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…..
While an offender violates a crime, he must be entitled to his constitutional rights. One of these important rights is a right to a jury. Here in Stephen Bilkis and Associates, we have our New York DWI Defense attorneys who will protect your rights. We will make it a point that in every proceedings, your right as an accused is protected. We also have New York Criminal lawyers from whom you can obtain a reliable and sensible legal advice. Call us now for more information.