People v. Bronzino

• Decision Date: 28 March 1966
• Citation: 269 N.Y.S.2d 83,25 A.D.2d 685
• Parties: The PEOPLE, etc., Respondent, v. John Rocco BRONZINO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 83

269 N.Y.S.2d 83

25 A.D.2d 685

The PEOPLE, etc., Respondent, v. John Rocco BRONZINO, Appellant.

Supreme Court, Appellate Division, Second Department.

March 28, 1966.

Scaduto, Baratta & Solleder, Mineola, for appellant; George J. Solleder, Jr., Mineola, of counsel.

George Aspland, Dist. Atty., Riverhead, for respondent; Richard C. Cahn, Huntington, of counsel.

Before BELDOCK, P.J., and UGHETTA, HILL, RABIN and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Suffolk County, rendered May 28, 1965, convicting him of (1) criminal negligence in the operation of a motor vehicle resulting in death, (2) operating a motor vehicle while his ability was impaired by consumption of alcohol and (3) reckless driving, upon a jury verdict, and imposing sentence.

Judgment reversed on the law and a new trial ordered. The findings of fact below have not been considered.

Under the second count of the indictment, defendant was charged with operating a motor vehicle while intoxicated, in violation of subdivision 2 of section 1192 of the Vehicle and Traffic Law. The People's proof in support of this charge consisted of an alleged admission by defendant to a police officer that he had been drinking, and the opinion of four witnesses that, based on their observations of defendant after the accident, they thought he was drunk. The trial court instructed the jury that, under the second count of the indictment, defendant could be convicted of driving while his ability was impaired. We think this was reversible error. In the absence of a showing by means of a chemical test that there was, within two hours of defendant's arrest, ten-hundredths of one per centum or more by weight of alcohol in his blood, he could not be convicted of driving while his ability was impaired (Vehicle and Traffic Law, § 1192, subd. 1; Matter of Bowers v. Hults, 42 Misc.2d 845, 847--848, 249 N.Y.S.2d 361, 362--364; People v. Ashby, 31 Misc.2d 707, 708, 220 N.Y.S.2d 607, 609; People v. Pfendler, 29 Misc.2d 339, 341, 212 N.Y.S.2d 927, 929; People v. Wagonseller, 25 Misc.2d 217, 205 N.Y.S.2d 217, 205 N.Y.S.2d 933).

The trial court also instructed the jury that the unsafe condition of the tires on the automobile driven by defendant could be considered as part of his alleged recklessness or culpable negligence if they found that the condition of the tires was one of the producing causes of the accident. Defense counsel requested the court to...