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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.

Alcohol, guns and driving should never go together otherwise a lot of people can get hurt. If your life or any of your loved ones was put into danger because of drunk driving, seek the services of the New York City Drunk Driving Lawyer or the New York Criminal Attorney. The NYC DWI Defense Attorneys from Stephen Bilkis and Associates can also help you win your battle in court.

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