suspension law does not specifically refer to an out-of-state licensee, in view of the comprehensive nature and remedial purpose of New York's drunk driving statutory scheme, the prompt suspension law must be construed as authorizing a court to suspend the driving privileges of an out-of-state licensee under the same circumstances as would justify suspending a New York license. These same circumstances should incorporate the factors that moderate the severity of a suspension pending prosecution, as discussed in Pringle, namely the hardship privilege.

Accordingly, the Court holds that it has the jurisdiction and the power to issue a hardship privilege to an out-of-state license holder, if the defendant can prove an extreme hardship.
Administering alcohol and drug related test gives the person in-charge the power to either break or save the life of someone.

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June 29, 2013

Testimony by police is not credible

On January 26, 2011, a man was charged with five criminal counts including, driving while intoxicated (count one), resisting arrest (count two), harassment in the second degree (count three), parking upon pavement (count four), and possession of open containers in a motor vehicle (count five). He moved for suppression of all statements made to a law enforcement officer and suppression of the arrest and all evidence seized pursuant to that arrest. The Court thereafter, conducted a joint Huntley and Probable Cause suppression hearing.

The credible and believable testimony at said hearing established that on December 4, 2011, around 1:00 in the morning, City Department of Environmental Protection (DEP) Police Officers were concluding a security check. While finishing their security check, the two officers observed a slow-moving vehicle traveling on Hasbrouck Road toward the intersection of Hasbrouck Road and State Route 55. The area is rural and unlighted. The vehicle traveled and stopped between four to six times before reaching the stop sign.

Thereafter, the vehicle made a legal right-hand turn. It continued in the same stop and start manner before pulling over to the side of the road. Both officers testified that the defendant did not violate any vehicle and traffic laws and they had no police investigative reason to stop or approach the vehicle or make an arrest.

Both Officers, in their marked DEP police vehicle, testified that when they pulled up behind the defendant's vehicle, they intended to conduct a welfare check. One of the officers stated that a welfare check concerned the welfare or the well-being of a person. Both police officers approached the vehicle, with one of them approaching the driver's side and the other approaching the passenger's side.

The law in New York State is clear that the police may approach a person and request basic information, such as identification and destination, as long as they do so in a non-threatening manner provided that they have an objective credible reason to approach, not necessarily indicative of criminality.

The police interaction may involve approaching an already stopped vehicle or approaching a person in a street encounter. They could have suspected drugs or possession of a weapon.

The Court is mindful and in agreement with the duty of the police to protect and serve. The police have a duty to protect a community not just from criminality but to aid and protect people and property which may need the assistance of the police for safety or injury purposes.
However, as stated above, the police must have an objective credible reason to approach and not mere whim or pretext.

The officer who made the initial contact with the defendant, made no inquiries about the defendant's welfare. He testified that after the defendant said good evening to him, he may or may not have responded to the defendant. In either case, he immediately asked the defendant for his license and registration without making any inquiry as to the welfare of the defendant or his vehicle.

On direct examination, the officer testified that upon the defendant's greeting to him he detected a strong odor of alcohol on his breath. However, on cross examination he undermined his own testimony when he testified that the defendant's greeting to him was fine and that he was okay.

The questions that the officer asked of the defendant were not questions that concerned a welfare stop; instead, they were specific questions that were investigative in nature of a DWI stop. These questions were not in regard to the welfare of either the defendant or his vehicle, which was the officers' stated reason for pulling up behind the vehicle and activating his take down lights and spotlight.

It is obvious, to the fact finder, that the officer was not concerned about the welfare of the defendant or his vehicle. He failed to ask any questions regarding the welfare of the defendant as reflected in the candid record of his testimony. He clearly did not ask how the defendant was doing, whether he was lost or injured, whether he was having car problems or whether he needed assistance in any way, shape or form.

The fellow officer also testified that the only reason for approaching the vehicle was to conduct a welfare check to determine if the defendant was lost, looking for cell phone reception, or was injured. However, he testified that he failed to ask any questions concerning the defendant's welfare and, in fact, never asked one single question, at any time that morning including the booking process after the arrest, regarding the defendant's welfare.

Notwithstanding both officers' testimony regarding the welfare check, the officer, upon approaching the driver's window, asked whether the defendant was drinking prior to driving, where the defendant came from and where the defendant was going. These questions were clearly indicative of a DWI investigation, not a welfare check and are designed to solicit incriminating evidence from a motorist.

He testified that activating his vehicle's lights this was a safety measure and that the defendant could have started up his car again and drove off. He also testified that when a police officer activates the police lights, the person is supposed to stop and is not free to leave until the police speak with the person. By his testimony alone the custodial status of the defendant from the very inception was admitted by the police.

Moreover, the fellow officer frankly testified that when he asked for the defendant's license and registration the defendant was no longer free to drive away as the police wanted to conduct further questioning of the defendant. His fellow officer wanted to pursue a police line of questioning despite testifying that he believed the defendant was fine.


Interesting, and as a salient point, the officer testified that when the police lights were activated upon approaching the vehicle that the defendant was not free to leave. By his testimony alone the custodial status of the defendant, from the very inception, was admitted by the police. It was at this point, before the police officers even approached the vehicle that the defendant was, seized and anything said was intended to be used against him.

The testimony surrounding the violation of the Vehicle and Traffic Law is equally inconsistent and incredible. The officers wrote in their report that the defendant violated the traffic law by parking on the pavement. However, neither officer testified that the reason the officers approached the vehicle was because of the defendant parking on the pavement, indeed this was not a Vehicle and Traffic stop. Both officers testified that it was not a vehicle and traffic stop because the officers were only checking on the welfare of the defendant, not that they stopped or approached the defendant for a vehicle traffic law violation.

The police officers' actions are also inconsistent with their testimony that the approach of the defendant's vehicle was solely for a welfare check. All testimony showed that the only questioning of the defendant was to determine whether the defendant was driving while intoxicated (DWI). Neither of the officers' sworn testimony was credible, as a matter of fact, regarding the stop being a welfare check.

After the officer stopped questioning the defendant, at the scene, the fellow officer then proceeded to inform the defendant that he would be administering Field Sobriety Tests (FSTs). Although FSTs are only tests that are not absolutely determinative of a person's actual intoxication level, the tests do serve as useful tools that give police officers reasonable information to determine if a person has been driving while intoxicated (DWI).

Since the officer testified that he observed three or four clues, it is possible that the defendant could have only demonstrated three clues and therefore would be less likely to be intoxicated. The third test successfully administered was the one legged stand test. The defendant initially refused to take the test. Thereafter, the officer admonished the defendant and stated that if he refused to participate in any further testing, he would be under arrest.

The officer placed the defendant under arrest and was read his Chemical Test and Miranda warnings. The officer testified that he informed the defendant three times that the defendant knew what he was refusing. However, the statement is inconsistent with a written report, which was placed into evidence. The report was written by one of the officer but was also reviewed by both officers. One of the officers admitted in his testimony that nowhere in the report does it say that the defendant was asked three more times whether the defendant understood the consequences of refusing to take a Breathalyzer test.

What is especially troubling about the testimony of the officer is that he only recorded some of the incident. He failed to record some of the more important events that occurred during the incident. Most notably, he failed to record the administration of the Miranda warnings, the Chemical Test (Breathalyzer Test refusal) warnings, and the incident that took place at the police station. Moreover, both of the officers' sergeants were also at the scene. They could have easily given the phone to and instructed one of the two individuals to record what was going on.

Moreover, the photographs that the officers arbitrarily took at the scene of the incident were incomplete. They took pictures of the alcohol that the officers found on the floor of the backseat of the defendant's vehicle. However, the officers failed to take pictures of other events that were equally or more important to the case. These events include the defendant performing the FSTs, the defendant's vehicle and how it was situated on the roadway, and the actions that took place at the police station.

Both officers testified that they had no way to secure the liquid in the containers, and the officers testified that they sniffed the contents of the bottle and determined that the bottles contained alcohol. Thereafter, the officers poured out the contents of the containers and stored the bottles to be put in evidence bags at a later time.

The testimony is contradictory. The officer testified that he was trained to secure evidence at the scene of a crime, not to destroy it. Furthermore, it was unbelievable for him to conclude that, out of the three police officers at the scene of the crime, not one of them had the ability to secure two containers of alcohol so that they could be admitted into evidence after proper testing. The officers at the scene had reasonable ways to secure the evidence and chose not to use them. The police intentionally spoiled the evidence. The pouring out of the liquid in the containers is borderline incredible. No bail was set.

The Court finds that the arrest of the defendant was illegal. Said finding is based upon the numerous inconsistencies in the testimony of both police officers, the lack of probable cause to arrest the defendant and that the purpose of the police officers in approaching the defendant's vehicle initially was mere pretext.

Furthermore, the Court finds the testimony of both police officers not credible. As such the prosecution did not meet the required burden of proof necessary for these hearings.
Law enforcers are presumed to be always aware of how to handle situations.

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June 28, 2013

Defendant was never seen driving

The defendant was arrested and charged with Common Law Driving While Intoxicated and Failure to Produce License, on October 30, 2005 at 8:43 A.M. Later that morning he was arraigned and judge suspended the defendant's driver's license for failure to submit to the breathalyzer test. Finally, the court set bail in the amount of $2,500.00 cash or bond. The matter was eventually set down for a Probable Cause hearing on January 27, 2006.

The People called the arresting Webster Police Officer as the their only witness for said hearing. The officer testified that on October 30, 2005, at approximately 8:43 A.M. while he was on routine patrol, he received a 911 call to respond to a man slumped over the wheel of his car, which was located in the ESL parking lot on Ridge Road in the Town of Webster. Upon his arrival he observed a blue minivan, which was not in a designated parking spot.

The minivan was facing east and apparently in the middle of the parking lot. The defendant's vehicle was surrounded by a number of individuals. Upon approaching the vehicle, the officer observed that the defendant, who appeared to be asleep was behind the wheel. As a result, the officer opened the driver's door and vigorously shook the defendant. Officer Burns was able to detect that the defendant had a pulse and was breathing. The defendant then began to mumble something to the officer. The officer again shook the defendant and inquired as to whether the defendant had any relevant medical issues. This time the defendant stated that he was fine and was coming from a friend's house. The officer asked him if he was diabetic or epileptic.

The defendant advised the officer that he did not suffer from any of those conditions. The officer ordered the defendant out of the vehicle at this time, whereupon the defendant was observed to stumble. The officer observed him lean back to get his balance. During that time the officer detected a strong odor of an alcoholic beverage on the defendant's breath and observed that the defendant had red, blood shot eyes, and that the defendant's speech was slurred.

The defendant could not produce a driver's license, but did identify himself as JD.
At that time the defendant was asked to perform various roadside tests. The first test was the "Alphabet Test". The defendant was asked to recite the alphabet from "C" to "V". The defendant missed the letters G, H and I and recited "X, Y and Z". As a result, the officer testified that the defendant failed the test. The defendant was then asked to perform the "Finger to Nose Test". The officer testified that the defendant failed this test because he touched his lip with his right index finger and touched his left nostril with this left index finger. The officer then performed the Horizontal Gaze Test. The officer testified, that based on his observations of the defendant's eyes, the defendant failed this test. Next the defendant was asked to perform the "Walk and Turn" Test. The officer testified that the defendant failed this test, because he stepped off the yellow line that was used for the test, and that the defendant raised his arms while he walked.

Based on his observations of the defendant, the officer formed the opinion that the defendant was not mentally and physically capable of driving his vehicle. He then arrested him for driving while intoxicated. While still in the ESL parking lot the arresting officer then advised the defendant of his Miranda rights. The defendant indicated that he understood his rights and agreed to speak to the officer.

The officer also testified that he took a written statement from a certain MR who was the woman who supposedly called 911. That statement was presented into evidence.
The written statement indicated among other things, that MR had turned off the engine of the defendant's minivan, when she opened the door of the vehicle to examine the defendant.
The defense objected to said written statement being entered into evidence on three grounds.
First, the pre-trial hearings had previously been adjourned, so this was the second time that said witness was not produced by the people. Second, the written statement of the witness was hearsay. Third, because failure to produce said witness violated the defendant's right of confrontation.

On cross-examination the officer indicated that he found an open bottle of Rum which was found in the front passenger side of the defendant's vehicle. The 357 ml bottle of rum was entered into evidence by defense counsel. The officer testified that two-thirds of the rum was missing. However, the officer conceded he did not know who consumed the missing rum or when it was consumed. The officer testified that he never saw the defendant operate the vehicle, and that the car was not running when he arrived on the scene. In fact, he testified that he did not observe a key in the vehicle's ignition. Officer Burns testified that he had been working the night shift and that he had previously passed by the location in question, without noticing the defendant's van. As a result, he did not know when the defendant's van arrived at the scene.

The police officer also testified to providing the defendant with his Miranda rights. The officer testified that the defendant both understood his rights and that the defendant agreed to speak with him. The officer further testified that no promises or threats were made to get the defendant to speak to him. The court finds the testimony of the officer to be credible.
Based on the evidence presented the Supreme Court is of the opinion that the burden relative to the voluntariness of the defendant's statements have been met. As a result, the motion to suppress the defendant's statements was denied.

As regards the issue of admissibility, defense counsel objects, based on hearsay grounds, without said witness being called to testify. Instead, the statement was offered into evidence after the officer testified that he took the statement from the witness.

While the Criminal Procedure Law contemplates suppression hearings in regard to such areas as confessions, searches, and identification, there is no mention of probable cause hearings. In any event, the only caveat is that a finding of probable cause cannot be based solely on hearsay evidence.

In this case there is independent evidence of the defendant's intoxication. In particular there is the direct observations of the defendant by the arresting officer, who testified to seeing the defendant asleep behind the wheel of his minivan, to observing the defendant displaying physical indicia of intoxication and to the defendant's failure of the various roadside tests.
As a result, the written statement of MR, who allegedly called 911 to report seeing the defendant slumped over the wheel of his vehicle, is admitted over the objection of the defendant.

Based on the above reasoning the Court found the remaining issues raised by the defendant in opposition to the entry into evidence of the written witness statement to be without merit.
On the issue of probable cause, neither the arresting officer nor the reporting witness ever saw the defendant operating a vehicle. However, it is clear that operation of a motor vehicle can be established by circumstantial evidence. Observation of the defendant actually driving a motor vehicle is not a necessary element of Driving While Intoxicated.

Despite the fact that the defendant was never observed driving the van in which he was found, the evidence produced at the probable cause hearing established that the defendant was observed at about 8:43 A.M. behind the wheel of a motor vehicle, whose engine was running; that there was an open bottle of rum found next to the defendant; that the defendant was observed to be asleep by the reporting witness and the arresting officer; that the defendant's vehicle was located in a parking lot, but was not in a designated parking spot; that no one other than the defendant was in the vehicle; that the defendant exhibited various indicia of intoxication; that the defendant failed various road side sobriety tests; that the defendant admitted consuming beer; and that the defendant admitted to driving the vehicle "earlier".
The evidence produced at the Probable Cause hearing appears reliable and sets out facts and circumstances which collectively were of such weight and persuasiveness that would convince a person of ordinary intelligence, judgment and experience that it is reasonably likely and more probably than not, that the offenses charged herein were committed and that the defendant committed them. Therefore defendant's motion to suppress use of all tangible evidence because of a lack of probable cause to arrest the defendant was denied by the Court.
The written statement of the reporting witness was deemed admissible into evidence for purposes of the pre-trial suppression hearing. The defendant's motions to suppress the statements of the defendant and to suppress any tangible evidence obtained by the People were denied.

A DWI or DUI conviction can be embarrassing or even traumatic. It carries with it, not only legal repercussions, but social stigma as well. If you or a love one is arrested for DWI or DUI, do not hesitate to work with a DWI Lawyer who is recognized in the field.

A Defense Attorney can educate you on your case and the defenses available to you. Without the aid of a New York DWI Defense Attorney you run the risk of being convicted.

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June 23, 2013

Sobriety test is put aside in DWI case

One day, a DWI roadblock, indicated by signs, was set up by a uniformed police unit. All vehicles proceeding through the roadblock were stopped. Each driver was then approached and asked how they felt. The vehicle operated by the defendant was driven into this initial area in a normal manner and was stopped solely in accordance with the questioning procedure. The police officer in unit, while asking the defendant how he felt, made several observations. He noticed that the defendant's eyes were watery, his speech was slurred, and he had the odor of alcohol on his breath. A Lawyer said that, the defendant was then directed to drive his vehicle to the safety zone a few feet away. Thereafter, the police officer ordered the defendant out of his car and gave him a field sobriety test. Based on the defendant's performance and his statement that he had consumed eight beers, the defendant was then placed under arrest and transported to a highway unit precinct. On the way to the precinct the defendant was given his Miranda warnings.

Upon arriving at the highway unit precinct, the defendant was again advised of his constitutional rights, whereupon he repeated his statements as to his alcohol consumption. He voluntarily consented to taking a breathalyzer test. The results indicated a reading of .12 percent blood alcohol. The defendant was charged with violating VTL 1192(2) and 1192(3). A DWI Defense Attorney said that the defendant moves to dismiss the charge based on the alleged unconstitutionality of the roadblock and also moves to suppress the breathalyzer test results as well as expected testimony relating to coordination tests administered to him as being obtained in violation of his rights under the State and Federal Constitution.

The issues to be resolved in this case are as follows: 1) whether the constitutional rights of motor vehicle drivers are violated by police stops at "Driving While Intoxicated Safety Check" roadblocks; 2) the effect of the field sobriety test taken by the defendant in the safety zone; and, 3) the suppression of the breathalyzer test.

The initial stop of the defendant's car sufficiently restrained his freedom to result in a seizure subject to constitutional limitations. At that time the police officers lacked any indication that a crime was committed or that any criminal activity was under way. Accordingly, the seizure cannot find its justification under either common law principles or the Criminal Procedure Law. Unless the initial stop was reasonable, the subsequent acquisition of observations and test results from the defendant would be suppressible as the derivative results of an illegal seizure.

Reasonableness in this context requires the proper balancing between the privacy interests of the individual and the public interests of the state. The action of the police must be justified at its inception and be a reasonable response to the problem which it addresses.

The state's compelling interest in highway safety permits distinctions between the privacy rights of citizens based upon whether or not they are occupants of motor vehicles. No New York appellate authority has directly passed upon the constitutionality of Driving While Intoxicated (DWI) roadblock stops but ample Federal and State court authority exists regulating various types of motor vehicle stoppages. Brief stops of motorists at permanent checkpoints to enable Federal officers to look for illegal aliens was upheld because it balanced a limited stop at a permanent checkpoint with extensive prior warnings against the exigency of a massive influx of illegal non-citizens.

Under the right circumstances, the roadblock need not be permanent or have lights or warnings but may occur in isolated areas and be a roving roadblock. Routine "traffic checks" by police officers to determine whether or not a vehicle is being operated in compliance with the Vehicle and Traffic Law is permissible when conducted in a nonarbitrary, nondiscriminatory uniform manner.

Thus, police officers, on whim or caprice and without an articulable suspicion or probable cause, may not stop the driver of a single motor vehicle. They may properly stop one or more lanes of traffic temporarily, at a roadblock in a nonarbitrary manner when a discernible need is established.

A routine stop to establish compliance with VTL regulations pertaining to licensing and registration has been sanctioned as a proper exercise of police power. The same authorized minimal intrusion to establish compliance with VTL regulations as to licensing and registration occurs when a DWI stop takes place. In the latter situation the danger to be prevented and the lifesaving aspects to the drivers and other citizenry leave no question as to the needs outweighing the inconvenience and render the intrusion totally reasonable.

Here the state is not following an "end justifying the means" theory but rather a proper exercise of its inherent power to limit in a very minor way the mobility of some of its citizens to save the lives and property of these same citizens and others.

Accordingly, the initial stop of the defendant was constitutional and the motion by defendant to dismiss the information on those grounds is denied.

On the second issue, the police officer had gone beyond the minimum threshold of routine questioning. He had instructed the defendant to position his vehicle in an area under police authority. Under all the attendant circumstances, the defendant could reasonably infer that he was in custody and had indeed been seized within the meaning of the Fourth Amendment.

Placing the driver/defendant in custody triggered certain constitutional requirements. The Miranda case and its progeny are concerned solely with verbal statements made by a defendant in custody. The warnings necessary in the case of a field sobriety test are of a slightly different nature. The field sobriety test presents a hybrid situation. The defendant is in custody and his taking of the test is the result of an interrogation. The results of the test are as damning as a verbal admission. The defendant must be warned that anything he says or does may formulate the basis for his arrest or be used against him in a court of law. While the results of the various dexterity tests are, for the most part, conduct and not speech, it is conduct that speaks louder than words.

The officers must also inform the driver/defendant that he may legitimately refuse to submit to the test, and that his refusal will not be admissible against him in a court of law. It follows that where consent was obtained, the People have the heavy burden to prove that it was a voluntary and knowing consent. The police officer, faced with a driver who refuses to take the field sobriety test, must base his determination as to the existence of probable cause to formally arrest the driver upon observations made up to that point.

Accordingly, the results of the field sobriety test are to be suppressed, and the motion made by the defendant to that end is granted.

As to the results of the dexterity tests performed at the precinct after the breathalyzer test, these are not suppressed. Any defect arising out of errors at the safety zone is attenuated. There was a clear break in any form of interrogation. Sufficient time had passed and sufficient warnings were given to justify the belief that the defendant had been returned to the status of one who was acting voluntarily after sufficient warning and was not under the undue influence of the police officer's directions.

The final issue before the court is that part of the defendant's motion dealing with suppression of the results of the breathalyzer test.

A breathalyzer machine determines the content of a person's blood alcohol by analyzing the breath of the subject's lower lungs. In simplistic terms, the individual's breath is gathered in the machine and caused to pass through a solution which changes color in proportion to the amount of alcohol passing through it. From the degree of change in color the amount of alcohol which passed through the solution can be calculated, and the results recorded.

There is no question that the breathalyzer test is a wholly constitutional method of determining whether there is alcohol in a defendant's system, subsequent to an arrest for driving under the influence of alcohol. In most cases involving the prosecution of a defendant for driving while intoxicated or impaired, the only tangible evidence offered against him is the result of the breathalyzer test. It has been held that the purpose of this duty is not simply to correct an imbalance of advantage, whereby the prosecution may surprise the defense at trial with new evidence, rather, it is also to make the trial a search for the truth informed by all relevant material, much of which, because of an imbalance in investigative resources, will be exclusively in the hands of the Government.

In contrast, various courts have determined that although retesting of the original ampoule has not attained wide acceptance in the scientific community, a second sample must be taken at the same time as the original and preserved for the defendant's independent testing While the process of preserving a second sample is within the means of the police department, and permits preservation of the sample for at least twelve months, their failure to do so goes more to the weight of the test evidence being offered than to its admissibility and provides no constitutional impediment. In one case, the Supreme Court of the United States put to rest any residual doubts as the necessity of the People to either preserve the original ampoule or breath sample or to produce and preserve a second ampoule or breath sample for the defense.

Accordingly, in the opinion of this court, the results of the breathalyzer test are not suppressed.

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June 22, 2013

Good defense can beat a DWI charge

At approximately 14 minutes past midnight on March 6, 1999, Rochester Police Officer KB was on routine patrol on Lyell Avenue when he first observed a known male prostitute enter defendant's red pickup truck which was parked in a nearby parking lot. When the vehicle exited the parking lot, Officer KB turned his patrol car around, followed the vehicle, and proceeded to run a registration check of the license plate on his multiple data terminal, whereupon he discovered an expired registration. Upon stopping the vehicle, the officer had defendant, the driver, exit his vehicle and then placed him in the backseat of the patrol car. According to Officer KB, this action was taken in order to separate the occupants while he investigated prostitution sex activity. Officer KB proceeded to conduct his prostitution investigation. In doing so, he noticed indicia of the driver's intoxication, including bloodshot, watery eyes, mumbled and slurred speech, and flushed complexion, and he detected a strong odor of alcoholic beverage and drugs. Officer KB then had defendant exit the patrol car and perform various sobriety tests. Upon defendant's failure of a number of these tests, the officer arrested him for driving while intoxicated (DWI). The 10 minute investigation yielded no evidence of prostitution and no charges related to prostitution were ever filed against either occupant of the vehicle. Defendant was placed under criminal arrest for the Vehicle and Traffic Law violations.

Officer KB was the sole witness called to testify at the probable cause hearing. On the basis of the testimony related above, the hearing court issued a written decision granting defendant's motion for suppression of all evidence derived from the stop, detention and arrest on the ground that reasonable suspicion for the stop and probable cause for the arrest for DWI were lacking. In so ruling, the court determined that vehicular traffic stops must be nonpretexual and that the standard for assessing whether a stop is nonpretextual is a primary motivation test.

The charges were dismissed, on motion of defendant, after the People verified that no other evidence existed upon which to proceed with the criminal prosecution. This appeal ensued.
On appeal, counsel reiterated their respective positions set forth in the briefs submitted on this appeal and further cited new case law developments in this area since those documents were prepared. The People's main contention is that the hearing court erred in finding the stop of the defendant's vehicle to be illegal, given that the police officer's subjective motivation or intention is of no moment. Defendant's position is that the law in New York State supports the court's ruling since it is long settled in this State that vehicular stops based upon pretext are outlawed. Neither petite or grand larceny were involved.

The authority to interpret State constitutional provisions so as to confer additional protections upon citizens of this State than afforded under the Federal Constitution is vested in the Court of Appeals. The decision in this case, according to the Supreme Court, is by no means an attempt to usurp that authority.

The record in this case is clear. Admittedly, in his decision to stop defendant's vehicle, Officer KB was primarily motivated to investigate an unfounded suspicion that prostitution activity had been, or was about to be, committed. The traffic check was no more than a pretext for conducting a criminal investigation unrelated to any observed traffic infraction. An investigative stop is such a seizure within the meaning of constitutional strictures and requires at least reasonable suspicion of criminal activity. A motor vehicle on a public highway may be stopped for specific cause or reasonable suspicion of a violation of the law or in accordance with nonarbitrary, nondiscriminatory, uniform procedures, such as at roadblocks, checkpoints and weighing stations, but mere whim, caprice, or idle curiosity" will invalidate such a stop. The lower court's determination that the stop was invalid was not improper, and as such all evidence flowing therefrom was properly suppressed.

It is not easy to fight out a DUI or DWI charge. But with the right help a viable defense can persuade the prosecution to either drop or reduce the charges against you or a love one. A New York DWI Defense Lawyer can educate you about your options in order to prevent a conviction and suspension of your license. Don't have weapons in your car.


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June 21, 2013

Most serious offense is tried first

The accused woman appeals from a judgment convicting her, after a nonjury trial, of two counts of driving while intoxicated (DWI) as a misdemeanor and refusal to submit to a field screening test. She was arraigned in Sylvan Beach Village Court on two counts of DWI as a misdemeanor. A certified copy of her abstract of driving record from the New York State Department of Motor Vehicles (DMV abstract) indicated, however, that she was convicted of DWI in Oneida City Court in Madison County, and the complainant thus sought a felony DWI indictment from the Oneida County grand jury. By indictment filed, the accused woman was charged with two counts of DWI as a felony, and she was arraigned on that indictment. At that time, the complainant announced their readiness for trial.

Thereafter, a certificate of conviction was produced that demonstrated that the DMV abstract was erroneous, inasmuch as the August 26, 2004 conviction in Oneida City Court was not for DWI but, rather, was for driving while ability impaired. As a result, on February 26, 2008, the complainant moved to amend the indictment to reduce the two DWI charges from felonies to misdemeanors. Robbery was not included. County Court granted the motion over the accused woman's objection. The accused woman thereafter moved to dismiss the indictment, as amended, based on the alleged violation of her statutory right to a speedy trial. According to the accused, the complainant had 90 days in which to announce their readiness for trial and failed to do so. She contended that she was originally charged with misdemeanors, that the felony indictment was based on erroneous documentation, and that, when the error was discovered, the indictment was amended by reducing the felony counts to misdemeanors, thus rendering applicable the 90-day time period rather than the six-month time period. The court properly denied the accused woman's motion. No sex crimes were involved.

As the Court of Appeals has written, unless an event occurs which triggers the specific contingencies of Criminal Procedure Law, controls the calculation of the readiness period throughout the criminal action. Under that provision, the readiness time requirement is based on the most serious offense charged in the criminal action, measured from the date of filing of the first accusatory instrument. Here, the most serious offenses charged in this case were the two felony counts of DWI. While the documentation that the accused had a predicate DWI conviction, which formed the basis for the felony charges, was later shown to be erroneous, that does not negate the fact that the most serious offense charged in the criminal action was a felony. As a result, the complainant had six months in which to declare their readiness for trial, and they timely did so on January 4, 2008. Finally, the accused woman's further contention that the complainant’s declaration of readiness on January 4 was rendered ineffective by the subsequent reduction of the felony counts to misdemeanors is rejected.
In another DWI case, Penal Law, which sets forth the eligibility requirements for obtaining a pistol license, requires that the applicant be a person concerning whom no good cause exists for the denial of the license. A pistol licensing officer has broad discretion in ruling on permit applications and may deny an application for any good cause. Here, the respondent licensing officer found that the petitioner's history included three DWI arrests, one of which occurred while his pistol license application was pending, and a DWI conviction. Contrary to the petitioner's contention, the determination of the respondent licensing officer that his criminal history constituted good cause to deny his application was not arbitrary and capricious and should not be disturbed. The petitioner's remaining contentions are without merit.

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June 19, 2013

Cases are often reviewed

On July 8, 2005 at approximately 2:00 A.M., the defendant was driving northbound on State Route 78 (South Transit Road) in the Town of Lockport and was stopped by a New York State Trooper. The trooper was on routine patrol with Trooper Middlebrooks when the defendant pulled out of a local bar, and narrowly missed being broadsided by a tractor trailer truck which was proceeding in the southbound lane of South Transit Road. The trooper followed the defendant, who was operating her car in the center turn lane of the five-lane state highway. He paced her car with his speedometer and also estimated her speed at 72 mph in a posted 55 mph zone. Defendant's car was weaving in and out of traffic and was eventually stopped for speeding and failure to keep right. Defendant responded to the lights and siren of the New York State Police car and stopped. While Richardson asked the defendant for her license and registration, he noticed a strong odor of alcohol from the car. He spoke with her and she told him she was involved in a softball game at the bar and had consumed eight beers. Her words were slurred, he noticed her eyes were watery and she had confused speech. there were no weapons invovled.

The trooper administered three field sobriety tests to determine if she was intoxicated. Those tests which were administered were the walk and turn test, one-leg stand test and alphabet recitation. The defendant was unable to complete the alphabet and stopped at the letter "o," thus failing that test. Likewise, she was unable to do the nine-step stop and turn test, but rather took 12 steps and then walked to her car, but not in a straight line. Defendant likewise failed that test. Finally, she simply could not do the one-leg stand test. He gave her a breath screening test on site, which she failed. When the trooper advised her she was under arrest for driving while intoxicated, she became upset and distraught, so much so that she had to be handcuffed. The defendant was taken into custody and transported to the New York State Police barracks and given her breathalyzer and Miranda warnings. Defendant provided a breath test sample, which was analyzed on an Alcotest 7110MKIIIC instrument. The test was performed well within a two-hour time period and was completed at approximately 2:45 A.M. Richardson described the prescribed manner in which he gave the test, as well as his observations of the defendant. She consented to the test. The test instrument provided the readout that defendant's blood alcohol content (B.A.C.) was at .21%.

While at the station, defendant admitted that she had consumed 18 beers, not 8. The trooper has handled over 120 DWI cases and is a certified breath test operator. He has also determined intoxication of people both on the job and socially. She was once tried for domestic violence.

In order to establish the foundation for the admission of the breath test result at trial,the prosecution offered into evidence the record of calibration/maintenance and the certification of analysis of the breath alcohol simulator solution. The prosecution also produced certifications.

The defendant interposed a Confrontation Clause objection to the admission of these documents in that admission would deny an opportunity to cross-examine the technician who inspected, calibrated and maintained the breath test machine and also the individual who tested the simulator solution.

Defense argues that since the trooper did not perform the required calibration/maintenance or analysis, he was not qualified to testify as to whether the breathalyzer instrument test results met the required predicates for introduction into evidence. Because the defendant is unable to challenge the accuracy of the instrument or the test ampoules of simulator solution by the constitutionally mandated method of cross-examination of the person who performed the calibration/maintenance or analysis, introduction of the certification violates defendant's right to confront witnesses. The People urge the analysis of the simulator solution and record of calibration/maintenance are simply governmental records kept by the New York State Police, which have been properly certified.

Civil Practice Law and Rules which codified the New York business records exception to the hearsay rule, is applicable to both civil and criminal cases. The law provides, in pertinent part, as follows: Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.

If the New York State Police documents are business/governmental records under CPLR, then they are admissible. If the documents are "testimonial" in nature, they are not admissible.
These records were made routinely and are needed and relied on by the New York State Police to conduct law enforcement. The records were made pursuant to protocol in a systematic procedure. The certifications were made within days of the reports and the reports were made the day of testing. These documents are not affidavits and were made before the July 8, 2005 arrest of the defendant. They are not testimonial nor specifically made for the prosecution of this case. This court is aware of recent cases to the contrary.

Accordingly, the breath test result (exhibit 5) showing defendant's B.A.C. reading to be .21% is admissible. No drugs were found.

The Court is of the opinion that the defendant is guilty of operating a motor vehicle while her blood alcohol content was greater than .08%, in violation of the Vehicle and Traffic Law.
A charge of DWI or DUI must not be taken half-heartedly. DWI is a serious offense. It is thus important to deal with a qualified counsel that could provide a successful defense. A New York DWI Lawyer can help you in your case.

A New York DWI Defense Attorney will review the circumstances of your case and study the legal options available for you. Without a New York DWI Defense Attorney you may not be able to mount a viable defense.

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June 19, 2013

vehicle must be released

On February 16, 2004, respondent BT was arrested in the vicinity of 118th Street and Second Avenue as he exited his 2000 Lexus. He was charged with criminal felony possession of a controlled substance with intent to sell, felony possession of more than 16 ounces of marijuana, and misdemeanor possession of marijuana. The drugs were found in respondent's car, which was seized and vouchered at the time of arrest and is the subject of a civil forfeiture proceeding. Respondent thereafter filed a timely demand with petitioner for a hearing which was held on March 8, 2004. No guns or drugs were found.

In support of its application to retain possession of respondent's vehicle pending forfeiture, petitioner submitted respondent's arrest report which stated he was "in possession" of marijuana and other controlled substances. It also submitted the Criminal Court complaint which stated that the arresting officer observed respondent in the vehicle in question and that the marijuana and other controlled substances were recovered from that vehicle. Documents demonstrating the value of the vehicle, respondent's ownership thereof, and respondent's prior criminal record were also submitted at the hearing.

Respondent testified at the hearing that at the time of his arrest, his vehicle was parked and he was arrested after he exited his vehicle.

With respect to the issue of probable cause for respondent's arrest, petitioner argued that probable cause existed because the marijuana and other drugs were recovered from the vehicle. When the Administrative Law Judge (ALJ) presiding at the hearing inquired about the arresting officer's observations leading to the initial stop of respondent, petitioner argued that the issue of whether there was reasonable suspicion for the initial stop was beyond the scope of the hearing. The ALJ disagreed, holding that if the initial stop was invalid, the subsequent arrest and seizure were also invalid, despite the quality of the evidence recovered as a result of the illegal stop. He concluded that since there was no indication of the factual basis for the initial stop of respondent by the arresting officer, the vehicle must be released. Robbery and petit larceny were not in the picture.

Petitioner thereafter brought another proceeding, arguing that the ALJ acted beyond his jurisdiction in requiring proof of the propriety of the initial stop. The IAS court determined that the ALJ was correct in his analysis that the initial stop must be valid to sustain the subsequent seizure, and denied the petition and dismissed the proceeding.

Administrative Code of the City of New York provides that all property suspected of having been used as a means of committing crime or employed in aid or furtherance of crime shall be given into the custody of and kept by the property clerk. A person who uses property in aid of a crime shall not be considered the lawful claimant entitled to that property.

While the issues of whether there was reasonable suspicion for the initial stop of respondent and whether there was probable cause for his arrest require separate inquiries, the issues are interconnected in forfeiture cases since if a seizure lacked probable cause, and the City could offer no untainted postseizure evidence to justify further retention, the claimant's vehicle would ordinarily have to be released during the pendency of proceedings.

Admittedly, there was no showing at the hearing that there was reasonable suspicion for the initial stop. As a result, petitioner was not able to offer untainted post-seizure evidence to justify further retention.

The ALJ in this case did not exceed the scope of the hearing and his jurisdiction by requiring a showing of reasonable suspicion. Such a showing is the first step in any inquiry into the validity of a seizure.

This inquiry does not require a full evidentiary hearing. We do not envision the retention hearing as a forum for exhaustive evidentiary battles that might threaten to duplicate the eventual forfeiture hearing. Inasmuch as the purpose of the hearing is the limited one of determining whether the vehicle should be returned to its owner during the pendency of proceedings, due process should be satisfied by an initial testing of the merits of the City's case.

The Court therefore concluded that the IAS court's determination was correct and should be affirmed.

Being convicted because of a DWI or DUI conviction is no laughing matter. A charge of DWI must be taken seriously at the first instance. It is imperative that only the guilty ones must be punished. A New York DWI Defense Lawyer can help you assess the situation and plan your defense.

A New York DWI Defense Attorney can argue your side to ensure that only appropriate defenses are raised. Without a New York DWI Defense Attorney you can suffer a lifetime of embarrassment and a tainted professional record.

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June 18, 2013

Motion to dismiss charges for DWI is denied.

The defendant is charged with violating five sections of the New York State Vehicle and Traffic Law. Two of the violations—of section 1192 (2) and (3), driving while intoxicated (per se) and driving while intoxicated (common law), respectively—are unclassified misdemeanors, and are therefore crimes. The simplified traffic information charging these crimes were on their faces made returnable in Nassau County District Court, located at 99 Main Street in Hempstead. The other three violations—of section 1128 (a), section 1163 (d) and section 375 (2) (a) (1), failure to maintain a lane, illegal turn, and no headlights, respectively—are traffic infractions.
A New York Criminal Lawyer said that, the defendant appeared with counsel in District Court. Despite the fact that only two of the tickets bore a District Court address, all five violations were listed on the District Court calendar, under a single docket number. The defendant was arraigned on the instruments charging all five violations. The case was then adjourned for conference. Apparently, neither the prosecutor nor the court took cognizance of the difference in return addresses on the tickets. Following the arraignment, the defendant went over to the TVA, at Cooper Street. The three tickets charging noncriminal violations appeared on the TVA calendar. The defendant, following a conference with the TVA prosecutor, disposed of the three tickets by pleading guilty to one reduced charge, and paid a fine.
A New York DWI Defense Lawyer said that, the defendant now moves to dismiss the DWI criminal charges. The defendant argues that the three non-criminal violations have already been disposed of, and that in light of the final disposition of three charges forming part of the same criminal transaction as, and consolidated with, the two DWI criminal charges, the two DWI criminal charges are now barred from prosecution by principles of double jeopardy, and must therefore be dismissed.

The issue in this case is whether the criminal charges of the defendant constitute double jeopardy.

The Court in deciding the case cited a 1984 case decision, in which the County Court had dismissed the indictment for domestic violence based upon the double jeopardy effect of the defendant's plea of guilty in Babylon Village Court to the infraction of leaving the scene of an accident. The ticket for leaving the scene had been issued based upon the same incident out of which the DWI felony charges arose.

Taking note of the singular and unique purpose of the DWI laws — "to reduce human suffering and carnage caused by drinking drivers"—the Appellate Division in the 1984 case concluded that "either statutory exception would preclude application of a previous prosecution bar" to a DWI charge based on a plea to a simultaneously arising traffic infraction. The same reasoning would apply to the instant case, where the noncriminal charges of failure to maintain a lane, illegal turn, and no headlights, are as distinct from the DWI charges as was the leaving the scene charge from the DWI charge in the 1984 case. Thus, the instant defendant's argument would appear to lack merit.

However, the Appellate Division in the 1984 case, after making its first holding, then addressed the issue upon which the instant defendant primarily rests his present motion: "More troublesome are the compulsory joinder provisions of CPL 40.40. Basically, that section prohibits a separate prosecution of joinable offenses that arise out of the same transaction and involve different and distinct elements `under circumstances wherein no violation of the double jeopardy principle can validly be maintained but the equities nevertheless seem to preclude separate prosecutions'". The Appellate Division resolved this issue by determining that "offenses are joinable in a single accusatory instrument if they arise out of the same criminal transaction and the court has subject matter and geographical jurisdiction over both of them".

The TVA, in which the disposition whose preclusive effect is advocated by the instant defendant was taken in the instant case, has no jurisdiction over DWI criminal charges. Therefore, the DWI charges could not have been joined there, just as the DWI charges could not have been joined with the traffic infractions in the courts in which the allegedly preclusive dispositions had been taken in the 1984 and other cases mentioned. Under those cases, it would therefore appear that the defendant's motion must be denied. Sex Crime cases are different.

The defendant, however, argues that the cited cases are not dispositive. The defendant argues that a distinction arises from the fact that while in the cited cases the traffic infractions were never joined with the DWI charges, in the instant case the very same traffic infractions which were disposed of before the TVA were in fact joined with the DWI charges in District Court, and were in the process of being prosecuted together with them there, at the time of their disposition. Thus, says the defendant, the disposition of the traffic infractions before the TVA precludes further prosecution of the charges with which, in District Court, they were joined.
The instant case is in fact unique to the extent that it involves a situation in which a set of three accusatory instruments were apparently filed in the District Court, and then mistakenly docketed both in the District Court itself, and in the TVA. The previously cited cases do all operate on the assumption that each criminal charge will be pending in a single forum. In considering a situation for which there is no direct precedent, this court must nevertheless consider the principles lay down by courts in this area.

The defendant here could have requested dismissal or transfer of the three non-criminal charges before the TVA, in order to prevent him being subjected to separate prosecutions. Despite the fact that he went to the TVA fresh from having been arraigned on that very same morning on those very same charges in District Court, and thus was aware of the ministerial error which had resulted in the matters being calendared in both form, the defendant did not do so, but instead silently pleaded out the matters before the TVA.

While principles of double jeopardy would presumably apply to any attempt to now reprosecute the three instruments charging traffic infractions, and disposed of before the TVA, the effect of the disposition of those three instruments on the remaining DWI criminal charges must be resolved based upon the same compulsory joinder statute. Weapons make it more serious.

It should be noted that this resolution places the defendant in a similar position to the defendants in the above-mentioned cases. He obtained the benefit of a plea bargain, in a jurisdictionally inferior forum, of the traffic infractions with which he was charged, and is now free to contest the DWI charges lodged against him.

Accordingly, the Court held that, as the matters concluded before the TVA are not within the jurisdiction of this court, and as the defendant seeks no relief with respect to those charges here, the court does not address them. As to the Vehicle and Traffic Law § 1192 (2) and (3) charges, the defendant's motion to dismiss them is denied.

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June 16, 2013

Circuit Court is vindicated in felony case

The Facts of the Case:

On 11 October 1988, the petitioner was charged in the circuit court with three traffic-related offenses. One of the charges was for DUI in violation of the Florida Statutes, to wit: that any person who is convicted of a fourth or subsequent DUI violation is guilty of a felony of the third degree. However, the information filed charging the petitioner made no mention of any specific prior DUI convictions, nor did the state before trial provide the petitioner any details of the alleged prior convictions. At arraignment, petitioner moved to dismiss or to transfer the matter to the county court, contending that because the information did not inform him of what specific prior offenses he allegedly committed, the information did not adequately charge the felony, and therefore the circuit court had no jurisdiction. The circuit court denied the motion. Consequently, the jury found petitioner guilty of DUI. After denying the petitioner’s renewed motion to dismiss, the court immediately adjudicated petitioner guilty of third-degree felony DUI and sentenced him to four and one-half years' imprisonment. Thereafter, the district court reversed on the ground that the felony prosecution in circuit court was improper because the information merely charged petitioner, in effect, with three misdemeanors. The district court expressed conflict with a prior court ruling which held that the state need not allege the prior DUI convictions in the charging document because of possible prejudice to the accused in the event the prior convictions were brought to the jury's attention.

The Issue of the Case:

The sole issue is whether or not a charging document must specifically allege three or more prior convictions for Driving Under the Influence (DUI) when charging a defendant with felony DUI to confer jurisdiction on the circuit court and to comply with due process of law.

The Ruling of the Court:

Here, the court must make two related inquiries concerning the sufficiency of the information. The court must first determine whether the information unambiguously alleged the commission of a felony, thereby properly invoking the subject matter jurisdiction of the circuit court; and if the circuit court had jurisdiction, the court must then determine whether the information satisfied the petitioner’s right to the protection of due process of law.

On the question of jurisdiction:

As held by the court in a landmark case, an information charging a felony and misdemeanors arising out of the same circumstances is within the exclusive subject matter jurisdiction of the circuit court. However, the information must unambiguously charge a felony to invoke the circuit court's jurisdiction. Here, the state made clear in the information that it was charging the petitioner with third-degree felony. It was specifically mentioned or stated. Thus, the court finds that the information properly invoked the jurisdiction of the circuit court.

On the sufficiency of the Information:

As a rule, if a defendant charged with felony DUI elects to be tried by a jury, the court shall conduct a jury trial on the elements of the single incident of DUI at issue without allowing the jury to learn of the alleged prior DUI offenses. If the jury returns a guilty verdict as to that single incident of DUI, the trial court shall conduct a separate proceeding without a jury to determine, in accord with general principles of law, whether the defendant had been convicted of DUI on three or more prior occasions. All evidence of the prior DUI convictions must be presented in open court and with full rights of confrontation, cross-examination, and representation by counsel. The trial court must be satisfied that the existence of three or more prior DUI convictions has been proved beyond a reasonable doubt before entering a conviction for felony DUI.

Applying the aforesaid rules of law to the facts in the case at bar, the court is persuaded that the district court found error for the wrong reason. The information charging the petitioner here did satisfy the law's jurisdictional requirements and properly invoked the jurisdiction of the circuit court. Thus, the district court erred in reversing all the convictions on jurisdictional grounds. However, the state failed to give the defendant any notice of the alleged prior DUI convictions it intended to establish to prove felony DUI, and the record also contains insufficient evidence of the existence of any prior DUI convictions to support a felony DUI conviction. Thus, the felony DUI conviction cannot stand. Even so, substantial competent evidence does appear in the record to support a conviction of first-offense DUI, for which petitioner must now be resentenced.

In sum, the court approves the result as to the felony DUI conviction, but quashes the decision in all other respects; the case is remanded with instructions to reinstate the convictions for driving with a suspended license and attaching an unassigned registration license, to enter a conviction of first-offense DUI, and to resentence the petitioner.

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June 10, 2013

Reckless driving causes accident

This matter comes on by appeal of defendant-appellant from a jury verdict in the Town of Bethel Justice Court finding him guilty of driving while intoxicated (DWI) and unsafe lane change.

Defendant argues that his retained counsel was ineffective in representing him from the outset of the case, through discovery and motion practice and throughout the jury trial.

Defendant was arrested by New York State Troopers on January 29, 2005 in the Town of Bethel, County of Sullivan, State of New York .Defendant was charged with DWI for violation of Vehicle and Traffic Law and unsafe lane change.

Defendant's arrest stems from a motor vehicle accident wherein the People claim that he unsafely changed lanes and struck, and became affixed to, a guardrail.

Defendant argues that trial counsel was ineffective and inept in that, inter alia, he failed to move to suppress defendant's illegal arrest, failed to move to suppress the identification of the defendant, elicited harmful evidence against defendant at trial and showed ignorance of basic criminal procedure and evidentiary rules.

At the time that the New York State Troopers arrived at the accident scene, the defendant was seated in the passenger seat of a Toyota while MZ was seated in the driver's seat. The Toyota was attempting to pull the accident vehicle, a Dodge van, from the guardrail by means of a rope attached from the Toyota to the van.

The Troopers, believing that defendant had been drinking, gave defendant field sobriety tests which he failed. Defendant allegedly did not follow instructions properly, but it is not clear whether the defendant understands the English language very well.

GT, a man who was ice fishing on a pond some distance from the road, told one of the State Troopers that he heard a crash, looked up and saw a man walking around the van. Some time later he looked again and saw a second car attempting to pull the van off the guardrail. GT was then brought to the scene and identified defendant as the man he saw walking around the van right after the crash.

Following defendant's arraignment, his attorney failed to timely file any motions. The Justice Court extended motion time and defendant's attorney then served a demand to produce, though it was after the extension time.
The defense attorney did not serve a motion to suppress defendant's arrest or a motion to suppress the identification even though a proper arrest and the identification issue were central to the within case.

The defense attorney did file a motion to dismiss on speedy trial grounds and supplied alibi affidavits showing that the matter should be dismissed because defendant did not drive the van. In said motion the defense attorney consistently referred to the eyewitness GT as JB. Though said motion implied an arrest without probable cause and an identification induced by the police, motions to suppress the arrest or identification were not made. The motion was properly denied by the lower court.

After jury selection but prior to the court's preliminary instructions, defense counsel moved orally to dismiss on insufficiency grounds. The People objected as the motion was not on notice and the evidence had not commenced yet. Defense counsel insisted that the motion was proper. Said motion was denied.

The only evidence that the defendant was driving the van was the testimony of GT, who was ice fishing some distance, about 200 yards, away and was then brought to the accident scene by the State Troopers to identify the defendant. The defense attorney questioned him regarding a zippered jacket worn by the defendant even though said questioning was outside the scope of the evidence elicited at trial. Said questioning, arguably, bolstered the witness' testimony against the interests of the defendant.

There was also trial testimony concerning the defendant's unfamiliarity with the English language. Because of defendant's alleged lack of speaking English, a Russian interpreter was supplied to the defendant at the State Police barracks after arrest. At trial, the People produced a New York State Trooper who testified that he was previously a police officer in New York City for four years, that the defendant held a New York City Taxi and Limousine Commission "Hack License," and that a requirement to obtain said license is the passing of an English proficiency exam. There was no foundation laid to qualify this witness as an expert nor were objections made to his qualifications as an expert or his testimony.

At trial, the defense attorney attempted to put into evidence three photographs depicting head injuries to the person the defense alleged to be the actual driver of the van. These photographs were not admitted due to the lack of understanding of how to introduce admissible evidence by the defense attorney.

Thus, the defense attorney not only did not know how to introduce admissible evidence but he did not know how or why to object when the People introduced expert testimony without a foundation.

In attempting to elicit evidence of defendant's character, the defense attorney persisted in requesting opinion testimony from his witness over the objection of the People and the sustaining of the objection by the court.

The defense attorney also showed his ineffectiveness by his unfamiliarity with cross-examination, hearsay testimony, lesser included offenses, verdict sheets and jury charges.
Lastly, after the jury verdict was rendered, the court asked the defense attorney whether he wanted the jury "polled." The defense attorney was not familiar with that term.

The Supreme Court held that so long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met.

An appellate court should not misidentify ineffectiveness with losing strategy or tactics.
The defendant has the burden to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings.

An error or errors must be sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial.

The federal standard for ineffectiveness of counsel requires a two-prong test wherein the defendant must show both that counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for defense counsel's unprofessional errors, the results of the proceeding would have been different.
It is elementary that the right to effective representation includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense who is familiar with, and able to employ at trial basic principles of criminal law and procedure. Notwithstanding the defense attorney's ineffectiveness and ineptness regarding the myriad instances mentioned above, this court is at a loss to posit any strategy or tactic whereby a motion to suppress defendant's arrest and identification was not made herein especially in light that they were the central and crucial issues of this case.

There is no question herein that counsel representing the defendant was ineffective in that he was not prepared in both the law and the facts and he was unable to employ basic principles of criminal law and procedure.

Based on the facts, the Supreme Court ordered that the appeal is granted; and it is further ordered that defendant's convictions and sentence should be vacated.

It is still possible to avoid a DWI or DUI conviction. It is thus imperative for one consult a counsel with the right experience, knowledge and skill in the field of criminal law, particularly DWI or DUI. A New York DWI Lawyer can guide you through the legal and scientific process that follows a DWI charge.

A Defense Attorney can recognize all available legal and factual defenses in your favor. A conviction is not impossible without the rightful aid of a DWI Defense Attorney.

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June 8, 2013

Fines are found to be excessive

A Defense Lawyer said that, that on February 4, 1982 on Upper Falls Boulevard, Rochester, New York, defendant a 28 year old housewife operated a vehicle while under the influence of alcohol. Her breathalyzer test was .24 of 1 per cent of blood alcohol. On the previous day, she had received final divorce papers from her husband of the past eleven years. Defendant said that she had been drinking heavily throughout the nighttime. About six o'clock in the morning a minor accident, causing no discernable property damage or personal injury precipitated her arrest. No prior alcohol history exists, and it is her first such charge.

A reporter said that, the attendant circumstances operate only in mitigation of sentence and punishment rather than as a defense to the charge, or in exoneration of guilt. Therefore, these circumstances would, ordinarily, influence her at this time in the manner in which I might impose sentence, including any fine. On March 11, 1982 the defendant pleaded guilty to a violation of subdivision 3 of § 1192 of the Vehicle and Traffic Law--Operating a Motor Vehicle while under the Influence of Alcohol. This Court must now impose sentence under subdivision 5 of § 1192 as amended by the Laws of 1981, c. 910.

The issue in this case is whether defendant can be held liable for DWI.

The court said that, misdemeanors of this type--on first offense--generally indicate to this Court that a probationary period is desirable, either supervised directly by the County Probation Department, or supervised indirectly by the police through a conditional discharge of one year. However, if there were any personal injury or property damage, restitution would be ordered. And, if the personal injury were serious or fatal a jail sentence would be imposed. A fine also is customary, depending on the circumstances.

However, since enactment of the Laws of 1981, c. 910, other factors have entered the sentencing process in respect to DWI offenses. The Legislature has removed all judicial discretion as to a part of the sentence. The new laws state: 5. A violation of subdivisions two, three or four of this section shall be punishable by imprisonment in a county jail for not more than one year, or by a fine of not less than three hundred fifty dollars nor more than $500.00, or by both such fine and imprisonment. And subdivision 6 states: Notwithstanding any provision of the Penal Law, no judge or magistrate shall impose a sentence of unconditional discharge for a violation of any subdivision of this section nor shall he impose a sentence of conditional discharge, unless such conditional discharge is accompanied by a sentence of a fine as provided in this section.

In sum, these laws require the Court either to send the defendant to jail or to fine her a minimum of $350.00. Because the facts in this case do not justify, in my opinion, a term of imprisonment, I must, by law, fine the defendant at least $350.00.

The Monroe County Public Defender's Office represented the indigent defendant in this case, and, at the time of taking her plea, asked the Court to conduct an ability-to-pay hearing in accordance with § 420.10, subdivision 4, of the C.P.L. The object of the hearing was the taking of proof on the economic resources of the defendant, to ascertain her ability to pay a fine of $350.00 and, to decide whether, in light of her admitted indigency, the fine was excessive. After some legal argument, the Court deferred sentencing and conducted the hearing on April 21, 1982.

The legal arguments are significant. Subdivision 4 of C.P.L. § 420.10 allows only an "Application for Resentence" based on a defendant's inability to pay a fine. It is effective only AFTER the Court has already imposed the sentence of a fine or restitution, etc., not BEFORE. If after the fine is imposed a defendant meets the burden of proving his inability to pay in an evidentiary hearing, then the sentencing court may resentence the defendant under the statute.

In this respect however, the statutory scheme of C.P.L. § 420.10 runs contrary to the express provisions of two fundamental organic laws. Both § 5 of Article I of the New York State Constitution, and Amendment VIII of the U. S. Constitution, provide, in explicit and simple language: Excessive bail shall not be required, nor excessive fines imposed. These constitutional provisions require that the question of excessiveness be answered BEFORE, or during, imposition of sentence not afterward. The constitutional injunction against excessiveness operates at or before the time of imposition of sentence. It is a prior or contemporaneous restraint on judicial discretion in sentencing. A court must, under these constitutional clauses, answer the issue of excessiveness, therefore, in the first instance, and cannot, as C.P.L. § 420.10 suggests, impose an excessive fine ab initio and correct it later on. The court must decide whether the fine is excessive now, not later.

The question thus becomes what, then, is an excessive fine under the Constitution. In a 1971 case, the United States Supreme Court held that a fine of $425.00 was excessive if imposed on an indigent defendant who could not pay it and who faced jail as the only alternative to payment of the fine. The origins and history behind the adoption of these constitutional clauses provides some insight into the meaning of excessiveness.

These clauses first appeared in English Constitutional history in the Petition of Right to King Charles I in 1628 and in the Declaration of Rights issued in 1689 by Parliament in the Act of Settlement. They were the creatures of the bloody "Glorious Revolution" of Seventeenth Century England. They derived from specific and notorious cases in which the Stuart Kings had trampled upon the Magna Carta rights of the English Nobility.

New York’s Constitution, in 1846, adopted a Bill of Rights which also contains the same language as the VIII Amendment prohibiting excessive fines. The Court therefore concludes that one of the meanings of excessiveness intended by this language is a relative comparison between the amount of the fine and the wealth of the defendant.

To these facts, the Court must apply the principles of subjective disproportionate impact as outlined above; and apply them at the time of sentencing, not afterwards. The Court finds that defendant has no economic resources presently available, or in reasonably near expectancy, with which to pay the fine of $350.00 mandated by law.

Accordingly, the Court finds that, as to her, the mandated fine is excessive and constitutionally prohibited. Buttressing this finding of excessiveness in this particular case, is the empirical data that this is the first such finding in more than 74 D.W.I. cases to come before this Court since the Laws of 1981, c. 910 took effect. In the other 73 cases, all the defendants were wealthy enough to pay the fine most of them on the day of sentencing. Thus there is no constitutional infirmity in the law itself. The infirmity arises only upon its application. For the most part, defendants will be required to pay because no question of excessiveness as to them can be raised. But as to this defendant, on this day, in her economic circumstances, the Constitutional injunction against excessive fines shall stand supreme. The Court sentences the defendant to a conditional discharge of one year.

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June 3, 2013

Officer is proven to be justified

The defendant, is charged with two counts of (DWI) Driving While Intoxicated in violation of VTL §1192 (2), (3), and Speeding in violation of VTL §1180(d). A pre-trial hearing was ordered to determine defendant's motion to suppress. On March 23, 2006, a Dunaway/Huntley/Mapp hearing was held to determine the admissibility at trial of evidence obtained against the defendant, including chemical test results and statements. The sole witness at the hearing was the Trooper of the New York State Police who testified on behalf of the People. Based upon the credible evidence adduced at the hearing, the Court makes the following findings of fact and conclusions of law.

A New York Defense Lawyer said that, the defendant was not given an Alco-Sensor or breathalyzer test screening test for the presence or absence of alcohol on his breath. After the four field sobriety tests were administered, the Trooper placed the defendant under arrest for Driving While Intoxicated. He believed defendant was intoxicated based upon his personal and professional experience. He has observed many persons, both professionally and socially, who have consumed alcohol and became intoxicated. He has also observed people who drank alcohol and did not become intoxicated. As a state trooper since May, 1999, the Trooper had personally made 75-100 arrests for Driving While Intoxicated, and had been present at the scene to observe and/or assist in nearly another 100 arrests for Driving While Intoxicated, for a total of 175-200 DWI arrests as an arresting officer or direct observer. He had successfully completed all courses at the State Police Academy for Detecting DWI Drivers, and the recognition of sobriety or intoxication in drivers. The courses amounted to between 40 and 80 hours of required course work.

A rep said that the Trooper arrested defendant for Driving While Intoxicated based upon his cumulative performance on all the field sobriety tests, not for his performance on any specific test. It was also based on the odor of alcohol on his breath, his glassy, watery, bloodshot eyes, and his admission of drinking "a few" or "two" beers as an underage drinker.

The issue in this case is whether the breathalyzer test was properly administered.

the Court said that, where physical evidence is sought to be suppressed, the general rule is that the People must go forward with evidence tending to demonstrate a lawful rationale for police conduct, but that the defendant has the ultimate burden of proving a lack of basis for the police action by a preponderance of the evidence. The People must prove the voluntariness of defendant's statement beyond a reasonable doubt.

In a post-hearing memorandum, defendant argues that in a probable cause hearing, the People are under an obligation to prove probable cause beyond a reasonable doubt. It appears that the Third Department's decision has never been criticized or overruled by any other court, nor has it directly been followed. A subsequent Third Department decision indirectly refutes the proposition.

Probable cause or reasonable cause to arrest is a common sense standard which has emerged from the case law and has been statutorily defined by CPL §70.10(2). The terms "reasonable" and "probable" are used interchangeably. "Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.

A finding of probable cause does not require the same quantum of proof necessary to sustain a conviction, or to establish a prima facie case. Rather it needs merely appear more probable than not that a crime has taken place and that the one arrested is the perpetrator. Moreover, in determining whether a police officer has probable cause for an arrest, the emphasis should not be narrowly focused on any single factor, but on an evaluation of the totality of circumstances, which takes into account "the realities of everyday life unfolding before a trained officer who has to confront, on a daily basis, similar incidents." In making the determination to arrest, the officer is not obligated to eliminate all possible innocent explanations for incriminating facts. Moreover, a party may act with probable cause even though mistaken if the party acted reasonably under the circumstances in good faith.

The Court concludes probable cause was established to arrest defendant for Driving While Intoxicated following his lawful detention upon pulling into a parking space in the parking lot of the Toucan Bar & Grill. Probable cause was based upon the Trooper’s observation of the indicia of alcohol consumption such as the odor of alcohol on the breath, and watery, glassy eyes, defendant's failure to pass three of the four field sobriety tests, and his admissions that he had consumed a few or two beers, and should not have been driving.

In sum, the Court finds that sufficient evidence existed in this case to provide the officer with reasonable grounds to believe that defendant had been driving in violation of VTL §1192, and thereby provided probable cause for the defendant's arrest for Driving While Intoxicated. The evidence obtained as a result of the arrest was, therefore, lawfully obtained.

A defendant who has been temporarily detained pursuant to a routine traffic stop, including suspected driving while intoxicated offenses, is not considered to be in custody for Miranda purposes. Based upon the above findings of fact and conclusions of law, the defendant's motion to suppress physical evidence and statements is denied in all respects.

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June 2, 2013

Smithtown accident causes personal injury

This is an action for damages for personal injuries allegedly sustained by the plaintiffs, arising out of a motor vehicle accident which occurred on August 11, 2005 on Route 25 A, Town of Smithtown, County of Suffolk, State of New York, when their vehicle and the other vehicle came into contact when the operator allegedly crossed over a double yellow line and struck the plaintiffs vehicle. Plaintiff was a passenger in the vehicle operated by the other plaintiff, but to date, has not claimed any personal injury arising out of the accident in her bill of particulars, but appears instead to be asserting a derivative claim. A Lawyer said that, the main action was commenced against defendant, a bar located at 15 East Main Street, Smithtown, New York, wherein it is claimed that employees of the bar served alcoholic beverages to the operator of the other vehicle, the third-party defendant in violation of Section 65 of the Alcoholic Beverage Control Law and Section 11-101 of the General Obligation Law of the State of New York. Defendant thereafter commenced a third-party action against the operator of the other vehicle seeking indemnification and contribution.

A report said that, defendant now moves pursuant to CPLR 3212 for an order granting summary judgment dismissing the complaint, or in the alternative, pursuant to CPLR 3211 for an order dismissing the complaint for failure to state a cause of action. Defendant claims that it did not violate the Dram Shop Act or Section 65 of the Alcoholic Beverage Control Law and cannot be held liable to the plaintiffs for their injuries.

The issue in this case is whether there is no cause of action in the complaint despite the operator being held liable for DWI.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented. The movant has the initial burden of proving entitlement to summary judgment. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form and must "show facts sufficient to require a trial of any issue of fact". The opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established. Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct a judgment in favor of the movant as a matter of law.

In support of this motion the defendant has submitted, inter alia, an attorney's affirmation; a copy of the amended summons and complaint and third-party summons and complaint; defendant's answer; a copy of the verified and amended verified bill of particulars; copies of the transcripts of the examination before trial of plaintiffs.

In opposing this motion the plaintiffs have submitted an attorney's affirmation, an uncertified copy of misdemeanor information dated August 12, 2005. Initially, the Court notes that the uncertified Misdemeanor Information is not in admissible form.


The third-party defendant testified at his examination before trial that he was involved in a motor vehicle on August 11, 2005 around 8:30 p.m. He was about thirty years old. He had worked in construction from 7:00 a.m. until about 4:30 p.m. or 5:00 p.m. and after work, driving a truck owned by the company, went directly to the bar, arriving between 5:00 p.m. and 6:00 p.m. for a birthday party, to play pool and to just hang out. He did not drink any alcohol prior to arriving there and during the two hours he was there, he drank about four or five beers, Bud Lights. He bought some and one of his friends bought some. He stated he drank Bud Light and couldn't be sure if he drank one shot of vodka. He stated he believed he did not buy any drinks from the waitresses or bartender who bartends and waits, but could not be sure. He had no difficulty walking or negotiating the steps at the bar when he left after 8:00 p.m. No one told him that he appeared to be intoxicated, or had too much to drink or that his eyes were blood shot or red, or that his speech was slurred. He drove the truck about a mile before the accident happened. He had just used his cell phone, and when he went to put it back down in the middle of the seat, it fell to the floor. He bent down to pick the phone up when the accident happened on the left curve in the road. He was arrested and pleads guilty to a DWI acknowledging his blood alcohol level was .18. He never had a prior conviction for anything and was never told he had too much to drink or was cut off on prior occasions. He did state he called a cab to take him home on some occasions.

The plaintiffs did not testify as to whether the third-party defendant appeared intoxicated at the accident scene. General Obligations Law § 11-101 (1) states in pertinent part, that "any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages."

In order for a court to determine whether there has been an illegal sale of liquor within the meaning of the Dram Shop Act, NY GOL § 11-101, that act must be read and considered in conjunction with NY Ale. Bev. Cont. Law §65. NY Alco. Bev. Cont. Law § 65, Prohibited sales: provides in pertinent part that "no person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to 1, any person, actually or apparently, under the age of twenty-one years; 2. Any visibly intoxicated person; 3. Any habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages"

The key elements for recovery under the Dram Shop Act are (1) unlawful sale, (2) of liquor, (3) to an intoxicated person which (4) caused injury.

The adduced testimony establishes that the bartender did not see any signs of intoxication of the third-party defendant while he was at bar or when she left at 7:00 p.m. As she was leaving, she observed him playing pool and he appeared fine, sober. She had not seen him appear intoxicated on other occasions. It has been demonstrated prima facie that the third-party defendant was not visibly intoxicated at bar and that the bartender at bar did not unlawfully sell him alcoholic beverages while he was visibly intoxicated. Based upon the foregoing, it has been demonstrated prima facie by the moving defendant, that, as a matter of law, the plaintiff was not visibly intoxicated to satisfy the element that there was a sale of alcohol to an intoxicated person under either.

In opposing this motion, the plaintiff has submitted the affidavit of the Laboratory Director and Chief Toxicologist at the Suffolk County Medical Examiner's Office. He states that the third-party defendant’s alcohol breathalyzer test was .18% at 11:17 p.m., which reading, he opines, is more than twice the current motor vehicle laws defined impairment/DWI of 0.08%. He sets forth his basis for his opinion.

The seller must have notice of a consumer's near intoxicated condition by means of objective outward appearance for the sale to be unlawful, and hence, within the Dram Shop Act. Here, the expert's opinion that third-party defendant must have been visibly intoxicated prior to the accident is based on a BAC taken two and one half hours after the accident and does not address the blood level at the time of the accident, except with speculation and assumption, and does not address the accuracy of the BAC machine. The expert sets forth the visible clinical signs of intoxication of a BAC level at .18%, but does not indicate that the third-party defendant demonstrated any of those signs at the bar.

In the instant action there has been no admissible evidence submitted to demonstrate that defendant bar knew or should have known that the third-party defendant Mr. was intoxicated with a blood alcohol level of 18. The plaintiffs’ expert assumed the breathalyzer test equipment was correctly calibrated and chemicals were correctly mixed. However, there had been no trial relating to the third-party defendant’s underlying arrest and no expert witness testimony to establish the accuracy of the reading. Nor has any admissible evidence been submitted concerning the accuracy of the breathalyzer test administered to the third-party defendant, such as the affidavit of the operator of the machine.

Here the gravamen of the plaintiffs' complaint is the right to recover damages under the Dram Shop or Civil Damage Act. Violation of their provisions is negligence per se and the contributory negligence of the injured person is no defense. The burden of proof rests with the plaintiff and he must establish that there was an unlawful sale of liquor to an intoxicated person which caused him injury. Pursuant to the Alcoholic Beverage Control Law §65, recovery may be had where a sale is made to an intoxicated person, or to one "actually or apparently, under the influence of liquor" and pursuant to the Dram Shop Act, an unlawful sale of liquor to an intoxicated person. Here it has been demonstrated prima facie that the third-party defendant did not demonstrate signs of visual intoxication while present at the bar, the plaintiffs have failed to raise a factual issue to preclude summary judgment, and thus, it is determined as a matter of law that the defendant bar did not unlawfully sell alcohol to an intoxicated person in violation of NY Alco. Bev. Cont. Law §5 or GOL §11-101.

Accordingly, the court held the motion by defendant, pursuant to CPLR 3212 for summary judgment on the issue of liability, or in the alternative, pursuant to CPLR 3211 dismissing the complaint for failure to state a cause of action is treated as a motion pursuant to CPLR 3212 and is granted and the complaint and the third-party complaint are dismissed with prejudice.
A breathalyzer reading is admissible at trial only if the People present evidence from which the trier of fact could reasonably conclude that the machine was working properly when the test was given and that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportions.

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June 1, 2013

Woman was upset at the death of her husband

The material facts are not in dispute. On April 9, 2009, at about 2:36 A.M., the Defendant was stopped in her vehicle by Monroe County Sheriff's Sergeant on Route 390 South, north of Jefferson Road, in the Town of Henrietta, County of Monroe, State of New York. The Defendant spoke with the Sergeant and was interviewed by another officer, Deputy Sheriff. The Deputy administered five (5) sobriety tests, all of which the Defendant reportedly failed. A DWI Lawyer said that, the Deputy then arrested the Defendant and transported her to B Zone, where she was observed and administered a breathalyzer test. The breathalyzer test allegedly showed the Defendant's Blood Alcohol Content to be .17% B.A.C. The Deputy proceeded to read the Defendant her Miranda rights. The Defendant waived those rights and agreed to answer the Deputy’s questions. As set forth in the Deputy’s Alcohol Influence Report, the Defendant allegedly made several statements that she was highly upset about the death of her late husband.

A New York Criminal Lawyer said, the Sergeant charged the Defendant with a violation of New York State Vehicle and Traffic Law §1180(d). The Deputy charged the Defendant with violations of New York State Vehicle and Traffic Law §1192(2) (DWI) (Driving While Intoxicated, per se), and Vehicle and Traffic Law §1192(3) Driving While Intoxicated.

A Defense Lawyer said that, by Notice of Motion dated October 8, 2009, the Defendant moved to dismiss the charges in furtherance of justice pursuant to New York State Criminal Procedure Law §170.30(1)(g) and §170.40. The People submitted the written response of the Assistant District Attorney, dated October 18, 2009, in opposition to the Defendant's motion. Both parties waived a hearing on the matter. In support of the Defendant's motion, it is alleged that the Defendant had endured life shattering events in the months leading up to her arrest on April 9, 2009. Those events allegedly led the Defendant to self-medicate and to behave in a fashion that was "the antithesis of her normal behavior prior to said events."

The issue in this case is whether defendant’s motion to dismiss the charges in furtherance of justice pursuant to New York State Criminal Procedure Law §170.30(1)(g) and §170.40 should be granted.

The court said that the New York State Criminal Procedure Law §170.40(1) gives a Court the authority to dismiss an information, a simplified traffic information, a prosecutor's information, or a misdemeanor complaint in the interest of justice, even though there may be no basis for dismissal as a matter of law, but where such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration, or circumstance which clearly demonstrates that conviction or prosecution of the Defendant would constitute or result in injustice. Although the decision to dismiss information lies within the discretion of the Trial Judge, that discretion is not absolute or uncontrolled.

The statute states that, in determining whether such compelling factor, consideration, or circumstance exists, the Court must, to the extent applicable, examine and consider, individually and collectively, the following factors: a) The seriousness and circumstances of the offense; b) The extent of harm caused by the offense; c) The evidence of guilt, whether admissible or inadmissible at trial; d) The history, character and condition of the Defendant; e) Any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the Defendant; f) The purpose and effect of imposing upon the Defendant a sentence authorized for the offense; g) The impact of a dismissal on the safety or welfare of the community; h) The impact of a dismissal upon the confidence of the public in the criminal justice system; i) Where the Court deems it appropriate, the attitude of the complainant or victim with respect to the motion; and j) Any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

When deciding a motion to dismiss in the interest of justice, it is not necessary to engage in a point-by-point "catechistic on-the-record discussion" of all ten (10) factors listed under Criminal Procedure Law §170.40(1). Where the Trial Court examines and considers the applicable statutory factors, the decision lies within the discretion of the Trial Court. Prior to the offenses charged in this matter, the Defendant endured a series of misfortunes through no fault of her own. On December 1, 2007, the Defendant's husband was shot to death while hunting in the Southern Tier of New York State. Shortly thereafter, in February of 2008, the Defendant suffered a miscarriage of her deceased husband's baby. During the Spring of 2008, a criminal investigation was conducted regarding the death of the Defendant's husband, whereby it was determined that his death was the result of a homicide. In June of 2008, the Defendant's step-son, whom the Defendant had helped raise for more than four (4) years, was removed from the Defendant's household due to the child's misconduct. In March of 2009, the suspect accused of killing the Defendant's husband was acquitted of homicide. The acquittal resulted in the Defendant losing all faith in the criminal justice system, and even in God.
The following month, April of 2009, the Defendant was arrested for DWI, which was her first offense, and her first and only contact with the criminal justice system. Since the time of her arrest, the Defendant has ceased drinking alcohol, and she has become reacquainted with her faith and church, both of which discourage even moderate use of alcohol.

The Defendant requested that the Court focus on six (6) of the factors set forth in C.P.L. §170.40(1) in determining this motion. Specifically, the Defendant asserted that there was no harm caused by the offenses charged. The Defendant has no criminal record. She is a mother, wife, student, and religious person. There is no purpose in further punishing the Defendant, inasmuch as she has already suffered. A dismissal would not impact the welfare of the community. A dismissal under the circumstances set forth herein would not undermine the confidence of the public in the criminal justice system. Finally, the Defendant asserts that it was a particular series of misfortunes which led the Defendant to commit the acts leading to her arrest. She now is sober, embracing her religion, and excelling in her studies.

In response, the People have conceded that no one was injured as a result of the Defendant's alleged conduct. The People argue, however, that the incident was serious, and that there is substantial evidence of the Defendant's guilt in this matter. The People further assert that dismissal of the charges would undermine the seriousness of the charges, the importance of public safety, public confidence in the criminal justice system and the complainants' attitudes in regard to the handling of DWI matters by the criminal justice system.

This Court recognizes the serious nature of driving while intoxicated. Furthermore, there is, arguably, evidence of the Defendant's guilt, and there is no evidence of exceptionally serious misconduct of law enforcement personnel. Nevertheless, in weighing each of the factors individually, and collectively, as outlined in the statute, this Court hereby finds that a dismissal of the charges against the Defendant in the interest of justice is warranted. The Defendant's actions produced little or no harm to anyone, and no motor vehicle accident was involved. The Defendant has no prior criminal record. There is relatively little useful result that will come of a sentence authorized from the offense, and there has been no showing that dismissing the case will harm the public safety or confidence in the criminal justice system. Accordingly, the Defendant has alleged sufficient, compelling facts to constitute a legal basis supporting the motion, and conviction or prosecution of the Defendant would constitute, and result in injustice.

In light of the foregoing, this Court finds that the facts of this case warrant dismissal, in furtherance of justice, of all charges against the Defendant now pending before this Court in the above-captioned matter.

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May 31, 2013

Offender was previously convicted

The first count of an indictment filed July 16, 1998 charges defendant with DWI in violation of Vehicle and Traffic Law § 1192 (3). The special information filed in connection with the indictment accuses defendant of having been previously convicted of DWI in Macedon Town Court, Wayne County, on February 4, 1997 and in St. Lawrence County on February 23, 1998. A New York DWI Lawyer said that, by virtue of the accusation that defendant had been convicted of DWI twice within the preceding 10 years, the first count of the indictment charged defendant with DWI as a class D felony.

A Defense Lawyer said that, defendant moved for dismissal or reduction of the first count of the indictment. In response to the motion, the People produced the Grand Jury minutes and the exhibits used to establish defendant's two prior convictions before the Grand Jury. Grand Jury exhibit No. 1, a certificate of conviction issued by the Clerk of the Town Court, Town of Macedon, certifies that defendant was convicted of DWI in that court on February 4, 1997. Grand Jury exhibit No. 2, a DMV abstract, indicates that defendant was convicted of DWI in St. Lawrence County on February 23, 1998. More precisely, the DMV abstract identifies the conviction as "DRVG INTOX PI ACC". There is no mention of the section defendant was convicted of violating or the court where the conviction was entered. The seal of the State of New York is printed on each page of the abstract, and each page also contains the following statement: "This is to certify that this document is a true and complete copy of an electronic record on file in the New York State Department of Motor Vehicles, Albany, New York."

A Criminal Lawyer said that, the Supreme Court granted defendant's motion in part by reducing the DWI charge under the first count of the indictment from a class D felony. The court concluded that the certificate of conviction issued by the Clerk of the Town Court, Town of Macedon, was legally sufficient to establish that defendant had been convicted of DWI once within the preceding 10 years. The court further concluded, however, that the evidence before the Grand Jury was not legally sufficient to establish that defendant was convicted of DWI twice within the preceding 10 years because the DMV abstract did not constitute competent and admissible evidence of the alleged St. Lawrence County conviction. More specifically, the court concluded that the certification on the abstract did not qualify as certification of a business record or a public record. The People appeal from the order insofar as it reduces the severity of the charge under the first count of the indictment.

The issues in this case are whether an abstract of driving record of the Department of Motor Vehicles (DMV abstract) is admissible evidence of a prior conviction of operating a motor vehicle while under the influence of alcohol or drugs (DWI); and, if so, whether the DMV abstract in this case was properly authenticated.

The Court in deciding the case cited the provisions of CPL 190.30 (1) provides: "Except as otherwise provided in this section, the provisions of article sixty, governing rules of evidence and related matters with respect to criminal proceedings in general, are, where appropriate, applicable to grand jury proceedings." In addition, CPL 190.65 (1) provides that an indictment must be based upon "legally sufficient" and "competent and admissible" evidence before the Grand Jury. Thus, apart from the specific exceptions set forth in CPL 190.30 (2) through (7), "general criminal trial court evidentiary rules normally apply to Grand Jury proceedings".
Those rules include CPL 60.60 (1), which provides that a certificate of conviction "constitutes presumptive evidence of the facts stated in such certificate." The court therefore properly determined that Grand Jury exhibit No. 1 was both "legally sufficient" and "competent and admissible" evidence establishing defendant's conviction of DWI in Macedon Town Court and supporting the charge of DWI as a class E felony.

In seeking to establish before the Grand Jury defendant's alleged prior DWI conviction in St. Lawrence County, the People were permitted but not required to present a certificate of conviction. As an alternative to the rule set forth in CPL 60.60, the People were entitled to resort to "the rules of evidence applicable to civil cases" (CPL 60.10). The People concede that the DMV abstract constitutes hearsay and that it is not admissible as a business record pursuant to CPLR 4518 (c). They contend, however, that it qualifies for admission under both the statutory hearsay exception for records made by public officers and the common-law hearsay exception for public documents. There is no appellate authority squarely addressing the admissibility of DMV abstracts. The reported decisions addressing that issue have held that they qualify for admission over a hearsay objection based upon the statutory exception, the common-law public document exception.

In our view, defendant's DMV abstract falls squarely within the common-law public document exception: "When a public officer is required or authorized, by statute or nature of the duty of the office, to keep records or to make reports of acts or transactions occurring in the course of the official duty, the records or reports so made by or under the supervision of the public officer are admissible in evidence". The Commissioner of the Department of Motor Vehicles, a public officer, is required to retain on file certificates of conviction relating to Vehicle and Traffic Law offenses for a minimum of four years.

Thus, because the Commissioner is required by statute to keep a record of defendant's convictions and to make an abstract of driving record enumerating those convictions, defendant's DMV abstract qualifies for admission under the common-law public document exception to the hearsay rule. It is not necessary to decide whether it also qualifies for admission under the much narrower statutory exception. The inquiry into the admissibility of the DMV abstract, however, does not end with the determination that it is admissible over a hearsay objection. Following that determination the question remains whether the document has been properly authenticated. Authentication of official records is governed by CPLR 4540. Subdivision (a) of CPLR 4540 provides in pertinent part that "an official publication, or a copy attested as correct by an officer having legal custody of an official record of any state or any of its offices or public bodies is prima facie evidence of such record." We reject the People's contention that the DMV abstract is not a copy but an original document that requires no certification of attestation. The certification at issue states that it is certification of a copy. As such, it is subject to the requirements of CPLR 4540 (b), which provides in pertinent part: "Where the copy is attested by an officer of the state, it shall be accompanied by a certificate signed by, or with a facsimile of the signature of, the officer having legal custody of the original, or his deputy or clerk, with his official seal affixed".

The purpose of the certification requirement is to ensure the reliability of copies of official records in the absence of testimony from the custodians of those records. Affixing an official seal to the attesting official's signature "will make the copy entirely self-proving. Reliability can be assumed because of the difficulty of forging seals". Further, the attestation of an official having custody of an official record "is the assurance given by the certifier that the copy submitted is accurate and genuine as compared to the original".

In the instant case, defendant contends that the attestation of the Commissioner and the seal of the State of New York on his DMV abstract were preprinted on blank forms, prior to the electronic transfer of information regarding his driving record to the forms. The People, the proponents of the abstract, do not dispute that the abstract was produced in the manner described by defendant. Neither, however, do they concede the point. In our view no such concession is necessary because an examination of the documents themselves confirms defendant's position. The seal of the State of New York is not embossed on the document in a manner resisting forgery; it is printed on the background of each page. Further, it is clear that the data regarding defendant's driving record was placed on the document after the seal was affixed. Similarly, the certification is in the identical location on each page of the DMV abstract and appears to have been printed prior to the transfer of data regarding defendant's driving record. As a result, the document provides no assurances that any comparison has been made between the copy and the original record, and there is no basis for the assertion of the Commissioner of the Department of Motor Vehicles that it is "a true and complete copy of an electronic record on file" in the Department of Motor Vehicles.

Accordingly, the court held that because "strict compliance with the rules requiring authentication" of public documents was lacking, the court properly determined that the DMV abstract did not constitute competent and admissible evidence of the alleged St. Lawrence County DWI conviction. Accordingly, the order reducing the severity of the DWI charge under the first count of the indictment should be affirmed.

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May 30, 2013

Sergeant selects the spot of checkpoint

The defendant was charged with common-law (DWI) driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3) on September 14, 2002 at 12:48 a.m. A New York DWI Lawyer said that, the defendant was arrested after entering a sobriety checkpoint operated by the Webster Police Department on the eastbound section of New York State Route 104 just prior to the Dewitt Road overpass. A Scott hearing was conducted on June 18, 2003 to determine if the sobriety checkpoint was properly conducted.

A New York Criminal Lawyer said that, a 1984 case, established the standards for conducting sobriety checkpoints in the State of New York. More particularly the defense argues that the location of the sobriety checkpoint was not properly selected. In his memorandum of law defense counsel states that "Sergeant small testified that although the police Chief authorized the checkpoint, there was no discussion between himself and the police Chief as to exactly where the checkpoint would be placed. That was left to the unfettered discretion of Sergeant small as supervisor of the checkpoint detail. Sergeant small allegedly selected the location according to the Directive based upon the history of past violations, as well as safety considerations."

The issues in this case are whether the location of a sobriety checkpoint is based on empirical evidence of prior (DWI) driving while intoxicated arrests; and whether the location of a sobriety checkpoint be specifically authorized by the chief of police.

In his memorandum of law, defendant correctly indicates that the Webster Police Directive issued for September 13, 2002 to September 14, 2002 "states history of past violations was taken into consideration and Sergeant small also testified as such." However, a review of said paragraph IV of General Order 504 to which that directive is attached.

Nothing in said General Order requires that site selection be based on prior alcohol related arrests or incidents. It would appear that such a consideration is not required by either case law or by general police practice. For example, the Sample Set of Sobriety Checkpoint Guidelines Written for the New York City Police Department, relative to site selection, states: "Since public relations and deterrence are a primary purpose of the checkpoint, the incidence of DWI arrests and accidents is not controlling." Therefore, the sobriety checkpoint in question cannot be invalidated because of a lack of empirical evidence of prior alcohol related arrests or accidents at that site.

The relevant general order requires that the site of the sobriety checkpoint "must be approved by a supervisor prior to commencing the checkpoint or roadblock." Sergeant Small of the Webster Police Department testified that he was the road patrol supervisor on the evening/morning the sobriety checkpoint in this case was set up, and which resulted in the arrest of the defendant. Based on the Webster Police Department General Order, Sergeant Small had the requisite authority to set up the roadblock on New York State Route 104 as same came through the Town of Webster by the Dewitt Road overpass. There is nothing in General Order 504 of the Webster Police Department which requires the chief of police to establish the specific site of a sobriety checkpoint at any given time. Nor is there anything in any controlling case law which would require the chief of police to micromanage that part of his department's operation.

Defense counsel's reliance on the 2002 case decision is misplaced. In that case the court stated that "the existence of a set of guidelines was never even mentioned during the course of the suppression hearing." In this case the existence of police department guidelines on the issue of sobriety checkpoints was never an issue. The defense contends that the police did not properly follow their own guidelines or at best misapplied them. Nevertheless, the instant sobriety checkpoint set up by the Webster police eastbound on New York State Route 104 cannot be invalidated based on the fact that said location was not selected by the proper Webster police official.

In view of the foregoing, the court held that the motion of the defendant to suppress any and all evidence derived from the sobriety checkpoint is hereby denied. The evidence elicited at the Scott hearing established that the site of said sobriety checkpoint was not improperly selected. No prior empirical evidence of alcohol related arrests or accidents at a particular site are required before that site can be used for a sobriety checkpoint. Nor did the facts establish that a proper Webster police official failed to pick the site selected for said roadblock.

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May 29, 2013

Felony charged in DWI case

On October 16, 2004, in the Town of Ashford, defendant was arrested for DWI and Failure to Keep Right. When a DMV check showed a previous conviction, a felony complaint was filed charging the DWI as a felony. Defendant was arraigned and the case was adjourned to November 18, 2004 for defendant to appear with counsel. A DWI Lawyer said that, on or about October 29, 2004, defendant retained an attorney. Counsel, on that date, filed with the court a notice of appearance and a demand for all the paperwork and sent a copy to the assistant district attorney that handles Ashford Town Court. Thereafter, after speaking with the court clerk, counsel faxed the court a letter, again with a copy to the assistant district attorney, waiving a preliminary hearing. A hard copy was also sent to both the assistant district attorney and the court. On April 21, 2005, Town Court forwarded the paperwork to County Court. Why the case was not forwarded to County Court for five months is not addressed in the papers.

A Criminal Lawyer said that, defense counsel waived 30.30 time until June 20, 2005 in an attempt to negotiate a plea. On June 15, 2005, counsel wrote the District Attorney revoking the remaining time on the 30.30 waiver because his client had rejected the plea offer. On July 21, 2005, the District Attorney sent defense counsel a copy of the indictment and the statement of readiness and notified him that arraignment was scheduled for August 1, 2005. Defendant was arraigned on that date and the case has proceeded from that point with motions and the appointment of a special prosecutor when the District Attorney's office discovered a conflict. However, on November 4, 2005, a scheduled hearing was postponed until November 10, 2005 because the special prosecutor failed to appear.

The issue in this case is whether defendant’s right to speedy trial has been violated.
The court said that the speedy trial clock began to run on October 16, 2004, when the felony DWI complaint was filed. Therefore, the People had 182 days in which to announce their readiness for trial.

The statement of readiness was filed with the court 278 days after the action was commenced. The period from November 4, 2005 to November 10, 2005 must be added to that, bringing the total time chargeable to the People to 284 days. Thus, the People must be able to exclude 102 days to have timely stated their readiness. The adjournment from October 16, 2004 to November 18, 2004, a period of 33 days, is excludable as an adjournment for defendant to obtain an attorney. The adjournment from May 26, 2005 to June 20, 2005, a period of 25 days, is excludable as a requested or consented to adjournment to negotiate a plea. Defendant contends that he rescinded the last five days of the waiver period after he rejected the plea. Whether such a recission should be effective is dubious since the district attorney might have relied on the waiver when scheduling cases for the Grand Jury. Fortunately, however, that question need not be resolved here.

Deducting the excludable periods of 33 and 25 days from the 284 chargeable days brings the chargeable period to 266 days, well over the 182 allowed. Nonetheless, the prosecutor attempts to avoid a dismissal on the grounds that Town Court did not divest the case to County Court until April 21, 2005 and thus, the entire period before the divesture is excludable.

In a 2002 case, the Court of Appeals held that the "exceptional circumstances" exclusion in CPL 30.30 encompasses the period of time during which the People are unaware of the charges. Relying on these cases, the special prosecutor argues that the time between defendant's arrest and the Town Court's divesture of the case to County Court is excludable. The court would agree with the special prosecutor but for one fact present here. Here, the prosecutor cannot claim that the District Attorney's office was unaware of the charges. On October 29, 2004, the assistant district attorney was sent a copy of counsel's notice of appearance, with a reference to the next scheduled court date, and on November 18, 2004, the assistant district attorney was sent a copy of the letter waiving a preliminary hearing. Thus, the district attorney's office was aware of the felony arrest, as well as the waiver of a preliminary hearing, notwithstanding Town Court's inexplicable failure to forward the papers to County Court. The district attorney must be charged with knowledge of the case if an assistant district attorney is aware of it.

Accordingly, the court held that the holding of the 2002 case decided by the Court of Appeals is not applicable here and 226 days are chargeable to the People. That being more than the 182 days applicable in this case, the indictment must be dismissed. Counsel for defendant should submit an order on notice to the special district attorney.

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April 24, 2013

Plaintiff Moves for Summary Judgment in DWI Case

The Plaintiff moves pursuant to CPLR §3212 for an order granting summary judgment as to the issue of the liability on behalf of the Defendant, The Dizzy Lizard, Inc., and directing an assessment of damages to be determined by a jury.

A New York DWI Lawyer said in this criminal action, the Plaintiff was injured in a motor vehicle accident, while he was a passenger in the automobile operated by the defendant, and owned by the co-defendant. Said accident occurred at approximately 1:45 a.m. when the vehicle collided with a train overpass. On the date of the accident, both parties were each 18 years of age. The defendant was arrested and charged with DWI in violation of Vehicle and Traffic Law § 1192.3. Prior to the subject accident, the Defendant was a patron of a tavern located somewhere in New York. As a result of the injuries sustained, the Plaintiff commenced the underlying action against individual defendants, based upon negligence and against the defendant tavern, predicated upon General Obligations Law§§ 11-100 and 11-101. The Plaintiff s instant application seeking summary judgment as to the liability of the defendant tavern thereafter ensued and is determined as set forth hereinafter.

A New York DWI Lawyer said in support of the within application, a New York Drunk Driving Lawyer said that that the record herein conclusively demonstrates that defendant was intoxicated at the time of the accident and that said intoxication was the direct result of the several hours he spent drinking at the tavern. In so arguing, counsel makes particular reference to the annexed police report, which states that defendant was charged with DWI at the time of the accident. Counsel additionally provides various pleadings attendant to a Federal Court action commenced against the tavern by an Insurance, which issued a series of liquor liability insurance policies to the Defendant. The Insurance Company sought rescission of three such policies based upon the tavern’s alleged misrepresentations in the applications for the insurance coverage. Counsel further points to several building violations, in connection to which tavern plead guilty to reduced charges, as well as to pleadings relating to other prior incidents involving the tavern, but which are not related to the within.

A Nassau County DWI Lawyer said the issue to be resolved in this case is a summary judgment should be ordered by the court based on the foregoing.

The Court ruled that It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. To obtain summary judgment, the moving party must establish it's claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the Court, as a matter of law, to direct judgment in the movant's favor. Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation.

If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. A motion for summary judgment is the procedural equivalent of a trial, and when entertaining such an application, the Court is not to determine matters of credibility, but rather is to confine it's inquiry to determining whether material issues of fact exist.

As noted above, the Plaintiff is alleging theories of liability predicated upon the provisions embodied in General Obligations Law §§ 11-100 and 11-101. The Dram Shop Act, codified in General Obligations Law § 11-101, was promulgated by the legislature to create a private right of action which could be instituted against sellers of alcoholic beverages for injuries occasioned by the sale thereof.
Within the purview of these statutes, liability thereunder will attach upon the unlawful selling, furnishing or assisting in procuring of alcohol. The term unlawful is defined in Alcoholic Beverage Control Law as follows: "No person shall sell, deliver, or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to any person, actually or apparently, under the age of twenty-one years" or to "any visibly intoxicated person" While the Alcohol Beverage Control Law defines the term "unlawful", the provisions therein contained do not create an independent statutory cause of action and such actions are rather the progeny of General Obligations Law" At common law, one who provided intoxicating liquor was not liable for injuries caused by the drinker" and rather the drinker was held solely responsible for his or her own actions. Thus, as General Obligations Law are in derogation of common law principles, the statutes must be strictly construed and "be read narrowly and not enlarged beyond [their] borders"

In interpreting the statutory provisions, the Court of Appeals in one case has held that liability under General Obligations Law § § 11-100, "may be imposed only on a person who knowingly caused intoxication by furnishing alcohol to persons known or reasonably believed to be underage" The Court went on to state that "while section 11-101 does not explicitly refer to knowledge, that same requirement must be inferred because the legislative history makes plain that section 11-100 was intended to parallel the Dram Shop Act"

Further, within the particular context of General Obligations Law § 11-101, in order to establish a prima facie case of liability against the tavern, the Plaintiff bears the burden of proffering sufficient evidence that when the bar served alcohol to defendant, it was on notice that he was visibly under the influence thereof. Such evidence is not limited to direct proof in the form of testimonial evidence from an individual who witnessed the alleged intoxicated person at the moment the alcohol was provided, but may include circumstantial evidence to demonstrate the visible intoxication of such individual.
In the instant matter, the Court finds that the Plaintiff has failed to demonstrate his entitlement to judgment as a matter of law. As noted above, the Plaintiff has tendered proof in the form of pleadings attendant to other actions involving the tavern, the police report relevant to the subject accident, as well as limited portions of the depositions of the General Manger of the Defendant bar, and the Plaintiff. However, none of the purported evidence proffered unequivocally resolves the issues relevant herein.

With particular respect to the matter of defendant’s age, the annexed police report, while stating that Mr. Jones was indeed charged with DWI, is not dispositive as to the issue of whether the tavern knew that defendant was underage when he was served alcohol on the premises.

Thus, on the record as currently developed, there clearly exist questions of fact as to whether the tavern knew or reasonably believed defendant to be underage when he was served alcohol at said establishment. Accordingly, an order granting summary judgment as to the issue of the Defendant's liability is inappropriate. As to the issue of defendant’s intoxication, there is absolutely no evidence, direct or circumstantial, proffered by the Plaintiff which establishes that when served alcohol at the tavern, defendant was visibly intoxicated.

Based upon the foregoing, the motion interposed by the Plaintiff, for an order granting summary judgment as to the issue of liability against defendant, the tavern, and setting the matter down for a trial as to the issue of damages is hereby DENIED.

Our New York Drunk Driving Lawyers here in Stephen handled cases involving DWI incidents. If you are a victim, don’t hesitate to call us now and consult to our New York Criminal Attorneys.

April 23, 2013

Defendant Claims Rights to Due Process Violated in DWI case

The defendant was indicted for operating a motor vehicle while under the influence of alcohol, in violation of Vehicle and Traffic Law § 1192 (2) and (3), and vehicular assault in the second degree, in violation of Penal Law § 120.03 (1). A New York Criminal Lawyer said that, in his pretrial omnibus motion, the defendant moved, inter alia, to suppress the results of a blood alcohol test, which the trial court granted to the extent of conducting a joint Dunaway/Huntley hearing.

A New York DWI Lawyer said that, at that hearing, the People adduced the following evidence. On July 28, 2006, at approximately 4:00 A.M., in the City of Poughkeepsie, the defendant drove a pickup truck through a red traffic light and struck a marked patrol car driven by a city police officer. The Officer who was removed from the scene by ambulance and transported to St. Francis Hospital, suffered head injuries and spent one month in an in-patient rehabilitation facility before returning to work six months after the accident, in January 2007. Immediately after the accident, the Patrol Officer observed the defendant, who was still seated in the driver seat of his pickup truck, detected alcohol on his breath, and saw that his eyes were glassy and bloodshot. The defendant told the Patrol Officer that he had consumed one half of a beer and was on his way to a bar when the accident occurred. Because the defendant complained of possible head injuries, no field sobriety test was conducted. The Patrol Officer could not determine at that time whether the defendant was intoxicated. When the ambulance arrived, the defendant exited the truck without assistance and was transported by ambulance to Vassar Brothers Hospital.

A New York DWI Lawyer said the County Deputy Sheriff arrived at the hospital, where the Patrol Officer briefed him on the circumstances of the accident, his observations of the defendant at the scene, and the defendant's statement to him at the scene that he had consumed one half of a beer earlier that night. Approximately 20 minutes later, at 5:04 A.M., the Deputy Sheriff administered a prescreening test called an Alco-Sensor, which indicated the presence of alcohol in the defendant's system. Based upon his observations, training, and experience, the Deputy Sheriff was by then of the opinion that the defendant was under the influence of alcohol. At approximately 6:01 A.M., the Deputy Sheriff placed the defendant under arrest and read him his (DWI) driving while intoxicated warnings, which the defendant indicated he understood.

A Nassau County DWI Lawyer said that, the defendant immediately indicated he would consent to a chemical test, which requires a blood draw, and signed a consent form at 6:04 A.M. At that point, which was approximately two hours after the accident and within minutes of his arrest, the defendant's blood was drawn by a hospital nurse and his blood alcohol content was later determined to be .18%, which is more than twice the legal limit. More than one hour later, the Deputy Sheriff advised the defendant of his Miranda rights, and the defendant, both in writing and orally, indicated he understood those rights and agreed to speak with the Deputy. In response to Deputy Sheriff’s inquiry, the defendant stated that he had consumed a mixed alcoholic drink known as a Long Island iced tea approximately four hours before the accident, and was on his way to a bar when the accident occurred.

The defendant was the sole witness for the defense at the hearing. In his testimony, the defendant stated that he was not advised of his Miranda rights or DWI warnings until a judge, accompanied by police officers and state troopers, arraigned him in his hospital room between 8:00 A.M. and 9:00 A.M. The defendant asserted that it was only at that time that he realized he was under arrest. The defendant further testified that, at the time he signed the consent form for his blood to be drawn, he believed his blood needed to be drawn as part of his medical care, not as part of the criminal investigation.

A New York DWI Lawyer said that, at the conclusion of the hearing, the court denied that branch of the defendant's omnibus motion which was to suppress the results of the blood alcohol content test, finding that the Deputy Sheriff had probable cause to arrest the defendant for driving while intoxicated based on information the Patrol Officer relayed to him, his own observations, and the results of the Alco-Sensor test he had administered to the defendant.

The issue in this case is whether the rebuttable presumption under Penal Law § 120.03 (1) violates the defendant's right to due process.

Penal Law § 120.03 (1) provides that a person is guilty of vehicular assault in the second degree when he or she causes serious physical injury to another person, inter alia, while operating a motor vehicle while impaired or intoxicated and causes that serious physical injury as a result of such intoxication. The statute also provides that proof of such operation and the causation of such serious physical injury raises a rebuttable presumption that the serious injury is the result of such intoxication.
The Court said that, among other arguments, the defendant contends that Penal Law § 120.03 violates the right to due process because of the rebuttable presumption that a person who commits DWI caused the subject accident resulting in serious physical injuries. He further contends that the statute is unconstitutionally vague since it fails to give fair notice to a person of ordinary intelligence of what it forbids and fails to provide clear law-enforcement standards. For the reasons set forth below, we reject the defendant's arguments.

Preliminarily, although the defendant failed to preserve for appellate review his constitutional challenges to Penal Law § 120.30 by not making a timely pretrial written motion to dismiss the indictment on this ground, we reach this issue as a matter of discretion in the interest of justice.
"It is a fundamental requirement of due process that a criminal statute must be stated in terms which are reasonably definite so that a person of ordinary intelligence will know what the law prohibits or commands". The purpose of the requirement is twofold: (1) provide the defendant with "adequate warning of what the law requires so that he may act lawfully," and (2) "prevent arbitrary and discriminatory enforcement by requiring boundaries sufficiently distinct for police, Judges and juries to fairly administer the law"

In 2005, approximately one year before the subject accident, the statutes concerning vehicular assault in the first and second degrees and vehicular manslaughter in the first and second degrees were amended and designated as "Vasean's law," to eliminate criminal negligence as a required element of each of the crimes, and provided that after the People establish that the defendant driver caused serious injury or death, a rebuttable presumption would arise that the serious injury or death was caused by the driver's intoxication, impairment, or use of a drug.

Specifically, as amended, Penal Law § 120.03 provides: "A person is guilty of vehicular assault in the second degree when he or she causes serious physical injury to another person, and operates a motor vehicle in violation of subdivision two, three, four or four-a of section eleven hundred ninety-two of the vehicle and traffic law and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such motor vehicle in a manner that causes such serious physical injury to such other person.

"If it is established that the person operating such motor vehicle caused such serious physical injury while unlawfully intoxicated or impaired by the use of alcohol or a drug, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle in a manner that caused such serious physical injury, as required by this section."

The defendant contends that the clause "as a result of such intoxication or impairment," coupled with the rebuttable presumption that the DWI caused the serious physical injuries, renders the statute unconstitutionally vague because an individual who was DWI without causing the subject accident nevertheless falls within the parameters of the statute. The defendant notes that although the person in hypothetical may have been DWI in violation of Vehicle and Traffic Law § 1192, he or she was innocent of causing the accident. Yet, under the statute, a rebuttable presumption would exist that the person who was driving while intoxicated committed vehicular assault in the second degree in violation of Penal Law § 120.03 (1).

However, our reading of the statute does not support the defendant's argument. The statute provides, in pertinent part, that the rebuttable presumption that the defendant's intoxication caused the subject accident arises only "if it is established that the person operating such motor vehicle caused such serious physical injury while unlawfully intoxicated or impaired by the use of alcohol or a drug." Thus, if a driver's operation of a vehicle cannot be deemed a proximate cause of the subject accident, then the rebuttable presumption would not arise. We further note that, even if the defendant is correct that the statute would deny due process to hypothetical defendants who may have been DWI in violation of Vehicle and Traffic Law § 1192 but did not cause the accident, we do not reach that issue, as the defendant may not assert a due process challenge contending that the statute is vague as applied to the conduct of others.

In any event, the People's evidence at trial clearly was sufficient to give rise to the rebuttable presumption. The defendant told the Deputy Sheriff that he had consumed a mixed alcoholic drink prior to the accident. Further, approximately two hours after the accident, the defendant's BAC tested at .18%, more than twice the legal limit. Accordingly, the People proved beyond a reasonable doubt that the defendant was per se driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2) and driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3). Additionally, two eyewitnesses, and her passenger, testified that the defendant had a red light as he approached the subject intersection. Neither eyewitness indicated that the defendant slowed down as he approached the intersection. Further, an electrician responsible for maintaining the City's street and traffic lighting, testified that the traffic signals at the subject intersection were fully operational and the system did not indicate any failure alarms, which are automatically generated if two green or two yellow traffic lights simultaneously appeared on both Mill and North Bridge Streets, or if there had been a power dip.. Under the circumstances, the People established beyond a reasonable doubt that the defendant operated a vehicle while intoxicated and that his operation of such vehicle caused serious physical injury to another person.

Accordingly, a rebuttable presumption arose that the defendant's intoxication was the proximate cause of the accident. The verdict demonstrates that the jury rejected the defendant's testimony that he had a yellow traffic light as he entered the intersection and credited the testimony of the Patrol Officer and her passenger. Had the jury accepted such testimony, given the electrician’s testimony that there were no malfunctions of the traffic lights at the intersection; it would have meant that the jury found that the Officer disregarded a red traffic light, thereby rebutting the presumption since the Officer conduct would be deemed an intervening cause of the accident.

Accordingly, the Court held that the judgment is affirmed.

Penal Law § 120.03 (1) provides that proof of operation and the causation of serious physical injury raises a rebuttable presumption that the serious injury is the result of such intoxication. In order to rebut the presumption you will need the representation of a New York Criminal Attorney and New York DWI Attorney at Stephen Bilkis and Associates. Call us for more information.

April 22, 2013

Defendant Moves to Supress Evidence in Vehicular Manslaughter Case

The Facts of the Case:

On around 18 to 19 of October 2007, at around midnight, the defendant went to a nightclub with his girlfriend “A”, a friend of his girlfriend “B”, and another individual “C”. A New York Criminal Lawyer said after drinking alcohol at the nightclub, the defendant and “C” left and went to a nearby parking lot. According to “B”, defendant did not appear intoxicated at that time; that defendant stated in the parking lot that he lost his shit, presumably referring to drugs, and the defendant became upset. The defendant then went into the trunk of his car and searched for something. Thereafter, the defendant began arguing with his girlfriend. At approximately 3:15 A.M., several witnesses heard gunshots, but no one reported having seen the defendant fire a gun. The defendant then angrily ordered B to leave with his girlfriend. B did and drove the defendant's girlfriend home. The defendant and C then entered the defendant's vehicle, with the defendant driving. When police officers arrived at the parking lot only minutes later, at about 3:20 A.M., the defendant had left, and the officers recovered several 9–millimeter shell casings in the parking lot. At approximately 3:30 A.M., the defendant's vehicle was seen traveling west in the eastbound lanes of the Southern State Parkway at a speed of 70 to 75 miles per hour. According to numerous witnesses, the defendant's vehicle traveled in the wrong direction, from about exit 19 to exit 13, a distance of approximately five miles. According to a witness, the defendant was driving directly at him while changing lanes; that he had to immediately pull his vehicle onto the shoulder to avoid a collision; that the defendant continued driving the wrong way; that he observed the other vehicles on the parkway split apart in order to get away from the defendant; that the defendant was steadily going, not braking.

Another witness, a Police Sergeant, was also driving in the proper direction in the left eastbound lane of the parkway. According to the Sergeant, as he passed exit 14, he observed the defendant's vehicle driving towards him at a high rate of speed which caused him to violently turn his steering wheel to the right to avoid a collision; that the defendant's car came within inches of the Sergeant’s vehicle; that the defendant made absolutely no effort to get out of the way. Near exit 13, the defendant's vehicle, without ever having slowed down, collided with the victim's vehicle, killing the victim instantly and incinerating the victim's vehicle. When emergency services and police arrived on the scene and attempted to remove the defendant from his damaged vehicle, the defendant was agitated and his breath emitted a strong odor of alcohol. The police then arrested defendant, and following his arrest, a blood sample taken from him at 4:49 A.M., just over an hour after the accident, indicated that his blood alcohol content (hereinafter BAC) was 0.19%. When the defendant was arrested, he was then removed from his vehicle, and the police thereafter began conducting an inventory search of the vehicle. The discovery of several 9–millimeter rounds in the trunk, however, transformed the search from inventory to investigatory, during which the police recovered a 9–millimeter semiautomatic pistol, what was later determined to be .395 grams of cocaine beneath the front passenger seat, and 41 rounds of 9–millimeter bullets contained in a partially loaded magazine and a box in the trunk. The gun recovered from the defendant's vehicle matched the shell casings found in the parking lot near the nightclub.

On 16 September 2008, the defendant was found guilty and was convicted of murder in the second degree (depraved indifference), vehicular manslaughter in the first degree, aggravated driving while intoxicated or aggravated DWI, operating a motor vehicle while under the influence of alcohol, criminal possession of a weapon in the second degree, and criminal possession of a controlled substance in the seventh degree, a drug crime. The defendant then appeals from the said criminal convictions. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

The Ruling of the Court:

First, the court finds that there is nothing from which a jury could reasonably infer that the defendant possessed the mens rea necessary for murder in the second degree or depraved indifference: a tragic combination of both awareness and total disregard for the fact that he was driving at high speed the wrong way down the parkway, which was conduct that placed both the defendant and others traveling eastbound on the parkway at grave risk of death. In effect, to convict the defendant of depraved indifference murder, the jury would have to find that the defendant was suicidal. There is no basis for such a finding. Rather, the evidence indicates that the defendant was highly intoxicated and upset with his girlfriend and/or with having lost something in the parking lot near the nightclub.

Moreover, a Westchester County DWI Lawyer said that even accepting the contention that the defendant's intoxication did not render him incapable of forming the requisite mens rea of depraved indifference, there is nevertheless legally insufficient evidence that the defendant actually possessed such mens rea. Without minimizing the defendant's conduct or the tragic results, the court finds that absent from the evidence adduced at trial is evidence, for example, that the defendant intentionally drove in the wrong direction on the parkway at a high rate of speed or continued on his path once he realized he was driving in the wrong direction on the parkway, conduct which could demonstrate an utter disregard for the value of human life. Instead, the evidence demonstrated that the defendant, by reason of his severe intoxication, acted recklessly by failing to perceive that he was driving the wrong way on the parkway. Reckless homicide cannot be elevated into depraved indifference murder merely because the actions of the defendant created a risk of death, however grave or substantial that risk may have been. Circumstances evincing a depraved indifference to human life are not established by recklessness coupled only with actions that carry even an inevitable risk of death. Put differently, in general, a defendant who possesses the mens rea of depraved indifference intends to commit the act that results in the death or injury of another person, but is depravedly indifferent to the grave risk of death or injury to others as a consequence of his or her conduct, i.e., intentionally opening the lion's cage at the zoo; placing a time bomb in a public place; poisoning a well from which people are accustomed to draw water; opening a drawbridge as a train is about to pass over it and dropping stones from an overpass onto a busy highway. In other words, focus on the three statutory factors that distinguish depraved indifference murder, like circumstances evincing a depraved indifference to human life, recklessness and a grave risk of death to another person, should make clear that the statute properly applies only to the unusual case. In sum, there is no valid line of reasoning that could support the jury's conclusion that the defendant possessed the mental culpability required for depraved indifference murder.

Second, the conviction on the count of the murder in the second degree or depraved indifference is against the weight of the evidence. While the court has a responsibility to conduct an independent review of the weight of the evidence, the court must nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor. A medical expert was called to testify on the blood alcohol content of .19%, as a result of the test administered an hour after the defendant’s arrest, which would negatively affect an individual's cognitive abilities, meaning, the thought process, the ability to think clearly and respond to questions; the person's psychomotor functions, such as moving muscles and responding to various stimuli, would be negatively affected; the ability to perceive objects in the environment would be negatively affected; and then the ability to respond to those objects would be negatively affected. The expert testified that an intoxicated person's ability to do “divided attention tasks”, such as driving, is most affected by alcohol. Thus, while driving requires equal attention to steering, acceleration, braking, direction signals, and responding to objects in the environment, an intoxicated person may devote all of his or her attention to only one or two of those tasks. Further, an officer who arrived at the scene moments after the crash described the inside of the defendant's car as having an extremely strong odor of alcohol. After the defendant was removed from his vehicle and placed under arrest for driving while intoxicated, the officer described the smell of alcohol coming directly from the defendant. Nonetheless, the People presented no evidence that the defendant intentionally entered the parkway in the wrong direction and/or continued to drive the wrong way after realizing that he was driving against traffic. Indeed, one witness, an off-duty sergeant for the New York City Police Department, testified that he swerved out of his lane to avoid being hit by the defendant's vehicle, and described the defendant's vehicle as staying in the lane closest to the barrier and not reacting to the sergeant's car as it swerved out of the path of the defendant's vehicle. Such eyewitness testimony is consistent with that of the People's expert, who explained that intoxicated persons experience tunnel vision and lack the ability to concentrate on the numerous tasks required to drive. However, while the People presented the testimony of numerous witnesses who saw the defendant's vehicle traveling in the wrong direction on the parkway, none of those witnesses' testimony established that the defendant understood that he was traveling in the wrong direction. While some witnesses attempted to warn the defendant of his mistake by honking their horns, there is no evidence that the defendant heard those warnings or understood that the warnings were intended for him. Nor did the People's collision reconstruction expert provide any testimony indicating that the defendant may have intentionally driven the wrong way down the parkway. In sum, no credible evidence demonstrated that the defendant deliberately drove his vehicle the wrong way with an utter disregard for the value of human life, and thus acted with depraved indifference. In sum, the weight of the evidence does not support a finding that the defendant, acting with depraved indifference, an utter disregard for the value of human life, knowingly drove the wrong way down the parkway. The defendant may have been the instrument of death but there is no evidence that he knowingly acted with utter disregard for the grave risk of death or serious injury he was creating. Rather, the evidence established that the defendant acted recklessly in driving while intoxicated severely, which led to the tragic death of an innocent person. In other words, the People's evidence established that the defendant acted recklessly, but not that he acted with depraved indifference.

Accordingly, the judgment must be modified, the defendant's conviction of second degree murder must be reduced to manslaughter in the second degree, a lesser-included offense of murder in the second degree, vacate the sentence imposed on that count, and remit the matter to the County Court for resentencing on that count.

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April 12, 2013

Court Discusses Leandra's Law

The Facts of the Case:

On 18 November 2009, the State enacted Leandra's Law, roughly one month after the DWI death of an 11-year-old in New York City. It demands, inter alia, that all first-time, misdemeanor DWI offenders install ignition interlock devices in every automobile they own or operate for at least 6 months; barring indigency, that offenders pay for installation and maintenance of the interlocks. However, Leandra's Law exhibits numerous defects which put its constitutionality in question.

Meanwhile, a defendant pled guilty to driving while intoxicated or drunk driving pursuant to the Vehicle and Traffic Law. Following Leandra’s Law, New York's newest anti-DWI measure, the matter is now before the Court for sentencing under it.

The Issues of the Case:

The issues stem from the State's failure to establish determinate ignition interlocking costs. First, there is the question of whether the indeterminate nature of the cost of installing and maintaining ignition interlocks invalidates the requirement defendants pay for the devices, given the cost is statutorily classified as a fine and therefore constitutes a criminal punishment; whether that issue informs a related New York constitutional concern where the State violated New York constitutional law by failing properly to promulgate a final interlock cost list. Second, there is the question of whether the lack of a statutory metric for determining a defendant's ability to pay for the ignition interlock violates equal protection because it may lead to arbitrary enforcement; whether requiring defendants to interlock every auto they own or operate is justifiable.

The Ruling of the Court:

As a general rule, lower courts should eschew constitutional questions related to statutes unless absolutely necessary. A New York Criminal Lawyer said those seeking to prove statutes to be unconstitutional must do so beyond a reasonable doubt. However, here, constitutional questions are unavoidable.

As provide for in the amended Vehicle and Traffic Law, it is required that those convicted finance ignition interlock installation and maintenance unless the sentencing court determines they cannot afford to do so. The law classifies the installation and maintenance costs as a criminal fine. Thus, the failure to pay for the interlock may prompt imprisonment. Notwithstanding their status as criminal fines, the interlock costs are ultimately indeterminate. This indeterminacy stems from the intentionally open-ended manner by which the State chose to calculate them. The New York Division of Probation and Correctional Alternatives (DPCA) which is now known as the Office of Probation and Correctional Alternatives (OPCA), a subdivision of the Division of Criminal Justice Services (DCJS, the Department)), following an application and approval process, created a regulatory scheme whereby private companies contracted with the State to provide and maintain interlock services.

A Nassau County Criminal Lawyer said there was a maximum fee/charge schedule with respect to all operators’ costs associated with such devices to which the prices they charge conform to. By reason of the fact that not everyone sentenced to interlocking can afford it, the Department had to contrive a means to pay for interlocking for indigent drivers or operators. Instead of having local governments finance them, the Department insisted that the qualified manufacturers, nominally, at least, pay for them. Under the new law, the court, upon determining financial unaffordability to pay the cost of the device, may impose a payment plan with respect to the device or waive the fee. The New Vehicle and Traffic law statutory provisions require that where the cost is waived, DCJS through its regulation shall determine who bears the costs of the device or through such other agreement which may be entered into. Thus, DCJS' regulation requires qualified manufacturers, and not local governments or taxpayers to bear such costs. During the application process, manufacturers supply proposed fee structures that must take into consideration and be based upon an anticipated ten percent (10%) waiver of the fees by sentencing courts due to operator unaffordability. The ten percent figure derives from the Department's speculation based upon the experience of other states. The defendants claiming indigency are obliged to seek a payment waiver from the court. To obtain the waiver, they must complete and submit to the court a financial history/status form prepared by the Department designed to aid the court's indigency determination. Curiously, the law supplies no indigency metric to guide the court; nor is the court obliged to use the financial history form in making its determination. Ironically, DPCA developed the form to remedy perceived shortcomings in the statute: as the statutory language does not refer to indigency nor contain other limiting criteria based upon prescribed income levels or guidelines, including federal poverty, food stamps and participation in other government assistance programs, DPCA developed the FDR or Financial Disclosure Report form to provide the judiciary with information to better gauge whether the operator has resources to pay for device installation and maintenance. On 15 July 2010, the Department has approved seven qualified manufacturers, and, via memorandum, has published a list of each provider's prices for services. The listed prices constitute the maximum fees permitted: the prices represented in the matrix are maximum or ceiling prices. However, these costs aren't final, besides setting up the possibility of annual rate increases. Moreover, nothing it prohibits manufacturers from increasing operator prices mid-contract. In a recent information session for New York judges, the Director of DPCA/OPCA explained that the Department retains such pricing power to ensure the ongoing viability of the provider-subsidy scheme for indigent defendants. But, if indeed, even a payment plan is determined unfeasible and it is determined that this person is unable to afford it, then the manufacturers will provide the ignition interlock device and they will do so free of charge because implicit in the cost schedules that they submitted as a condition of becoming a qualified manufacturer, consistent with our regulations, they assumed a 10% unaffordability rate statewide. That was based on the examination of other states. If that exceeds 10% statewide, it was agreed in to allow the manufacturers to renegotiate their agreements. But, it is important for judges to note that there's a limit to what manufacturers will be able to bear before they leave the state. There are two primary issues that affect the viable programs nationwide, monitoring and unaffordability. For this reason, they designed the financial disclosure report form to provide judges with the most accurate information concerning each operator.

Here, the Court holds that the defendant cannot be obliged to pay for any ignition interlock device to be installed on any automobile he or she owns or operates. First, the State has failed to provide adequate notice of the costs related to interlock installation and maintenance. Second, no final, determinate interlock cost list has been properly filed with New York's Secretary of State, as New York's constitution requires. If the State seeks to have interlocks installed in defendant's automobiles, it must find alternative funding sources to do so. Moreover, the court finds that Part 358.8 of Title 9 NYCRR and the Vehicle and Traffic Law § 1198 (4) are unconstitutional to the extent that they require the Court to make indigency determinations without a statutory metric for ascertaining indigency. Thus, the Court will grant no indigency waivers. In addition, the Court finds that the requirement under the Vehicle and Traffic Law that defendant install interlocks in every car he owns or operates is unconstitutionally overbroad and therefore limits the installation requirement to any car a defendant chooses to operate.

In view of the above, the court finds that the defendant must be sentenced to pay a $500 fine and a $395 surcharge-victim fee; his driver's license must be revoked for six months; he must be given a conditional discharge to take and complete successfully a Drinking Driver Program or a drunk driving program authorized by the New York State within one year; for a six month period, he must be prohibited from operating an automobile without an ignition interlock and he must be given ten (10) business days from the issuance of the order to have an ignition interlock installed in any auto he chooses to drive where a twenty (20) day extension of his license may be granted.

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April 11, 2013

Defendant Claims Insufficient Evidence for an Indictment

A man moved for an examination of the stenographic minutes from a grand jury proceeding for the purpose of determining whether the evidence was legally sufficient to support the charge contained in the indictment and whether the legal instructions given to the grand jury were sufficient. He also seeks dismissal of the charges on the grounds of insufficiency of the evidence or for other defects in the proceedings.

The man stands charged with driving while intoxicated (DWI), a class E felony. Based on records, the felony status of the crime is based on a predicate conviction for driving a motor vehicle with in the violation of vehicle and traffic law, an unclassified misdemeanor.

The incident occurred one evening where a state officer's attention was drawn to the man's automobile because it was moving slowly. He estimated that the driver of the vehicle was driving about 25 miles per hour in a 30-mile per hour zone during the late evening when no traffic was present and the roads were clear and dry. The officer followed the vehicle and testified that the man was going about 20 miles per hour in the 30-mile per hour zone. At some point he verified the speed of the vehicle using radar. A New York Criminal Lawyer said the man consistently maintained the same speed up hill and downhill, including a steep hill, until he pulled over at the direction of the officer. He also testified that the man was driving on the right-hand side of the road. The man further testified that he pulled him over solely because of his driving. He also testified in saying that driving ten miles per hour below the limit is considered impeding traffic. The district attorney however did not reprimand the grand jury on the witness in advising on the law.

The officer further testified as to certain field sobriety tests conducted, his observations of the man's condition, the odor of an alcoholic beverage he detected from the man, the man's refusal to submit to a chemical test of his breath, and his admission to having drunk two beers about an hour before the stop. The officer testified that in his opinion, the man was intoxicated.

Consequently, the grand jury raised a number of questions. The district attorney then advised that in the case, there was no video evidence. He also advised that the officer cannot pull someone over without any reason. Based on records, the only possible charge, entitled minimum speed regulations, provides under subdivision was that no person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.

On the stop issue, the court notes that the conduct as described by the officer, in driving ten miles per hour under the speed limit at night, on the right hand side of the road, with no traffic on the road, would not make out a violation.

A Suffolk County Criminal Lawyer said the district attorney offered into evidence a certificate of conviction from the justice court. The district attorney advised, accurately, that the answer was irrelevant to their decision, but did tell them that it would be up to the judge as to whether a lesser charge should be considered by the jury. Although, it is unclear whether he meant to say DWAI, or meant DWI as a misdemeanor. Yet, it is clear that the grand juror was asking whether they could consider any lesser charge.

Based on records, the criminal procedure law provides that a grand jury proceeding is defective when the integrity thereof is impaired and prejudice to the opponent. In addition, the exceptional remedy of dismissal is thus warranted only where a defect in the indictment created a possibility of prejudice. The legal test is very precise and very high.

The court explained that since dismissal of an indictment is an extraordinary remedy, it should be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the grand jury. Flaws, errors or even skewing need not require a dismissal. The court further states that not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective. The submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the accusation.

The court also explained that the instruction for more than twelve grand jurors must decide whether the evidence was insufficient to support the DWI charge before they could consider the DWAI charge was improper and assumed the grand jury's function.

Similarly, it is simply inaccurate that the grand jury must have decided to no bill the DWI charge before it could have considered DWAI. The applicable to trial juries, is not applicable in the grand jury. Likewise, it is inaccurate that more than twelve must so decide. The DWAI is a lesser included offense and a reasonable view of the evidence clearly could support a finding of the offense.

Additionally, the grand jury also had the right to consider DWI as a misdemeanor, as it is a lesser charge of DWI as a felony. Since the only evidence establishing the predicate offense was the certificate of conviction, the jury could have chosen to reject the said evidence, and if it found that the opponent had been operating a motor vehicle while intoxicated, he must charge only for the misdemeanor. The latter point brings up for consideration and the manner in which the certificate of conviction was introduced in evidence to establish the predicate.

In the trial, the evidence presented was sufficient to establish that the opponent did have a predicate conviction. It bears reminding, however, that like any evidence before it, the grand jury may accept or reject it. The certificate of conviction is not evidence that establishes the predicate as a matter of law.

Based on records, there is no question raised but the court found that a certificate for a named individual with a particular date of birth is sufficient to establish that the target of the investigation is the same person as identified in the predicate. It is still up to the grand jury to accept or reject the evidence. Moreover, the manner in which the evidence of the predicate was presented to the grand jury suggested the certificate as in fact relating to the opponent. While not making a finding of fact that the prosecutor did so in the case, prosecutors generally should be reminded that in presenting such certificates, they must not offer them as in fact relating to the target of the investigation, as such amounts to testifying before the grand jury.

Therefore, it appears plain to the court that the restriction imposed by the district attorney on the jury, that it must first decide the insufficiency of the evidence as to DWI before it could consider DWAI, was error that prevented the grand jury from evaluating the case as they had a right to do. It requires more than twelve to decide that it compounded the error, as well as being error itself.

Given the errors, the grand jury was denied its right to evaluate and consider all the relevant and reasonable charges and actions available to it. As a result, the indictment is dismissed.

The presence of alcohol in the human system affects the person’s consciousness and coherence. Driving while under the influence of alcohol can cause accident. If you are arrested for such case, you can choose from the Bronx County DUI Lawyer or Bronx County DWI Defense Attorneys. For your more serious offense whether it involves sex crimes, drug possession or theft, you prefer to ask for the legal representation of the Bronx County Criminal Lawyer by calling or visiting Stephen Bilkis and Associates office.

April 11, 2013

Defendant Claims Insufficient Evidence for an Indictment

A man moved for an examination of the stenographic minutes from a grand jury proceeding for the purpose of determining whether the evidence was legally sufficient to support the charge contained in the indictment and whether the legal instructions given to the grand jury were sufficient. He also seeks dismissal of the charges on the grounds of insufficiency of the evidence or for other defects in the proceedings.

The man stands charged with driving while intoxicated (DWI), a class E felony. Based on records, the felony status of the crime is based on a predicate conviction for driving a motor vehicle with in the violation of vehicle and traffic law, an unclassified misdemeanor.

The incident occurred one evening where a state officer's attention was drawn to the man's automobile because it was moving slowly. He estimated that the driver of the vehicle was driving about 25 miles per hour in a 30-mile per hour zone during the late evening when no traffic was present and the roads were clear and dry. The officer followed the vehicle and testified that the man was going about 20 miles per hour in the 30-mile per hour zone. At some point he verified the speed of the vehicle using radar. A New York Criminal Lawyer said the man consistently maintained the same speed up hill and downhill, including a steep hill, until he pulled over at the direction of the officer. He also testified that the man was driving on the right-hand side of the road. The man further testified that he pulled him over solely because of his driving. He also testified in saying that driving ten miles per hour below the limit is considered impeding traffic. The district attorney however did not reprimand the grand jury on the witness in advising on the law.

The officer further testified as to certain field sobriety tests conducted, his observations of the man's condition, the odor of an alcoholic beverage he detected from the man, the man's refusal to submit to a chemical test of his breath, and his admission to having drunk two beers about an hour before the stop. The officer testified that in his opinion, the man was intoxicated.

Consequently, the grand jury raised a number of questions. The district attorney then advised that in the case, there was no video evidence. He also advised that the officer cannot pull someone over without any reason. Based on records, the only possible charge, entitled minimum speed regulations, provides under subdivision was that no person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.

On the stop issue, the court notes that the conduct as described by the officer, in driving ten miles per hour under the speed limit at night, on the right hand side of the road, with no traffic on the road, would not make out a violation.

A Suffolk County Criminal Lawyer said the district attorney offered into evidence a certificate of conviction from the justice court. The district attorney advised, accurately, that the answer was irrelevant to their decision, but did tell them that it would be up to the judge as to whether a lesser charge should be considered by the jury. Although, it is unclear whether he meant to say DWAI, or meant DWI as a misdemeanor. Yet, it is clear that the grand juror was asking whether they could consider any lesser charge.

Based on records, the criminal procedure law provides that a grand jury proceeding is defective when the integrity thereof is impaired and prejudice to the opponent. In addition, the exceptional remedy of dismissal is thus warranted only where a defect in the indictment created a possibility of prejudice. The legal test is very precise and very high.

The court explained that since dismissal of an indictment is an extraordinary remedy, it should be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the grand jury. Flaws, errors or even skewing need not require a dismissal. The court further states that not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective. The submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the accusation.

The court also explained that the instruction for more than twelve grand jurors must decide whether the evidence was insufficient to support the DWI charge before they could consider the DWAI charge was improper and assumed the grand jury's function.

Similarly, it is simply inaccurate that the grand jury must have decided to no bill the DWI charge before it could have considered DWAI. The applicable to trial juries, is not applicable in the grand jury. Likewise, it is inaccurate that more than twelve must so decide. The DWAI is a lesser included offense and a reasonable view of the evidence clearly could support a finding of the offense.

Additionally, the grand jury also had the right to consider DWI as a misdemeanor, as it is a lesser charge of DWI as a felony. Since the only evidence establishing the predicate offense was the certificate of conviction, the jury could have chosen to reject the said evidence, and if it found that the opponent had been operating a motor vehicle while intoxicated, he must charge only for the misdemeanor. The latter point brings up for consideration and the manner in which the certificate of conviction was introduced in evidence to establish the predicate.

In the trial, the evidence presented was sufficient to establish that the opponent did have a predicate conviction. It bears reminding, however, that like any evidence before it, the grand jury may accept or reject it. The certificate of conviction is not evidence that establishes the predicate as a matter of law.

Based on records, there is no question raised but the court found that a certificate for a named individual with a particular date of birth is sufficient to establish that the target of the investigation is the same person as identified in the predicate. It is still up to the grand jury to accept or reject the evidence. Moreover, the manner in which the evidence of the predicate was presented to the grand jury suggested the certificate as in fact relating to the opponent. While not making a finding of fact that the prosecutor did so in the case, prosecutors generally should be reminded that in presenting such certificates, they must not offer them as in fact relating to the target of the investigation, as such amounts to testifying before the grand jury.

Therefore, it appears plain to the court that the restriction imposed by the district attorney on the jury, that it must first decide the insufficiency of the evidence as to DWI before it could consider DWAI, was error that prevented the grand jury from evaluating the case as they had a right to do. It requires more than twelve to decide that it compounded the error, as well as being error itself.

Given the errors, the grand jury was denied its right to evaluate and consider all the relevant and reasonable charges and actions available to it. As a result, the indictment is dismissed.

The presence of alcohol in the human system affects the person’s consciousness and coherence. Driving while under the influence of alcohol can cause accident. If you are arrested for such case, you can choose from the Bronx County DUI Lawyer or Bronx County DWI Defense Attorneys. For your more serious offense whether it involves sex crimes, drug possession or theft, you prefer to ask for the legal representation of the Bronx County Criminal Lawyer by calling or visiting Stephen Bilkis and Associates office.

April 8, 2013

Defendant Questions Validity of Breathalyzer Test

On September 15, 1983, a DWI roadblock, indicated by signs, was set up by a uniformed police unit at the westbound 181st Street Bridge. All vehicles proceeding through the roadblock were stopped. Each driver was then approached and asked how they felt. The vehicle operated by the defendant was driven into this initial area in a normal manner and was stopped solely in accordance with the questioning procedure. The Police Officer, while asking the defendant how he felt, made several observations. He noticed that the defendant's eyes were watery, his speech was slurred, and he had the odor of alcohol on his breath.

A New York Criminal Lawyer said that, the defendant was then directed to drive his vehicle to the safety zone a few feet away. The Police Officer ordered the defendant out of his car and gave him a field sobriety test. Based on the defendant's performance and his statement that he had consumed eight beers, the defendant was then placed under arrest and transported to a highway unit precinct. On the way to the precinct Police Officer gave the defendant his Miranda warnings. Upon arriving at the highway unit precinct, the defendant was again advised of his constitutional rights, whereupon he repeated his statements as to his alcohol consumption. He voluntarily consented to taking a breathalyzer test. The results indicated a reading of .12 percent blood alcohol.

A Long Island Criminal Lawyer said that, the defendant moves to dismiss the charge based on the alleged unconstitutionality of the roadblock and also moves to suppress the breathalyzer test results as well as expected testimony relating to coordination tests administered to him as being obtained in violation of his rights under the State and Federal Constitution. A hearing on this motion was held on March 8, 1984 and continued on March 12, 1984. The defendant now stands charged with violating VTL 1192(2) and 1192(3). He thus makes the instant motion.

The issues in this case are whether the constitutional rights of motor vehicle drivers are violated by police stops at "Driving While Intoxicated Safety Check" roadblocks; and whether the sobriety test taken by the defendant in the safety zone is illegal; and whether defendant is entitled to the suppression of the results of his breathalyzer test.

The court said that the initial stop of the defendant's car sufficiently restrained his freedom to result in a seizure subject to constitutional limitations. At that time the police officers lacked any indication that a crime was committed or that any criminal activity was under way. Accordingly, the seizure cannot find its justification under either common law principles or the Criminal Procedure Law. Unless the initial stop was reasonable, the subsequent acquisition of observations and test results from the defendant would be suppressible as the derivative results of an illegal seizure.

Reasonableness in this context requires the proper balancing between the privacy interests of the individual and the public interests of the state. The action of the police must be justified at its inception and be a reasonable response to the problem which it addresses. The state's compelling interest in highway safety permits distinctions between the privacy rights of citizens based upon whether or not they are occupants of motor vehicles.

No New York appellate authority has directly passed upon the constitutionality of Driving While Intoxicated (DWI) roadblock stops but ample Federal and State court authority exists regulating various types of motor vehicle stoppages. Brief stops of motorists at permanent checkpoints to enable Federal officers to look for illegal aliens was upheld because it balanced a limited stop at a permanent checkpoint with extensive prior warnings against the exigency of a massive influx of illegal non-citizens. Random stops, arbitrary in nature, to check a driver's license and registration have been held unconstitutional. That same case, however, allowed fixed checkpoints for this purpose. Justice White stated there that: "For Fourth Amendment purposes, we also see insufficient resemblance between sporadic and random stops of individual vehicles making their way through city traffic and those stops occasioned by roadblocks where all vehicles are brought to a halt or to a near halt, and all are subjected to a show of the police power of the community.’At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion.'

Under the right circumstances, the roadblock need not be permanent or have lights or warnings but may occur in isolated areas and be a roving roadblock. Routine "traffic checks" by police officers to determine whether or not a vehicle is being operated in compliance with the Vehicle and Traffic Law is permissible when conducted in a non-arbitrary, nondiscriminatory uniform manner. Thus, police officers, on whim or caprice and without an articulable suspicion or probable cause, may not stop the driver of a single motor vehicle. They may properly stop one or more lanes of traffic temporarily, at a roadblock in a non-arbitrary manner when a discernible need is established.

A routine stop to establish compliance with VTL regulations pertaining to licensing and registration has been sanctioned as a proper exercise of police power. The same authorized minimal intrusion to establish compliance with VTL regulations as to licensing and registration occurs when a DWI stop takes place. In the latter situation the danger to be prevented and the lifesaving aspects to the drivers and other citizenry leave no question as to the needs outweighing the inconvenience and render the intrusion totally reasonable.

Here the state is not following an "end justifying the means" theory but rather a proper exercise of its inherent power to limit in a very minor way the mobility of some of its citizens to save the lives and property of these same citizens and others. Accordingly, the initial stop of the defendant was constitutional and the motion by defendant to dismiss the information on those grounds is denied.
The next issue before this court is the effect of the field sobriety test taken by the defendant in the safety zone. At that point the police officer had gone beyond the minimum threshold of routine questioning. He had instructed the defendant to position his vehicle in an area under police authority. Under all the attendant circumstances, the defendant could reasonably infer that he was in custody, and had indeed been seized within the meaning of the Fourth Amendment.

Placing the driver/defendant in custody triggered certain constitutional requirements. The Miranda case and its progeny are concerned solely with verbal statements made by a defendant in custody. The warnings necessary in the case of a field sobriety test are of a slightly different nature.

The field sobriety test presents a hybrid situation. The defendant is in custody and his taking of the test is the result of an "interrogation." The results of the test are as damning as a verbal admission. The defendant must be warned that anything he says or does may formulate the basis for his arrest or be used against him in a court of law. While the results of the various dexterity tests are, for the most part, conduct and not speech, it is conduct that speaks louder than words.

The officers must also inform the driver/defendant that he may legitimately refuse to submit to the test, and that his refusal will not be admissible against him in a court of law. It follows that where consent was obtained, the People have the heavy burden to prove that it was a voluntary and knowing consent. The police officer, faced with a driver who refuses to take the field sobriety test, must base his determination as to the existence of probable cause to formally arrest the driver upon observations made up to that point. Accordingly, the results of the field sobriety test are to be suppressed, and the motion made by the defendant to that end is granted.

As to the results of the dexterity tests performed at the precinct after the breathalyzer test, these are not suppressed. Any defect arising out of errors at the safety zone is attenuated. There was a clear break in any form of interrogation. Sufficient time had passed and sufficient warnings were given to justify the belief that the defendant had been returned to the status of one who was acting voluntarily after sufficient warning and was not under the undue influence of the police officer's directions.
The final issue before the court is that part of the defendant's motion dealing with suppression of the results of the breathalyzer test.

A breathalyzer machine determines the content of a person's blood alcohol by analyzing the breath of the subject's lower lungs. In simplistic terms, the individual's breath is gathered in the machine and caused to pass through a solution which changes color in proportion to the amount of alcohol passing through it. From the degree of change in color the amount of alcohol which passed through the solution can be calculated, and the results recorded. There is no question that the breathalyzer test is a wholly constitutional method of determining whether there is alcohol in a defendant's system, subsequent to an arrest for driving under the influence of alcohol.

The controlling statute clearly states that "no person shall operate a motor vehicle while he has .10 of one percent or more by weight of alcohol in his blood as shown by chemical analysis of his blood, breath, urine or saliva " A finding that the accused has a blood alcohol content of .10 per centum or more is per se evidence of guilt. In most cases involving the prosecution of a defendant for driving while intoxicated or impaired, the only tangible evidence offered against him is the result of the breathalyzer test. As such, it can be considered material evidence. Is there a duty to preserve such evidence? It has been held that the purpose of this duty is not simply to correct an imbalance of advantage, whereby the prosecution may surprise the defense at trial with new evidence, rather, it is also to make the trial a search for the truth informed by all relevant material, much of which, because of an imbalance in investigative resources, will be exclusively in the hands of the Government.

The issue of preservation of the breathalyzer ampoules had been a popular subject of litigation as of recent times. In contrast, various courts have determined that although retesting of the original ampoule has not attained wide acceptance in the scientific community (except to discover gross defects--imperfections in the glass ampoule, defective fluid composition), a second sample must be taken at the same time as the original and preserved for the defendant's independent testing.
While the process of preserving a second sample is within the means of the police department, and permits preservation of the sample for at least twelve months, their failure to do so goes more to the weight of the test evidence being offered than to its admissibility and provides no constitutional impediment. In a 1984 case, the Supreme Court of the United States put to rest any residual doubts as the necessity of the People to either preserve the original ampoule or breath sample or to produce and preserve a second ampoule or breathe sample for the defense.

Accordingly, the court held that the results of the breathalyzer test are not suppressed.

DWI is a serious crime, for it may affect the lives of other people. If are involved in a DWI case, seek the assistance of Bronx DWI Defense Attorney and Bronx Criminal Attorney at Stephen Bilkis and Associates in order to defend your case. Whether you have been charged with a DWI, sex crimes or drug possession, our office will provide you with a free consultation.

April 7, 2013

Court Discusses Legal Doctrine of Collateral Estoppel

Respondent was admitted to the practice of law in the State of New York by the First Judicial Department on January 18, 1982. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Judicial Department. A Bronx DWI Lawyer said that, in December 2001, the Departmental Disciplinary Committee (Committee) served respondent with a notice and statement of charges alleging 28 counts of professional misconduct against him involving seven separate legal matters. The charges alleged that respondent engaged in a pattern of misconduct including the repeated disregard of court orders and directives; misrepresentations to clients, adversaries and courts; and the repeated neglect of client matters, often resulting in default judgments. By order entered November 28, 2001, this Court appointed a Referee to hear and report on the charges. Respondent filed an answer with affirmative defenses in January 2002.

A New York Criminal Lawyer said that, prior to the hearing, the Committee made a motion before the Referee requesting that the doctrine of collateral estoppel be applied to find respondent guilty of 11 of the 28 counts charged, based upon the findings and decisions issued by four courts. Respondent opposed the motion, and by decision dated November 1, 2002, the Referee granted the collateral estoppel motion on six of the 11 counts requested. Following 23 days of liability hearings on the remaining counts, the Referee issued a February 18, 2003 report sustaining 12 other counts and dismissing 13 counts. Three days of sanction hearings were held, with the Committee recommending disbarment and respondent, citing various mitigating factors, arguing for a public censure. In a final report dated May 5, 2003, the Referee recommended a five-year suspension. A Hearing Panel was convened, and it heard oral argument and accepted written submissions from both parties. In a written determination dated March 2, 2004, the Hearing Panel affirmed the Referee's findings of fact and conclusions of law, except as to count 3, which it disaffirmed, and it further affirmed the Referee's recommended sanction of a five-year suspension.

A Brooklyn Criminal Lawyer said that, the Committee now moves for an order pursuant to 22 NYCRR 603.4 (d), confirming the Referee's findings of fact and conclusions of law, as modified by the Hearing Panel's recommendation, and imposing a sanction suspending respondent from the practice of law for a period not less than five years. A review of the five matters in which charges were sustained follows.

A Bronx DWI Lawyer said that, respondent represented a client in a criminal DWI matter that was scheduled to proceed to trial on January 8, 1999, in Cortlandt Town Court. On that morning, respondent faxed an affirmation of actual engagement to both the clerk of the court and the prosecutor, representing that he was required to appear before the United States Court of Appeals for the Second Circuit on another matter that morning. The case was adjourned to February 5, 1999, at which time respondent reiterated to the Town Justice that it was not his choice that he was unable to appear on the previous date, since he had a lengthy argument before the Second Circuit.
At the Referee's hearing, the evidence established that respondent had not actually appeared before the Second Circuit on January 8th and that the case cited by respondent was neither calendared nor argued on that date. Rather, respondent had made the choice to file an emergency relief application at the Second Circuit's Clerk's office and spent some time speaking to a court attorney in an unsuccessful attempt to meet with a judge. Subparts (c) and (d) of count 26 were sustained by the Referee, who found that respondent made "deceitful representations" in violation of DR 1-102 (a) (4) by faxing the false notice of engagement to the court on January 8, 1999, and by making a false statement to the Town Justice on February 5, 1999 when questioned about the matter. Based on the same conduct, the Referee sustained counts 27 and 28, which alleged that respondent's falsehoods constituted conduct prejudicial to the administration of justice (count 27 [DR 1-102 (a) (5)]) and conduct that adversely reflected on his fitness to practice law (count 28 [DR 1-102 (a) (7)]).
A Bronx Criminal Lawyer said that, the Committee seeks an order confirming the Referee's findings of fact and conclusions of law, as modified by the Hearing Panel's report, and imposing a suspension of not less than five years. Respondent submitted a memorandum of law in opposition, arguing that each of the charges should be disaffirmed and, alternatively, if any are sustained, the sanction should be no worse than a public censure. Respondent also raises significant arguments relating to the Referee's power to invoke the doctrine of collateral estoppel, an issue which requires some discussion.

The issue in this case is whether the referee erred in invoking collateral estoppel.

The court held that the doctrine of collateral estoppel precludes a party from re-litigating `an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point'. The two requirements for its application are: first, the identical issue necessarily must have been decided in the prior action and be decisive in the present action, and second, the party to be precluded must have had a full and fair opportunity to contest the prior determination.
Respondent does not challenge the invocation of collateral estoppel in attorney disciplinary proceedings generally. Nor could he as the Court of Appeals and numerous appellate courts in this state have upheld the use of collateral estoppel in such proceedings. Respondent's argument is narrower. He contends that the Referee was without power to make a collateral estoppel ruling because it would exceed her order of reference, which was to hear and report. He further asserts that it is bad policy to give referees preclusive power in disciplinary proceedings, since complex collateral estoppel determinations should be left to the court and, from a procedural perspective, such a policy would deprive the court of any opportunity to pass on the merits of the charges in the event of an erroneous collateral estoppel ruling by a referee.

Respondent raised similar arguments before the Referee, who rejected them. The Referee concluded that her authority in legal disciplinary matters is derived from part 605 of the Rules and Procedures of the Departmental Disciplinary Committee of the Appellate Division, First Department, which specifically empower the referee to conduct hearings, make findings of fact and conclusions of law and recommend sanctions it deems appropriate. The rules further authorize a referee to entertain motions, rule on the admissibility of evidence and make determinations as to what, if any, charges are sustained and sanction should be imposed. The Referee also cited two disciplinary cases from this Court in which collateral estoppel was applied by a referee.

The Hearing Panel also rejected respondent's challenge to the Referee's authority, but on different grounds. The Panel found that the Referee erroneously relied on her power under the rules to decide motions and make evidentiary rulings as a basis for authorizing collateral estoppel preclusion by a referee, since "collateral estoppel is not an evidentiary matter," but rather "determines an issue”.
We hold that a referee in a disciplinary proceeding has the power and authority to rule on a collateral estoppel motion. In reaching this conclusion, we rely on the reasoning of both the Referee and Hearing Panel. The Referee correctly concluded that her power is derived from this Court's rules and, contrary to the Hearing Panel's determination, those rules authorize the referee to do more than rule on evidentiary matters, but also to make "Determinations". Indeed, because the rules plainly authorize the referee to decide motions, issue finding of facts and conclusions of law and make "determinations" as to whether charges should be sustained and a sanction imposed, we discern no basis in the rules to deny the referee the power to make a collateral estoppel ruling.

Significantly, under the Court's rules outlining the procedures governing the disciplinary process, every finding, ruling and determination by the referee is subject to review by both the Hearing Panel and by this Court, which has the sole authority to impose discipline. Thus, no danger exists that the referee, rather than the court, will finally determine an issue.

Concluding, as we have, that the referee has the power to make collateral estoppel rulings, even as to default judgments in appropriate cases, we now address the Referee's application of the doctrine to the specific charges. With respect to the RLR matter, we find that collateral estoppel was properly based on the Southern District Grievance Committee's censure order relating to those two matters. We reject respondent's argument that the Committee chose the "wrong procedural format" in seeking collateral estoppel instead of a petition for reciprocal discipline under section 603.3 of this Court's rules. Although that section provides an alternative method of discipline, nothing in the rules limits the Committee to that procedure. Nor has respondent stated any basis for the applicability of the defenses to reciprocal discipline enumerated in section 603.3 (c). Respondent cannot be heard to complain about a lack of notice and opportunity to be heard where he submitted papers in response to the Grievance Committee's order to show cause, requested two extensions to file additional papers, but then never did so.

Respondent offers several arguments in opposition to the Referee and Hearing Panel's recommended five-year suspension, but none is meritorious. His main contention is that a public censure, rather than a suspension, is appropriate where an attorney's misconduct arises from serious psychological problems or traumatic events and the attorney has taken firm steps to resolve the problems.

While respondent has taken affirmative steps to improve his behavior, his attempt to link his misconduct with his condition of depression is far more questionable. We agree with the Referee's finding that the psychiatric testimony was "thin and not very convincing." While respondent introduced expert testimony as to his diagnosis, he offered little, if any, testimony himself as to how his condition affected his work. Nor do any other facts suggest a connection between depression and his multiple instances of misconduct. None of the medical testimony in this record offered any explanation as to how a condition of depression could lead to deceitful behavior and repeated disregard of court orders. In our view, the connection is wholly speculative and should be given little consideration in mitigation.

For its part, the Committee has made a compelling showing that a lengthy suspension is not only warranted, but in fact is the most lenient of sanctions under these circumstances. As found by the Hearing Panel, respondent committed 17 violations of the disciplinary rules over a 12-year period, involving five different matters. He has engaged in a pattern of serious professional misconduct, all the while demonstrating an astonishing insensitivity to his legal and ethical obligations. He has caused material harm to at least two clients, and most assuredly caused untold frustration and inconvenience to his clients, opposing counsel and the courts. Although an argument could be made that the duration and seriousness of respondent's misconduct warrants disbarment under our precedents.

Accordingly, the Committee's motion for an order confirming the findings of fact and conclusions of law of the Referee, as modified by the Hearing Panel, and imposing a suspension of five years, should be granted and respondent suspended from the practice of law for a period of five years.
If your counsel in a DWI, drug crime, or sex crime case neglected you case, seek the representation of a new counsel. Bronx DWI Attorney and Bronx DWI Defense Attorneys at Stephen Bilkis and Associates are competent enough to handle your case. Call us for free consultation.

April 5, 2013

Defendant Contends Breathalyzer Test was Impropr

On May 6, 1995 at approximately 1:30 AM, a police officer was assigned to a so called DWI checkpoint in Queens County. A New York Criminal Lawyer said that pursuant to the procedures established for this checkpoint, every vehicle was stopped and every driver was asked if he or she had been drinking. If the driver answered affirmatively, he or she was asked to submit to an alcohol-sensor field sobriety test. At about 1:30 AM, the accused man entered the checkpoint area and in response to the officer's question indicated that he had been drinking. At this time, the accused exhibited the classic signs of intoxication, slurred speech, bloodshot watery eyes, an odor of alcohol and unsteadiness on his feet. The accused agreed to submit to an alcohol-sensor test and the results indicated a blood alcohol content of 0.15 of one percent. This test was re-administered to the accused approximately nine minutes later with identical results and he was then arrested and taken to the 114th Precinct where pedigree information in connection with the arrest was taken. While en route to the precinct, the accused asked the officer what was going to happen. The officer told the accused man that he would be given a breathalyzer test and that if his blood alcohol content registered 0.06 of one percent or less, that he would be released; that if he refused to submit to the breathalyzer test that his license would be revoked; that if he took the breathalyzer test and his blood alcohol content registered 0.10 of one percent or greater, that his license would be suspended. A similar exchange of information between the officer and the accused man took place at approximately 4:15 AM, immediately before the accused man took the breathalyzer test. Thereafter, the accused was transported to the Intoxicated Driver Testing Unit at the precinct. It was here that the officer advised the accused of his Miranda rights prior to questioning him from the IDTU questionnaire. Each and every Miranda warning was given and acknowledged by the accused who voluntarily agreed to answer questions.

A Manhattan Criminal Lawyer said that at some point after the IDTU questionnaire was completed by the officer, the accused was asked if he would submit to a breathalyzer test. Once again, the three alternatives described above were stated to the accused by the officer. The accused, without any apparent hesitation or protest, took the breathalyzer test at 4:15 AM. The results showed 0.09 of 1% of alcohol in the blood. The complainant concedes that the breathalyzer examination was administered more than two hours from the accused man’s arrest. The complainant concedes that notice of this statement was never provided to the defense counsel pursuant to CPL (Criminal Procedure Law).

Accordingly, the stop of the accused was proper. The officer request that the accused submit to an alcohol-sensor test was proper in view of the accused man's response to the officer's preliminary inquiry. The alcohol-sensor results provided probable cause to arrest the accused man of DWI.

With respect to the statements attributed to the accused, those memorialized in the IDTU questionnaire were freely and voluntarily made following the full administration and acknowledgement of the Miranda warnings. Accordingly, the statements are admissible. With respect to the statement attributed to the accused while being transported from the precinct to the Central Booking facility, the complainants are precluded from introducing the statement at trial. The statement was not contained with the requisite specificity in the CPL notice and good cause for the failure to do so was not provided.

Whether chemical test results should be admissible at trial when the test was administered after two hours of arrest, was recently addressed by the Court of Appeals. The court apparently held that when an accused expressly and voluntarily consents to submit to a chemical test that the so called two hour rule of Vehicle and Traffic Law is inapplicable. It is unclear whether the holding will be limited to the facts presented (consent to submit to the test within two hours of arrest--administration of the test after two hours of arrest) or whether, as the dissent strongly suggests, this holding will apply to all situations where an individual expressly consents to take a chemical test regardless of when the consent occurs. It appears to me that the majority decision has, in effect, written out of Vehicle and Traffic Law the two hour rule in cases of express consent.

While the decision resolves an issue that has spawned much litigation in the local criminal courts throughout the state in recent years, it invites litigation in areas that arise daily in our courts. In examining the procedures contained in Vehicle and Traffic Law in relation to the current case law, a traditional Fourth Amendment analysis of consent searches/seizures is inapplicable to situations where a chemical test is consented to after two hours of arrest.

It seems clear that the taking of a breath sample, as was done here, is a search within the meaning of the Fourth Amendment. However, in exchange for the privilege of being licensed to drive in this state, every motorist in this state is deemed to have given advance consent to submit to such a search when certain conditions precedents are present. Since the privilege to drive is statutorily created concomitantly with a deemed consent provision, there is no constitutional right for an individual driver in this state where the conditions precedent in Vehicle and Traffic Law are present, to refuse to submit to a police requested chemical test. Accordingly, since a statutory rather than a constitutional right is implicated in this type of case, it is not necessary to establish an express and voluntary consent beyond a reasonable doubt.

It is clear that consent involves a person's knowing choice from all of the factors present in each case. Factors for the court's consideration in determining whether consent was present in relationship of the characteristics of the accused and details of the interrogation, including the age and intelligence of the accused, the administration of the Miranda warnings, the length of the detention, physical threats, abuse or isolation, reliance upon false promises and the manner itself in which the consent occurred, that is, a reluctant, limited consent or a self prompted spontaneous consent.

In the context of VTL breathalyzer cases, there is no obligation to advise an individual of any rights prior to the administration of a breathalyzer test. There is no obligation to inform an individual of any right to refuse to submit to a breathalyzer test. By logical extension through Atkins then, there is no obligation on the part of law enforcement officials to advise a suspect of anything regarding the administration of a breathalyzer test even when the request to submit to a search test occurs beyond two hours of arrest. Thus, it appears to me that a simple request to submit to a breathalyzer test without more, can result in a voluntary consent as long as there is no express or implied coercion by law enforcement officials, no material misrepresentation of fact, to induce the consent and no facts to suggest that any law enforcement officials in securing an individual's consent acted in a manner so fundamentally unfair as to constitute a due process violation as to negate any consent.

I hold that to establish express and voluntary consent the burden is upon the prosecutor to establish consent by clear and positive evidence. Once this burden is shouldered by the complainant, the accused man must bear some burden in negating consent. This can be accomplished either through the cross examination of the complainant's witnesses or the presentation of a defense case. Applying these principles to the facts of this case the complainant has met their burden of establishing the accused man's consent by clear and positive evidence.

Although the accused man’s consent occurred in a custodial environment, the atmosphere was not overbearing on his will. The accused was not handcuffed; the accused actually appears to have initiated conversations with the officer on two to three occasions during this episode. The accused man’s degree of intoxication or impairment was not so extreme as to render him incapable, by virtue of intoxication, from understanding the nature of the events or from forming intent to consent to the administration of the examination. From all of the circumstances presented, there was a voluntary consent to submit to the breathalyzer examination. The results of this test are admissible.

When we agree to submit ourselves to test, we should be prepared for whatever the outcome may be. Tests should help us to find out if there is something wrong with us so we can act on it. However, submitting ourselves to tests should be willful. If you were forcibly submitted to do a DWI related test, consult the Bronx DWI Lawyer to find out your legal options. Stephen Bilkis and Associates can also provide you skilled legal counsel whether you have been charged with sex crimes,drug possession or theft.

April 1, 2013

Court Discusses Excessive Fines Clause in DUI Case

On February 20, 1999, respondent Police Commissioner announced that the City would apply the Property Clerk Forfeiture Law (Administrative Code of City of NY § 14-140) to vehicles operated by individuals arrested for driving while intoxicated (DWI). At 10:30 P.M. on February 21, 1999, police stopped and arrested petitioner for DWI. A New York Criminal Lawyer said that, the arresting officer concluded that petitioner was intoxicated based on the strong smell of alcohol, watery and bloodshot eyes, and coordination tests. A breathalyzer test indicated .11% blood alcohol content, over the .10% intoxication threshold. Officers took petitioner's 1988 Acura for forfeiture. By letter of February 26, 1999, petitioner's attorneys demanded its return.

A Bronx Criminal Lawyer said that, by order to show cause and petition dated March 9, 1999, petitioner commenced this proceeding. Petitioner seeks a final judgment invalidating the City's policy and the taking and retention of his car. On March 19, 1999, Property Clerk commenced a separate action against petitioner for a judgment declaring the vehicle forfeited as the instrumentality of the crime of driving while intoxicated. The criminal action is pending.

A Bronx DWI Lawyer said that, petitioner challenges the City policy as statutorily unauthorized and preempted by State law. Petitioner asserts that the City unconstitutionally violated the separation of powers by imposing an additional DWI sentence, beyond that authorized by State law. Petitioner argues that forfeiture constitutes punishment under Federal constitutional law, violating Letterlough.

A Bronx DWI Defense Lawyer said that, petitioner asserts that the forfeiture sought here should be deemed criminal, not civil, because the City brought the forfeiture action against the petitioner instead of his car. Civil forfeiture actions for instrumentalities were traditionally brought in rem against the "guilty" property. Petitioner challenges the taking and retention of his car as an unreasonable seizure. Petitioner argues that the police took and kept the car without cause or necessity and without obtaining a warrant before or after the seizure. The seizure was reasonable under three theories: plain view, incident to arrest, and the automobile exception. Petitioner alleges that the new City policy violates the Due Process Clauses of the Federal and State Constitutions because it authorizes the police to take and retain a vehicle without either a pre-seizure or post-seizure hearing.

A Bronx Criminal Lawyer said that the City's forfeiture action appropriately seeks a declaratory judgment, requiring a plenary action against an individual and personal service. The City seeks no relief other than a declaration of rights in the vehicle. The City contends that petitioner is barred from asserting a due process claim. Respondents assert that petitioner should be deemed a member of the McClendon class estopped from attacking the constitutionality of the procedures validated by the consent decrees.

The issue in this case is whether the City's new driving while intoxicated (DWI) vehicle forfeiture policy is constitutional.

The court in deciding the case said that, the Administrative Code of the City of New York § 14-140, adopted under the police powers provision of the Municipal Home Rule Law, defines the status of property by its nexus to crime and declares the City's consequent right to hold it. Administrative Code § 14-140 (b) directs that certain property, including that "suspected of having been used as a means of committing crime or employed in aid or furtherance of crime shall be given into the custody" of the Police Department Property Clerk. The law provides that anyone who used such property shall not be deemed the lawful claimant. The City's forfeiture procedures, codified pursuant to Federal consent decrees permit the Property Clerk to decline to return property if there is "reasonable cause to believe that it was the proceeds or instrumentality of a crime". The Property Clerk then must "cause a civil forfeiture proceeding or other similar civil proceeding to be initiated" either before or within 25 days of a claimant's demand.

Federal and State courts have assumed that the Administrative Code and codified rules form a proper statutory basis for a forfeiture action or proceeding. Thus, a car used to transport a buyer to and from a drug purchase was forfeited, like one used to solicit for prostitution. Just because one can buy contraband or patronize a prostitute without a car does not alter the vehicle's nature as an instrumentality subject to forfeiture. Operation of a motor vehicle is a necessary element of DWI. A drunk drivers automobile is the quintessential instrumentality of a crime the sine qua non without which the crime could not have been committed. It is irrelevant that the vehicle is not needed as evidence or that the District Attorney might not object to petitioner's request for its return. An independently elected prosecutor cannot bind the Property Clerk, a nonparty to the criminal action.
State law does not preempt either the new City policy or the local law which it implements. The State asset forfeiture law does not apply to petitioner, who is not charged with a felony. CPLR 1352 explicitly preserves the availability of other rights and remedies provided by law. Article 13-A does not limit or supersede. Nothing in article 13-A's legislative history indicates that the State intended to occupy the field. New York has a plethora of disparate forfeiture statutes; the Legislature has made no attempt at over-all re-codification or coordination. There is no evidence elsewhere in State law that the local forfeiture law or the new DWI policy violates overriding State policy. The new City policy implements current law; it needs no additional legislative authorization.

The Court said that, petitioner asserts that the City unconstitutionally violated the separation of powers by imposing an additional DWI sentence, beyond that authorized by State law. No case has deemed forfeiture a criminal sentence if sought in a separate civil action. Cases under the City forfeiture law have been sustained irrespective of the status of the related criminal cases. Petitioner argues that forfeiture constitutes punishment under Federal constitutional law, violating Letterlough. In one case it was held that forfeitures effected monetary deprivations, triggering the Eighth Amendment Excessive Fines Clause. It did not hold that forfeiture constitutes a sentence or punishment for double jeopardy or separation of powers analysis. Petitioner asserts that the forfeiture sought here should be deemed criminal, not civil, because the City brought the forfeiture action against the petitioner instead of his car. Civil forfeiture actions for instrumentalities were traditionally brought in rem against the "guilty" property. Jurisdiction was obtained by seizure, attachment or lien because absent or unknown owners could not be personally served. The litigation sought only the property and not a money judgment; in personam jurisdiction was unnecessary.

As regards the issue on search and seizure, the plain view exception permits warrantless seizure of contraband, instrumentalities or evidence found where it is immediately apparent to permissible police observation. If an object is in open view, its observation neither impinges on its owner's privacy nor constitutes a search. "Immediately apparent" does not mean at first glance, but before conclusion of the officer's on-scene inquiry. Petitioner here has not challenged the legality of the stop; he may do so in the pending prosecution. The record shows no reason for presuming the stop to have been improper. Like other pedestrians or motorists, police were able and permitted to observe petitioner driving on a public street. Concluding that he was intoxicated, the police had probable cause to believe that petitioner committed the qualitative, "common-law" count before the breathalyzer test, which confirmed the observations and supported the quantitative count. It was immediately apparent during the stop that the car was the crime's instrumentality subjecting it to seizure.

The automobile exception permits police to stop and search a vehicle if they have probable cause that it contains contraband, instrumentalities or evidence of crime. There is less expectation of privacy in a car than in a home or office; its inherent mobility is an exigent circumstance. If there is probable cause, no warrant is required to search a car for an instrumentality of a crime; logically, no warrant is required to seize a car that is itself an instrumentality. Petitioner's arrest and car seizure were virtually simultaneous, inexorable consequences of the stop. No warrant was required to arrest petitioner or to seize his car; no warrant was needed to validate his arrest and the car's retention. Once an object is permissibly seized as an instrumentality during an arrest, no warrant, pretrial hearing or judicial approval is needed for retention during the criminal action. It cannot be said here, as a matter of law, that the warrantless arrest, seizure or retention is unconstitutional.

The Due Process Clause of the Fourteenth Amendment guarantees that, absent extraordinary circumstances, "Individuals must receive notice and an opportunity to be heard before the Government deprives them of property." A prehearing seizure of an instrumentality for forfeiture comports with due process when "`the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.'" Petitioner urges this court to substitute the Supreme Court's analysis. Because the vehicle is a mobile instrumentality and its seizure was a necessary consequence of the contemporaneous arrest. The seizure satisfies due process under either test.

The seizure serves a significant governmental interest: it permits the Property Clerk to assert jurisdiction in order to conduct forfeiture proceeding. Moreover, immediate seizure of a drunk driver’s automobile upon arrest is necessary because the arrestee is legally and physically incapable of driving. Pre-seizure notice and hearing might prevent police from effecting a forfeiture. A car, like the yacht, is property "that could be removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given." In contrast, the belated land seizure held unconstitutional demanded no immediate action. Unlike the creditors in the other case, who effected the seizure to collect on a debt, the arresting officers are government employees who derive no economic benefit. The seizure is simultaneous with a DWI arrest for which the police must have probable cause. The arresting officer evaluates an offense committed in his or her presence. Indicia of alcohol consumption and objective tests confirming the presence of alcohol minimize the risk of erroneous deprivation. While the City's DWI policy prevents accused drunk drivers from using property before a determination in the criminal action, the City's interest in deterring drunk driving and ensuring enforceability of a subsequent forfeiture order clearly outweighs the private interest affected.
Due process requires a meaningful adversarial proceeding at a meaningful time. Whether the delay between a seizure and the initiation of judicial proceedings violates due process is judged by the standards for determining a constitutional speedy trial violation. The factors include: "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Retention prevents the vehicle from being used for repeated illegal activity. An automobile is an integral part of DWI; it poses the threat of being used as an "instrumentality of death" should the crime be repeated. Just as there is a strong public interest in withholding a non-contraband murder weapon from a homicide defendant, there is a strong public interest in withholding a car from a DWI defendant.

Petitioner argues that even if the City procedures do not violate Federal due process, they violate State due process. While the Federal and State Due Process Clauses are similar, our State clause occasionally has been accorded wider scope. Petitioner asserts that State due process is more protective, incorrectly assuming that CPLR article 13-A evinces a policy decision to reject in rem forfeitures. Rather, the breadth of article 13-A relief necessitates in personam jurisdiction. Neither Federal nor State due process requires a pre- or post-seizure evidentiary hearing for seizure and retention of DWI vehicles for forfeiture during pendency of the criminal action.

Petitioner challenges the City forfeiture policy as an excessive fine. New York's Excessive Fines Clause requires the same analysis as the Federal, and provides no greater protection. If a civil forfeiture contains a punitive element, it is deemed a fine under the Eighth Amendment despite its remedial purpose, and must be analyzed for excessiveness. The City DWI forfeiture policy is punitive for Eighth Amendment purposes under Austin: it has an "escape hatch" for innocent owners; it links the forfeited property directly to the charged crime; it lacks specific correlation between the property's value and the crime's social cost. While the forfeiture sought may be deemed a "fine", it is not excessive when analyzed under any of the three tests advanced for measuring excessiveness: proportionality, instrumentality or a mixed instrumentality-proportionality analysis.

Petitioner's vehicle is the instrumentality of a charged crime, inseparable from it, and its prerequisite. Petitioner owns the car and drove it at the time of the alleged offense. The owner's role and his use of the property were temporally and spatially coextensive with the offense charged. DWI is a serious crime, in both sentence and effect. As a first offense it is a misdemeanor, with a maximum sentence of one year in jail, a fine of $1,000 and three years' probation, or a combination, plus loss of driving privileges. For 10 years after conviction, a subsequent offense is a felony, with up to four years possible imprisonment. DWI is indeed "a crime which injures and kills, and is an unparalleled public menace." The "threat posed by drunk drivers" is "empirically irrefutable."

In sum, the City's DWI forfeiture policy does not violate the Excessive Fines Clause, as a matter of law, either facially or as applied to petitioner's vehicle. Petitioner has not met his burden of demonstrating that the City DWI forfeiture policy is unconstitutional, contrary to law or arbitrary and capricious, either on its face or as applied to him. Accordingly it is adjudged that the petition is denied and the proceeding is dismissed.

If you want to question the constitutionality of a DWI City policy, seek the assistance of Bronx DWI Attorney and/or Bronx DWI Defense Attorney at Stephen Bilkis and Associates. Whether you have been charged with sex crimes, drug possession or theft, call us for free legal advice.

March 31, 2013

Court Decides Legality of DUI Checkpoint

Police officers were given instructions by their sergeant to set up a DWI checkpoint on June 10, 1993 at the corner of 20th Street and Avenue C in Manhattan. At that checkpoint, all passing cars were stopped by the police officer manning the checkpoint. Depending on his observations of the driver of the car stopped at the checkpoint, the police officer would ask the driver to pull over to the side of the road so that the driver can be further questioned by the police.

When the defendant driver came up to the checkpoint, a police officer asked him to stop and to roll down his window. The police officer smelled alcohol on the breath of the driver as soon as he rolled down his window. A New York Criminal Lawyer said the police officer asked the driver to pull over to the side of the road. He then asked the man to exit his vehicle. The accused driver then admitted to the police officer that he had been drinking. The police officer then administered the alcohol breathalyzer test on the accused driver and his blood alcohol level registered at .14. When the results of the breathalyzer test came out, the police officer then arrested the man.

At his arraignment, the driver asked for a hearing to determine whether the police officers had probable cause to stop his vehicle; whether or not the checkpoint was not arbitrary; and whether or not the oral admission made by the accused and the breath test result should be suppressed.
The Court held that as to the setting up of the checkpoint, the law requires that the DWI checkpoint be established and operated in accordance with guidelines. The Court held that all that is required is that the DWI roadblock not be set up in an arbitrary fashion. It is also required that the checkpoint should be operated without any discretion on the part of the police officers manning it.

Here in this case, the police officer who manned the checkpoint testified at the hearing that his sergeant did not tell him the reason why the checkpoint was set up at that corner of 20th Street and Avenue C. But as soon as he was ordered to set it up, he did so and he stopped every car that passed by the corner. All cars were stopped. The police officers inquired from all drivers that passed the checkpoint and observed them for signs of driving while under the influence of alcohol. A New York City Criminal Lawyer said there was very minimal intrusion upon the privacy of the drivers as they were only asked to roll down their car windows for the police officers to see if their eyes were bloodshot and to smell if alcohol was on their breath. Other than this, the drivers were not asked any more.

As to the question of probable cause for the arrest of the driver here, the police officer testified that as soon as the driver drove up to the checkpoint, the police officer shined his flashlight on the driver’s window, knocked on it and asked him to roll it down. The police officer also testified that the smell of alcohol was strong enough for him to detect it as soon as the driver rolled down his window. The police officer also testified that the driver was unsteady on his feet when he was asked to exit his vehicle. The fact that clinched the presence of probable cause was the result of the alcohol breath test. The Court ruled that there was probable cause for his arrest.

As to the admission he made to the police officer at the checkpoint there was no proof that his admission was anything other than spontaneous. He was not under arrest at that time and he volunteered the information.

The motion to suppress is denied.

Were you arrested for DWI at a checkpoint? You need a New York DWI lawyer to explain to you what will happen to you. A New York City DWI Lawyer will be able to advice you if you desire to plead guilty and what the consequences of a plea of guilt may have for you. At Stephen Bilkis and Associates, their NYC DWI Lawyers can represent you. In case you wish to assail the legality of your arrest, a NY DWI Lawyer can help you file a motion to suppress or a motion for a hearing to determine probable cause. Whether you have been charged with a DUI, sex crimes or theft, contact Stephen Bilkis and Associates at any of their offices in the New York area.

March 18, 2013

Court Decides if Defendant Has Right to Speedy Trial after Traffic Infraction

The defense motion to dismiss the charge of Driving While Ability Impaired by Alcohol, a traffic infraction, pursuant to the speedy trial provisions of Criminal Procedure Law (CPL) is denied. While CPL does not apply to traffic infractions there is a constitutional right to a speedy trial which has not yet been violated.

A New York DWI Lawyer said it is undisputed that fifty-two days between the accused man’s arraignment and the complainant being ready for trial are chargeable to the complainant. The accused argues that the case should be dismissed as more than 30 days have passed since the accused man's arraignment, the time allowed to be ready for trial on a violation.

Criminal Procedure Law establishes that when the accused is not in custody, the complainant must be ready for trial within 90 days if the highest crime charged is a class A or unclassified misdemeanor which is punishable by a term of imprisonment of more than three months or within 60 days if the highest crime charged is a class B misdemeanor which is punishable by a term of imprisonment of less than three months or within 30 days if the offense is a violation.

However, a Nassau County DWI Lawyer said the statute is noticeably silent on the issue of whether a person charged with a traffic infraction has statutory speedy trial rights. The Appellate Term Second Department has twice held that CPL is not applicable to traffic infractions.

Trial courts are divided on this issue. Most trial courts have held that CPL was inapplicable in matters concerning traffic infractions, as CPL only applies to felonies, misdemeanors and violations. However, a contrary view postured by the judge held that CPL applied to traffic infractions since Vehicle and Traffic Law (VTL) stated that traffic infractions shall be deemed misdemeanors and all provisions of law relating to misdemeanors except as herein otherwise expressly provided shall apply except that no jury trial shall be allowed for traffic infractions. Therefore, the court concluded, the prosecution had 60 days, the period for class B misdemeanors, in which to be ready for trial.

Nowhere does VTL state that traffic infractions are to be handled like class B misdemeanors. Similarly, the speedy trial statute only applies to unclassified misdemeanors if the accused faces a term of imprisonment greater than 3 months. No matter how tortured the reasoning, a violation of the Vehicle and Traffic Law is not a misdemeanor. VTL clearly states that a violation of DWAI shall be a traffic infraction and shall be punishable by a fine of not less than $300 or more than $500 and/or up to 15 days in jail.

A New York DWI Lawyer said the Penal Law makes it clear that a traffic infraction is not a violation it is instead a unique non criminal offense. A violation means an offense, other than a traffic infraction, for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed. Accordingly, a traffic infraction cannot conveniently be treated as a violation for procedural or speedy trial reasons as the Legislature has expressly excluded a traffic infraction from the definition of a violation.

March 1, 2013

Defendant Contends Sobriety Check Point was Illegal

At around midnight of April 15, 1992, the police set up a DWI checkpoint at the corner of Clinton and Stanton Streets in Manhattan. The police officers set up the checkpoint so that all the passing cars would be funneled into one lane and every motorist would have to pass the checkpoint.

A New York Criminal Lawyer said when the accused drove up to the check point, the police officer was standing near the driver’s side. He knocked on the window and the driver rolled down his window. The police officer asked the driver something which he could not remember when he testified at the probable cause/ preclusion hearing. Even the accused could not remember what the police officer asked him.

At this time, the police officer asked the driver to pull over to the side of the street because he saw that the driver had watery bloodshot eyes and he could smell alcohol on his breath. When the driver was already parked on the side of the road, the police officer asked him to exit the car. The driver was unsteady on his feet. The driver told the police officer that he drank two beers and had to shots of vodka. The police officer also found an empty bottle of vodka in the car.

At the driver’s arraignment, the prosecutor served notice on the lawyer of the driver that the accused driver had stated to the police that he had two beers and two shots of vodka. A New York DWI Lawyer said the prosecutor gave the lawyer a copy of the IDE report (Intoxicated Driver’s Examination Report) filled out by the arresting officer. The IDE Report contains a list of questions that a police officer may ask the driver who was stopped on the road. On this piece of paper, the police officer noted down the answers of the driver. While the prosecutor gave the lawyer a copy of the IDE report to the lawyer of the driver, the prosecutor did not include the IDE report in the notice as one of the documents he intended to present at trial as evidence against the accused driver.

During the trial when the prosecutor was attempting to introduce the IDE report, the lawyer for the accused driver objected and asked for preclusion of the IDE report on the ground that it was not included in the notice. A Nassau County DWI Lawyer said the lawyer for the accused driver also put in question the legality of the checkpoint at which the accused driver was stopped. The lawyer for the accused driver also asked for the preclusion of the vodka bottle found in his car.

The question before the Court is whether or not the IDE report should be precluded; and whether or not the checkpoint at which the accused driver was stopped was established in accordance with the guidelines.

The Court held that although the prosecutor gave the lawyer for the accused driver a copy of the IDE report, the prosecutor did not notify the lawyer or the accused driver that he intended to use the IDE report as evidence against the accused driver. The Court reasoned that the reason for requiring the prosecution to indicate all the pieces of evidence it intended to present and to offer is so that the accused can fully prepare for his defense. By not including the IDE report in the notice, the prosecutor showed that he was not going to use that particular IDE report at trial. The prosecutor is now precluded from presenting the IDE report at trial.

The Court also held that the prosecution was unable to establish that the checkpoint was established in accordance with the guidelines. First, the police officer who testified did not know why the DWI checkpoint was established at the particular corner. No supervisory officer was present overseeing the operation of the checkpoint. There were no signs on the road indicating that there was a DWI checkpoint up ahead. There was no proof that the police officers manning the checkpoint asked the questions which were right and proper for them to ask the motorists they were stopping at the checkpoint. Particularly, the Court noticed that the police officer who stopped the accused driver did not ask him where he had been. This question would have been proper for him to ask at the checkpoint but the police officer could not remember if he had asked the accused driver that question.

Since the prosecution failed to prove that the checkpoint was established and operated in accordance with the guidelines, then the arrest and the seizure of the vodka bottle from the car of the accused driver were also illegal.

Were you stopped at a DWI checkpoint? Were you arrested for DWI at the checkpoint? You need advice from the NYC DWI lawyer. A NY DWI lawyer can first argue for you that the checkpoint was not established or operated in accordance with the guidelines. At Stephen Bilkis and Associates, their New York City DWI Lawyers are willing to help you file a motion for a hearing to determine probable cause for you arrest. At this hearing, the New York DWI lawyer can raise the theory that the checkpoint was established and operated in an arbitrary fashion. Call or visit any of the offices of Stephen Bilkis and Associates in the New York area. Speak with their New York DWI lawyers on staff.

January 26, 2013

Court Weighs Plaintiffs Injuries Against Applicable Insurance Law

A motion by the accused woman for an order awarding her summary judgment dismissing the claims of the complainant that she did not sustain a serious injury within the meaning of Insurance Law is granted.

A cross-motion by the complainant husband for an order awarding him summary judgment dismissing the accused woman’s counterclaim as defendant was solely liable for the happening of the accident is also granted.

A New York Criminal Lawyer said that viewing the evidence most favorably to the accused, it is nevertheless uncontroverted that the impact between the vehicle driven by the complainant husband and the vehicle driven by the accused woman took place while the complainant husband was stopped and waiting to cross over the double yellow lines to turn into his own driveway. Moreover, the accused woman was concededly drinking prior to the accident and was arrested for drunk driving following the accident. She also pled guilty to DWI and was traveling at approximately 20 miles per hour with her foot on the gas at the time of impact. At best, the accused struck the complainant's vehicle without crossing over the double yellow lines into the complainant's lane and instead struck the complainant's stopped vehicle while both vehicles were pretty much right on the line.

Under such circumstances, the presence of the complainant's stopped vehicle on the roadway was not a proximate cause of the impact but merely furnished the conditions for the DWI accident to occur. The accused woman was accordingly solely responsible for the drunk driving accident.

Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a complainant's injury. A Bronx Criminal Lawyer said the Court of Appeals stated that complainant’s proof of injury must be supported by objective medical evidence, such as sworn interpretations of MRI and CT scans. However, MRI and CT scan tests and reports also must also be paired with the doctor's observations during his physical examination of the complainant. Unsworn MRI reports can also constitute competent evidence but only if both sides rely on those reports.

On the other hand, even where there is ample objective proof of the complainant's injury, the Court of Appeals held that certain factors may nonetheless override a complainant's objective medical proof of limitations and permit dismissal of the complainant's complaint. Specifically, the Court of Appeals held that additional contributing factors, such as a gap in treatment, an intervening medical problem, or a preexisting condition, would interrupt the chain of causation between the accident and the claimed injury.

A person bringing a claim for damages for personal injuries under the permanent loss of use of a body organ, member, function or system category, as in this case, must prove that the permanent loss of use is a total loss of use.

The accused woman has provided evidence demonstrating the lack of serious injury, the burden shifts to plaintiffs to present sufficient evidence to defeat the motion. To defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial and must make his showing by producing evidentiary proof in admissible form.

In opposition to the accused woman’s motion, the complainant woman provides her own affidavit, an affirmation of her treating neurologist dated October 16, 2007 and an affirmation of her radiologist interpreting the MRI of her left knee taken on June 1, 2006.

The affirmations of the complainant woman’s treating neurologist and radiologist, while containing objective findings of some injury, include no range of motion or other findings so as to suffice in demonstrating a material issue of fact on her alleged significant limitation of use. Moreover, the complainant's proffered explanation for her gap/cessation of treatment — that her no fault benefits had run out — is legally insufficient without additionally demonstrating that her personal financial circumstances precluded further treatment otherwise.

Nor has she created a triable issue of fact regarding the seriousness of her injury during 90 of the first 180 days following the DWI accident. Her deposition testimony read in conjunction with her bill of particulars indicates that she does not claim her injuries prevented her from employment for more than one week post-accident. Her attempt to claim otherwise by submitting an affidavit containing inconsistent allegations is rejected as an attempt to raise a feigned issue of fact. The accused woman’s motion is accordingly granted and the personal injury claims of the complainant woman are dismissed without costs.

Accidents occur due to negligence. When such event occurs, it is not just the physical harm that would affect the victims but they would have to deal with emotional dilemma as well. If you have been charged with a DWI, theft or sex crimes, contact Stephen Bilkis and Associates. Stephen Bilkis and Associates can also provide you with a Bronx DWI Defense Lawyer to fight for you in court.

January 25, 2013

Accused DWI Defendant Claims Police was Coerced to Take Breathalyzer Test

A police officer was called to the scene of a traffic accident involving two vehicles. When the police officer arrived he noticed that one of the drivers who figured in the accident had slurred speech, red and watery eyes and he was unsteady on his feet.

The police officer immediately placed the driver under arrest. In the patrol car, the police officer read to the arrested drunk driver his Miranda rights. A New York DWI Lawyer said as the police officer was driving his car to the precinct to complete the driver’s paperwork, the driver asked the police officer if he was not going to issue him a D.A.T (a Driver’s Appearance Ticket is a ticket issued by the police officer to a person caught violating the Vehicle and Traffic Law and instead of bringing him to the precinct, filing all the paper work for his arrest and bringing him to the court house immediately for his arraignment, the Driver’s Appearance Ticket will order the person to appear before the same arraignment court at a later date).

The police officers told the man that he would issue him a D.A.T. if he agreed to take the breathalyzer test and the coordination test. The police officer also told him that if he refused to take the breathalyzer test and the coordination test, no D.A.T. will be issued to him and he would have to be placed in jail until such time that he can be arraigned.

The man agreed to take the breathalyzer test and the coordination tests so that he wouldn’t have to spend any time in jail and simply appear at the arraignment court on the date appearing in the D.A.T. A New York DWI Lawyer said the police officer arrived at the precinct and by then, an hour had elapsed from the time that he was arrested. The police officer only had one more hour within which to administer the breathalyzer test and the coordination tests on the driver.

The man asked the police officer if he could have one phone call. He said that he wanted to call his family to tell them what happened to him; to tell them to call his lawyer; and to come and pick him up at the precinct. The police refused. He said that he would give him his phone call after the breathalyzer test and the coordination tests were over. The man took the tests. The man’s blood alcohol level was found to be at .10 per cent. He also failed the coordination tests. He was issued a D.A.T. and he appeared for arraignment.

At the arraignment, he filed a motion for preclusion of the breathalyzer test results and of the results of the coordination test. He claims that he was coerced to take the tests by the police when they made the issuance of the D.A.T. depend on his agreement to take the tests. He also claims that his right to an attorney was violated when he was made to take the test before he could call his lawyer whom he wanted to consult about whether he should take the tests.
The Court held that the issuance of the D.A.T. is within the discretion of the police officer. But, in this case, the police officer dangled the D.A.T. as a motivation for the man to agree to take the tests. The man didn’t want to spend time in jail and he was put in a position that he would do anything and consent to anything just to be issued a D.A.T. He was psychologically coerced into taking the tests.

The Court also held that when the driver asked for the chance to call his lawyer and the police officer refused until after he had taken the test, the police officer violated his right to an attorney. A phone call would not have taken over an hour to make. A Nassau County DWI Lawyer said by calling his attorney, the man could have gotten legal advice on whether he should take the breathalyzer and coordination tests.
The Court granted the man’s motion to preclude the results of the breathalyzer tests and the coordination tests.

Were you arrested for drunk driving because you were involved in a motor vehicle accident? You need the advice of a lawyer. A New York City DWI lawyer can advice you as to the possible criminal and civil consequences of the accident as well as of being found to be drunk driving. A New York DWI lawyer can give you advice on whether you should take a breathalyzer test. A NYC DWI lawyer will explain to you the consequences of refusing to take a breathalyzer test. At Stephen Bilkis and Associates, their NY DWI lawyers on staff are willing to advice you and they are also willing to represent you. Come and speak with any of the New York DWI lawyers on the staff of Stephen Bilkis and Associates today,

January 23, 2013

Court Looks at Complex Resentencing Issue for Defendant

Defendant was convicted of Criminal Sale of a Controlled Substance in the Third Degree and on November 19, 2002 given an indeterminate sentence of imprisonment with a term of 2-6 years. A Bronx Drug Crime Lawyer said that, the People assert that the Defendant engaged in the sale of $350 of cocaine to an undercover police officer on two occasions and that on later date cocaine and drugs paraphernalia were recovered from the apartment where the sales took place. In addition to the instant offense, Defendant was convicted of Criminal Possession of a Controlled Substance in the Seventh Degree and sentenced to time served in 2002, convicted of Invalid Use of a Credit Card with Intent to Defraud and sentenced to time served in 1999 and convicted of Criminal Trespass in the Second Degree and sentenced to four days in jail in 1998.

A New York DWI Lawyer said that, the Defendant was initially released to parole supervision on the instant offense. Parole violation warrants were issued for the Defendant. In these warrants, it was alleged that the Defendant had used cocaine and marijuana, failed to report to his parole officer on multiple occasions, left his approved residence and failed to attend two programs required by the Division of Parole. Defendant was re-incarcerated for a parole violation and continued to be in prison at the time the instant motion was filed. Defendant has been punished for one disciplinary infraction while in prison. That was a Tier 3 infraction on December 26, 2008 for violent conduct; fighting and disorderly conduct for which he received 30 days of keep lock time.

A New York DWI Lawyer said that, while incarcerated, Defendant successfully completed the drug crime treatment program and the Shock Incarceration program. He entered the Alcohol and Substance Abuse Treatment Program ("ASAT") and continues to participate in the program, where he has received a number of positive reviews. He has received training or done work in a number of vocational areas and increased his grade levels in math and reading. Prior to prison, defendant served for eight years in the National Guard. A Bronx Criminal Lawyer said that, defendant moves to be resentenced pursuant to the Drugs Law Reform Act of 2009. That motion is opposed by the People. The People argue that the Defendant is ineligible for resentencing because he is currently incarcerated only by virtue of a parole violation. The Defendant contends that this fact does not bar resentencing.

The issue in this case is whether defendant is entitled to his motion for resentencing.
The Court said that the 2009 DLRA allows certain convicted Class B felony drug crime offenders serving indeterminate sentences imposed prior to January 13, 2005 to be resentenced to new determinate terms under the new determinate sentencing ranges created by the statute. The statute first requires a court to determine whether a defendant is eligible for resentencing. In this case, the parties disagree about whether the Defendant is statutorily eligible for resentencing in one respect.

The 2009 DLRA requires that the Defendant be in the custody of the department of correctional services to be eligible for resentencing. The People argue that because the Defendant is in custody solely by virtue of his own actions in violating parole, he should not benefit by receiving a resentence. In support of this argument, the People rely on a 2008 case and 2009 case decided by the Supreme Court. In the 2008 case, it involved an application for resentencing by two offenders under the 2005 DLRA. In the said case, the Court held that the plain meaning of the 2005 DLRA required that in order to be eligible for resentencing, a defendant could not be eligible for parole within three years of a resentencing application. A Nassau County DWI Lawyer said the People's argument in the instant matter concerns the Court's holding with respect to the second named Defendant. The defendant was originally convicted of a Class A-II felony in 1999, given a 5 year to life indeterminate sentence and subsequently released on parole. Two months after release, in 2002, he again committed a Class A-II felony for which he was sentenced to a 6 year to life term. He moved for resentencing under the 2005 DLRA for his 1999 conviction, since, given the revocation of his parole, he was now more than three years away from parole eligibility. The Court of Appeals acknowledged that he was eligible for resentencing under the literal terms of the statute. They held, however, that he was nevertheless barred from resentencing.

To allow resentencing, the Court held, would create "illogical, if not perverse results". They noted that if defendant had not committed a new crime, he would be ineligible to have his lifetime maximum sentence modified on resentencing, since he would not have been in correctional custody. The Court reasoned that "surely, the Legislature did not intend fresh crimes to trigger resentencing opportunities". The Court therefore held that "once a defendant has been released to parole supervision for a Class A-II drug crime conviction, he or she no longer qualifies for 2005 DLRA relief for that particular conviction". This Court said that, the 2008 case did not base its holding on any statutory language or legislative history relevant to the 2005 DLRA. Rather, the Court held that its construction of the statute was the most sensible one because it concluded that the Legislature could not possibly have intended a different result. The holding in the 2008 case applied the well-settled rule that a statutory interpretation which is "contrary to the dictates of reason or leads to unreasonable results is presumed to be against the legislative intent" regardless of the language of a statute or any evidence that the legislature actually intended the result reached by a court.

The Court said that, an offender who is denied parole and remains incarcerated is automatically eligible for parole within two years. Thus, an offender denied parole that remains incarcerated can never be eligible for resentencing under the 2005 DLRA because only offenders who are more than three years away from parole eligibility qualify for resentencing. As the 2008 case court explained, an offender who is re-incarcerated for a parole violation, as then was, is given a "time assessment", which is a period of time after which the offender will again be eligible for parole. In the said 2008 case, this time assessment was 5 months and 26 days. Defendant was not eligible for resentencing with respect to his initial conviction when he was initially re-incarcerated because his time assessment meant he was not more than three years away from parole eligibility when he returned to prison. He could also never again be eligible for resentencing under the 2005 DLRA with respect to his first conviction because, with respect to that initial conviction, he would be eligible for parole at least every two years.
It is not clear what practical impact the rule has had on the resentencing of Class A-II felony drug crime offenders. That is because of the three year parole eligibility rule. Mills, when contrasted with a rule which would consider resentencing eligibility only with respect to a Defendant's initial conviction, would only affect a Class A-II felony drug offender who violated their parole, was given a time assessment of more than three years and then applied for resentencing. If resentencing eligibility under the 2005 DLRA was judged only with respect to the conviction a defendant applied to be resentenced for, offenders who received time assessments of less than three years would never be eligible for resentencing regardless of the "fresh crimes" rule.
In sum, the 2008 case Court announced a rule which was broader than it might have chosen to adopt given the "fresh crimes" rationale for its decision. The Court also announced a rule which was broader than necessary to deny resentencing the defendant. But the decision also to a large extent covered offenders who were ineligible for resentencing in any event. The more significant practical effect of the 2008 case would occur if its underlying rationales were applied to drug law resentencing enactments which do not include the three year eligibility bar.
The Court said that, there are a number of reasons why the 2008 and the 2009 case rules, in the view of this Court, should not be applied to resentencing motions under the 2009 DLRA. A number of these rationales are based on differences between the 2004, 2005 and 2009 statutes. It is a universal principle in the interpretation of statutes that expressio unius est exclusio alterius. That is, to say, the specific mention of one person or thing implies the exclusion of other persons or thing. As otherwise expressed, where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted and excluded. Thus, where a statute creates provisos or exceptions as to certain matters the inclusion of such provisos or exceptions is generally considered to deny the existence of others not mentioned".
The exclusions the Legislature created in the 2009 DLRA distinguish it from the 2004 and 2005 Acts. In the 2004 Act's resentencing provision, applicable to Class A-I felony drug offenders, all offenders were eligible for resentencing, although resentencing ranges varied depending upon an offender's criminal history. The 2005 Act barred offenders currently serving sentences which made them not eligible for "Merit Time" from the law. This broad, general exclusion, however, only dealt with offenders who had concurrent sentences for violent, sexual and similar crimes. The 2009 Act's exclusions are more broadly and specifically drawn. The statute excludes not only offenders serving certain current sentences but a range of offenders with objectionable prior criminal histories including those previously convicted of a violent or non Merit-Time eligible offense. The Legislature understood the 2009 Act's exclusions to be of a different kind and character than had been enacted before.
The plain language of the 2009 DLRA resentencing statute thus does not exclude parole violators. There is no legislative history which suggests that the Legislature intended such a result. The Legislature's itemization of specific exclusions in the Act creates a strong inference that no further exclusions were intended. Moreover the 2009 Act differs in this respect from both the 2004 DLRA and the 2005 DLRA. The natural consequence of the 2009 DLRA's unique sentence lengths and timing requirements is that the statute predictably will include parole violators within its eligibility rules. The 2009 DLRA is a remedial statute which must be liberally construed. An offender who is never released from prison may have engaged in much more egregious, dangerous and blameworthy conduct before and after being convicted of a drug crime than one who is granted parole release and then returned to prison after a violation.
Defendant's circumstances in the instant matter provide another good example of the incongruous results which would arise from applying a statutory resentencing bar under the 2009 DLRA to all offenders in prison for a parole violation. Unlike many defendants applying for resentencing under the 2009 DLRA who have significant felony histories, defendant is a first felony offender. He served in the National Guard for eight years. He has successfully completed numerous prison programs. He has no violent felony history. He has an almost perfect prison disciplinary record (having committed one serious disciplinary infraction). At the time his motion was granted he was enrolled in the Alcohol and Substance Abuse Treatment program where he was receiving favorable reviews. But he has also committed multiple parole violations. "Substantial justice" does not dictate the denial of Defendant's resentencing motion. But neither should a judicially created categorical resentencing eligibility bar. Thus, in view of the foregoing, the Court holds that a defendant who is returned to prison after violating the provisions of his parole is not, by virtue of that fact, barred from resentencing eligibility under the 2009 DLRA. Defendant's motion is granted and the Defendant is offered a new determinate sentence of 3 years in prison followed by 2 years of post-release supervision.
If you are involved in a DWI and Drug Crime, you will need the assistance of a Bronx DWI Attorney and/or Bronx Drug Crime Attorney in order to defend your case. Stephen Bilkis and Associates can provide you with competent Bronx Defense Attorney to represent your day in Court. Call us for free consultation.

December 28, 2012

Court Decides Whether Prior DUI Convictions are Allowed as Evidence

The Facts of the Case:

On 11 October 1988, the petitioner was charged in the circuit court with three traffic-related offenses. One of the charges was for DUI (DWI) in violation of the Florida Statutes, to wit: that any person who is convicted of a fourth or subsequent DUI violation is guilty of a felony of the third degree. However, the information filed charging the petitioner made no mention of any specific prior DUI convictions, nor d