People v Jankovic
Annotate this CaseDecided on April 3, 2006
Justice Court of Town of Sand Lake, Rensselaer County
PEOPLE OF THE STATE OF NEW YORK
against
JOSEPH R. JANKOVIC, Defendant.
Jancovic-2006
David W. Fryer, J.
On March 13, 2006, the defendant was arraigned, in part, on charges of
driving while having a blood alcohol content of .08 or higher VTL (1192 (2)); driving while
intoxicated VTL (1192 (3)): consumption of alcohol in a motor vehicle VTL(1227) and following too
Close VTL (1129 (A)). The Defendant's counsel, JAMES C. DAVIS, Gerstenzang, Ohern ,
Hickey and Gerstenzang, requested a Prompt Suspension Hearing and the arraignment
was adjourned until March 16, 2006. On March 16, 2006, the defendant was present along
with counsel, ERIC SILLS of the Gerzantang Law Firm and Rensselaer County Assistant
District Attorney, WILLIAM ROBERTS. After lengthy discussions in chambers, the
hearing was commenced.
Prior to the commencement the hearing, the Defendant's attorney raised a few issues of procedure.
I.MAY A MEMBER OF THE RENSSELAER COUNTY DISTRICT ATTORNEY'S OFFICE BE PRESENT AND PARTICIPATE DURING THE PROMPT SUSPENSION HEARING ?
It is the position of the Defendant's counsel that because the proceeding is civil in nature, the District Attorney is without standing to be both present and involved with a Prompt Suspension Hearing. The presupposed argument being also that the District Attorney's office represents the People of The State Of New York and is engaged for the sole purpose of prosecuting criminal and other similar [*2]offenses. Any matters deemed otherwise civil in nature are out of the District Attorney's jurisdiction. In support of his position the Defendant cites Matter of Broome County District Attorney's Office v Meagher and Dunlap, 8 Ad2d 732,(3rd Dept 2004).
In the Broome County case, the defendant was charged under VTL 1192 (2) and after an initial adjournment of the arraignment, a Prompt Suspension Hearing was held pursuant to VTL 1193 (2)(e)(7). At the hearing, the Town Justice made the required findings that the charging documents were sufficient and that there was evidence indicating that the Defendant was driving with a BAC over .10, (now .08) or higher. The Defendant, through counsel, began his rebuttal and attempted to elicit testimony from the arresting Officer who was subpoenaed by the Defense specific for this hearing. The District Attorney objected and asked for an offer of proof as to the Officer's testimony. The Defense then challenged the District Attorney's participation in the case. The Town Court ruled that no offer of proof was necessary and suggested there was "no need for input" from the District Attorney as the two prior findings were made,( see supra at page 733). The District Attorney sought, and was granted, an adjournment to file an CPLR Article 78 proceeding for a Writ of Prohibition against the Town Judge's findings. The Appellate Division, Third Department, essentially found that the Judge did not abuse his powers and discretion, specific to a Writ of Prohibition, by making those rulings and further refused to decide on whether those rulings were proper in the first instance.
At the outset, the argument that a Prompt Suspension Hearing is somehow inherently civil, is really a misnomer. During the Prompt Suspension Hearings, Judges are acting as extensions of the Department of Motor Vehicles, lending itself to an administrative proceeding more than anything civil. Because a State Agency is ultimately involved, issues involving the suspension of a license pending prosecution are never wholly unrelated to the duties and obligations of the District Attorney who by definition, represents the People of this State.
In this case, as well as likely in the Broome County case, it was the act of issuing a subpoena to the arresting officer to appear at the hearing by the Defense which ultimately engaged the District Attorney. Prior to the hearing, the Officer was allowed to make contact with the District attorney to seek advice and in part, representation, during the hearing. While the Defense strongly opposed any involvement by the District Attorney, do in part to the likely evidentiary objections to many of the questions posed by the Defense, there is no true legal authority preventing the District Attorney from participation specific to the Prompt Suspension Hearing.
It is the position of this Court that Defense's reliance on the Broome County case is misplaced. The Appellate Division, Third Department, made clear in Broome County that in fact they were not deciding on the merits of the rulings by the Town Court relative to District attorney's participation at the Prompt Suspension Hearing. The decision by the Appellate Court only served to set forth that the rulings were not an abuse of power by the Town Justice. There is simply no way this Court can glean from the decision in Broome County that somehow that Appellate Court otherwise reviewed and consented to the actions of the Town Court. In other words, the deciding Court remains the Town of Vestal. Regarding the Town Court rulings relative to the active participation of the District Attorney in a Pringle or Prompt Suspension Hearing, this Court respectfully disagrees.
The lack of legal authority preventing the District Attorney from engaging in the Prompt Suspension Hearing leads this Court to conclude it is permissible. To be clear, this Court concurs that the Defense has a right to subpoena the arresting or charging Officer. In stating that, the involvement by the District Attorney is even more necessary in situations as here, where the arresting Officer is in fact called testify. Clearly that testimony could be used at a later date during the criminal proceeding and could likely impact the ultimate outcome of a trial or other pre-trial hearings. Under those circumstances, the District Attorney has a vested interest in protecting their witness and evidence. But even beyond that, certainly the Officer should be able to consult and have access to legal counsel. Regardless of how it is [*3]spun, the Prompt Suspension Hearing is still a legal proceeding and when the Defendant is able to bring his lawyer to defend his rights, the balance of that should be a legal representative in opposition.
In this case the District attorney was allowed to be present and be actively involved with the hearing. Because the District Attorney allowed the Court to make the initial findings of (1) that the charging documents were sufficient on there face and (2) the presence of certified blood and or alcohol results indicating BAC of .08 or higher, with no testimony or other proof being presented on direct, they were not allowed to redirect questions to the officer after cross examination. This Court found that there was really no direct evidence presented by the People, other than the original documents, which were intended to speak for themselves.
II IS AN ADJOURNMENT REQUEST PROPER TO SECURE A STENOGRAPHER IN ORDER TO RECORD THE HEARING?
It is clear that Town, Village and Justice Courts are not otherwise Courts of record, ( Judiciary Law section 2). Under those circumstances, the need for a recording of any proceeding is not required. While it is not absolutely defined in terms of actual time, typically Prompt Suspension Hearings are done within a short time of the commencement of the original arraignment .The defense argued that a short adjournment should be allowed in part because there is no absolute time frame to hold such hearings and that the Defendant's right to drive is held in the balance without a finding of actual guilt. The counter of that argument would be that the true intent of the legislature was to make certain that any dangerous drivers under suspicion for driving under the influence of alcohol, are removed from the streets. VTL 1193 (2) (e) (7) requires that the hearing be held prior to the conclusion of all matters for arraignment. In this case, the Hearing was set three days after the first appearance on consent of the Defendant. The Officer was present, along with an Assistant District Attorney. The fact that the Defense was not able to secure a stenographer to record the proceedings was of little consequence to the Court as all other parties were present and prepared to go forward. Fairness would dictate that the hearing be commenced and completed on that day. In this case the hearing went on as scheduled.
After the commencement of the hearing, the Defendant raised the following issues.
I.FOUNDATION ISSUES OF THE CERTIFIED BREATHE RESULTS AS PER
CPLR 4518.
At the hearing this Court accepted the Datamaster blood alcohol report signed and certified by Rensselaer County Deputy Bruce B. Smith when initially making findings under the Prompt Suspension Law, VTL 1192 (2)(e) (7). During the cross examination of Deputy Smith, the Defense raised the issues of proper certification and the chain of custody as per CPLR 4518 {c}. The question was raised relative to whether Deputy Smith was a records custodian or was delegated as such by the proper authorities. While Deputy testified he was not a records custodian or even delegated as such under CPLR 4518 { c }, as an exception to the hearsay rule, his presence in Court allowed the Deputy to authenticate the Datamaster form bearing his own signature. While the defense suggested that the certification set forth on the Datamaster form was more than just an authentication, but tended to be a certification of the accuracy of all of the information on the document, this Court disagrees.
Clearly 4518 {c} was intended to be an exception to the hearsay rule. Any requirement that somehow a record person would be able to testify as to the content of a document is in error. The law is clear also that any argument as to the accuracy of the certified document goes to the weight and not admissibility of the document, People v Dailey, 260 AD2d 81,(4th Dept 1999). Further, any claims relative to chain of custody also go to the weight and not admissibility of the certified document, People [*4]v Davis, 193 AD2d 885,(3rd Dept. 1993). While arguments regarding the chain of custody might raise some issues as the alteration of a document from when it was first made, any question as to admissibility was prior met. In this case Deputy Smith was present in the Courtroom and was able to authenticate the document pursuant to CPLR 4518 (a), ( see also People v Cratsley, 86 NY2d 81 (1995) ). Hence for purposes of CPLR 4518, a proper foundation was met and the Datamaster form was admitted in to evidence.
IV. DID THE DEPUTY SHERIFF ERR WITH RESPECT TO THE WAITING PERIOD BETWEEN THE TIME OF THE ARREST AND THE BLOOD ALCOHOL TESTING.
Again the Defendant, through counsel, raised issues with respect to the required waiting period for blood alcohol testing following an arrest. The Defense cited to Title 10 of the New York Codes of Rules and Regulations, under the Department of Health, Chapter II, Subchapter D, Part 59.5. Subsection (b) of section 59.5 which states as follows " Continuous observation of the subject shall be maintained for at least 15 minutes prior to the collection of the breathe sample ". In addition, during the cross examination of Deputy Smith, questions were raised relative to a twenty minute waiting period as per the Datamaster machines manual and instructions. While Deputy Smith confirmed that a twenty minute waiting period was recommended by the policy of the Sheriff's Department as per his own testimony, he did not recall what the Datamaster manual required. The manual was not produced and that fact was never confirmed in writing.
Once again, the law is clear that even when the fifteen minute rule is not complied with, any evidence regarding the testing is not deemed otherwise automatically inadmissible. The failure to observe a fifteen minute waiting period only goes to the weight and not the admissibility of the testing, People v Terrance, 120 Ad2d 805, (4th Dept 1986); People v Williams, 96 Ad2d 972, (3rd Dept.1983). Further, at least one Appellate Court has ruled that a constant vigil or observation is not necessary by the arresting officer prior to the BAC testing, People v McDonough, 132 Ad2d 997,( 4th Dept 1987).
In this case it was determined via the supporting deposition of Deputy Smith, along with the Datamaster printout, that a total of twenty minutes went by between the time of the arrest and the BAC testing. During his testimony, Deputy Smith admitted that there were at least two occasions when he was not in close proximity to the defendant. On the two occasions Deputy Smith moved the Defendant's car across the street and out of traffic and then when he opened the doors to police station. At all times the Defendant was in the back of the patrol car. The testimony of Deputy Sheriff Smith indicated that on each occasion the he was away from the vehicle and the defendant for very short periods of time, not exceeding a few minutes and that the Defendant was at partially in view by way of the patrol car windows. It is the position of this Court that the waiting period was sufficient. Any brief periods that close observation by the officer herein did not take place did not make the blood alcohol testing unreliable. It should be pointed out however, Deputy Smith pushed the limits of what was required with respect to the waiting period and that the arguments provided by the Defense had legal merit, wherein a hard look was necessary.
CONCLUSION
While the Defense argued that they offered evidence that tended to rebut the findings of this Court relative to whether the charging papers were sufficient on there face and that there was evidence that the defendant was driving with a blood alcohol content of .08 or higher, this Court finds otherwise. Considering that the Prompt Suspension Hearing is civil and administrative in nature, the standard is a preponderance of the evidence to sustain the above findings. Based on the written evidence and later testimony, this Court is satisfied that the proof provided is more than sufficient and that the arguments and evidence provided by the defense did not rebut the findings made. The defendant is ordered to appear on April 10, 2006 for continuing proceedings
DATED: April 3, 2006
______________________
DAVID W. FRYER
TOWN JUSTICE
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