People v. Smith

• Citation: 2022 NY Slip Op 31224 (U)
• Decision Date: 28 April 2022
• Docket Number: CR 2781-21
• Parties: PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. DAVID B. SMITH, Defendant.
• Court: New York City Court

2022 NY Slip Op 31224(U)

PEOPLE OF THE STATE OF NEW YORK, Plaintiff,
v.
DAVID B. SMITH, Defendant.

No. CR 2781-21

City Court, Westchester County

April 28, 2022

Unpublished Opinion

Appearances:

People by George Kobakhidze, Assistant District Attorney (Miriam E. Rocah, District Attorney, Purchase, NY

Defendant by Dennis W. Light, Esq., Raneri, Light & O'Dell, PLLC, White Plains, NY

DECISION AND ORDER

JOSEPH L. LATWIN, JUDGE

On October 17, 2021, at 1:25 a.m. defendant was issued two simplified traffic informations. One charged defendant with violating VTL 1192.3 (Driving While Intoxicated); the second charged defendant with violating VTL 1180B (Speeding) by traveling 90 miles per hour in a 55 miles per hour zone while northbound on I-95. The defendant refused to submit to a Breath Alcohol Analysis test.

It is beyond cavil that drunk driving is a serious problem in the United States. It is a threat to everyone, regardless of age, gender, or class. As its name implies, drunk driving is the act of driving a vehicle after consuming enough alcohol to impair one's motor skills and mental capacity. The impairment to one's motor skills and mental capacity are just two of the reasons why drinking alcohol and driving is such a great problem. It also affects a driver's perception, reaction time, coordination, judgment, and general ability to pay attention to what is happening on the road. Failure to have command of any of these skills can result in a crash and/or the injury of others on the road, including other drivers and their passengers, bicyclists, and pedestrians. Not only are drunk drivers a threat to others on the road, but they are also a threat to themselves and to

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any passengers who may be in the vehicle with them. While driving drunk is an obvious danger to human life, it is also very costly in other ways. When an intoxicated individual gets behind the wheel of a car, they are potentially destructive to the environment and structures within a community as well.

The Center for Disease Control states in the Motor Vehicle Safety section of its website that there is a drunk-driving-related death every 51 minutes in the United States and 29 people die each day in automobile accidents that involve a drunk driver. Thirty-five percent of people killed in auto accidents are alcohol-impaired, according to the Insurance Information Institute. The estimated annual cost of crashes involving alcohol impairment is $37 billion.

According to NHTSA, more than a quarter (25%) of all traffic-related deaths are the direct result of alcohol impairment. Around 800 people per day are injured in a drunk driving crash and 30 people die. In 2017, 32% of people who died in alcohol-related car crashes were passengers.

In 2018, there were 307 alcohol impaired fatalities in New York and the fatality rate was 1.6 per 100, 000 people.

Accordingly, New York has enacted several laws prohibiting driving while intoxicated or impaired. E.g., VTL 1992. It has also funded enhanced local enforcement of the DWI laws. E.g., STOP-DWI - "Special Traffic Options Program for Driving While Impaired".

On the November 16, 2021, return date, the defendant appeared with his then attorney, Warren Roth. Defendant was arraigned, and the Court temporarily suspended his driving privileges in New York. The matter was adjourned at defendant's request to December 21, 2021. A Consent to Change Attorneys from Warren Roth to Dennis Light was later filed. The case was further adjourned to January 11, 2022, with the time being charged to the People.

At Common Law, there was no discovery in criminal case. People ex rel. Lemon v. Supreme Court of the State of New York, 245 NY 24 [1927]. In Rex v. Holland, 4 T. R. [Durnford & East] 691 [King's Bench 1792] the Court said, "[t]here is no principle or precedent to warrant [discovery and inspection]. Nor was such a motion as the present ever made; and if we were to grant it, it would subvert the whole system of criminal law." "The practice on common law indictments, and on informations on particular statutes, shews it to be clear that this defendant is not entitled to inspect the evidence, on which the prosecution is founded till the hour of

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trial." The possibility of any discovery rested with the equity powers of the Court. This would remain the law for over 140 years.

In 1933, New York opened the door to discovery in criminal cases but in a very limited way. "Where a witness in a criminal case testifies to having made such a statement, and the statement is in court and an inspection of it by the presiding judge reveals contradictory matter, its use for cross-examination on the question of credibility may and usually should be permitted. 'The State has no interest in interposing any obstacle to the disclosure of the facts, unless it is interested in convicting accused parties on the testimony of untrustworthy persons.'" People v Walsh, 262 NY 140, 149-50 [1933]. In 1944, when it was a foreign concept for the State to furnish a criminal defendant with any facts, a new federal rule, FRCP Rule 16 permitted a defendant the post-complaint, pretrial right to inspect any of his things the government had impounded. Later, the United States Supreme Court held that a defendant 'is entitled to inspect' any statement made by the Government's witness which bears on the subject matter of the witness' testimony. Jencks v. United States, 353 U.S. 657, 667, 668, 77 S.Ct. 1007, 1013 [1957]. By 1961, the New York Court of Appeals was "persuaded that a right sense of justice entitles the defense to examine a witness' prior statement, whether or not it varies from his testimony on the stand. As long as the statement relates to the subject matter of the witness' testimony and contains nothing that must be kept confidential, defense counsel should be allowed to determine for themselves the use to be made of it on cross-examination. People v Rosario, 9 N.Y.2d 286, 289, 213 N.Y.S.2d 448 [1961] overruling in part People v Walsh, supra.

By L. 1970, c. 996, the Legislature codified a statutory scheme for discovery in criminal cases. CPL Art. 240. The criminal discovery procedure embodied in article 240, adopted in substance Rule 16 of the Federal Rules of Criminal Procedure. Judicial Conference Report on the CPL, Appendix B, McKenna, Memorandum and Proposed Statute Re Discovery, McKinney's 1974 Session Laws of New York, pp 1860, 1868. CPL Art. 240 "evinces a legislative determination that the trial of a criminal charge should not be a sporting event where each side remains ignorant of facts in the hands of the adversary until events unfold at trial. Broader pretrial discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determination of guilt or innocence." People v Copicotto, 50 N.Y.2d 222, 226, 428 N.Y.S.2d 649 [1980].

As recently as 2009, discovery was strictly limited to those items specified in CPL 240.20. "With respect to the principles of fundamental fairness

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which govern pre-trial discovery in criminal cases in this State, the Court notes that there is no general constitutional right to discovery in criminal cases under either the United States Constitution (see, Weatherford v. Bursey, 429 U.S. 545) or the New York State Constitution (see, Matter of Miller v. Schwartz, 72 N.Y.2d 869, 870). Moreover, it is beyond cavil that the courts possess no authority derived from the common law to order discovery (see, People v. Colavito, 87 N.Y.2d 423, 426). Indeed, it is now well-settled law in this State that the exclusive authority of the courts to order discovery in criminal proceedings is governed by the terms of CPL Article 240 (People v. Copicotto, 50 N.Y.2d 222, 225), that specifically identifies that material that is subject to discovery by the defense prior to trial to the exclusion of that material which is not identified therein from the scope of discovery (see, People v. Colavito, supra, at 427; Matter of Brown v. Grosso, 285 A.D.2d 642, lv. denied 97 N.Y.2d 605; Matter of Pittari v. Pirro, 258 A.D.2d 202; Matter of Pirro v. LaCava, 230 A.D.2d 909). Stated succinctly, the courts do not possess the authority to grant pre-trial discovery in a criminal case where no statutory basis is provided in CPL Article 240 (Matter of Sacket v. Bartlett, 241 A.D.2d 97; Matter of Pirro v. LaCava, supra, at 910)." People v. Denham, 25 Misc.3d 1216(A), 901 N.Y.S.2d 909 (Table)[Sup Ct, Westchester County, 2009]. The discovery regime under CPL 240 was among the most restrictive in the country. See generally, Alex Karambelas, Bargaining Without The Blindfold: Adapting Criminal Discovery Practice To A Plea-Based System, 94 St. John's Law Review, 529, 531 [2021].

Under CPL 240, discovery began with the demand of the defendant to produce property. This procedure led to many defendants serving boilerplate demands not tailored to the particulars of the case. The savvier counsel asked for items beyond those listed in CPL 240.20. That placed the burden on the People to move for a protective order. CPL 240.50. Unfortunately, the laundry list of permitted discovery was soon outpaced by advances in electronics and biology. Digital data garnered from computers, cell phones, video cameras, electronic surveillance became ubiquitous. Use of DNA and biometric devices came into more common usage. New police investigatory techniques, methods, and devices came into existence. The Legislature did not keep up with the changing times and did not amend the list in CPL 240.20 to include these new items. Additionally, some discovery was delayed. While at a hearing, the defendant had the right to those portions of written statements of testifying witnesses that relate to the subject matter of their pretrial testimony, that statutory right applied only after the direct...