People v Marschall

[*1] People v Marschall 2007 NY Slip Op 51137(U) [15 Misc 3d 1144(A)] Decided on June 5, 2007 Justice Court Of Town Of Webster, Monroe County DiSalvo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 5, 2007
Justice Court of Town of Webster, Monroe County

The People of the State of New York

against

Andrew Marschall, Defendant.



07010176



Teodoro Siguenza, Esq., Assistant District Attorney

J. Matthew Parrinello, Esq., Parrinello & Parrinello, LLP., Attorneys for Defendant

Thomas J. DiSalvo, J.

The defendant was charged with Failure to Stay in Lane, VTL

1128(a) and Common Law Driving While Intoxicated, VTL 1192(3). The Simplified Traffic

Informations allege that the offenses in question occurred on January 7, 2007 at 2:38 P.M. on

Empire Blvd in the Town of Webster, County of Monroe. The defendant appeared for

arraignment with his attorney on February 7, 2007. The matter was then adjourned for argument

of motions on May 2, 2007, wherein the defense argued for dismissal of the charges in the

furtherance of justice pursuant to C.P.L. 170.40(1).

Facts of the Case.

The defendant was stopped for failure to maintain his lane. The supporting deposition

indicates that Officer Williams, who made the arrest, observed a strong order of alcoholic

beverage emanating from the defendant's breath. He indicated that the defendant was "semi- [*2]

conscious". In addition the officer described the defendant as having mumbled speech,

bloodshot eyes and a pale complexion. The defendant was transported to Rochester General

Hospital, having complained of neck pain. The officer reported that the defendant stated that he

had consumed two beers at a friend's house. The defendant further indicated to the officer that

he had epilepsy, suffered seizures and that he took prescription medication. A pre-screen test

was positive for the presence of alcohol. There was a motor vehicle accident, but no one other

than the defendant was injured. The defendant consented to a blood test, after being advised at

the hospital of his arrest, wherein blood was drawn at 4:50 P.M. A Toxicology Report dated

January 22, 2007 indicated a blood alcohol level of 0.03 of one percent. During questioning at

the hospital, the defendant suffered an epileptic seizure. The defense bases its motion to dismiss

in the furtherance of justice in large part on the defendant's epileptic seizures and the toxicology

report showing a blood alcohol level of .03 of one percent.

Legal Analysis.

A court is permitted to dismiss an information, simplified traffic information,

prosecutor's information or misdemeanor complaint in the furtherance of justice, in accordance

with C.P.L. 170.40(1) "... when, even though there may be no basis for dismissal as a matter of

law... such dismissal is required as a matter of judicial discretion by the existence of some

compelling factor, consideration or circumstance clearly demonstrating that conviction or

prosecution of the defendant upon such accusatory instrument or count would constitute or result

in injustice." In making such a determination the C.P.L 170.40(1) states that the court must "...

to the extent applicable, examine and consider, individually and collectively..." ten specific

factors as set out in the statute. The statute is essentially one of equity, wherein the court is [*3]

permitted to look beyond the specific charge in dismissing an offense before it, when necessary

to do justice. In other words the court would have to determine in its sound discretion that either

the prosecution itself or an ultimate conviction would fly in the face of fundamental fairness. However, such a decision cannot be based on mere speculation. Nor can the court's decision in

such a case be arbitrary. "Dismissal lies within the discretion of the trial judge but such

discretion is neither absolute nor uncontrolled." People v. O'Grady, (1997) 175 Misc 2d 61, 65,

667 NYS2d 895,899. In considering the ten criteria set out in C.P.L 170.40(1) "... the court

must look to compelling factors that warrant dismissal. A compelling factor is present if denial

of the motion would be such an abuse of discretion so as to shock the conscience." Ibid. at 66,

899. No such compelling factor can be found in the facts currently before this court.

There is evidence of a traffic accident, use of alcoholic beverages by the defendant, who

was an epileptic. The evidence shows that despite the fact that defendant was taking two types of

medication for said epilepsy, that he consumed alcoholic beverages and then operated a motor

vehicle on a public roadway. The court does not know the blood alcohol level of the defendant at

the time of the stop. Nevertheless, a consensual blood test taken more than two hours after the

arrest or a positive breath screening test is not inadmissible. See People v. Atkins, (1995) 85

NY2d 1007, 630 NYS2d 965. See also, People v. Zawacki, (4th Dept.1997), 244 AD2d 954,

665 NYS2d 172. However, "... the relevance and probative value of a chemical test

administered more than two hours from the time of the arrest is highly questionable." Handling

the DWI Case in New York (2006 - 07) at page 687. In this case the blood test was performed at

4:50 P.M., i.e two hours twelve minutes after the arrest, which would be the time of the stop, i.e. [*4]

2:38 P.M., since the defendant would not have been free to leave the scene from that point. No

information is before this court as to the time of the breath screening test. Presumably said

roadside test was performed soon after the stop.[FN1]

Conclusion.

The weight to be given to the defendant's epilepsy and the blood alcohol content of the

defendant's blood at the actual time he was operating a motor vehicle are issues for the trier of

fact at trial. The facts and circumstances presented herein, considered in conjunction with the

criteria set out in C.P.L. 170.40(1), would not make the denial of a motion to dismiss in the

furtherance of justice a shock to the conscience.[FN2] Therefore the motion of the defendant to

dismiss the charges herein in the furtherance of justice, pursuant to C.P.L. 170.40(1) is hereby

denied. The case is restored to the disposition calender for June 20, 2007 at 1:00 P.M. This

constitutes the decision and order of the court.

Dated: Webster, New York

June 5, 2007

________________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice Footnotes

Footnote 1: The pre-screen test indicated a result of .10 of one percent. C.P.L 170.40(1)( c) allows the court to consider inadmissible evidence in its evaluation of a motion to dismiss in the furtherance of justice.

Footnote 2: The court is well aware of the presumption set out in V.T.L. 1195(2)(a). However, that

presumption is one for trial, wherein the issue of the defendant's blood alcohol content at the actual time of vehicle operation can be addressed.