People v. Hamza

CourtNew York Town Court
Writing for the CourtDAVID D. EGAN
Citation441 N.Y.S.2d 579,109 Misc.2d 1055
Decision Date15 June 1981
PartiesThe PEOPLE of the State of New York v. Robert A. HAMZA, Defendant.

Page 579

441 N.Y.S.2d 579
109 Misc.2d 1055
The PEOPLE of the State of New York
v.
Robert A. HAMZA, Defendant.
Gates Town Court, Monroe County.
June 15, 1981.

Page 580

Sharon Kehoe, Asst. Dist. Atty., for plaintiff.

Charles T. Noce, Rochester, for defendant.

DECISION

DAVID D. EGAN, Judge.

Defendant has moved for dismissal on constitutional grounds of the charge that he violated Section 1193-a of the Vehicle and Traffic Law, Refusal to Take a Breath Screening Test, by Notice of Motion and supporting Affidavit of Charles T. Noce, Esq., dated May 15, 1981. The People responded by Answering Affirmation of Sharon M. Kehoe, Esq., Assistant District Attorney, dated May 28, 1981.

On May 10, 1981 at about 2:25 a. m. the defendant, while driving a motor vehicle was stopped by the State Police and charged by Trooper Tober with Speeding, under Section 1180(b) of the Vehicle & Traffic Law, moving from lane unsafely under Section 1128(a) of the Vehicle & Traffic Law, and being an unlicensed operator under Section 509(1) of the Vehicle & Traffic Law. He was also charged with violating Section 1193-a of the Vehicle & Traffic Law, Refusal to Take a Breath Screening Test, and with a violation of Section 1192(3) of the Vehicle & Traffic Law, Driving While Intoxicated. The latter two charges were made by State Trooper Corbitt, who also filed with the Court a report of refusal to submit to a chemical test by the defendant under Section 1194 of the Vehicle & Traffic Law citing the actual time of arrest as being 2:25 a. m. and the time of refusal as being 3:30 a. m. Upon arraignment of the defendant before this Court, that portion concerning the defendant's refusal to take the chemical test under Section 1194 was referred to a hearing by the Department of Motor Vehicles pursuant to Section 1194(3) of the Vehicle & Traffic Law. The simplified traffic information indicates that the time of refusal of the screening test under Section 1193-a as being 2:25 a. m. with the same time given for the charge of Driving While Intoxicated under Section 1192(3).

The defendant challenges the constitutionality of Section 1193-a of the Vehicle & Traffic Law on the grounds that it violates the defendant's right against self-incrimination conferred by the Fifth Amendment of the United States Constitution.

Page 581

Section 1193-a reads as follows: "Breath tests for operators of certain motor vehicles. Every person operating a motor vehicle which has been involved in an accident...

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6 practice notes
  • People v. Ayala
    • United States
    • United States State Supreme Court (New York)
    • February 19, 1982
    ...on the record on appeal. The court in no way adopted a rule limiting review to plea minutes. (Cf. People v. Bennett, 83 A.D.2d 579, 441 N.Y.S.2d 579, modified after hearing, 86 A.D.2d 674, 446 N.Y.S.2d 381 In People v. Hannibal, NYLJ 9/21/81, p. 13 col. 3, Sup.Ct.N.Y.Co., Cahn, J. the court......
  • Deering v. Brown, No. 86-3548
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 4, 1988
    ...of the state's criminal refusal statute, and the lower New York courts have reached conflicting results. Compare People v. Hamza, 109 Misc.2d 1055, 441 N.Y.S.2d 579, 581 (Gates Town Ct.1981) (imposition of criminal rather than civil penalties for refusal makes the statute unconstitutional),......
  • People v. Leontiev
    • United States
    • New York District Court
    • December 12, 2012
    ...to Section 1194(1)(b) ]. The two sections together [38 Misc.3d 723]describe the offense and punishment.See also: People v. Hamza, 109 Misc.2d 1055, 441 N.Y.S.2d 579 (Town Ct., City of Gates 1981)2; [956 N.Y.S.2d 838]People v. Graser, 90 Misc.2d 219, 393 N.Y.S.2d 1009 (Town Ct., City of Amhu......
  • People v. McMillan
    • United States
    • New York County Court
    • February 8, 1982
    ...police officer and imposes criminal penalties for non-compliance. This statute has been found unconstitutional per se (People v. Hamza, 109 Misc.2d 1055, 441 N.Y.S.2d 579; People v. Delaney, 83 Misc.2d 576, 373 N.Y.S.2d 477), and unconstitutional as applied (People v. Hamza, supra; People v......
  • Request a trial to view additional results
6 cases
  • People v. Ayala
    • United States
    • United States State Supreme Court (New York)
    • February 19, 1982
    ...on the record on appeal. The court in no way adopted a rule limiting review to plea minutes. (Cf. People v. Bennett, 83 A.D.2d 579, 441 N.Y.S.2d 579, modified after hearing, 86 A.D.2d 674, 446 N.Y.S.2d 381 In People v. Hannibal, NYLJ 9/21/81, p. 13 col. 3, Sup.Ct.N.Y.Co., Cahn, J. the court......
  • Deering v. Brown, No. 86-3548
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 4, 1988
    ...of the state's criminal refusal statute, and the lower New York courts have reached conflicting results. Compare People v. Hamza, 109 Misc.2d 1055, 441 N.Y.S.2d 579, 581 (Gates Town Ct.1981) (imposition of criminal rather than civil penalties for refusal makes the statute unconstitutional),......
  • People v. Leontiev
    • United States
    • New York District Court
    • December 12, 2012
    ...to Section 1194(1)(b) ]. The two sections together [38 Misc.3d 723]describe the offense and punishment.See also: People v. Hamza, 109 Misc.2d 1055, 441 N.Y.S.2d 579 (Town Ct., City of Gates 1981)2; [956 N.Y.S.2d 838]People v. Graser, 90 Misc.2d 219, 393 N.Y.S.2d 1009 (Town Ct., City of Amhu......
  • People v. McMillan
    • United States
    • New York County Court
    • February 8, 1982
    ...police officer and imposes criminal penalties for non-compliance. This statute has been found unconstitutional per se (People v. Hamza, 109 Misc.2d 1055, 441 N.Y.S.2d 579; People v. Delaney, 83 Misc.2d 576, 373 N.Y.S.2d 477), and unconstitutional as applied (People v. Hamza, supra; People v......
  • Request a trial to view additional results

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