People v. Donovan
| Decision Date | 08 May 1967 |
| Parties | PEOPLE of the State of New York, Plaintiff, v. Susan DONOVAN, Defendant. |
| Court | New York Court of Special Sessions |
Leonard Rubenfeld, Dist. Atty., J. O'Neil Kelly, Asst. Dist. Atty., for the People.
Frank I. Tashker, New York City, for defendant.
Late one Sunday afternoon in November, 1966, the Scarsdale police received a telephone call from a home owner asking that they investigate an auto which, in suspicious fashion, had been parked in the driveway of the home. A police radio car with two patrolmen was dispatched. At the scene, the police found the car as reported, with defendant sprawled across the front seat. It was quite apparent that she had 'passed out', after having thrown up.
The police roused the lady and requested identification. Chafing at the interruption of her slumber, defendant railed at the police in language which accorded with a lack of sobriety. The police consulted with the home owner, who declined to make a formal complaint, but who thought it would benefit the neighborhood if the removal of defendant were speedily accomplished.
The police then addressed defendant: 'Lady, you're on private property; you can't stay here; you'll have to leave.' She declined the latter suggestion with vigor. The police then left, and, possibly with gallant concern for defendant's well-being, parked their car a block away where they could keep an eye on the driveway.
Sure enough, moments later defendant backed out of the driveway and literally drove into the arms of the police, who arrested her and brought her to the station house. A blood sample was taken, and she was charged with operating her vehicle while her ability to operate was impaired by the consumption of alcohol, a violation of section 1192, subdivision 1 of the Vehicle and Traffic Law.
Defendant testified that she had left friends in Pelham earlier on the afternoon in question, where she had had 3 scotches and soda and some roast pork and a baked potato. This excellent nourishment apparently did not agree with her, and, while driving to her home, she felt nauseous. She pulled off the main road onto what she thought was a side road, where she parked. The side road was, of course, the driveway mentioned. Some driveways in Scarsdale do look like public roads.
Defendant, as has been indicated, did become ill, and, knowing she was in no condition to drive, lay her down to sleep. When she was awakened it seemed to her, so she said, that there were multitudes of people around, and lights flashing all over the place. She was abusive because she was embarrassed. She was confused and after the police told her she had to leave, she decided she would oblige them. However she said, she would not have left had the police not said what they did.
The proof is clear that defendant did operate a motor vehicle while her ability to do so was impaired by alcohol (after she had parked, not before, as to which prior time the evidence is inconclusive). She argues that she was entrapped and that the charge should be dismissed. The defense of entrapment will be a good one on and after September 1, 1967 (section 35.40 of the new Penal Code, to take effect then), although it is questionable whether the defense has been recognized in New York before then. See People v. Williams, 38 Misc.2d 80, 237 N.Y.S.2d 527 (1963). As the new section provides, however, the defense is good only when the defendant was induced or encouraged to engage in the proscribed conduct by one seeking to obtain evidence for the purpose of criminal prosecution. I cannot find in this case that the police had this motive in their dealing with defendant.
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