People v Madden
Annotate this CaseDecided on December 21, 2009
Rye City Court
People of the State of New York,
against
Adelaide Madden, Defendant.
08-279
Janet DiFiore by: Owein Charles Levin, Esq.
David I. Rifas, Esq.
Peter Lane, J.
Defendant is charged herein with the crimes of aggravated driving while
intoxicated pursuant to VTL Sec. 1192. 2-a and criminal mischief in the fourth degree pursuant
to PL Sec. 145.00. 1.
She timely moves by way of an omnibus motion for any and all exculpatory or
favorable information that the People may possess, a Sandoval/Ventimiglia
hearing, the names and addresses of any relevant witnesses, discovery, disclosure and inspection
of a list of delineated items, the suppression of defendant's statements and any identification
testimony or evidence pertaining to defendant and the dismissal of the VTL Sec. 1192. 2-a
charge.
The court decides the omnibus motion as follows:
MOTION FOR EXCULPATORY
INFORMATION
As acknowledged by the People, defendant is entitled
on an ongoing basis to exculpatory information. Brady v. Maryland, 373 U.S. 83
MOTION FOR A SANDOVAL/VENTIMIGLIA
HEARING
The People consent to a Sandoval hearing.
Peo. v. Sandoval, 34 NY2d 371. To the extent that the People intend to introduce
evidence of any prior uncharged crimes of defendant and/or any statements relating to any prior
uncharged crimes of defendant by which her guilt may be inferred at any trial herein, the court
will first hold a Molineux and/or Ventimiglia hearing. Peo. v.
Molineux, 168 NY 264; Peo. v. Ventimiglia, 52 NY2d 350.
THE NAMES AND ADDRESSES OF
RELEVANT WITNESSES
Defendant is not entitled to the same.
Peo. v. Estrada, 1 AD3d 928
MOTION FOR DISCOVERY, DISCLOSURE
AND INSPECTION
Defendant is entitled to only those items delineated
in her moving papers that are specifically statutorily allowed her pursuant to CPL Sec. 240.20.
In the Matter of Miller v. Schwartz, 72 NY2d 869; Peo. v.
Estrada, supra; In the Matter of Pirro v. LaCava, 230 AD2d
909.
[*2]MOTION TO
SUPPRESS DEFENDANT'S STATEMENTS AND ANY IDENTIFICATION TESTIMONY
OR EVIDENCE PERTAINING TO HER
To the extent that the People
intend to introduce any of defendant's statements and/or any identification testimony or evidence
pertaining to her at any trial herein, the court will first hold a Huntley and/or
Wade hearing. Peo. v. Huntley 15 NY2d 72; U.S. v.
Wade 388 U.S. 218.
MOTION TO
DISMISS
Defendant, who appeared to be in an intoxicated condition, was
observed by Rye Town Park employees searching for her vehicle. The local police arrived at the
scene and, also observing her condition, warned her not to drive. She apparently disregarded that
warning since the police were recalled to the scene by park employees when they found her at or
near her vehicle. She was first observed by one of the responding officers behind the wheel of
her car. Unable to start the vehicle, she exited it, leaving her car key in the ignition, and
proceeded to the front hood where she had a battery pack hooked up. She told the officer, in sum
an substance, that her car had starting problems and she needed the battery pack to jumpstart it.
He then observed her approaching "the hood of (her) vehicle to adjust the jumpbox in an attempt
to get the vehicle to start". Based upon his observations and her inability to perform various field
sobriety tests, she was placed under arrest. She ultimately took a breath test at the police station
and registered a .19 BAC reading.
The operative statute states, in pertinent part, that "(n)o person shall operate a motor
vehicle while such person has .18 of one percentum or more by weight of alcohol in such
person's blood, breath, urine or saliva ...." VTL 1192.2-a. Hence, the question rased by this part
of the instant motion is one of operation. In the first instance, the court could find no reported
case with a similar fact pattern. Hence, it must rely on the spectrum of case law dealing with
questions of operation. In this regard, operation is a broader concept then the term "driving".
Peo. v. Prescott, 2d, 95 NY2d 655;[FN1] Peo. v. Marriott, 37 AD2d 868;
Matter of Prudhomme v. Hults, 27 AD2d 234. Our courts seem to accept that
"[a] person operates a motor vehicle within the meaning of [VTL Sec. 1192 2-a] when in the
vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which
alone or in sequence will set in motion the motive power of the vehicle." Peo.
v.Prescott, 2d supra @ 662 quoting Peo. v. Alamo, 34 NY2d
453, 459 quoting Matter of Prudhomme v. Hults, supra @ 237. This is
the case even if the car keeps stalling out each time the defendant attempts to put his car in gear.
Peo. v. Domagala, 123 Misc. 757. This definition is in keeping with the holding
that an attempt to operate a car that is not in operable condition cannot sustain a VTL Sec. 1192
category charge. Peo. v. Marriott, supra; Peo.v. Hoffman, 53
Misc 2d 1010. It is also in keeping with those cases that hold( provided, of course, that the
remaining statutory criteria are found) that a person may be convicted under VTL Section 1192
if he is behind the wheel of a parked or non-moving vehicle with the engine running.
Peo. v. Beyer, 21 AD3d 592; Peo v. Page, 266 AD2d 733. There
are also cases that hold that, given adequate corroboration, a person found in an intoxicated
condition behind the [*3]wheel of a car with the key in an
unengaged ignition may be operating his vehicle in violation of VTL Section 1192. Peo.
v. Saplin, 122 AD2d 498 (corroboration supplied by defendant's admission and the fact
that his parked car was blocking the southbound lane of a remote highway); Peo. v.
Haddock, 2001 NY Misc. LEXIS (corroboration supplied by defendant's admission);
Peo. v. Williams, 161 Misc 2d 523 (corroboration supplied by the fact that
defendant's car was stalled in the middle of a very busy intersection). On the other hand, a Bronx
County judge held that a defendant found intoxicated sitting outside a damaged vehicle with the
lights on was entitled to have various VTL Section 1192 accusatory instruments dismissed
notwithstanding his admission to the arresting officer that he "had a six pack on the train" and
only remembered "bouncing off one car." Peo. v. Whyte, 2002 NY Misc. LEXIS
1299
This overview provides (dare the court say) a roadmap for the court to arrive at its
decision herein. The court takes note of the fact that Defendant was clearly not able to start her
vehicle from the "inside", but required an outside mechanism to make use of the vehicle's own
"mechanical or electrical agency...(to)set (her car) in motion...." That is, the car itself was
inoperable and defendant required the outside battery pack to attempt to start it. Further, the car
was parked within a designated parking area and defendant made no statements indicating that
she had been driving the car in her obviously intoxicated state. Therefore, there was no
corroboration of operation.
Accordingly, this portion of defendant's motion is granted and the VTL Sec.
1192.2-a charge is dismissed.
This case is calendared for "control" purposes on January 19, 2010 at 9:30 a.m.
____________________________
HON. PETER LANE, JCC
Dated: Rye, New York
December 21, 2009
Footnotes
Footnote 1: This case is also cited for the
holding that neither attempted driving while intoxicated nor attempted aggravated operation of a
motor vehicle is a legally cognizable crime.
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