People v. Prescott

• Decision Date: 24 June 1999
• Citation: 183 Misc.2d 181,702 N.Y.S.2d 742
• Court: New York District Court
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>NORTON U. PRESCOTT, II, Defendant.

183 Misc.2d 181

702 N.Y.S.2d 742

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

v.NORTON U. PRESCOTT, II, Defendant.

June 24, 1999.

Shults & Shults, Hornell (Joan Merry of counsel), for defendant.

John C. Tunney, District Attorney of Steuben County (Brooks T. Baker of counsel), for plaintiff.

OPINION OF THE COURT

MARIANNE FURFURE, J.

Defendant has been charged in this indictment with two counts of felony driving while intoxicated (DWI), one count of aggravated unlicensed operation of a motor vehicle in the first degree, two counts of attempted felony DWI, one count of attempted aggravated unlicensed operation of a motor vehicle in the first degree, and one count of unauthorized use of a motor vehicle as a misdemeanor. Defendant moved for disclosure of the Grand Jury minutes and dismissal of the indictment on the ground that the evidence presented to the Grand Jury was not legally sufficient to establish the offenses charged or any lesser included offense. Defendant also sought dismissal of counts four, five and six of the indictment on the basis that it is not legally possible to commit the crimes of attempted DWI or attempted aggravated unlicensed operation. The court reserved decision on these applications.

After a thorough review of the Grand Jury minutes and relevant case law, the court finds that the evidence presented to the Grand Jury with respect to counts one, two and three was legally sufficient to establish those crimes. Therefore, defendant's application for disclosure of the Grand Jury minutes and dismissal of those counts of the indictment is hereby denied.

Counts four, five and six charge the defendant with the crimes of attempted driving while intoxicated (Penal Law § 110.00; Vehicle and Traffic Law § 1192 [2], [3]) and attempted aggravated unlicensed operation of a motor vehicle in the first degree. The evidence presented to the Grand Jury was that, after driving his own vehicle into a ditch, defendant jumped into a vehicle parked in a neighbor's driveway and attempted to start the vehicle. The vehicle's owner testified that he heard the engine crank but the vehicle did not start. When questioned by the owner, defendant stated that he intended to use this vehicle to pull his own vehicle out of the ditch. There was also testimony that defendant was intoxicated at the time.

The People argue that because there was proof that defendant intended to operate the neighbor's vehicle on a public highway when he attempted to start the vehicle and that he was intoxicated at the time, there is sufficient evidence to support a conviction for attempted driving while intoxicated and attempted aggravated unlicensed operation of a motor vehicle. The defendant argues that it is legally impossible to attempt to operate a vehicle in an intoxicated condition.

To be guilty of an attempt to commit a crime, the People must prove that the defendant engaged in conduct which tends to effect the commission of a crime, and that defendant did so with the intent to commit that crime (Penal Law § 110.00). In this case, there is no question that defendant engaged in conduct which would tend to place the vehicle on a public highway, but for the fact that he could not start the car (People v Marriott, 37 AD2d 868). However, the issue is whether defendant could intend to commit the crime of driving while intoxicated.

The Court of Appeals has ruled that it is legally impossible to attempt to commit a crime which makes the causing of a certain result criminal regardless of whether the result was intended (People v Campbell, 72 NY2d 602). Other courts have ruled that it is not possible to attempt to commit a crime which does not require specific intent (People v Burress, 122 AD2d 588; People v Williams, 40 AD2d 1023). The People argue that one must intend to operate a motor vehicle in order to be convicted of driving while intoxicated and that this is the specific intent...