People v. Strauss

260 A.D. 880, 22 N.Y.S.2d 880, 1940 N.Y. App. Div. LEXIS 5204

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 1940
• Status: Published

Opinion

Appeal by defendant from a judgment of the Court of Special Sessions of the City of New York, Borough of Richmond [County of Richmond], convicting him of the crime of violating section 70 of the Vehicle and Traffic Law (operating a motor vehicle while in an intoxicated condition). Judgment of conviction reversed on the law, information dismissed and fine remitted. Strict construction of the penal statute in question must be had. (People v. Nelson, 153 N. Y. 90, 94.) No evidence was adduced to show the commission by defendant of the crime charged in the information. Although the evidence warranted a finding of defendant’s intoxication, the record is barren of proof that he operated the motor vehicle in question while intoxicated. Under the statute, intoxication and operation must be simultaneous or there is no crime. Here operation of the vehicle by the defendant ceased several hours before his intoxication. Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur.