People v. Kates

CourtNew York Supreme Court Appellate Division
Writing for the CourtDILLON
Citation433 N.Y.S.2d 938,77 A.D.2d 417
Decision Date12 December 1980
PartiesPEOPLE of the State of New York, Appellant, v. Robert A. KATES, Respondent.

Page 938

433 N.Y.S.2d 938
77 A.D.2d 417
PEOPLE of the State of New York, Appellant,
v.
Robert A. KATES, Respondent.
Supreme Court, Appellate Division, Fourth Department.
Dec. 12, 1980.

Page 939

Lawrence T. Kurlander, Dist. Atty., Rochester, for appellant (Glenda Brayman, Rochester, of counsel).

Charles F. Crimi, Rochester, for respondent.

Before DILLON, P. J., and CARDAMONE, HANCOCK, CALLAHAN, and MOULE, JJ.

DILLON, Presiding Justice.

In a prosecution for criminally negligent homicide (Penal Law, § 125.10), two counts of driving while under the influence of alcohol (Vehicle and Traffic Law, § 1192, subds. 2, 3), and a traffic infraction (Vehicle and Traffic Law, § 1128, subd. (a)), the People appeal from an order suppressing the test results of blood samples taken from defendant when he was incapable of consenting to the withdrawal of his blood or the making of the test. Although defendant contests the authority of the People to appeal in the circumstances of this case (CPL 450.50, subd. 1), the principal questions presented are whether section 1194 of the Vehicle and Traffic Law requires express consent by a motor vehicle operator before a blood sample can be taken from him; and whether section 1194, as applied to an unconscious or uncomprehending driver, is violative of the equal protection clause (U.S.Const., 14th Amdt., § 1; N.Y.Const., Art. I, § 11) if such express consent is not required.

On March 3, 1979 at about 6:25 P.M. defendant was operating his motor vehicle when it collided with another vehicle which was solely occupied by the driver, who died as a result of the accident. There were two passengers in defendant's car. All four persons were injured and were taken to hospitals. At about 9:15 P.M., at the direction of a deputy sheriff, a doctor drew two blood samples from defendant and gave them to the deputy. A test of the samples showed that defendant's blood contained .18% by weight of alcohol. It was conclusively established at the suppression hearing that defendant was completely disoriented at the time his blood was drawn and because of his condition no request was made of defendant to submit to the blood test.

Initially, defendant argues, and the suppression court agreed, that because subdivision 2 of section 1194 of the Vehicle and Traffic Law confers the right to refuse to take the test, subdivision 1 of that statute must be interpreted as requiring an express consent before the result of a blood test can be admitted into evidence against him (People v. Biester, 24 A.D.2d 1021, 1022, 266 N.Y.S.2d 46 (dissenting memorandum)). We disagree.

While it is true that all parts of a statute must be read and construed together to ascertain the legislative intent (Matter of Bookhout v. Levitt, 43 N.Y.2d 612, 617, 403 N.Y.S.2d 200, 374 N.E.2d 111), a statutory construction which...

To continue reading

Request your trial
13 practice notes
  • People v. McMillan
    • United States
    • New York County Court
    • 8 Febrero 1982
    ...People argue Page 629 otherwise. The extraction of breath from a defendant has been equated with a search and seizure (People v. Kates, 77 A.D.2d 417, 433 N.Y.S.2d 938; People v. Graser, supra), and probable cause to arrest is the same as probable cause to search (Draper v. United States, 3......
  • People v. Wang
    • United States
    • New York Supreme Court
    • 7 Mayo 1985
    ...It is well settled that to effectuate legislative intent the conflicting provision of a statute may be ignored (People v. Kates, 77 A.D.2d 417, 418, 433 N.Y.S.2d 938 aff. 53 N.Y.2d 541, 444 N.Y.S.2d 446, 428 N.E.2d 852; Matter of Louis R, 98 Misc.2d 994, 997, 414 N.Y.S.2d 997, McKinney's Co......
  • People v. Hochheimer
    • United States
    • United States State Supreme Court (New York)
    • 23 Mayo 1983
    ...274, 277-279, 321 N.Y.S.2d 566, 270 N.E.2d 297; People v. Gursey, 22 N.Y.2d 224, 229, 292 N.Y.S.2d 416, 239 N.E.2d 351; People v. Kates, 77 A.D.2d 417, 419, 433 N.Y.S.2d 938, affd. 53 N.Y.2d 591, 444 N.Y.S.2d 446, 428 N.E.2d 852, supra; see also, People v. Stisi, App.Div., 3d Dept., 4/28/83......
  • People v. Wade
    • United States
    • New York County Court
    • 4 Marzo 1983
    ...the Court of Appeals and the several Appellate Divisions [People v. Kates, 53 N.Y.2d 591, 444 N.Y.S.2d 446, 428 N.E.2d 852 (1981) aff'g. 77 A.D.2d 417, 433 N.Y.S.2d 938 (4th Dept., 1980); Matter of Abe A., 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 (1982) rev'g. 81 A.D.2d 362, 440 N.Y.S.......
  • Request a trial to view additional results
13 cases
  • People v. McMillan
    • United States
    • New York County Court
    • 8 Febrero 1982
    ...People argue Page 629 otherwise. The extraction of breath from a defendant has been equated with a search and seizure (People v. Kates, 77 A.D.2d 417, 433 N.Y.S.2d 938; People v. Graser, supra), and probable cause to arrest is the same as probable cause to search (Draper v. United States, 3......
  • People v. Wang
    • United States
    • New York Supreme Court
    • 7 Mayo 1985
    ...It is well settled that to effectuate legislative intent the conflicting provision of a statute may be ignored (People v. Kates, 77 A.D.2d 417, 418, 433 N.Y.S.2d 938 aff. 53 N.Y.2d 541, 444 N.Y.S.2d 446, 428 N.E.2d 852; Matter of Louis R, 98 Misc.2d 994, 997, 414 N.Y.S.2d 997, McKinney's Co......
  • People v. Hochheimer
    • United States
    • United States State Supreme Court (New York)
    • 23 Mayo 1983
    ...274, 277-279, 321 N.Y.S.2d 566, 270 N.E.2d 297; People v. Gursey, 22 N.Y.2d 224, 229, 292 N.Y.S.2d 416, 239 N.E.2d 351; People v. Kates, 77 A.D.2d 417, 419, 433 N.Y.S.2d 938, affd. 53 N.Y.2d 591, 444 N.Y.S.2d 446, 428 N.E.2d 852, supra; see also, People v. Stisi, App.Div., 3d Dept., 4/28/83......
  • People v. Wade
    • United States
    • New York County Court
    • 4 Marzo 1983
    ...the Court of Appeals and the several Appellate Divisions [People v. Kates, 53 N.Y.2d 591, 444 N.Y.S.2d 446, 428 N.E.2d 852 (1981) aff'g. 77 A.D.2d 417, 433 N.Y.S.2d 938 (4th Dept., 1980); Matter of Abe A., 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 (1982) rev'g. 81 A.D.2d 362, 440 N.Y.S.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT