People v. Litto

33 A.D.3d 625, 822 N.Y.S.2d 130

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 2006
• Status: Published

Opinions

Appeal by the People, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Walsh, J.), dated January 31, 2005, as granted those branches of the defendant’s omnibus motion which were to dismiss counts two and six of the indictment, charging vehicular manslaughter in the second degree and driving while intoxicated, respectively.

Ordered that the order is affirmed insofar as appealed from.

The defendant was driving a car with three passengers when he allegedly inhaled a portion of the contents of a spray can of “Dust-Off,” veered into oncoming traffic, and collided with an oncoming car. He was indicted and charged with, inter alia, driving while intoxicated pursuant to Vehicle and Traffic Law § 1192 (3) and vehicular manslaughter in the second degree pursuant to Penal Law § 125.12. Despite the People’s argument to the contrary, the trial court properly dismissed those two charges. The history and structure of Vehicle and Traffic Law § 1192 (3) demonstrate that the Legislature intended it to apply only to intoxication caused by alcohol.

The first statute to prohibit driving while intoxicated was Highway Law former § 290 (3), passed in 1910 (see L 1910, ch 374). Over time, the law was amended, inter alia, allowing evidence of blood alcohol content (see L 1941, ch 726), adding a section prohibiting the operation of a motor vehicle while “impaired, by the consumption of alcohol” {see L 1960, ch 184, § 1), and creating presumptions of impairment and of intoxication where a driver’s blood alcohol content reached specific levels {id.; see also L 1970, ch 275, § 2).

Significantly, in 1966, the Legislature added Vehicle and Traffic Law § 1192 (4), making it a misdemeanor to operate a motor vehicle while “impaired by the use of a drug” {see L 1966, ch 963). In a letter to the Governor, the bill’s sponsor, Senator Norman F. Lent, wrote, “as presently written, [the provision prohibiting driving while intoxicated] pertains to the operation of a motor vehicle while under the influence of alcohol” and “New York is one of the few remaining major states without a law against operating a motor vehicle while one’s ability is impaired by the use of drugs [or] narcotics” (People v Grinberg, 4 Misc 3d 670, 676 [2004], quoting letter of Senator Norman F. Lent, June 7, 1966, Bill Jacket, L 1966, ch 963). Thus, contrary to the view of our dissenting colleague, the Legislature clearly expressed its intent that Vehicle and Traffic Law § 1192 (4) was enacted to preclude operation of a motor vehicle while under the influence of drugs or narcotics. By implication, the Legislature recognized that Vehicle and Traffic Law § 1192 (3) did not proscribe such conduct. For us to hold otherwise would render section 1192 (4) superfluous, a result to be avoided in statutory construction (see Matter of Branford House v Michetti, 81 NY2d 681 [1993]).

Furthermore, Vehicle and Traffic Law § 1192 (9), which permits conviction under Vehicle and Traffic Law § 1192 (1), (2), or (3), even where the defendant is only charged with violating Vehicle and Traffic Law § 1192 (2) or (3), reflects the Legislature’s understanding that subdivisions (1), (2), and (3) are all alcohol-related and that subdivision (1) is a lesser-included offense of subdivisions (2) and (3) (see People v Farmer, 36 NY2d 386 [1975]; People v Bayer, 132 AD2d 920 [1987]). By contrast, Vehicle and Traffic Law § 1192 (9) does not allow a violation under subdivision (4) to be treated as a related or lesser-included offense (see People v Bayer, supra). Also, that a violation of either Vehicle and Traffic Law § 1192 (3) or (4) is a misdemeanor indicates that the Legislature did not view the impairment in subdivision (4) as a lesser degree of the intoxication in subdivision (3), or to be subsumed by subdivision (3) {id.).

Finally, New York courts have long held that Vehicle and Traffic Law § 1192 (1), (2), and (3) are all degrees of alcohol-related impairment (see People v Farmer, supra), and intoxication has been defined as a greater degree of impairment caused by the voluntary consumption of alcohol (see People v Cruz, 48 NY2d 419 [1979]; People v Stack, 140 AD2d 389 [1988]; People v Bayer, supra; People v Ottomanelli, 107 AD2d 212 [1985]; People v Weaver, 188 App Div 395 [1919]). Mastro, Lunn and Covello, JJ., concur.