People v. Gagne
| Decision Date | 08 February 1985 |
| Citation | 127 Misc.2d 327,485 N.Y.S.2d 938 |
| Parties | The PEOPLE of the State of New York v. Steven GAGNE, Defendant. |
| Court | New York County Court |
The question presented by defendant's pre-trial motion to dismiss two counts of this indictment (CPL § 210.20) is whether a 33 year old case, People v. Pardee, 202 Misc. 238, 117 N.Y.S.2d 515, affd. 282 App.Div. 735, 122 N.Y.S.2d 902, affd. 306 N.Y. 660, 116 N.E.2d 495--in which the courts of this state held that, under former § 70 of the Vehicle and Traffic Law (now § 1192), an out-of-state conviction of driving under the influence of alcohol could not be used as the basis for a driving while intoxicated (DWI) felony indictment in New York--remains the law in this state, or whether the subsequent repeal of § 70 and the enactment and recodification of, and numerous amendments to § 1192, have eroded its vitality. We hold that People v. Pardee, supra, remains the law in New York, and that only a prior in-state conviction under § 1192 may be deemed a prior conviction for the enhancement of penalty provisions of § 1192(5). 1
As the trial court remarked in Pardee with respect to former § 70, and which we observe with respect to § 1192:
(1) the statute, being penal in nature, should be strictly construed;
(2) it "is well settled that in the absence of express statute, conviction under the laws of another state can have no effect by way of penalty beyond the limits of the state in which the judgment is rendered (Logan v. United States, 144 U.S. 263 People v. Gutterson, 244 N.Y. 243, 248 (202 Misc. at 240 emphasis added). See also People v. Charles, 1 NY 180, 184; CPL § 20.20; ALI Model Penal Code § 1.03(1)(f); Callaghan, Crim Law NY § 1.06 (3rd Ed); Crim Proc NY Pt 1, § 1.05 (3rd Ed).
(3) where the Legislature intended to impose a punishment, penalty or forfeiture in this state for acts committed elsewhere, it has expressly stated its intention 3.
The Legislature, presumptively aware of the Court of Appeals affirmance in Pardee, sought to amend former § 70 to expressly provide that an out-of-state conviction could be deemed a predicate conviction . These attempts proved unsuccessful. Section 1192 resembles former § 70 in that it too fails to expressly provide that out-of-state convictions may be deemed predicate convictions, and we think that this omission must be deemed intentional, and not the result of mere legislative oversight [People v. Mashaw, 97 Misc.2d 554, 556-557, 412 N.Y.S.2d 91, supra; cf. King and Tipperman, "The Offense of Driving While Intoxicated: The Development of Statutory and Case Law in New York," 3 Hofstra L.Rev. 541, 547 (fn. 21) (1975) ].
This conclusion is supported by a comparison of § 1192 with other sections of the Vehicle and Traffic Law in which the Legislature has expressly authorized the revocation or suspension of one's driver's license, driving privileges or certificate of registration for out-of-state convictions involving the use of motor vehicles, including alcohol related matters Indeed, two of the four counts of this indictment charge the defendant with driving while his license was suspended as a result of the prior California conviction for driving under the influence.
We recognize that courts should strive to give meaning and effect to all parts of a statute, and that our decision renders superfluous that portion of § 1192(5) which makes it a felony to operate a motor vehicle in violation of subdivisions two or three of § 1192 within 10 years "after having been convicted of ... driving while intoxicated, ..." since the same sentence also makes it a felony to operate a motor vehicle within 10 years "after having been convicted of a violation of subdivision ... three of this section ..." 6 However, a statute should be construed as of the time it takes effect (McKinney's Cons.Laws of N.Y. Book 1, Statutes, § 93), and, when section 1192(5) first took effect in 1971, a driver could be charged with driving while intoxicated as a felony based upon a prior, New York conviction for "driving while intoxicated" under former § 1192, rather than under newly enacted subdivisions two and/or three. Thus, the "or of driving while intoxicated" clause was necessary to insure that prior in-state convictions continued to count as predicate convictions (compare Cal. Vehicle Code §§ 23156, 23165 and 23200) 7.
Nor are we unaware of the tragic consequences of driving while intoxicated (see People v. Scott, 63 N.Y.2d 518, 525, 483 N.Y.S.2d 649, 473 N.E.2d 1) and recent efforts to strengthen New York's response to this problem (see, e.g., Alcoholic Beverage Control Law, § 65(1) (); 8 Vehicle and Traffic Law § 510(2)(a)(iii) and (viii); 510(2)(b)(vi); 510(2)(c), (d) and (e); 510(6); Article 21 (Alcohol and Drug Rehabilitation Program); §§ 1194 and 1194-a (compulsory chemical tests); People v. Scott, 63 N.Y.2d 518, 483 N.Y.S.2d 649, 473 N.E.2d 1, supra, (upholding constitutionality of Sheriff's use of roadblocks for purposes of detecting and deterring DWI). But it is for the Legislature, not this court, to authorize the use of an out-of-state conviction as a prior conviction under § 1192(5).
The motion to dismiss is granted to the extent of dismissing counts 1 and 2 of the indictment:
(a) with leave granted to the People to resubmit the matter to another Grand Jury for prosecution as misdemeanors under § 1192(2) and (3) of the Vehicle and Traffic Law supra ]; or
(b) without prejudice to the People's commencement of a new criminal prosecution on proper papers not inconsistent herewith [see CPL § 1.20(3-a), (5)(b) and (6); 210.45(9)(b) ].
The motion is denied with respect to counts 3 and 4. Bail is continued [CPL § 210.45(9) ].
1 We assume, for purposes of this motion, that the defendant's prior conviction under California Vehicle Code § 23152(a) () constitutes a prior conviction of "driving while intoxicated" In view of our decision, we need not reach that issue (cf. People v. Pardee, 202 Misc. 238, 241, 117 N.Y.S.2d 515; Cal. Vehicle Code §§ 23152, 23153 and 23155; Byrd v. Municipal Court of City and County of San Francisco, 125 Cal.App.3d 1054, 178 Cal.Rptr. 480).
See also People v. Butler, 96 A.D.2d 140, 142, 468 N.Y.S.2d 274, in which the Court suggests that an individual can be indicted for a felony under § 1192 only after he has been convicted of a misdemeanor under that section.
2 Penal Law § 70.06 defines a second felony offender. Subdivision (1)(b)(i) provides that:
"(b) For the purpose of determining whether a prior conviction is a predicate felony conviction the following criteria shall apply:
(i) The conviction must have been in this state of a felony, or in any other jurisdiction of an offense ..." (emphasis added). Similar language is found in §§ 70.04 and 70.10, which provide for the sentencing of second and persistent violent felony offenders, respectively, and in recently enacted CPL § 400.14, which deals with "second crime offenders."
3 Section 23210 provides that:
"A conviction of an offense in any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada which, if committed in this state, would be a violation of Section 23152 or 23153, is a conviction of Section 23152 or 23153 for the purposes of this code."
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