People v. Alvarez

172 Misc. 2d 440, 659 N.Y.S.2d 382, 1996 N.Y. Misc. LEXIS 582
CourtCriminal Court of the City of New York
DecidedSeptember 4, 1996
StatusPublished

This text of 172 Misc. 2d 440 (People v. Alvarez) is published on Counsel Stack Legal Research, covering Criminal Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Alvarez, 172 Misc. 2d 440, 659 N.Y.S.2d 382, 1996 N.Y. Misc. LEXIS 582 (N.Y. Super. Ct. 1996).

Opinion

OPINION OF THE COURT

Faviola Soto, J.

This written decision amplifies on my decision of July 16, 1996, whereby defendant’s motion to dismiss was denied. The defendant is charged with operating a motor vehicle while under the influence of alcohol, in violation of Vehicle and Traffic Law § 1192 (2) and (3). Both the defendant and the People have submitted well-researched and argued papers, and the defendant has been ably represented by both his former Legal Aid counsel and his substituted private counsel.

PROCEDURAL HISTORY

On April 28, 1995, the defendant was arraigned before me on the above charges. In addition to the accusatory instrument, signed by the arresting officer, the People served and filed with the court: (i) the certified results of a chemical test analysis showing a blood alcohol level of .19 of 1%; (ii) the supporting deposition of the officer who administered the blood alcohol content test; (iii) the intoxicated driver examination sheets, which contained, inter alia, defendant’s statements that, in sum and substance, he was driving the motor vehicle, and he had been drinking "lots” of beer, having started at 10:00 p.m. and stopping at 5:00 a.m.; and (iv) the IDTU completed by the arresting officer. The People requested, inter alia, that the defendant’s license be handed up to the court. Defendant’s counsel did not rebut the chemical test results, challenge the facial sufficiency of the complaint, or otherwise challenge the prima facie showing of reasonable cause to believe that the defendant operated a motor vehicle while having a blood alcohol level in excess of .10 of 1%. Nor did the defendant request a short adjournment to do so. Defendant also [442]*442did not request hardship relief. Pursuant to Vehicle and Traffic Law § 1193 (2) (e) (7) (the prompt suspension law) defendant’s license was suspended.

The May 14, 1995 corroborating affidavit by an eyewitness, the informant referenced in the complaint, was thereafter filed with the court, and on May 31,1996, the complaint was deemed an information. The record does not indicate that the defendant sought to apply to the Commissioner for a "conditional license” following conclusion of the 30-day mandatory suspension of full driving privileges.

Lengthy motion practice ensued for the next year. In summary, by notice of motion dated July 26,1995, defendant moved to dismiss, arguing, inter alia, that: (i) defendant was denied both State and Federal due process by reason of the prompt suspension law; (ii) defendant’s continued prosecution violated the Double Jeopardy Clause; (iii) the prompt suspension law is otherwise unconstitutional, in that it requires the court to engage in an administrative act, and (iv) the factual allegations for the second ground is grounded in hearsay and fails to establish the driving element of the offense charged.

The People opposed defendant’s motion in papers filed on August 15, 1995; the court granted defendant’s request to file a reply, which was filed on September 12th, and the matter adjourned until October 11th. The People filed a supplemental affirmation dated October 4, 1995, and, on October 11, 1995, the matter was adjourned until November 1, 1995, for the court’s decision.

On November 1, the Honorable John A. Barone, in an oral decision, denied defendant’s motion to dismiss for facial insufficiency and denied the motion to dismiss on constitutional grounds, citing People v Condarco (166 Misc 2d 470 [Grosso, J.]).

On November 14, 1995, defendant filed a motion to renew or reargue; the People’s response and defendant’s reply were submitted on December 19, 1995. In a written decision dated January 23, 1996, Judge Barone granted that part of defendant’s motion which sought to renew or reargue, but adhered to his original decision. The court noted that: "In its original decision, this court adopted the reasoning in Condarco, which held, inter alia, that the statute does not violate defendant’s due process rights as the statute provides that the arraigning judge is to review the sufficiency of the accusatory instrument and the defendant is given the opportunity at the arraignment to contest the allegations. Without expressing an opinion [443]*443thereon, whether that court committed error in suspending defendant’s driver’s license is not for this court to determine.” On March 28, 1996, defendant advised the court of his intention to file a motion addressing this issue directly with me as the arraigning court. Defendant’s moving papers dated April 16, the People’s response dated May 20, and the defendant’s reply dated June 12, were referred to me on June 12, 1996 for decision. The matter was adjourned until July 16th in Part AP-3. On July 16, 1996, the Presiding Judge in Part AP-3, Honorable Harold Adler, noted my decision denying defendant’s motion, with written decision to follow. The matter was adjourned until September 4th for trial, and the matter is now in JP-1.

THE INSTANT MOTION

In this motion, defendant again raises his arguments regarding due process and the alleged insufficiency of the accusatory instrument that was before me when, as the arraigning court, defendant’s driver’s license was suspended pursuant to the prompt suspension law. The remedy defendant seeks is dismissal. The People oppose the defendant’s motion, arguing that, for these purposes, the instrument and supporting papers filed with the court were sufficient. The People also oppose defendant’s motion to the extent that it goes beyond the issues that Judge Barone gave leave to address.

In determining this motion, I had before me the papers, the court file, the minutes of the April 28th arraignment, and the Court of Appeals opinion of Pringle v Wolfe (88 NY2d 426 [1996]).

To the extent that any questions remained as to whether the prompt suspension law violates due process, and without ruling on whether the referring court gave leave to readdress this general issue in this motion to dismiss, the Court of Appeals has settled the issue. In its anticipated opinion of Pringle (supra), the Court applied the three-factor balancing test articulated by the United States Supreme Court in Mathews v Eldridge (424 US 319, 335), and found that the prompt suspension law "affords the driver all the process that is constitutionally due”. (Supra, at 435.)

Left before me is defendant’s motion to dismiss because defendant’s license was erroneously suspended, thereby violating his due process rights, in that the accusatory instrument’s allegation regarding the requisite element of operation was based on hearsay.

[444]*444The accusatory instrument alleges that, at West 238th Street and Broadway (a commercial district), at approximately 5:50 a.m., the deponent, the arresting officer, was informed by a named informant, that the informant observed the defendant driving, that the defendant nearly hit the informant, and that the informant stopped the defendant and took away his keys so as to prevent the defendant from continuing to drive. The deponent further stated that: there was a strong odor of alcoholic beverage on defendant’s breath; the defendant’s eyes were watery and bloodshot; the defendant was swaying, swaggering and falling; and his speech was slurred. Further, deponent was present at the administration of the chemical test analysis of defendant’s breath and observed that defendant’s blood alcohol level as displayed on the breath analysis machine was .19 of 1%.

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Related

Mathews v. Eldridge
424 U.S. 319 (Supreme Court, 1976)
Pringle v. Wolfe
668 N.E.2d 1376 (New York Court of Appeals, 1996)
People v. Condarco
166 Misc. 2d 470 (Criminal Court of the City of New York, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
172 Misc. 2d 440, 659 N.Y.S.2d 382, 1996 N.Y. Misc. LEXIS 582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-alvarez-nycrimct-1996.