Opinion
11-16-2017
The PEOPLE of the State of New York, Appellant, v. Jacqueline KNIGHT, Respondent.
Nassau County District Attorney (Yael V. Levy, Ames C. Grawert of counsel), for appellant. Nassau County Legal Aid Society (Jeremy L. Goldberg, David Bernstein of counsel), for respondent.
Nassau County District Attorney (Yael V. Levy, Ames C. Grawert of counsel), for appellant.
Nassau County Legal Aid Society (Jeremy L. Goldberg, David Bernstein of counsel), for respondent.
PRESENT: ANTHONY MARANO, P.J., ANGELA G. IANNACCI, JERRY GARGUILO, JJ.
Appeal from an order of the District Court of Nassau County, First District (David W. McAndrews, J.), dated February 6, 2015. The order granted defendant's oral motion, pursuant to CPL 170.30(1)(g), to set aside a jury verdict finding her guilty of driving while intoxicated (common law) and to dismiss that charge. ORDERED that the order is reversed, on the law, defendant's oral motion, pursuant to CPL 170.30(1)(g), to set aside the jury verdict finding her guilty of driving while intoxicated (common law) and to dismiss that charge is denied, and the matter is remitted to the District Court for sentencing on that conviction.
On May 23, 2012, the People charged defendant, in separate simplified traffic informations, with driving while intoxicated (per se) ( Vehicle and Traffic Law § 1192[2] ) and several other Vehicle and Traffic Law violations. At a jury trial, the People's witnesses testified as to defendant's postarrest test of her blood alcohol content, which produced a reading of .13 of one per centum by weight of alcohol, to the indicia of actual intoxication that defendant exhibited, and to her admissions of alcoholic beverage consumption. Prior to its charge to the jury, the District Court granted the People's request, pursuant to Vehicle and Traffic Law § 1192(9), to charge the jury with, in addition to driving while intoxicated (per se), driving while intoxicated (common law) ( Vehicle and Traffic Law § 1192[3] ), over defendant's objection that the charge represented unfair surprise. The jury found defendant guilty of driving while intoxicated (per se) and driving while intoxicated (common law), and acquitted her of the remaining charges.
After defendant was sentenced on the conviction of driving while intoxicated (per se), defendant orally moved, pursuant to CPL 170.30(1)(g), to set aside the verdict finding her guilty of driving while intoxicated (common law) and to dismiss that charge. The People's opposition to the motion addressed only the sufficiency of the trial evidence to support the conviction. By order dated February 6, 2015, the District Court granted the motion on the sole ground that a judgment convicting defendant of driving while intoxicated (common law) "would serve no useful purpose." In a motion denominated as one for leave to reargue their opposition to defendant's motion, the People contended that the CPL 170.30 motion had been untimely; that defendant's motion had been improper because it had been made orally and without proper notice; that, in contravention of CPL 210.45, the People had been deprived of the opportunity to respond to defendant's motion in writing; that the court, invoking only one of the factors enumerated in CPL 170.40(1), had failed properly to analyze the matter in terms of any of the remaining factors involved in an interest of justice dismissal; and that the facts do not support the granting of the motion on the merits. The reargument motion remains undecided. The People appeal from the February 6, 2015 dismissal order, arguing that the motion was untimely, that they were denied their right to a motion made "in writing and upon reasonable notice" as required by CPL 210.45(1) (see People v. Jennings, 69 N.Y.2d 103, 113, 512 N.Y.S.2d 652, 504 N.E.2d 1079 [1986] ; People v. Leclair, 12 Misc.3d 133[A], 2006 N.Y. Slip Op. 51180[U], *1, 2006 WL 1750741 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2006] ), and that the motion was without merit and should have been denied.
The rule requiring a writing upon reasonable notice "exists to ensure that the People are adequately protected from unfair surprise and have sufficient opportunity to respond to the defendant's ... claims.... The requirement of written motion papers serves the additional purpose of framing and narrowing the issues, enabling the prosecution to prepare an intelligent response" ( People v. Mezon, 80 N.Y.2d 155, 160, 589 N.Y.S.2d 838, 603 N.E.2d 943 [1992] ; see also People v. Littles, 188 A.D.2d 255, 256, 591 N.Y.S.2d 2 [1992] ; People v. Doxey, 46 Misc.3d 144[A], 2015 N.Y. Slip Op. 50193[U], 2015 WL 824636 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2015]; 34 Carmody–Wait 2d § 189:176 ). While the court erred in allowing an oral motion (see People v. Stanback, 149 A.D.3d 876, 877, 51 N.Y.S.3d 200 [2017] ; People v. Dunlap, 216 A.D.2d 215, 216–217, 629 N.Y.S.2d 407 [1995] ; People v. Jack, 117 A.D.2d 753, 753–754, 498 N.Y.S.2d 741 [1986] ; People v. Morisseau, 19 Misc.3d 59, 60, 860 N.Y.S.2d 793 [App. Term, 2d Dept., 2d & 11th Jud. Dists. 2008] ), the People may waive their "right to demand written motion papers and reasonable advance notice in accordance with CPL 210.45(1)" ( People v. Mezon, 80 N.Y.2d at 159, 589 N.Y.S.2d 838, 603 N.E.2d 943 ) "by neglecting to object at the proper time" ( id. at 160, 589 N.Y.S.2d 838, 603 N.E.2d 943 ; see People v. Jennings, 69 N.Y.2d at 113, 512 N.Y.S.2d 652, 504 N.E.2d 1079 ; People v. Parker, 223 A.D.2d 179, 182–183, 648 N.Y.S.2d 430 [1996] ). The objections are preserved when the People " insist upon conformity with the procedural requirements of CPL 210.45(1)" ( People v. Jennings, 69 N.Y.2d at 113, 512 N.Y.S.2d 652, 504 N.E.2d 1079 ; see e.g. People v. Brye, 233 A.D.2d 775, 776, 650 N.Y.S.2d 382 [1996] ; People v. Cook, 193 A.D.2d 366, 369–370, 596 N.Y.S.2d 822 [1993] ; People v. Parikh, 31 Misc.3d 152[A], 2011 N.Y. Slip Op. 51138[U], *1, 2011 WL 2506480 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2011] ).
At sentencing, the prosecutor failed to object that the writing and notice requirements had been violated (e.g. People v. Richman, 44 Misc.3d 34, 35–36, 989 N.Y.S.2d 783 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2014]; cf. People v. Hunter, 36 Misc.3d 138[A], 2012 N.Y. Slip Op. 51440 [U], 2012 WL 3139767 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2012]; People v. McKiver, 24 Misc.3d 78, 79, 886 N.Y.S.2d 790 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2009] ), nor did the prosecution "request the formality of any further hearing" ( People v. Singleton, 42 N.Y.2d 466, 471, 398 N.Y.S.2d 871, 368 N.E.2d 1237 [1977] ). Nevertheless, in light of People v. Jennings, 69 N.Y.2d at 113, 512 N.Y.S.2d 652, 504 N.E.2d 1079 (the procedural mandates of a motion to dismiss are waived where the People fail "to complain of the flaws ... by either raising the problem before [the trial court] ... or moving for reargument within a reasonable time thereafter") (emphasis added), we conclude that the People's motion for reargument of the dismissal order, in which they raised the failure of defendant to comply with the requirements of CPL 210.45(1), preserved the procedural objections (see People v. Parker, 223 A.D.2d at 182–183, 648 N.Y.S.2d 430 ; People v. Cook, 193 A.D.2d at 369–370, 596 N.Y.S.2d 822 ; People v. Richman, 44 Misc.3d at 36, 989 N.Y.S.2d 783 ; People v. Bashkatov, 18 Misc.3d 127[A], 2007 N.Y. Slip Op. 52364[U], *1, 2007 WL 4355354 [App. Term, 2d Dept., 2d & 11th Jud. Dists. 2007] ). Thus, the motion to dismiss the conviction of driving while intoxicated (common law) in the interest of justice should not have been entertained, and the order thereon should have been withdrawn upon the People's timely objection thereto on procedural grounds. Consequently, we reverse the order, reinstate the conviction of driving while intoxicated (common law), and remit the matter to the District Court for sentencing on that conviction with leave to defendant, if she be so advised, to move, prior to sentencing, to set aside the verdict (see CPL 330.30 ) on grounds including, but not necessarily limited to, whether, under the circumstances presented, the request to charge the jury with Vehicle and Traffic Law § 1192(3) occurred under circumstances of surprise and undue prejudice to defendant's opportunity to defend, and, thereby, violated her right to due process.
We reach no other issue. Accordingly, the order is reversed, defendant's oral motion, pursuant to CPL 170.30(1)(g), to set aside the jury verdict finding her guilty of driving while intoxicated (common law) and to dismiss that charge is denied, and the matter is remitted to the District Court for sentencing on that conviction.
MARANO, P.J., and GARGUILO, J., concur.
IANNACCI, J., taking no part.