People v Martino

[*1] People v Martino 2010 NY Slip Op 52111(U) [29 Misc 3d 1232(A)] Decided on December 8, 2010 Just Ct, Vil. Of Hastings-on-hudson, Westchester 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2010
Just Ct, Vil. of Hastings-on-Hudson, Westchester County

The People of the State of New York

against

Anna Martino, Defendant



09070082

Joseph A. DiSalvo, J.

Following a non-jury trial of Defendant on charges of Driving While Intoxicated [Vehicle & Traffic Law §1192(3)] and Refusal to Submit to a Blood Test [V & T §1194(1)(b)], this Court concludes that the People have proven their case beyond a reasonable doubt and that Defendant is guilty on both counts.

Issues Presented

At the conclusion of the trial, the Court directed the Assistant District Attorney and Counsel for Defendant to submit to the Court post-trial memoranda on the following issues:

a)is the Accusatory Instrument sufficient under Criminal Procedure Law §100.40(1)?

b)may Defendant be found to have operated her car where there is no testimony that a police officer observed the operation of the vehicle and there is testimony that a non-complainant witness observed Defendant operate her vehicle? and

c)what inference, if any, can be drawn from a defendant's refusal to submit to a chemical test?

Relevant Facts [*2]

Defendant did not testify at trial. The People elicited testimony from two witnesses: Louis Roman, an employee of the Great Atlantic and Pacific Tea Company, whose store parking lot was the location of Defendant's arrest; and Hastings-on-Hudson Police Sergeant Anthony Gentile, who was the arresting officer and the complainant.

At trial, witness Roman testified that while he was on a break, smoking a cigarette, he observed Defendant drive her vehicle into the A & P parking lot, exit the vehicle, stumble, fall on "her butt" and strike her head against the car; he also testified that he approached her, that he smelled alcohol, that Defendant got back in the car and tried to drive away, that he stopped her from doing so, and that he asked a co-worker to call 911.

Sergeant Gentile testified that he arrived on the scene at a time when a more junior officer, Police Officer Heather Smolenski, was questioning Defendant, that he took over as senior officer in accordance with department policy, that he observed that Defendant was unsteady on her feet, that he learned in speaking with Defendant that she had come to the A & P to do some shopping, that she had been at the Half Moon Restaurant, and that she had consumed two glasses of wine while at the restaurant. He testified further that he administered the field sobriety tests to Defendant, that she failed all three parts of the test, that he asked her to take the field breath test and that she refused, that then he observed Officer Smolenski administer the field sobriety tests to Defendant, that he observed that Defendant failed this second test as well, and that he formed the opinion that Defendant was intoxicated.

Analysis and Conclusions

a)The Court concludes that the Accusatory Instrument is sufficient on its face under CPL §100.40(1). The simplified traffic information and supporting deposition together,

(I)contain, in their factual portions, allegations which provide reasonable cause to believe that Defendant committed the offenses charged in the accusatory portions and

(ii)contain non-hearsay allegations of fact that establish, if true, every element of the offenses charged and Defendant's commission of them.

Defendant's Counsel points out that the supporting deposition is alleged on personal knowledge and, therefore, that the Court can not rely, for the sufficiency analysis, on the checked-off portion of the deposition that recites the observation by witness Roman of Defendant's operation of the vehicle. The Court accepts that point, but relies instead on the previous box that deponent checked: the box in which Sergeant Gentile recites an admission by Defendant that she operated the vehicle. This admission is non-hearsay and, therefore, fulfills the second requirement of CPL §100.40(1) as recited above. In addition, the first requirement of CPL §100.40(1) is met in that the accusatory instruments and supporting deposition do indeed set forth Defendant's operation of a vehicle, complainant's observations that Defendant appeared to [*3]be in an intoxicated state, Defendant's refusal to submit to the requested test, and that Defendant committed both offenses.

Defendant's Counsel also argues that the corroboration requirement of CPL §60.50 [that a Defendant may not be convicted on her admission alone, without additional proof] applies to the facial sufficiency analysis required for CPL §100.40(1), citing People v. Kaminski, 143 Misc 2d 1089, 542 NYS2d 923 (Crim. Ct., NY Co., 1989). If the corroboration rule applies to the facial sufficiency analysis, then the corroboration by the witness would have to be supplied by deposition served and filed in support of the accusatory instrument. Although the witness's observation of operation was checked off on the police officer's deposition, there is no witness deposition served and filed to attach to the accusatory instrument [it was supplied only with the Rosario material before trial]. Accordingly, the witness's observation of Defendant's operation of the vehicle would be hearsay as to Sergeant Gentile. If the corroboration rule applies, without any witness deposition other than the police officer's, the "non-hearsay" requirement of CPL §100.40(1) would not be met and the accusatory instrument would be facially insufficient.

However, this Court concludes that the corroboration rule does not apply to the facial sufficiency analysis required for CPL §100.40(1). We decline to follow Kaminski because the legislature has imposed the corroboration rule solely with respect to the analysis required for sufficiency of felony charges [see CPL §190.65(1)] and the legislature did not similarly amend CPL §100.40(1) to impose the corroboration rule for the facial sufficiency analysis for misdemeanors. We choose to follow the reasoning of those cases that also do not follow Kaminski and that reach the result that the corroboration rule does not apply to facial sufficiency analysis of CPL §100.40(1), People v. Heller, 180 Misc 2d 160, 689 NYS2d 327 (Crim. Ct., N.Y.Co., 1998) and People v. Vialva, 23 Misc 3d 1105(A), Slip Copy, 2009 WL 928190 (Table) (Crim. Ct., Kings Co., 2009).

b)The Court concludes that it may find Defendant to have operated the vehicle in violation of V & T §1192(3) based on the testimony of witnesses Roman and Sergeant Gentile, and despite Sergeant Gentile's not having personally observed Defendant operate the vehicle.

The Court of Appeals has made quite clear that a conviction under V & T§1192 can be sustained when it is based on circumstantial evidence and a defendant's admission and when the police officer does not personally observe a defendant operate a motor vehicle, People v. Booden, 69 NY2d 185, 513 NYS2d 87 (1987). In Booden, the police officer observed defendant's vehicle in a ditch along the road, facing in the opposite direction from the traffic on that side of the road. The Booden defendant admitted to the police officer that he had been driving the vehicle. In the present case, Defendant Martino also admitted to the arresting officer that she had driven to the parking lot. However, in addition, witness Roman also testified that he had observed Defendant Martino operate the vehicle. The testimony at hand represents, therefore, both the minimum required by Booden as well as the additional proof from a witness. Therefore, this Court concludes that the People have proven, beyond a reasonable doubt, that Defendant operated the motor vehicle in question. [*4]

In addition, the additional testimony of witness Roman sufficiently corroborates Defendant's admission of operation to satisfy the requirements of CPL §60.50, see Booden, supra .

Defendant's Counsel effectively points out, in his memorandum, inconsistencies between the oral testimony of witness Roman and the written supporting deposition submitted as item 12 on the Rosario production at commencement of the trial. However, as to the essential facts of Defendant's operation of the vehicle, particularly starting the car and attempting to drive away, regardless of what gear the car was in, Defendant's stumbling, and the witness's smelling of alcohol on Defendant, the witness's testimony is convincing.

c.The Court concludes that Defendant did, indeed, refuse twice to submit to the chemical test requested by Sergeant Gentile, that Sergeant Gentile had given Defendant appropriate warnings of the consequence of refusal, and that the refusal constitutes a violation of V & T §1194. Such a violation permits the Court to infer that Defendant Martino had a consciousness of her guilt, V & T §1194(2)(f), People v. Thomas, 46 NY2d 100, 412 NYS2d 845 (1978), People v. Ferrara, 158 Misc 2d 671, 602 NYS2d 86 (Crim.Ct., Richmond Co.1993) and People v. Rosado, 158 Misc 2d 50, 600 NYS2d 624 (Crim.Ct., Bronx Co.1993).

Although Defendant's Counsel argues that Defendant's "not now" approach to the breath test did not constitute a refusal, the "not now" answer was given sometime between 8:55 pm and 9:21 pm [see People's Exhibit 1 in Evidence] and, therefore, came near the expiration of the window of opportunity for giving the test that runs for two hours from the arrest, which was made at 7:34 pm [V & T 1194(2)]. As a result, it is reasonable for the Court to interpret Defendant's delay as constituting a refusal under the statute, see Sawyer v. Tofany, 41 AD2d 583, 340 NYS2d 208 (App. Div. 4th Dep't, 1973).

d.We addressed the operation question earlier. Let us now discuss the question of intoxication. The Court concludes that the People have proven beyond a reasonable doubt that Defendant Martino operated her vehicle while intoxicated. Sergeant Gentile's observations of her condition, as reflected on People's Exhibit 1 in evidence, together with his oral testimony of Defendant's failure to pass both his and Officer Smolenski's field sobriety tests, also together with the inference permitted as to Defendant's consciousness of her guilt, lead the Court to conclude that the People have clearly demonstrated beyond a reasonable doubt that Defendant Martino was intoxicated at the time she operated her motor vehicle. It is important to note that the witness Roman also noted that Defendant stumbled upon her exit from the vehicle, that she then fell on "her butt" and that when he approached he detected the odor of alcohol from Defendant. Thus, there is no question that the intoxication was present upon her exit from the car, that there was no opportunity for Defendant to have consumed alcohol in the period that started after she operated the vehicle (when she drove into the lot and when she attempted to leave the lot) and that ended upon the later arrival of the police, and that Defendant's striking of her head reasonably was not the cause of her failure to pass the field sobriety tests. Defendant produced no medical testimony to support any contention in regard to Defendant's head striking [*5]the car being related to her appearance of being intoxicated.

Verdict

This Court finds Defendant Anna Martino guilty of Driving While Intoxicated [V & T §1192(3)] and Refusal to Submit to a Blood Test [V & T §1194(1)(b)].

This constitutes the Verdict of this Court.

________________________

JOSEPH A. DiSALVO, VJ