People v Beben
Annotate this CaseDecided on December 6, 2008
Just Ct of Town of Red Hook, Dutchess County
The People of the State of New York,
against
Phillipa Beben, Defendant.
08-030099
Jonah Triebwasser, J.
A probable cause hearing was held before this Court on October 22, 2008. The
People were represented by Senior Assistant District Attorney Kevin Irwin. Defendant was
represented by William T. Burke, Esq. The only witness to testify was Red Hook Police Officer
Robert Latimer.
Officer's Testimony
Officer
Latimer testified under oath that on March 1, 2008, at approximately 8:30 p.m., he responded to a
911 call in Tivoli (a village located in the Town of Red Hook.) He approached an automobile to
see a female slumped over the steering wheel of the car. The female, defendant Phillipa Beben,
was in the passenger seat. According to Officer Latimer's sworn, uncontradicted testimony, the
car keys were in the ignition, there was a strong odor of alcohol, there was vomit over the door
and over the defendant's person and there were no other occupants of the car.
Officer Latimer went on the testify that defendant needed assistance in exiting the
vehicle. She admitted that she had been drinking at a local art exhibit. She had slurred speech,
poor motor coordination and swayed when she attempted to walk.
Defendant failed the field sobriety tests administered by Officer Latimer. She could
not stand without assistance, according to the officer's testimony.
The officer further testified that the hood of the defendant's vehicle was warm to the
touch.
Central issue: Was defendant operating her
vehicle?
For the purposes of this decision only (as the defendant is
innocent until proven guilty) the Court finds that the officer's testimony provides ample probable
cause to believe that the defendant was intoxicated at the time she was observed by Officer
Latimer in her vehicle in Tivoli on the date and at the time in question. The essential issue
remains: was she operating the vehicle?
[*2]
It is undisputed that the engine of the vehicle was
not running at the time Officer Latimer observed defendant, nor did Officer Latimer see the
vehicle move.
"The term operates' is markedly broader than drives', when used in connection with
a motor vehicle." Matter of Prudhomme, 2 AD2d 234 at 236 (3d Dept., 1967). Criminal
liability under section 1192 of the Vehicle and Traffic Law can attach to conduct "dangerously
close" to driving. People v. Prescott, 95 NY2d 655 at 662 (2001). By inserting the key
into the ignition, defendant Beben was potentially one twist of the key away from starting the
engine. Defendant violated the law the instant she began to manipulate the machinery of the
motor for the purpose of putting the automobile into motion, in this instance by inserting the key
into the ignition. (See Prescott at 662.) "[A] person operates a motor vehicle when [s]he
begins to use the mechanism of the automobile for the purpose of putting the automobile in
motion even though [s]he does not move it" People v. Dymond, 153 Misc 2d 677 at 679,
citing with approval People v. Marriott, 37 AD2d 868 (3d Dept. 1971.)
When this caselaw is applied to the facts of the instant case, it is clear that there
exists probable cause to believe that defendant was operating the motor vehicle for the purposes
of section 1192 of the Vehicle and Traffic Law. That being the case, the defendant's motion to
dismiss the accusatory instrument is hereby denied.
Counsel are directed to appear before this Court with calendars in hand on Thursday,
December 11, 2008 at 6:00 p.m. to pick a date for trial.
This decision also constitutes the order of this Court.
Dated:December 6, 2008
Red Hook, New York
SO ORDERED.
_________________________________________
Jonah Triebwasser,
Justice, Town of Red Hook
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