People v. Prescott

• Decision Date: 13 February 2001
• Citation: 745 N.E.2d 1000,95 N.Y.2d 655,722 N.Y.S.2d 778
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. NORTON U. PRESCOTT, 2D, Appellant.
• Court: New York Court of Appeals Court of Appeals

95 N.Y.2d 655

745 N.E.2d 1000

722 N.Y.S.2d 778

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. NORTON U. PRESCOTT, 2D, Appellant.

Court of Appeals of the State of New York.

Argued January 11, 2001.

Decided February 13, 2001.

Madigan & Barry, Bath (Travis J. Barry of counsel), for appellant.

Brooks T. Baker, Assistant District Attorney of Steuben County, Bath, for respondent.

Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, ROSENBLATT and GRAFFEO concur.

OPINION OF THE COURT

WESLEY, J.

This case presents the question whether attempted driving while intoxicated and attempted aggravated unlicensed operation of a motor vehicle are legally cognizable offenses. For the reasons to follow, we conclude that they are not.

On the evening of November 13, 1998, Jeffrey Orlando and his wife were alerted by sounds outside their home. When Orlando looked out the window, he saw defendant getting into Orlando's truck. Orlando stepped outside and found defendant in the front seat of the truck, with the keys in the ignition, attempting to start the vehicle. Although the vehicle was operable, defendant was having difficulty engaging the engine because "[t]he truck is hard to get started when it is cold and you have to know how to do it." When Orlando confronted defendant, defendant indicated that he wanted to use the truck to pull his own vehicle out of a nearby ditch. According to Orlando, defendant was "out of it."

Defendant was thereafter charged with numerous offenses, including attempted driving while intoxicated (Penal Law § 110.00; Vehicle and Traffic Law § 1192 [2], [3]) and attempted aggravated unlicensed operation of a motor vehicle in the first degree (Penal Law § 110.00; Vehicle and Traffic Law § 511 [3]) with respect to Orlando's vehicle. Defendant filed an omnibus motion seeking, among other things, dismissal of those counts of the indictment on the basis that it is not legally possible to commit the crimes of attempted driving while intoxicated or attempted aggravated unlicensed operation of a motor vehicle in the first degree.¹

County Court granted the motion and dismissed the charges in question (183 Misc 2d 181).² Relying on this Court's decision in People v Campbell (72 NY2d 602), the court ruled that because the core conduct in the offense of driving while intoxicated "is not the operation of a motor vehicle, but the operation of a motor vehicle while in an intoxicated condition," and the "element" of intoxication does not require proof of a specific intent, it is legally impossible to commit the crime of attempted driving while intoxicated (id., at 183-184 [emphasis in original]).

The Appellate Division unanimously reversed (263 AD2d 254). The Court concluded that the crime of driving while intoxicated is a strict liability crime not because it proscribes a result as in Campbell, "but because it proscribes particular conduct" (People v Prescott, 263 AD2d, at 256, supra). Applying this Court's rationale in People v Saunders (85 NY2d 339), the Court determined that a person can be found guilty of attempted driving while intoxicated when, while intoxicated and with intent to operate the vehicle, the person engages in conduct which tends to effect the commission of such crime (263 AD2d, at 256).

With respect to aggravated unlicensed operation of a motor vehicle in the first degree, the Appellate Division held that the element of that offense that made it a strict liability crime (i.e., driving while intoxicated) is merely an aggravating circumstance that elevates the severity of the crime and, thus, an attempt was possible (id., citing People v Fullan, 92 NY2d 690, 693-694; People v Miller, 87 NY2d 211, 217). A Judge of this Court granted defendant leave to appeal and we now reverse.

I.

Generally, where a penal statute imposes strict liability for creating an unintended result, an attempt to commit that crime is not a legally cognizable offense (see, People v Campbell, 72 NY2d, at 605-606,

supra). One cannot attempt to create an unintended result. By contrast, where a penal statute imposes strict liability for committing certain conduct, an attempt is legally cognizable, since one can attempt to engage in conduct (see, People v Saunders, 85 NY2d, at 341, supra). Likewise, an attempt is legally cognizable where a statute penalizes certain core conduct, but includes as an aggravating factor that the defendant caused an unintended result (see, People v Fullan, 92 NY2d, at 693-694,

supra; People v Miller, 87 NY2d, at 217-218,

supra).

Driving while intoxicated appears to fit within the confines of Saunders, since it is aimed principally at conduct: operating a motor vehicle while "intoxicated." However, as the Saunders Court acknowledged, other factors, including statutory and policy considerations, can help inform the "attempt" analysis (People v Saunders, 85 NY2d, at 342-343, supra). Here, we conclude that the Legislature did not contemplate criminal liability for attempted drunk driving. We reach that conclusion based on the comprehensive nature of article 31 of the Vehicle and Traffic Law and its discrete penalty scheme.

In the early 1980's, drunk driving became a dominant social issue. Drunk drivers were the leading cause of highway deaths in New York (see, Mem in Support, Bill Jacket, L 1981, ch 910; see also, 1984 Report of Assembly Comm on Transp, Drunk Driving Reform in New York State: 1981-1984; Strategy, Results and Recommendations, at 1). In response, the Legislature enacted a series of reforms (see, e.g., L 1981, chs 910, 913; see also, Mem in Support, Bill Jacket, L 1981, ch 910) and in 1988 consolidated and recodified pertinent provisions into a single article (see, L 1988, ch 47). Article 31 emerged as a tightly and carefully integrated statute the sole purpose of which is to address drunk driving.³ The penalties for section 1192 violations are specific; each offense is accorded its own criminal punishment (see, Vehicle and Traffic Law § 1193 [1] [a], [b], [c]). Violations incurred during the operation of special motor vehicles are subject to different penalties (see, e.g., Vehicle and Traffic Law § 1193 [d] [1-a] [operating a school bus while impaired is a misdemeanor punishable by a fine of not less than $500 nor more than $1,500 or by a period of imprisonment as provided in the Penal Law or both]). Section 1193 classifies each section 1192 violation and correlates penalties to the specific degree of the violation (see, e.g., Vehicle and Traffic Law § 1193 [1] [b], [c] [compare misdemeanor driving while intoxicated fines and sentences with those for felony driving while intoxicated]). The penalties for multiple section 1192 violations increase with each violation that occurs over a specific period of time (see, e.g., Vehicle and Traffic Law § 1193 [1] [c] [i] [person who operates a vehicle in violation of section 1192 (2), (3) or (4) with a prior conviction for a section 1192 (2), (3) or (4) violation within 10 years is guilty of a class E felony and shall be punished by a fine of not less than $1,000 nor more than $5,000 or by a period of imprisonment provided in the Penal Law or both]).⁴ Unlike the Penal Law, section 1193 mandates minimum fines where a fine is imposed (compare, Vehicle and Traffic Law § 1193 [1] [b] [misdemeanor driving while intoxicated has a minimum fine of $500], with Penal Law § 80.05 [1], [2] [class A and B misdemeanors have no minimum]).

In addition to criminal penalties, section 1193 further imposes mandatory minimum periods for license suspension or revocation (see, e.g., Vehicle and Traffic Law § 1193 [2] [a] [1] [license suspended for 90 days where a person is convicted of driving while ability impaired]; Vehicle and Traffic Law § 1193 [2] [b] [1] [license revoked for a minimum of six months where a person is convicted of driving while ability impaired within five years of another section 1192 conviction]). These sanctions, like the criminal penalties, are correlated to the specific nature and degree of the section 1192 violation (compare, Vehicle and Traffic Law § 1193 [2] [b] [2] [revocation for period of six months for first time offender of section 1192 (2), (3) or (4)], with Vehicle and Traffic Law § 1193 [2] [b] [4-a] [A] [revocation for a period of one year for school bus driver who has violated any subdivision of section 1192 and has at least one bus passenger]).

The Legislature placed great significance on the enforcement of specific statutory penalties for drunk driving. The statute provides that sentences for special vehicle offenses must be imposed despite contrary provisions in the Penal Law (see, Vehicle and Traffic Law § 1193 [1] [d] [6]). Moreover, a sentencing court is prohibited from imposing an unconditional discharge for a section 1192 violation, and conditional discharges or probation sentences must be accompanied by a fine (see, Vehicle and Traffic Law § 1193 [1] [e]).⁵ When a person is convicted of a felony under the Vehicle and Traffic Law where a minimum fine has been established, the sentencing court is authorized to impose the minimum notwithstanding the fines schedule established for Penal Law felonies (see, Penal Law § 80.00 [6]; § 80.05 [4]; see also, Penal Law § 80.15). Thus, the Legislature has made it clear that the courts must look to section 1193 for the appropriate penalties and sentencing options for drunk driving offenses.

By charging defendant with attempted drunk driving, the People are asking the courts to create an offense not contemplated by the detailed statutory scheme.⁶ Indeed, it is difficult, if not impossible, to ascertain what punishment could be imposed for the crime of attempted driving while intoxicated. The Vehicle and Traffic Law certainly does not provide for it. Under Penal Law § 110.05, an attempt to commit a crime is generally classified one grade below the completed crime (see, Penal Law § 110.05). While, under section 110.05, attempted drunk driving could theoretically be...