Opinion
[673 N.Y.S.2d 810]Francis D. Phillips, II, District Attorney of Orange County, Goshen (Paul Harnisch, of counsel), for appellant.
John Goldsmith, Middletown, for respondent.
Before DiPAOLA, P.J., and COLLINS and INGRASSIA, JJ.
MEMORANDUM.
Order unanimously reversed on the law, accusatory instruments charging defendant with violating Vehicle and Traffic Law Sections 1192(2) and (3) reinstated and matter remanded to the court below for further proceedings.
In the case at bar, defendant had been charged with, among other things, the violation of VTL §§ 1192(2) and (3). After conducting an inquiry pursuant to VTL § 1193(2)(e)(7) the court below subsequently suspended defendant's driver's license. Thereafter, the court below dismissed the VTL §§ 1192(2) and (3) violations against defendant, stating that defendant would face multiple punishments for the same offense had he also been prosecuted, in a separate proceeding, for the VTL § 1192(2) violation, and the VTL § 1192(3) violation had to be dismissed since it was collaterally estopped pursuant to CPL 40.40(1).
This court finds that a preliminary license suspension, pursuant to VTL § 1193(2)(e)(7), during the course of the prosecution of a VTL §§ 1192(2) or (3) violation, does not violate Double Jeopardy; that even though VTL §§ 1192(2) and 1193(2)(e)(7) constitute the 'same offense' for the purposes of Double Jeopardy, they do not constitute separate prosecutions for the purposes of Double Jeopardy; that the prosecution of a VTL § 1192(3) violation is not barred by the doctrine of collateral estoppel or CPL 40.40(1); and that VTL § 1193(2)(e)(7) is a remedial sanction, both in purpose and effect.
Article I, section 6, of the New York State Constitution states that "no person shall be subject to be twice put in jeopardy for the same offense" and CPL 40.20(1) states that "a person may not be twice prosecuted for the same offense". In addition, the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, which is applicable to the states through the Fourteenth Amendment, provides three separate constitutional protections: (1) protection against a second prosecution for the same offense after acquittal (2) protection against a second prosecution for the same offense after conviction, and (3) protection against multiple punishments for the same offense (North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656; Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 82 L.Ed. 917; Matter of Barnes v. Tofany, 27 N.Y.2d 74, 77-78, 313 N.Y.S.2d 690, 261 N.E.2d 617).
[673 N.Y.S.2d 811]In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306, the United States Supreme Court defined the 'same offense' as follows:
"[t]he applicable rule is that, where the same act or transaction constitutes the violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not."
Likewise, the Court of Appeals has stated that, "[i]n essence, to be the 'same offense' within the meaning of the Federal Double Jeopardy Clause the crimes must have essentially the same statutory elements or one must be a lesser included offense of the other" (Matter of Corbin v. Hillery, 74 N.Y.2d 279, 289, 545 N.Y.S.2d 71, 543 N.E.2d 714).
In People v. Conrad, 169 Misc.2d 1066, 654 N.Y.S.2d 226, this court held that a preliminary license suspension, pursuant to VTL § 1193(2)(e)(7), during the course of the prosecution of a VTL § 1192(2) violation, does not violate Double Jeopardy; that even though VTL §§ 1192(2) and 1193(2)(e)(7) constitute the 'same offense' for the purposes of Double Jeopardy, they do not constitute separate prosecutions for the purposes of Double Jeopardy; and that VTL § 1193(2)(e)(7) is a remedial sanction, both in purpose and effect. In view of the foregoing, the court below erroneously held that the suspension of defendant's driver's license pursuant to VTL § 1193(2)(e)(7), barred the prosecution of the VTL §§ 1192(2) and (3) violations pending against defendant (see also, Smith v. Essex County, 224 A.D.2d 89, 649 N.Y.S.2d 507; People v. Roach, 226 A.D.2d 55, 649 N.Y.S.2d 607).
Moreover, VTL § 1192(3) and VTL § 1193(2)(e)(7) do not have the same statutory elements, and one is not the lesser included offense of the other, since there is no requirement in VTL § 1192(3) that a defendant has driven a motor vehicle while having a blood alcohol level of more than .10% by weight. These VTL sections, therefore, do not constitute the same offense (Blockburger v. United States, supra ). In addition, it is clear that the court below misinterpreted the intent of CPL 40.40(1) when it held that a prosecution of the VTL § 1192(3) violation is precluded by CPL 40.40(1), since CPL 40.40(1) solely deals with the prosecution of offenses in an indictment.
Accordingly, a driver's license suspension pursuant to VTL § 1193(2)(e)(7) is a judicially ordered remedial civil sanction imposed pending, and as part of, the prosecution of a violation of VTL §§ 1192(2) or (3) which does not violate the Double Jeopardy Clause. Therefore, the accusatory instruments charging defendant with the violation of VTL §§ 1192(2) and (3) are reinstated.
Defendant also contends on appeal that the People did not properly perfect this appeal. We note that defendant's previous motion to dismiss for failure to prosecute was denied by this court's order dated April 28, 1997. Moreover, contrary to defendant's contention, there was no need for the People to file an affidavit of errors since the appeal is from an order decided upon papers.