Opinion
XXXXX.
09-05-2017
The PEOPLE of the State of New York, Plaintiff, v. Ethan D. GROSSMAN, Defendant.
Paul Czajka, Esq., Columbia County District Attorney by Trevor O. Flike, Assistant District Attorney, Hudson, for the People. Gerstenzang, Sills, Davis, Cohn & Gerstenzang by Joseph M. Gerstenzang, Esq., Albany, for the Defendant.
Paul Czajka, Esq., Columbia County District Attorney by Trevor O. Flike, Assistant District Attorney, Hudson, for the People.
Gerstenzang, Sills, Davis, Cohn & Gerstenzang by Joseph M. Gerstenzang, Esq., Albany, for the Defendant.
DAVID A. DELLEHUNT, J.Defendant, Ethan D. Grossman, appeared with counsel for a non-jury trial on September 5, 2017. The People informed the Court that they would not be participating in the trial. Defendant duly waived his right to a jury trial in accordance with CPL § 320.10.
By way of background, the defendant was charged with Driving While Intoxicated in violation of Vehicle and Traffic Law § 1192(3), Refusal to Take a Breath Test in violation of Vehicle and Traffic Law § 1194(1)(b), Driving Across Hazard Markings in violation of Vehicle and Traffic Law § 1128(d), and Failure to Keep Right in violation of Vehicle and Traffic Law § 1120(a). The DWI Bill of Particulars alleges that at the time of the stop the defendant emitted an odor of alcoholic beverages, and possessed glassy eyes, and impaired motor coordination; the defendant also allegedly made certain admissions and failed four out of four field sobriety tests. In addition, the New York State Police filed a Certified Breath Alcohol Analysis Record of an Alcotest allegedly showing a blood alcohol content of .05 of one per centum by weight of alcohol in his blood.
The defendant was arraigned on July 30, 2013, and the matter was adjourned on consent until August 20, 2013. On August 20, 2013 the People stated that they "decline to prosecute". Defense counsel orally moved to dismiss the matter based upon said proclamation; the Court denied the motion. Donnaruma v. Carter, 41 Misc.3d 195, 204–205, 969 N.Y.S.2d 755 (2013), affd. 113 A.D.3d 993, 979 N.Y.S.2d 201 (3rd Dept.2014), affd. 25 N.Y.3d 1011, 10 N.Y.S.3d 175, 32 N.E.3d 390 (2015) ; see also, People v. Jordan H., 56 Misc.3d 1207(A), 2017 N.Y. Slip Op. 50893(U), 2017 WL 2974754 (2017) ; People v. Douglass, 60 N.Y.2d 194, 469 N.Y.S.2d 56, 456 N.E.2d 1179 (1983). The Court instructed the parties that the only way to dispose of a case, once it has been filed with the Court, is by way of a verdict after trial, by a plea, or after a motion to dismiss upon an enumerated ground set forth in CPL § 170.30. See, People v. McKeon, 54 Misc.3d 1219(A), 2017 N.Y. Slip Op. 50245(U), 2017 WL 738788 (2017) ; People v. Franco, 53 Misc.3d 908, 38 N.Y.S.3d 785 (2016). The Court acknowledged defendant's constitutional right to a jury trial, and informed counsel that the People's refusal to prosecute, is an indication that, at that particular juncture, they are no longer ready, or perhaps willing, to proceed to trial. See, People v. McKeon, supra ; People v. Franco, supra. The Court gave both parties an opportunity to make written motions pursuant to the Criminal Procedure Law, but none were filed by defense counsel or the People. Thereafter, pursuant to CPL § 320.10, after consultation with counsel and with a full understanding of his right and privilege to a jury trial, defendant waived his right to a trial by jury and requested a non-jury trial.
In order to prove that the defendant is guilty of Driving While Intoxicated ( Vehicle and Traffic Law § 1192[3] ) the People must prove, from all of the evidence in the case beyond a reasonable doubt, both of the following two elements:
1. That on or about July 19, 2013, in the Town of Kinderhook, County of Columbia and State of New York, the defendant, Ethan D. Grossman, operated a motor vehicle; and
2. That the defendant did so while in an intoxicated condition.
NY CJI2d § 1192(3). A motor vehicle is a vehicle propelled by any power other than muscular power. Vehicle and Traffic Law § 125. To operate a motor vehicle means to drive it. NY CJI2d § 1192(3). A person is in an intoxicated condition when such person has consumed alcohol to the extent that he is incapable, to a substantial extent, of employing the physical and mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver. NY CJI2d § 1192(3), citing People v. Ardila, 85 N.Y.2d 846, 623 N.Y.S.2d 847, 647 N.E.2d 1355 (1995). The law does not require any particular chemical or physical test to prove that a person's ability to operate a motor vehicle was impaired in an intoxicated condition. Rather the fact finder must consider all of the surrounding facts and circumstances including (1) the defendant's physical condition and appearance, balance, coordination and manner of speech, (2) the presence or absence of the odor of alcohol, (3) the manner in which the defendant operated the motor vehicle, (4) opinion testimony regarding the defendant's sobriety and/or (5) the results of any test of the content of alcohol in the defendant's blood. NY CJI2d § 1192(3).
In order to prove that the defendant is guilty of a violation of Vehicle and Traffic Law § 1128(d) the People must prove, from all of the evidence in the case beyond a reasonable doubt, that (1) there were official markings in place, indicating those portions of any roadway where crossing such markings would be especially hazardous, and (2) the defendant drove a vehicle across such markings. Vehicle and Traffic Law § 1128(d). In addition, in order to prove that the defendant is guilty of a violation of Vehicle and Traffic Law § 1120(a) the People must prove, from all of the evidence in the case beyond a reasonable doubt, that the defendant failed to drive upon the right half of the roadway, and that said defendant's actions did not fall within one of the enumerated exceptions to the general rule requiring a driver to keep right. See, Vehicle and Traffic Law § 1120(a)(1–6).
Although the Court recognizes the seriousness of the charges lodged against the defendant, it is fundamental that the defendant is deemed innocent until proven guilty. The People have the burden to prove defendant's guilt beyond a reasonable doubt. Not only have the People failed to meet their burden, but the People have, without explanation, refused to participate in the trial, to call witnesses, or present evidence. The Court is cognizant that the District Attorney possesses broad authority and discretion over all phases of a criminal prosecution, but notwithstanding the aforesaid, the Court cannot simply dismiss a case upon the grounds that the District Attorney declines to prosecute. See, People v. Douglass, supra. ; Donnaruma v. Carter, 41 Misc.3d 195, 206–208, 969 N.Y.S.2d 755 (2013). By refusing to call witnesses and/or present any evidence the District Attorney is attempting to do indirectly what the Legislature has prohibited him from doing directly, that is, exercising the power of nolle prosequi. Id., at 206–207, 969 N.Y.S.2d 755.
The question posed at the time of trial, however, is whether the People met their considerable burden of proof; failure to do so requires the Court to dismiss on that ground for lack of evidence. While a trial at which a District Attorney declines to put on any proof may be described as a waste of judicial resources by some (see, People v. Beckman, 38 Misc.3d 878, 882, 957 N.Y.S.2d 830 [2012] ), it is imperative that those charged with holding District Attorney's accountable be aware of such practices in order to make informed judgments and hold said District Attorney's responsible for their deliberate acts or omissions. See, Donnaruma v. Carter, supra., at 214, 969 N.Y.S.2d 755. It remains for the electorate and/or the Governor to decide whether the District Attorney fulfilled his Constitutional mandate to prosecute all matters in the County and to protect the public interests. See, Id. at 768–769 ; NY Const., Art. XIII, § 13 ; Executive Law § 63(2) ; County Law § 700(1).
Accordingly, based upon the fact that the District Attorney refused to introduce any testimony or evidence at trial, and after due deliberation, the Court finds that the People have failed to meet their burden of proof and the defendant must, therefore, be found not guilty of all of the charges, to wit: Driving While Intoxicated in violation of Vehicle and Traffic Law § 1192(3), Refusal to Take a Breath Test in violation of Vehicle and Traffic Law § 1194(1)(b), Driving Across Hazard Markings in violation of Vehicle and Traffic Law § 1128(d), and Failure to Keep Right in violation of Vehicle and Traffic Law § 1120(a). The foregoing shall constitute the Findings of Fact, Conclusions of Law, Decision/Order and Verdict of the Court.
SO ORDERED.