People v. Grejszak

• Citation: 100 Misc.2d 1045,420 N.Y.S.2d 483
• Parties: The PEOPLE of the State of New York v. Stanley GREJSZAK, Defendant.
• Decision Date: 26 September 1979
• Court: New York Supreme Court

Page 483

420 N.Y.S.2d 483

100 Misc.2d 1045

The PEOPLE of the State of New York v. Stanley GREJSZAK, Defendant.

Supreme Court, Erie County.

Sept. 26, 1979.

Edward C. Cosgrove, Dist. Atty. (Barry A. Zavah, Asst. Dist. Atty., of counsel), for the People.

Richard J. Rosche, Buffalo, for defendant.

MEMORANDUM

LEON N. ARMER, Justice.

Defendant has been charged by indictment with driving while intoxicated as a felony in violation of sections 1192, subds. 2, 3 and 5 of the Vehicle and Traffic Law. He has moved for dismissal of the indictment on the grounds that section 1192(3) is unconstitutionally vague as heretofore found by decision passed upon a Appellate Term, First Judicial Department, in People v. Hector Cruz, A.D.2d, 411 N.Y.S.2d 96.

As a court of original jurisdiction, this court can accept and act upon a claim of unconstitutionality of a statute only when a conclusion of unconstitutionality is inescapable (McKinney's Statutes § 150), and here cannot and does not find a reasonable doubt as to the constitutionality of the statutes questioned.

The term "driving while intoxicated" as used in our penal statutes has long been known, since 1919, to mean "such a condition as impairs to some extent, however slight it may be, the ability as a person to operate an automobile" (People v. Weaver, 188 App.Div. 395, 177 N.Y.S. 71).

In 1960 the Legislature added a new penal statute:

1192-1: "No person shall operate a motor vehicle while his ability to operate such motor vehicle is impaired by the consumption of alcohol."

Clearly the elements of the offense of driving while intoxicated and driving while impaired are identical (see People v. Yost, 50 A.D.2d 577, 374 N.Y.S.2d 704). Some argument has been advanced that to be guilty of the latter one must be drunk, but in the former "very, very drunk". (See among Cruz and others, People v. Barrett, 89 Misc.2d 631, 393 N.Y.S.2d 225; People v. Kapsuris, 89 Misc.2d 634, 392 N.Y.S.2d 785.)

No legislative intent to create such a distinction appears. The Legislature has, in other instances, created offenses of different degrees but identical elements. (See People v. Eboli, 34 N.Y.2d 281, 357 N.Y.S.2d 435, 313 N.E.2d 746; People v. Discala, 45 N.Y.2d 38, 407 N.Y.S.2d 660, 379 N.E.2d 187 (coercion); People v. Lubow, 29 N.Y.2d 58, 323 N.Y.S.2d 829, 272 N.E.2d 331 (criminal solicitation as a misdemeanor and as a violation).) In such cases the prosecuting agency has an option as to the level of offense upon which it initially proceeds, and the lower, if not pressed, may at least in some...