People v. Greer
Decision Date | 02 July 2001 |
Citation | 189 Misc.2d 310,731 N.Y.S.2d 323 |
Court | New York Supreme Court |
Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>SIDNEY GEORGE GREER, Appellant. |
Thomas P. Halley, Poughkeepsie, and Rizzo & Kelley, Poughkeepsie (James P. Kelley of counsel), for appellant.
William V. Grady, District Attorney of Dutchess County, Poughkeepsie (Jessica Z. Segal of counsel), for respondent.
Judgment of conviction unanimously modified upon the law by reinstating the jury verdict finding defendant guilty of driving while impaired as a traffic infraction, vacating the sentence imposed, remitting the fine, if paid, and remanding for resentence, and as so modified, affirmed.
Although originally charged with driving while intoxicated as a misdemeanor (Vehicle and Traffic Law § 1192 [2], [3]), defendant was found guilty by a jury of driving while impaired as a lesser included offense (Vehicle and Traffic Law § 1192 [1]). At the instance of the People, the court below conducted a CPL 400.40 hearing before sentencing and found that defendant had two prior convictions for driving while impaired within the previous 10 years. The justice's return reveals that the court, on the basis of its interpretations of CPL 400.40 and Vehicle and Traffic Law § 1193, "elevated the charge to a misdemeanor and sentenced accordingly."
The court below erred in concluding that it could utilize the procedure prescribed by CPL 400.40 to enhance the grade of offense from traffic infraction to misdemeanor (People v Jamison, 170 Misc 2d 974). CPL 400.40 reads in part:
As above stated, CPL 400.40 provides a "Procedure for determining prior convictions for the purpose of sentence in certain cases" (emphasis added). Said provision does not authorize an...
To continue reading
Request your trial-
People v. Harris
...(Rochester City Ct 1996, Pfeiffer, J.). The court also recognizes that its decision is at odds with the holding in People v Greer, 189 Misc 2d 310 (App Term, 2d Dept 2001), which is not binding on this court. See People v Pestana, 195 Misc 2d 833 (Crim Ct, NY County 2003, Jaffe, J.). While ......
-
People v. Harris
...infraction to driving while ability impaired as a misdemeanor, based upon the proven existence of prior convictions (see People v Greer, 189 Misc 2d 310 [2001]; People v Jamison, 170 Misc 2d 974 Nor is there any indication that a different result would obtain under CPL 400.40 in cases where......
-
People v. Dorilas
...Driving while ability impaired, as charged here, is a traffic infraction (see Vehicle and Traffic Law § 1193 [1] [a]; see also People v Greer, 189 Misc 2d 310 [App Term, 9th & 10th Jud Dists 2001]), and CPL 30.30 does not apply to traffic infractions (see People v Taylor, 189 Misc 2d 313, 3......
-
People v. Lazzar, 2004 NY Slip Op 24027 (NY 2/2/2004)
...§ 1192 (1), within 10 years, result in an automatic misdemeanor conviction? Legal Analysis Defense counsel cites People v. Greer (189 Misc 2d 310 [App Term, 2d Dept 2001]) in support of his claim that the instant DWAI conviction resulted in a traffic infraction conviction. The Appellate Ter......