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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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