People v Izzo
Annotate this CaseDecided on May 1, 2006
Justice Court of Town of Greece, Monroe County
People of the State of New York
against
Gregg T. Izzo, Defendant
04020239
Appearance: Michael C. Green, Esq., District Attorney, County of Monroe, by Timothy Jennings, Esq., Assistant District Attorney
Angelo A. Rose, Esq., attorney for the defendant
125 State St.
Rochester, NY 14614
Vincent B. Campbell, J.
The defendant, Gregg T. Izzo, is charged with Driving While Intoxicated in violation of section 1192.3 of the New York State Vehicle and Traffic Law.
A Probable Cause and Huntly hearing was held and the court renders the following findings of fact and decision of law:
On February 2, 2004 at approximately 12:00 a.m., Officer Joseph of the Greece Police Department was dispatched to a reported automobile accident which had occurred in the parking lot of the Retreat Bar situate at 500 Long Pond Road in the Town of Greece, New York. Upon arriving at the scene, Officer Joseph observed the defendant, Gregg T. Izzo, standing in the parking lot at 500 Long Pond Road engaged in conversation with Sergeant Degnan of the Greece Police. It is abundantly clear from Officer Joseph's testimony, that he did not observe the defendant operate his 1999 Oldsmobile automobile at any time, nor did the defendant admit to Officer Joseph that he was in fact driving said vehicle which allegedly was involved in an automobile accident. To the contrary, the defendant told the Officer he had not been involved in an automobile accident. Further, the alcohol influence report admitted into evidence at the hearing indicates that the defendant told police that he had not been driving and was not involved in any automobile accident. At approximately 1:30 am, Officer Joseph read the defendant his Miranda rights. Shortly thereafter, Officer Robins arrived at the scene and proceeded to have the defendant perform various field sobriety tests. Officer Robins testified that the defendant had blood shot and watery eyes, his balance was not great, and there was an odor of an alcoholic beverage on his breath. After performing certain field sobriety tests, the defendant was placed under arrest for Driving While Intoxicated. The only witnesses called by the people at the Probable Cause Hearing were Officers' Robins and Joseph. Neither of them [*2]actually observed the defendant operating an automobile nor was any admissible testimony elicited from either Officers which would establish probable cause to believe the defendant was operating a motor vehicle. Neither the police officer who allegedly took an accident report nor the witnesses to the alleged accident were called to testify.
The crime of Driving While Intoxicated in violation of Section 1192.3 of the New York State Vehicle and Traffic Law requires that the people prove each and every element of the crime charged including operation of a motor vehicle. While the people proved that the defendant was intoxicated, no credible proof was offered that the defendant simultaneously, nor for that matter, at any time operated a motor vehicle. See People vs. Connor 159 Misc 2d 1072, 607 NY S. 2d 865 (1994): People vs. Dymond 158 Misc 2d 677, 601 NY S. 2d 1001 (1993). The testimony of Officer Joseph that the defendant was "standing in the parking lot" is certainly not sufficient to establish operation. The court can not surmise or conclude from facts not in evidence that the defendant had operated a motor vehicle in violation of 1192.3 of the Vehicle and Traffic Law. Accordingly, the court finds that the people have failed to prove operation of the motor vehicle by the defendant and therefore the charge of Driving While Intoxicated in violation of 1192.3 of the Vehicle and Traffic Law must be dismissed.
This is the decision and order of the court.
______________________________
Hon. Vincent B. Campbell
Greece Town Justice
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