People v. Puma
| Decision Date | 29 November 1983 |
| Parties | The PEOPLE of the State of New York, Appellant, v. Joseph PUMA, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
R. Dolsky, New York City, for appellant.
J.F. Moscowitz, New York City, for defendant-respondent.
Before ROSS, J.P., and CARRO, ASCH, MILONAS and KASSAL, JJ.
Order entered November 10, 1982 in Supreme Court, Bronx County, which dismissed five counts in the indictment, unanimously modified on the law and the facts to reinstate counts one and two, and the order is otherwise affirmed.
The driver of an eighteen-wheel tractor trailer testified before the Grand Jury that right after he had pulled into the middle lane to avoid three EPA cars in the right lane, defendant's van cut across in front of him without warning. The two vehicles interlocked and slid into the right lane and into the siderail, missing the EPA cars but striking a highway worker, throwing him to his death.
The arresting officer stated that defendant's speech was slurred, and a subsequent blood test revealed the presence of cocaine, methadone and opiates. A physician testified that the concentrations discerned would impair the ability to react normally.
The Grand Jury returned a bill indicting defendant for manslaughter in the second degree, reckless driving, four counts of driving while impaired by drugs, driving without a license and changing lanes without properly signaling. On motion, the court below dismissed all but counts three, seven and eight--driving while under the influence of alcohol or drugs, unlicensed operation of a vehicle and changing lanes without signaling.
As to counts four, five and six, we agree with the court's reasoning that these are repetitive of count three and should be dismissed. Although the language of count three merely repeats the title of § 1192, Vehicle and Traffic Law () we note that defendant is well-apprised of the exact nature of the charge. Thus, no purpose would be served by substituting count four for count three.
However, counts one and two should be reinstated. While the court was correct in its observation that "simple proof of intoxication [or impairment by drugs] may still not be sufficient to support a conviction..." (see e.g. People v. Roberts, 72 A.D.2d 954, 955, 422 N.Y.S.2d 244), the court should not have arrogated to itself the function of a petit jury by determining whether the evidence was sufficient to support a conviction.
Upon a CPL § 210.20 motion to dismiss all or part of an indictment, a court may only grant the motion to the extent that "[t]he evidence before the grand jury was not legally sufficient to establish the offense charged or any lesser included offence; ...." Id ...
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