People v. Foster
| Decision Date | 02 September 1986 |
| Parties | The PEOPLE of the State of New York, v. William FOSTER, Defendant. |
| Court | New York District Court |
Denis Dillon, Nassau County District Atty., Mineola, by Robert Fischl, Asst. Dist. Atty., for the people.
Delligatti, Kaschak, Henderson & Juluis, Mineola, for defendant; John L. Maccarone, of counsel.
Decision on Motion
The defendant herein has made a motion to dismiss the simplified traffic information filed against him based, inter alia, on double jeopardy grounds.
At about 12:50 a.m. on March 30, 1986, defendant was given an appearance ticket for a "Parking Violation" returnable in the Hempstead Village Court. The box "No Parking Zone" was checked off on the ticket. Defendant pled guilty to same.
A simplified traffic information charging defendant with driving while intoxicated in violation of VTL 1192, subd. 2, which is the basis of the instant prosecution, was issued to defendant shortly after the aforesaid parking ticket. Mr. Foster was charged, according to the simplified traffic information, with violating the D.W.I. law at about 1:00 a.m. on March 30, 1986.
Police Officer Geis' supporting deposition in connection with the D.W.I. charge states that he observed someone
The Court hereby defined the dismissal request based on the double jeopardy claim, in light of CPL § 40.20(2)(b), which provides that "a person may not be separately prosecuted for two offenses based upon the same criminal act or transaction unless * * * each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harms or evils".
Here, such rule applies, since the parking and D.W.I. charges each contain an element that is not an element of the other. Further, the two different laws defining each offense definitely are meant to prevent quite different types of harms. See People v. Lindsly, 99 A.D.2d 99, 472 N.Y.S.2d 115 (2d Dept., 1984).
Further, considering together the traffic ticket, the ticket charging D.W.I. and Officer Geis' supporting deposition, it appears that the sequence of events was that the policeman came upon defendant while he was slumped over the wheel of the auto with the motor running, at which time he was ticketed for being in a "no parking" zone. He subsequently put the vehicle in motion, drove it a short...
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