People v. Giacopelli

• Decision Date: 07 March 1997
• Citation: 655 N.Y.S.2d 835,171 Misc.2d 844
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Christopher GIACOPELLI, Defendant.
• Court: New York Justice Court

Page 835

655 N.Y.S.2d 835

171 Misc.2d 844

The PEOPLE of the State of New York, Plaintiff, v. Christopher GIACOPELLI, Defendant.

Justice Court, Town of Clarkstown Rockland County.

March 7, 1997.

Gerstenzang, O'Hern, Hickey & Gerstenzang, Albany (Peter Gerstenzang, of counsel), for defendant.

Michael E. Bongiorne, District Attorney of Rockland County (Gary Heavner, of counsel), for plaintiff.

VICTOR J. ALFIERI, JR., Town Justice.

Defendant is charged by Simplified Traffic Informations with violations of Sections 1192(3) and 1192(2) of the Vehicle & Traffic Law of the State of New York, alleging that the defendant operated a motor vehicle while in an intoxicated condition, and at the time of his operation he had a blood alcohol content greater than 1/10 of 1% by weight of alcohol in his blood, specifically .14 of 1%. See Simplified Traffic Informations and Supporting Depositions--Bill of Particulars filed and served upon defendant in this case. Also filed with this court is an original certification of the breathalyzer examination conducted upon the defendant on November 28, 1996, the date of the defendant's arrest, certifying a reading of .14%. The defendant was released on an appearance ticket and appeared before this Court on December 9, 1996 for arraignment.

On December 9, 1996, the defendant appeared with counsel and this court acting pursuant to Section 1193(2)(e)(1) suspended the defendant's privileges to operate a motor vehicle, based upon his having a prior VTL Section 1192 conviction within the preceding 5 year period. V & T Law Section 1193(2)(e)(1).

On the arraignment date, the defendant's counsel objected to the suspension claiming that the defendant was entitled to a pre-suspension hearing. Defendant argues that a recent decision by the New York State Court of Appeals in Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82, 668 N.E.2d 1376 which upheld the constitutionality of Vehicle & Traffic Law Section 1193(2)(e)(7) under a due process analysis, holding that a hearing is required under that section prior to the court imposing a suspension, should likewise apply to a suspension under Section 1193(2)(e)(1). The defendant contends that a hearing must be likewise held where the court intends to impose a suspension pursuant to Section 1193(2)(e)(1) VTL. The People oppose the holding of a hearing pursuant to Pringle v. Wolfe, contending that Pringle v. Wolfe does not apply to Section 1193(2)(e)(1), and is limited to Section 1193(2)(e)(7).

The defendant also argues, that in the event this Court holds that Pringle v. Wolfe applies to a suspension pursuant to Section 1193(2)(e)(1) then in that event as this court has in effect suspended the defendant's driving privileges, prior to a hearing, the defendant's privileges must be immediately restored. In this regard, it should be noted that the defendant was given an opportunity to participate in a hearing on December 9, 1996, but asked for an adjournment. The hearing was held on December 18, 1996 and adjourned on consent of the parties to January 9, 1997 when it was completed. The case was then adjourned for memoranda to be submitted by both sides and decision rendered.

The issue to be decided herein is twofold: (1) whether a hearing prior to suspension as mandated in Pringle v. Wolfe applies to Section 1193(2)(e)(1); and (2) if Pringle v. Wolfe does in fact apply to Section 1193(2)(e)(1) must the defendant's driving privileges be immediately restored, due to the fact that this court suspended the defendant's privileges prior to conducting a hearing.

Based upon the analysis below, this Court holds that Pringle v. Wolfe does in fact apply to suspensions pursuant to Section 1193(2)(e)(1). This Court also holds that the defendant's privileges, albeit improperly suspended in violation of the requirements of Pringle v. Wolfe, need not be restored at this point.

A sub-issue is also the subject of this decision, involving the proof to be submitted at a hearing in an 1193(2)(e)(1) case. In the case at bar, the defendant objects to the Certificate of Conviction for the prior Vehicle and Traffic Law Section 1192 offense on December 19, 1994, which bore an erroneous birthdate indicating that the defendant was born on June 10, 1971 instead of his actual birthday which is June 20, 1971. People v. Jones, 177 A.D.2d 1000, 578 N.Y.S.2d 20 (4th Dep't 1991).

I. ANALYSIS OF VTL SECTION 1193(2)(e)(1)

UNDER PRINGLE v. WOLFE.

Both Sections of the Vehicle & Traffic Law, 1193(2)(e)(1) and 1193(2)(e)(7) require the suspension pending prosecution of a defendant's driving privileges. The Sections contain virtually identical language. Section 1193(2)(e)(1) reads as follows:

Section 1193(2)(e) Special Provisions.

(1) Suspension pending prosecution; procedure

a. Without notice, pending any prosecution, the court shall suspend such license, where the holder has been charged with a violation of subdivision two, three or four of section eleven hundred ninety-two of this article and ... has been convicted of any violation under section eleven hundred ninety-two of this article within the preceding five years.

b. The suspension under the preceding clause shall occur no later than twenty days after the holder's first appearance before the court on the charges or at the conclusion of all proceedings required for the arraignment. In order for the court to impose such suspension, it must find that the accusatory instrument conforms to the requirements of section 100.40 of the criminal procedure law and there exists reasonable cause to believe that the holder operated a motor vehicle in violation of subdivision two, three or four of section eleven hundred ninety-two of this article and either, (i) the person had been convicted of any violation under such section eleven hundred ninety-two of this article within the preceding five years; or (ii) * * * At such time the holder shall be entitled to an opportunity to make a statement regarding the enumerated issues and to present evidence tending to rebut the court's findings. (VTL Section 1193(2)(e)(1), emphasis supplied).

Section 1193(2)(e)(7), which was due to expire on November 1, 1996, and has been extended by Legislation to November 1, 1997 (See L.1996 Ch.229), reads as follows:

Section 1193(2)(e)(7) [eff. until Nov.1, 1997] Suspension pending prosecution; excessive blood alcohol content.

(a) A court shall suspend a driver's license, pending prosecution, of any person charged with a violation of subdivision two or three of section eleven hundred ninety-two of this article who, at the time of arrest, is alleged to have had .10 of one percent or more by weight of alcohol in such driver's blood as shown by chemical analysis of blood, breath, urine or saliva, made pursuant to subdivision two or three of section eleven hundred ninety-four of this article.

(b) The suspension occurring under this subparagraph shall occur no later than at the conclusion of all proceedings required for the arraignment; provided, however, that if the results of any test administered pursuant to section eleven hundred ninety-four of this article are not available within such time period, the complainant police officer or other public servant shall transmit such results to the court at the time they become available, and the court shall, as soon as practicable following the receipt of such results and in compliance with the requirements of this subparagraph, suspend such license. In order for the court to impose such suspension it must find that the accusatory instrument conforms to the requirements of section 100.40 of the criminal procedure law and there exists reasonable cause to believe that the holder operated a motor vehicle while such holder had .10 of one percent or more by weight of alcohol in his or her blood as was shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article. At the time of such license suspension the holder shall be entitled to an opportunity to make a statement regarding these two issues and to present evidence tending to rebut the court's findings (emphasis supplied).

As may be seen from the statutes, both contain provisions requiring the court to permit the holder of the license "an opportunity to make a statement regarding the enumerated issues and to present evidence tending to rebut the court's findings". (VTL Section 1193(2)(e)(1)(b)). Subsection (7)(b) refers to "these two issues" as opposed to "enumerated issues" of subsection (1)(b).

Perhaps the difference in terminology is necessitated by the fact that in the 1193(2)(e)(7) cases there are only two specific enumerated issues which must be addressed: whether a defendant has a blood alcohol level of .10 of 1% or more by weight of alcohol in his blood; and whether the Accusatory Instrument conforms to the requirements of Section 100.40 of the CPL. In a suspension pending prosecution case under Section 1193(2)(e)(1)(b) however, the court must find that, (1) the Accusatory Instrument conforms to CPL Section 100.40 requirements; and (2) there exists reasonable cause to believe the defendant was operating in violation of VTL Section 1192(2), (3) or (4); and (3) the defendant has a prior 1192 conviction within the previous 5 years or has committed an Article 120 or Article 125 Penal Law offense. VTL Section 1193(2)(e)(1)(b). The wording of the latter cited statute, therefore, does not lend itself to a specification of the number of issues to be addressed, as both elements under (3) may or may not be present. Therefore, this distinction between the two statutes is de minimis and of no moment.

The crucial question for the purposes of this decision is whether Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82, 668 N.E.2d 1376 should apply equally to both statutes, given the fact that the sections are almost identical in their text and each requires that the defendant be given an...