People v Madden

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[*1] People v Madden 2009 NY Slip Op 52654(U) [26 Misc 3d 1203(A)] Decided on December 21, 2009 Rye City Court Lane, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided 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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