People v Brown

[*1] People v Brown 2009 NY Slip Op 52301(U) [25 Misc 3d 1226(A)] Decided on October 28, 2009 City Court Of Watertown Harberson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 28, 2009
City Court of Watertown

The People of the State of New York, Plaintiff,

against

Kevin D. Brown, Defendant.



42583



APPEARANCES:

CINDY INTSCHERT , DISTRICT ATTORNEY OF JEFFERSON CO.

By: Attorney Frank Seminerio

175 Arsenal Street

Watertown, New York 13601

ERIC T. SWARTZ, ESQ.

For: Kevin D. Brown

200 Washington Street, Suite 301

Watertown, New York 13601

James C. Harberson, J.

[*2]Issue

The defense moves to dismiss the VTL 1192(3) charge of driving while intoxicated based upon the fact the breathalyzer test showed a 0.00 reading indicating no

presence of alcohol in the defendant's blood.

The People argue that based on People v. Cruz, 48 NY2d 419, where a conviction under VTL 1192.3 was upheld on the finding the motorist was found to be "...incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent person" (id. p. 428)—noting that "nowhere in the Court's opinion does it require that a defendant have a requisite blood alcohol level to be charged with common law DWI;" and that "[A]all that is required is that he lack the ability to safely operate his vehicle"—shown by the facts alleged in this case by the " ...defendant's erratic driving and subsequent failure of field sobriety test, he lacks the ability to safely operate his vehicle.'"

Facts

The facts alleged by the investigating officer in the checklist supporting deposition—DWI bill of particulars, show that the stop of the defendant's vehicle was based upon a violation of VTL 1120(a). According to the scant information listed in this checklist form the "probable cause for arrest" no odor of alcoholic beverage was detected as that box was not marked, a "chemical test was given" i.e., urine and under the "present charges" section the "DWI intox 1192.3" box was checked. In the fill in the blanks caption stated—in part—"that the defendant...operated a...motor vehicle...while in an intoxicated condition and/or having a ____ blood alcohol content."

On another fill in the blanks checklist form dealing with "defendant statement...to a law enforcement official" there was indication the defendant stated he had been "drinking" before the vehicle stop. The "DWI Investigative Notes" showed that no odor of alcohol was noted during the investigation after the stop of the motor vehicle nor was there any evidence the defendant admitted to drinking.

The DWI Operational Checklist and the Data Master printout 0.00 blood alcohol reading. The defendant was issued a ticket for a violation of VTL 1192(3) Driving While Intoxicated.

The investigating officer noted on the DWI checklist the defendant had "impaired speech," "impaired motor coordination," a failure of the FST "walk and turn" and "one leg stand" as well as listing in the DWI Investigative Notes the vehicle driven by the defendant failed "to keep right" and he "continued to drive while swerving..." and after the vehicle stop the officer observed the defendant's speech and coordination were "impaired" and his "attitude" was "very mellow."

Law

In People v. Cruz, 48 NY2d 419, the Court stated that

The question on this appeal is whether subdivision 1 of Section 1192 of the Vehicle and Traffic Law, which prohibits driving while the ability to operate a motor vehicle "is impaired by the consumption of alcohol", and subdivision 3, which prohibits driving "while***in an intoxicated condition", are unconstitutionally vague in a case where the driver has refused to submit to any scientific test for determining the amount of alcohol he has consumed. Id. p. 422.

The Court went on to note that the record shows that after the traffic stop for an observed [*3]traffic infraction "...the officer detected a strong odor of alcohol on [the defendant's] breath...the defendant said that he had a couple of drinks." The Court further noted that the officer had observed " ...defendant's eyes were watery and bloodshot, his speed was slurred...unsteady on his feet, and his breath bore the odor of alcohol'" (id. p. 423).

The Court explained the origins of the VTL 1192(1) and (3) at pps. 424-425:

Originally, impairment could only be established by scientific proof showing a specific blood alcohol content (see, e.g., People v Bronzino, 25 AD2d 685). This requirement was eliminated, however, in 1970 (L 1970, ch 275; see, also, Governor's Memorandum, NY Legis Ann, 1970, p 364). Now, whether the defendant is charged with driving while intoxicated or driving while impaired by alcohol, scientific evidence of blood alcohol content, although admissible (Vehicle and Traffic Law Section 1195, subd 1), is not essential. Since the defendant's consent is required for any blood alcohol analysis (Vehicle and Traffic Law, Section 1194, subd 2), the present statutory scheme serves to prevent the defendant from defeating a criminal prosecution for either offense by simply refusing to take the test.

The relevant portion of the current statute (Vehicle and Traffic Law, Section 1192), applicable also at the time of the arrest in this case, reads as follows:

"1No person shall operate a motor vehicle while his ability to operate such motor vehicle is impaired by the consumption of alcohol

"3No personal shall operate a motor vehicle while he is in an intoxicated condition."

The Court then went on to explain:

With respect to impairment the defendant urges that it is not clear whether the statute prohibits driving when the driver is extremely impaired, only moderately impaired, or even impaired to a slight degree and whether an objective or a subjective standard applies. On its face, however, the statute does not speak of degrees of impairment; it simply prohibits the driving of a motor vehicle when the driver's "ability to operate such vehicle is impaired" (Vehicle and Traffic Law, Section 1192, subd 1). Thus driving a motor vehicle while there is any alcoholic impairment of the driver's "ability to operate such vehicle" would constitute a violation. Id. p. 426.

The Court concluded at pps. 427-428:

Although the Legislature did not include a definition of intoxication in the statute, it does not follow that the term is without a definite or ascertainable meaning. Intoxication is not an unfamiliar concept. It is intelligible to the average person (Richardson, Evidence, Section 364, pp 332-333). It is familiar to the law and has long been held to mean an incapacity to perform various mental or physical acts which an average person would be able to do. Of course intoxication is a variable term in the sense that a person, despite the consumption of alcohol, may be able to do certain things (for instance, physically operate a motor vehicle), while his ability to [*4]do something more demanding (such as operate a motor vehicle safely) may be destroyed. But the standard for determining intoxication is constant; that is, whether the individual's consumption of alcohol has rendered him incapable of employing the physical or mental abilities needed to, for instance, form a specific intent (People v Koerber, 244 NY 147, 152; see, also, Perkins, Criminal Law, pp 793-794), understand the nature and effect of a contract (Simpson, Contracts, Section 79, p 293) or testify truthfully and accurately (Hartford v Palmer, 16 Johns 143).

A statute which employs terms having an accepted meaning "long recognized in law and life" cannot be said to be so vague and indefinite as to afford the defendant insufficient notice of what is prohibited or inadequate guidelines for adjudication (International Harvester Co. v Kentucky, 234 U.S. 216; Nash v United States, 229 U.S. 373, 377; People v Grogan, 260 NY 138; People v Mancuso, 255 NY 463, 470), even though there may be "an element of degree in the definition as to which estimates might differ" (Connally v General Constr. Co., 269 U.S. 385, 391, supra ). And words and phrases used in a statute should be given their ordinary meaning when, as here, the Legislature has given no indication that a different meaning was intended (see, e.g., McKinney's Cons Laws of NY, Statutes, Book 1, Section 232). This is particularly apt when it is claimed that the statute might otherwise lack sufficiently definite standards or guidelines to satisfy the requirements of due process (see, e.g., Screws v United States, 325 U.S. 91).

In sum, intoxication is a greater degree of impairment which is reached when the driver has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.

As noted, the concept of intoxication does not require expert opinion. A layman, including the defendant and those charged with administering the law, should be able to determine whether the defendant's consumption of alcohol has rendered him incapable of operating a motor vehicle as he should. Thus, even when no chemical test has been made of the driver's blood alcohol content, the statute provides reasonable warning of what is prohibited and sufficient standards for adjudication.

We therefore conclude that subdivisions 1 and 3 of Section 1192 of the Vehicle and Traffic Law are not unconstitutionally vague or indefinite when applied to a case where an analysis of the driver's blood alcohol content is unavailable.

People v McConnell, 11 Misc 3d 57, addressed the issue of whether the accusatory instrument was facially sufficient as an information under CPL 100.40(1)(a)(b) and (c).

Section 100.40(1) of the Criminal Procedure Law provides that an information is sufficient on its face when it substantially conforms to the requirements of CPL 100.15; when the factual allegations thereof (together with any supporting depositions which may accompany it) provide reasonable cause to believe that the defendant committed the offense charged in the [*5]accusatory part of the information; and when the nonhearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, every element of the offense charged and defendant's commission thereof. The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged that a defendant may prepare for trial and avoid retrial for the same offense (People v Konieczny, 2 NY3d 569, 575, 813 NE2d 626, 780 NYS2d 546 [2004]; People v Zambounis, 251 NY 94, 167 NE 183 [1929]). The failure to comply with this requirement is a nonwaivable jurisdictional defect (People v Alejandro, 70 NY2d 133, 511 NE2d 71, 517 NYS2d 927 [2987]) with the exception of the nonhearsay requirement which is deemed waived absent a pretrial motion (People v Casey, 95 NY2d 354, 740 NE2d 233, 717 NYS2d 88 [2000]) or upon a plea of guilty (People v Pittman, 100 NY2d 114, 122, 790 NE2d 1149, 760 NYS2d 720 [2003]). Id. pps. 59, 60.

The court then concluded at p. 60:

Section 1192(3) of the Vehicle and Traffic Law, common-law driving while intoxicated, provides that "[n]o personal shall operate a motor vehicle while in an intoxicated condition." A driver of a vehicle is intoxicated when he has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate the vehicle as a reasonable and prudent driver (People v Cruz, 48 NY2d 419, 428, 399 NE2d 513, 423 NYS2d 625 [1979]).

In the instant matter, the factual allegations in the accusatory instrument alleged that defendant on January 9, 2004 at about 4:04 a.m., while operating a vehicle in a southerly direction on Dolphin Lane, lost control of said vehicle at which time it left the road, struck a mailbox and then a tree in the front yard of No. 25 Dolphin Lane. The officer, while assessing defendant's physical condition (defendant being pinned in the driver's seat by the steering wheel), detected the odor of an alcoholic beverage in the vehicle. The defendant was later detected to have the odor of an alcoholic beverage on his breath and admitted that he "had like 2 beers."

In our opinion, the foregoing allegations of the officer, defendant's admission and the description of the accident, were sufficient to establish, if found to be true, that defendant was incapable of employing the physical and mental abilities needed to operate a car as a reasonable and prudent driver (see People v Hohmeyer, 70 NY2d 41, 510 NE2d 317, 517 NYS2d 448 [1987]; People v Cruz, 48 NY2d 419, 399 NE2d 513, 423 NYS2d 625 [1979], supra ).

In People v Litto, 8 NY3d 692, the Court of Appeals concluded

Over the last 97 years, the Legislature has crafted and repeatedly refined statutes with the goal of removing from the road those who drive while intoxicated. This appeal centers on the phrase "driving while intoxicated" in Vehicle and Traffic Law Section 1192(3). Based on the language, history and scheme of the statute, we conclude that the Legislature here intended to use "intoxication" to refer to a disordered state of mind caused by alcohol, not by drugs. Id. pps. [*6]693-694.

See also, People v. Grinberg, 4 Misc 3d 670 and, People v Lehman, 183 Misc 3d 97.

Decision

The Court must note two matters regarding the manner in which this case was conducted before the Court.

The Code of Professional Responsibility under the topic of "Duty of Lawyer to the Adversary System of Justice" stated at EC 7-23:

EC 7-23

The complexity of law often makes it difficult for a tribunal to be fully informed unless the pertinent law is presented by the lawyers in the cause. A tribunal that is fully informed on the applicable law is better able to make a fair and accurate determination of the matter before it. The adversary system contemplates that each lawyer will present and argue the existing law in the light most favorable to the client. Where a lawyer knows of controlling legal authority directly adverse to the position of the client, the lawyer should inform the tribunal of its existence unless the adversary has done so; but, having made such disclosure, the lawyer may challenge its soundness in whole or in part.

Law Review and Journal Commentaries

Ethical Standard for the Advocate. Thode. 39 Tex.L.Rev. 575 (1961).

Struggle for Public Understanding. Rochelle & Payne. 25 Tex.B.J. 109 (1962).

Zeal and frivolity: the ethical duty of the appellate advocate to tell the truth about the law. 6 Hofstra L.Rev. 729 (1978).

McK Cons Laws of NY, Bk 29, p. 229.

The defense argued in its motion that "...it is clear from the Bill of Particulars that there was a 0.0 reading," thus "...the 1992(3) should be dismissed."

The prosecution in its Reply citing People v Cruz, 48 NY2d 419 at page 428, concluded based on that case" "Nowhere in the Court's opinion does it require that a defendant have a requisite blood alcohol level to be charged with common law DWI. All that is required is that he lack the ability to safely operate his vehicle. Clearly, based on defendant's erratic driving and subsequent failure of two field sobriety tests, he lacked the ability to safely operate his vehicle" (see Reply of ADA Frank Seminerio filed July 15, 2009).

Counsel were both aware of the Cruz decision cited in the Prosecutor's brief. The Prosecutor argued that based on Cruz no evidence of a blood alcohol was needed so long as a defendant demonstrated the lack of an "ability to safely operate his vehicle...based on...erratic driving and subsequent failure of two field sobriety tests" which the defense argued was insufficient unless there was evidence of alcohol use as well. Yet, neither counsel cited Litto decided in June 2007 which in turn cited Cruz—not to mention People v. Grinberg, 4 Misc 3d 670, cited in Mck Cons. Laws of N.Y.—both of which made a clear statement that VTL 1192(3) [*7]referred to intoxication being caused solely by alcohol as a necessary element of the crime.

It is the responsibility of counsel under EC 7-23 "...that each lawyer will present and argue existing law...;" and "[W]here a lawyer knows of controlling legal authority directly adverse to the position of the client, the lawyer should inform the tribunal of its existence... In this case neither counsel informed this Court of the Litto decision, one in support of his position and the other as contrary to his argument. Considering the fact that if either counsel had done a Shepard's check on Cruz the Litto case was clearly cited as referring to Cruz clarifying the very issue raised by the defense and opposed by the Prosecutor.

There is a further concern of this Court more troubling that the failure of counsel to do the minimal research involved in discovering the Litto case. The Prosecutor cited Cruz at p. 428 to support his defense that no evidence of alcohol involvement was needed to rebut the defense argument to dismiss for the lack of such evidence.

"The Court of Appeals held that a driver can be found guilty under VTL 1192.3 when he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.'"

This quote was only part of a sentence. The Cruz Court said "In sum, intoxication is a greater degree of impairment which is reached when the driver has voluntarily CONSUMED ALCOHOL to the extent he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver."

When this sentence is read intact it is clear there has to be a "consumption of alcohol" in the course of the driver's disability defined at VTL 1192(3). Why the Prosecutor elected to delete this part of the quote when opposing the defense argument the case should be dismissed due to the failure to show the use of alcohol by his client is at best disingenuous and at worst a violation of 22 NYCRR 1200.25(a)(1) ("A lawyer shall not knowingly make a false statement...of law to a tribunal...")—a point made recently by this Court in People v Beaumont, City Court of Watertown, #

42786 in a decision dated 8/21/09. As heretofore cited under EC 7-23 in the Hofstra Law Review article entitled "the ethical duty of the...advocate to tell the truth about the law"—an apt summary to be applied to the prosecution's less than stellar conduct outlined above.

CPL 100.40(1)(c) states that for an accusatory instrument to be facially sufficient information the ( c) nonhearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof." In Litto the Court made it clear that the "...phrase driving while intoxicated' in Vehicle and Traffic Law Section 1192(3)...refer[s] to a disordered state of mind caused by alcohol, not by drugs" (id). The Court finds that as none of the supporting depositions and/or documentation show any alcohol use by the defendant and as VTL 1192(3) requires intoxication "caused by alcohol, not by drugs" (Litto, supra ) is an "element of the offense," the charge of violating VTL 1192(3) must be dismissed under CPL 100.40(1)(c).

Enter: ___10/28/09_________________________________________________

Date: ____10/28/09_______________Hon. James C. Harberson, Jr.