People v. Knight

• Decision Date: 16 November 2017
• Citation: 58 Misc.3d 76,65 N.Y.S.3d 417
• Parties: The PEOPLE of the State of New York, Appellant, v. Jacqueline KNIGHT, Respondent.
• Court: New York Supreme Court — Appellate Term

58 Misc.3d 76
65 N.Y.S.3d 417

The PEOPLE of the State of New York, Appellant,
v.
Jacqueline KNIGHT, Respondent.

Supreme Court, Appellate Term, Second Dept., 9 and 10 Judicial Dist.

Nov. 16, 2017.

65 N.Y.S.3d 418

Nassau County District Attorney (Yael V. Levy, Ames C. Grawert of counsel), for appellant.

Nassau County Legal Aid Society (Jeremy L. Goldberg, David Bernstein of counsel), for respondent.

PRESENT: ANTHONY MARANO, P.J., ANGELA G. IANNACCI, JERRY GARGUILO, JJ.

Appeal from an order of the District Court of Nassau County, First District (David W. McAndrews, J.), dated February 6, 2015. The order granted defendant's oral motion, pursuant to CPL 170.30(1)(g), to set aside a jury verdict finding her guilty of driving while intoxicated (common law) and to dismiss that charge.

58 Misc.3d 77

ORDERED that the order is reversed, on the law, defendant's oral motion, pursuant to CPL 170.30(1)(g), to set aside the jury verdict finding her guilty of driving while intoxicated (common law) and to dismiss that charge is denied, and the matter is remitted to the District Court for sentencing on that conviction.

On May 23, 2012, the People charged defendant, in separate simplified traffic informations, with driving while intoxicated (per se) ( Vehicle and Traffic Law § 1192[2] ) and several other Vehicle and Traffic Law violations. At a jury trial, the People's witnesses testified as to defendant's postarrest test of her blood alcohol content, which produced a reading of .13 of one per centum by weight of alcohol, to the indicia of actual intoxication that defendant exhibited, and to her admissions of alcoholic beverage consumption. Prior to its charge to the jury, the District Court granted the People's request, pursuant to Vehicle and Traffic Law § 1192(9), to

65 N.Y.S.3d 419

charge the jury with, in addition to driving while intoxicated (per se), driving while intoxicated (common law) ( Vehicle and Traffic Law § 1192[3] ), over defendant's objection that the charge represented unfair surprise. The jury found defendant guilty of driving while intoxicated (per se) and driving while intoxicated (common law), and acquitted her of the remaining charges.

After defendant was sentenced on the conviction of driving while intoxicated (per se), defendant orally moved, pursuant to CPL 170.30(1)(g), to set aside the verdict finding her guilty of driving while intoxicated (common law) and to dismiss that charge. The People's opposition to the motion addressed only the sufficiency of the trial evidence to support the conviction.

58 Misc.3d 78

By order dated February 6, 2015, the District Court granted the motion on the sole ground that a judgment convicting defendant of driving while intoxicated (common law) "would serve no useful purpose." In a motion denominated as one for leave to reargue their opposition to defendant's motion, the People contended that the CPL 170.30 motion had been untimely; that defendant's motion had been improper because it had been made orally and without proper notice; that, in contravention of CPL 210.45, the People had been deprived of the opportunity to respond to defendant's motion in writing; that the court, invoking only one of the factors enumerated in CPL 170.40(1), had failed properly to analyze the matter in terms of any of the remaining factors involved in an interest of justice dismissal; and that the facts do not support the...