People v. Cruz

• Decision Date: 06 July 1979
• Citation: 420 N.Y.S.2d 531,99 Misc.2d 634
• Parties: The PEOPLE of the State of New York, Appellant, v. Hector CRUZ, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Term

Page 531

420 N.Y.S.2d 531

99 Misc.2d 634

The PEOPLE of the State of New York, Appellant, v. Hector CRUZ, Defendant-Respondent.

Supreme Court, Appellate Term, First Department.

July 6, 1979.

Mario Merola, Dist. Atty. (Alan D. Marrus and David H. Fromm, New York City, of counsel), for appellant.

William E. Hellerstein and Thomas H. Busch, New York City, for defendant-respondent.

Before HUGHES, J. P., and RICCOBONO and ASCH, JJ.

PER CURIAM:

Order of the Criminal Court of the City of New York, Bronx County, dated October 31, 1978, is affirmed.

Section 1192 of the Vehicle and Traffic Law which prohibits driving in either an "impaired" or an "intoxicated" condition is unconstitutionally vague in violation of the right to due process (United States Constitution, XIV Amendment; New York State Constitution, Article 1, § 6).

The due process clause requires that a criminal statute be sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute (Colautti v. Franklin, 439 U.S. 379, 682, 99 S.Ct. 675, 58 L.Ed.2d 596). Also, the statute must provide explicit standards for the policemen, judges and juries who apply it so that resolution of individual cases is not on an ad hoc and subjective basis (People v. Smith, 44 N.Y.2d 613, 618-619, 407 N.Y.S.2d 462, 464-465, 378 N.E.2d 1032, 1034-1035; Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 33 L.Ed.2d 222). The statute in question does not define either "impaired" or "intoxicated." This is especially critical in applying the subject statute since driving while impaired (subd. 1 of VTL § 1192) is a violation and driving while intoxicated (subd. 3 of VTL § 1192) is a crime.

The court below aptly noted that "(t)hese sections are vague because men of common intelligence must necessarily guess at their meanings and differ as to their applications. A person is not able, from the face of the statute, to know in advance whether his actions are criminal or not." To this we add the observation that not only the citizenry are left to guess and differ but the courts of the State have also rendered conflicting and varying definitions as to the term "intoxication" as used in the statute. One court has found a driver must be "very, very drunk" in order to be convicted of a misdemeanor under subdivision 3 (People v. Barrett, 89 Misc.2d 631, 634, 393 N.Y.S.2d 225, 227 (Town Ct. of Tonawanda, Erie County); see also People v. Kapsuris, 89 Misc.2d 634, 635, 392 N.Y.S.2d 785, 786 (Erie County Ct.)). In People v. Graser, 90 Misc.2d 219, 393 N.Y.S.2d 1004, the Town Court of Amherst, Erie County, observed with commendable candor at page 224, 393 N.Y.S.2d at page 1013:

"Can we say that to be impaired means that the defendant is less drunk than if he were intoxicated, and, that to be intoxicated means that he is more drunk than if he were impaired? We have so charged juries innumerable times, But have never felt satisfied nor comfortable with that statement." (Emphasis added.)

Other courts have held that proof of a substantial degree of impairment is required, compared to the driver's own normal judgment and ability (People v. Miller, 83 Misc.2d 118, 119, 373 N.Y.S.2d 312, 313 (Town Ct. of Webster, Monroe County, 1975); People v. Little, N.Y.L.J., May 10, 1978, p. 15, col. 6 (Sup.Ct., Westchester County)). A court in the Bronx held that "(t)he difference between intoxication and impairment is a matter of degree." If the loss of physical control of the vehicle, reasoned the court, is less than that which would be experienced by a reasonably prudent driver, the defendant would be guilty of driving while "impaired." If the loss of control were of a higher degree, the jury could determine that the defendant was guilty of "intoxication." (People v. Bradford, 96 Misc.2d 298, 300, 408 N.Y.S.2d 1013, 1015 (Sup.Ct., Bronx County).)

It is a well-established principle that "vagueness" challenges to statutes, which do not involve First Amendment freedoms, must be examined in the light of the facts of the case at hand (United States v. National Dairy Prods. Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561; United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706).

The information in the instant case charged defendant with violating an unspecified subsection of VTL § 1192. It does not establish that under the circumstances of defendant's arrest, he was either obviously drunk, or his ability to drive was merely impaired. Thus, a defendant who was very, very drunk, or so charged would clearly violate the statute and the language therein could not be held to be constitutionally vague. Thus, in People v. Farmer, 36 N.Y.2d 386, 391, 369 N.Y.S.2d 44, 45, 330 N.E.2d 22, 23, a driver charged with a misdemeanor who had .21 of 1% By weight of alcohol in his blood was convicted under subdivision 2, which requires only .10 of 1%. Judge Fuchsberg, in a concurring opinion, referring to the legislative intent in enacting sections 1192 and 1196 of the VTL to reduce highway injuries and deaths pointed out that "(w)hile such legislative intent is laudable, it may not impair the due process requirement for providing a defendant with notice of an offense charged. (In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682)" (People v. Farmer, supra, at p. 392, 369 N.Y.S.2d at p. 47, 330 N.E.2d at p. 24.)

In a case such as Farmer and United States v. Channel, D.C., 423 F.Supp. 1017, where the defendant was also "highly intoxicated," there has been no difficulty in determining that there has been no denial of due process.

These cases are inapposite to the case at bar, however. In the case before this court, the defendant's driving ability may have been only slightly diminished, and no chemical test results were available. Under these facts, the statute provides no ascertainable standards for a trial court to apply to defendant's acts and thus is constitutionally vague. Accordingly, the order appealed from should be affirmed.

RICCOBONO and ASCH, JJ., concur.

HUGHES, J. P., dissents.

HUGHES, Justice Presiding, dissenting.

I respectfully dissent and would vote to reverse the order appealed from and to reinstate the information.

Defendant was arrested on January 28, 1978 and charged with resisting arrest (P.L. 205.30) and operating a motor vehicle while under the influence of alcohol (V.T.L. § 1192). At the preliminary hearing on February 15, 1978, Police Officer Daniel Marrone testified that he observed defendant go through a red light, and after stopping him, smelled alcohol on his breath. Defendant refused to submit to a breathalyzer test and/or a chemical test. At the conclusion of the hearing, the charge of resisting arrest was dropped. Thereafter, defendant moved to dismiss the remaining charge under V.T.L. § 1192 on the ground that the statute is unconstitutionally vague on its face and violates due process under the Fourteenth Amendment of the U.S. Constitution and Article one, Section six of the New York State Constitution.

Although defendant's attorney's affirmation in support of that motion alleges that the accusatory part of the information fails to adequately designate the offense charged, in an amended answering affirmation, the People disclose that subpoenaed Police Department records show that defendant stated the charge against him to be V.T.L. §§ 1192/3. This specific charge is also contained in a Judicial Subpoena issued by the Criminal Court.

Defendant's argument in his motion papers was that the charge of violation of V.T.L. § 1192 in the accusatory instrument based on the arresting police officer's deposition, failed to inform him sufficiently to defend the charge. This argument was based in part upon the alleged failure to indicate the subdivision of the statute under which defendant was being charged.

The arresting officer's affidavit alleges "that at the aforementioned date, time and location the defendant did operate a motor vehicle while under the influence of alcohol in that defendant was observed by the deponent driving his vehicle in an irratic (sic) and reckless manner. Deponent further states, that the defendant's eyes were watery and bloodshot, his speech was slurred and the defendant was unsteady on his feet, and his breath bore the odor of alcohol."

In its decision dated October 31, 1978 granting the motion dismissing the information, the court (Figueroa, J.) found that V.T.L. § 1192, subdivisions 1 and 3, fail to meet due process requirements of the Fourteenth Amendment of the U.S. Constitution and Article one, Section six of the New York Constitution, by failing to provide any useful guideline to distinguish between impairment (subd. 1) and intoxication (subd. 3), so that "(t)he average citizen is unable to determine when his next drink will push him over the precipice from a violation for impairment to a violation for a crime of intoxication." The ambiguity or vagueness of the statute makes it necessary, in the opinion of the court below, for men of common intelligence to guess at their meanings. "A person is not able, from the face of the statute, to know in advance whether his actions are criminal or not. The statute thus violates the first essential of due process of law."

A conviction for impairment under 1192(1) is an infraction whereas an 1192(3) conviction is a misdemeanor carrying a penalty of a maximum term of one year, a fine up to $500, or both. A conviction of either subsection 2 or 3 within ten years of a previous violation of either of these subsections constitutes a felony.

The court below applied the guideline enunciated by the U.S. Supreme Court in Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 "(t)hat the terms of a penal statute . . . must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties . . . and a statute which either forbids or requires the...