People v Williams

[*1] People v Williams 2009 NY Slip Op 51334(U) [24 Misc 3d 1209(A)] Decided on June 30, 2009 Criminal Court Of The City Of New York, New York County Yavinsky, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 10, 2009; it will not be published in the printed Official Reports.

Decided on June 30, 2009
Criminal Court of the City of New York, New York County

The People of the State of New York, Plaintiff, |

against

Mark Williams, Defendant.



2008NY058313

Michael J. Yavinsky, J.

The defendant, Mark Williams, who is charged by information with one count each of Driving While Intoxicated (VTL § 1192.3) and Driving While Ability Impaired (VTL § 1192.1) moves to dismiss the information in furtherance of justice pursuant to CPL § 170.30(1)(g). For the reasons stated herein, the defendant's motion is denied.

Section 170.40(1) requires that, when the court is considering a motion to dismiss an information in furtherance of justice, it must "individually and collectively" consider ten factors:

(a)the seriousness and circumstances of the offense;

(b)the extent of harm caused by the offense;

(c)the evidence of guilt, whether admissible or inadmissible at trial;

(d)the history, character and condition of the defendant;

(e)any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;

(f)the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

(g)the impact of a dismissal on the safety or welfare of the community;

(h)the impact of a dismissal upon the confidence of the public in the criminal justice system;

(i)where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;

(j)any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

CPL § 170.40(1)

The court must first consider the seriousness and circumstances of the offense. The defendant claims that the circumstances of the alleged offense favor dismissal in that the defendant [*2]faces no more than one year in jail and a one thousand dollar fine if convicted of the top count of Driving While Intoxicated. This court, however, is of the opinion that the alleged conduct is very serious and presents a real danger to the safety of anyone who would have been sharing the road with the defendant at the time when his conduct is alleged to have occurred.

The court next considers the extent of the harm caused by the offense. The defendant is correct that there was no harm actually caused by his alleged conduct in this case. However, where the statute(s) the defendant is charged with violating does not contain a result element that requires the causation of harm, such lack of harm caused does not, standing alone, necessarily warrant dismissal of the information in the furtherance of justice.

The third factor to be considered is the evidence, admissible and inadmissible, of the defendant's guilt. In this case the defendant admits both that he had been driving and that he had consumed alcohol shortly before driving. In addition, Police Office Christopher Mitchell observed the defendant driving a car and observed the defendant to have watery, bloodshot eyes, slurred speech, an unsteady gait, and an odor of alcohol on his breath. Finally, the defendant's refusal to submit to a breath test after being advised that his driver's license would be suspended if he did not submit to such a test is certainly relevant in establishing the defendant's consciousness of guilt, to wit, his belief that the chemical test results would have revealed the presence of alcohol. This court finds that this evidence weighs against dismissal.

The court's analysis now turns to the fourth factor: the history and character of the defendant. This is not the defendant's first arrest for driving while intoxicated. On March 4, 2001, in California, the defendant pleaded no contest to driving with a blood alcohol level in excess of 0.08 percent and was sentenced to probation. Although the defendant is well educated and gainfully employed, his history of driving while intoxicated and the nature of the current allegations do not support dismissal in furtherance of justice.

With respect to the fifth factor, the defendant claims that police officers had forced the defendant to drive, on pains of arrest, despite his protests that the car did not belong to him. The People deny such conduct by the police. On May 1, 2009, this court held a hearing to determine this material issue of fact. See CPL § 210.45(6). At this hearing, the defense called five witnesses: Police Officer Diana Fontanez Lumbrazo, Police Office Christopher Mitchell, Police Officer McKinley, T'Ali Gore, and the defendant, Mark Williams. This court finds that each witness testified credibly and the court credits the testimony given. The following constitutes this court's findings of fact and conclusions of law.

On August 6, 2008, at approximately 3:00 a.m., the defendant, along with his friend T'Ali Gore and one of Gore's female friends planned to drive to a diner on 97th Street and Broadway in New York County. The three had previously been at a sponsorship promotion where Gore worked and decided to leave to get breakfast. As Gore was driving to the diner, he and his female friend had a "heated" and "playful" discussion. When they arrived at 96th Street and Broadway, the female companion left the car and began walking away. Gore chased after her and, by the time the two returned to the area where Gore had parked the car, the defendant — who had been riding in the front passenger seat of the car — had removed the keys from the ignition. Gore and his female friend continued in their "spat" while the defendant leaned up against a nearby building approximately 15-20 feet away.

Several officers from the New York City Police Department, including Officers Lumbazo, [*3]Mitchell, and McKinley, arrived at the scene in response to the report of an assault. The officers told Gore and his female friend that they needed to leave the area, prompting the female friend to walk away. At that point, the defendant approached Gore and inquired as to what was happening. The police told the defendant and Gore to return to their vehicle and to leave. One police officer then escorted the defendant, who was still holding the car keys that he had previously removed from the cars ignition, towards the driver's side of the car.

While there were varying descriptions during the testimony at the hearing as to how the police officer on the scene escorted the defendant to the driver's side of the vehicle, a few facts are not in dispute. First, no weapons were drawn by the police at this time, nor were any threatened to be used. Second, the defendant was not in handcuffs during this encounter. Finally, no police officers at the scene placed their hands on the defendant to either push or shove the defendant towards the drivers side of the car.

The defendant and Gore sat inside the car and were about to leave when the police went over the bullhorn and ordered the defendant to begin driving. The defendant pulled the car out of the parking space without signaling and proceeded at a slow speed for about one-and-a-half car lengths before one of the patrol cars cut in front of Gore's car and stopped. The officers in the patrol car that was parked behind Gore's car then activated their lights and sirens. The defendant admitted to Officer Mitchell that he had been drinking, and Officer Mitchell arrested the defendant who was then taken to the police precinct.

While the facts that were elicited during the hearing paint a picture of a situation that may eventually result in reasonable doubt at trial, it does not even come close to rising to exceptionally serious misconduct on the part of the police in this case. What appears to have happened is that the police were called to what someone in the neighborhood believed was a domestic dispute between Gore and his female friend. When the police arrived at 3:00 am and saw the parties arguing, but saw no signs of a physical altercation, they made a decision to disperse the source of the neighborhood disturbance. This decision was completely appropriate under the circumstances, and when the defendant interjected himself into the police activity it was also well within their discretion to ask both he and Gore to leave the scene. While the wiser course would have been to pose the question "Who is going to drive?" to either Gore, the defendant, or both, the police's failure to do so does not amount to exceptionally serious misconduct, especially in light of the fact that the defendant was in exclusive possession of the keys to the vehicle.

Additionally, although the defendant had no legal obligation to protest as the police were guiding him towards the driver's side of the vehicle, it is reasonable to believe that had he simply mentioned either that he was not fit to drive Gore's vehicle, or that he was impaired or intoxicated by prior alcohol consumption, or that he otherwise could not drive Gore's vehicle, that the police on the scene would have recognized a problem and produced a different result. Under these circumstances, the police activity cannot be considered exceptionally serious misconduct. Thus, the consideration of this factor does not favor dismissal in furtherance of justice.

The sixth factor is the purpose and effect of imposing the authorized sentence on the defendant. Should the defendant be convicted of driving while intoxicated, this would be his second conviction for similar crimes (the first occurring in California). This court does not believe that, if he were convicted, it would be inappropriate to impose any of the sentences authorized by the statute, up to and including one year in jail. Accordingly, this factor weighs against dismissal. [*4]

The seventh factor is the impact of the dismissal upon the confidence of the public in the criminal justice system. The defendant points to the high number of criminal cases on the docket and the need to dispose of cases such as these to allow for use of greater resources in trying cases of "demonstrable prosecutorial merit." This court does not agree with the defendant that the issues in this case are not of great importance to the public and are unworthy of prosecutorial attention. As such, this factor weighs against dismissal.

With respect to the eighth factor, the defendant claims that dismissal will not negatively impact the safety and welfare of the community. Specifically, the defendant points to the fact that he does not have an alcohol problem. Although whether the defendant has an "alcohol problem" is not ultimately known to this court to be true or false, the danger of driving while intoxicated is not dependent upon the defendant having an alcohol problem. The safety and welfare of the community are put at risk when an individual has too much to drink and gets behind the wheel of a car on even a single occasion. In this case, the defendant has already done that once in another state, and he is alleged in this case to have done so again. There are alcohol problems that result from clinically diagnosed alcoholism, and then there are problems that result from bad choices being made when alcohol is involved. Whether the defendant suffers from one or the other is not known by this court, but consideration of this factor ultimately weighs against dismissal.

The ninth factor to be considered is the attitude of the victim with respect to the motion. As there is no victim in this case, this particular factor is not relevant to the court's analysis.

Finally, the defendant argues that a judgement of conviction would serve no legitimate purpose. The court strongly disagrees. Should the defendant ultimately be convicted upon the instant charges, a sentence to some form of alcohol treatment would certainly serve a legitimate purpose, as would the mandatory revocation of the defendant's driving privileges for six months. This factor also weighs against dismissal.

Thus, the court finds that no individual factor warrants dismissal of the information. Furthermore, upon review of the factors collectively, the facts in this case weigh heavily against dismissal in the furtherance of justice. Accordingly, the defendant's motion to dismiss the case in the furtherance of justice is denied.The foregoing constitutes the opinion, decision and order of the Court.

Dated:June 30, 2009

New York, New York

E N T E R:

_____________________________

Michael J. Yavinsky, J.C.C.