People v. Weinert

• Decision Date: 24 June 1998
• Citation: 683 N.Y.S.2d 690,178 Misc.2d 675
• Parties: , 1998 N.Y. Slip Op. 98,673 PEOPLE of the State of New York, Respondent, v. Barry WEINERT, Appellant.
• Court: New York Supreme Court — Appellate Term

Page 690

683 N.Y.S.2d 690

178 Misc.2d 675, 1998 N.Y. Slip Op. 98,673

PEOPLE of the State of New York, Respondent, v. Barry WEINERT, Appellant.

Supreme Court, Appellate Term,

Second Department.

June 24, 1998.

Gary E. Eisenberg, Monroe, for appellant.

Michael E. Bongiorno, District Attorney of Rockland County, New City (Ellen O'Hara Woods of counsel), for respondent.

Present: DiPAOLA, P.J., INGRASSIA and FLOYD, JJ.

MEMORANDUM.

Judgment of conviction for driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3) unanimously reversed upon the law and as a matter of discretion in the interest of justice, and matter remanded to the court below for a trial de novo.

Judgments of conviction for operating a motor vehicle with a suspended registration (Vehicle and Traffic Law § 512) and failure to maintain proper license plates (Vehicle and Traffic Law § 402) unanimously affirmed.

Judgment of conviction for operation of an uninsured vehicle (Vehicle and Traffic Law § 319[1] ) unanimously reversed on the law and facts and accusatory instrument dismissed.

On August 12, 1992, defendant was observed by Police Officer Christopher Palacios leaving a bar and driving a commercial vehicle without proper license plates. Defendant was followed to a parking lot at which time the police officer approached the vehicle and discovered that defendant was intoxicated and that the vehicle was uninsured with a suspended registration. While the police officer observed only the back of the driver's head while operating the vehicle, his testimony indicated that defendant was in fact the driver of the vehicle.

Concerning the charges set forth on the jury sheets, the fact that the court failed to include the lesser included offense of driving while ability impaired (Vehicle and Traffic Law § 1192[1]; see also, People v. Brown, 53 N.Y.2d 979, 441 N.Y.S.2d 662, 424 N.E.2d 549) on the verdict sheet is reversible error and requires a new trial. Despite the fact that defendant failed to raise this objection at trial, the myriad of charges and circumstances of this matter mandate an examination of the issue in the interest of justice.

Section 310.20[2] of the Criminal Procedure Law states that:

"Upon retiring to deliberate, the jurors may take with them:

A written list prepared by the court containing the offenses submitted to the jury by the court in its charge and the possible verdicts thereon."

Defendant was charged with four violations of the Vehicle and Traffic Law, including driving while intoxicated (Vehicle and Traffic Law § 1192[3] ). The court below presented to the jury the elements of each offense in its charge, as well as the lesser included offense of driving while ability impaired (Vehicle and Traffic Law § 1192[1] ), and gave the jury a written list of the offenses pursuant to CPL 310.20[2]. Omitted from this list, however, was the lesser included offense of driving while ability impaired.

While there appears to be no case law directly on point concerning this issue, one commentator has stated that "[w]here more than one count is sent to the jury for verdict or where counts are submitted in the alternative, and especially where there is a combination of the foregoing, a verdict sheet is a virtual necessity." (Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 310.20, at 725). Based upon this "virtual necessity," it was incumbent upon the court to include the lesser included offense of driving while ability impaired. Even the most careful juror could be swayed by that which is presented in writing before the jury, and a blatant omission of a lesser included offense could easily lead to confusion during deliberations. Thus, it was reversible error to exclude the charge of driving while ability impaired.

Turning to defendant's argument that the People failed to prove guilt of each offense beyond a reasonable doubt, it appears that the People have sustained their burden with regard to operation of a motor vehicle while registration is suspended and failure to maintain proper license plates. Since all issues of credibility and the weight to be accorded to the evidence adduced at trial are questions to be determined by the trier of facts, the jury's determination should not be disturbed, as the record amply supports its findings (People v. Gaimari, 176 N.Y. 84, 68 N.E. 112; see also, People v. Figueroa, 219 A.D.2d 606, 631 N.Y.S.2d 184, lv. denied, 87 N.Y.2d 846, 638 N.Y.S.2d 604, 661 N.E.2d 1386; People v. Hawkins, 216 A.D.2d 414, 628 N.Y.S.2d 728, lv. denied, 86 N.Y.2d 842, 634 N.Y.S.2d 452, 658 N.E.2d 230; People v. Scott, 168 A.D.2d 523, 562 N.Y.S.2d 761, lv. denied, 77 N.Y.2d 882, 568 N.Y.S.2d 925, 571 N.E.2d 95). Thus, upon the exercise of this court's power of factual review, we are satisfied that the verdicts were not against the weight of the credible evidence (see, id.; see also, CPL 470.15[5] ). Furthermore, viewing the evidence in a light most favorable to the People, we find that defendant's guilt was proven beyond a reasonable doubt concerning the two charges (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932).

As to the charge of operating an uninsured vehicle, the People failed to offer any proof that the defendant, who did not own the subject vehicle, had knowledge that the owner lacked insurance (Vehicle and Traffic Law § 319[1]; People v. Astoria Construction, Decided October 25, 1993 [App. Term 2d & 11th Jud. Dists.]; see also, People v. Pender, 100 Misc.2d 846, 420 N.Y.S.2d 62; People v. Simmons, 90 Misc.2d 143, 394 N.Y.S.2d 358). Thus, the People failed to sustain their burden of proof for this charge.

Defendant next challenges the constitutionality of Vehicle and Traffic Law § 402[4] which mandates that each motor vehicle driven on a public highway display proper license plates. According to defendant, this section of the Vehicle and Traffic Law is unconstitutionally void for vagueness. In the case at bar, defendant's vehicle is a pick-up truck without a cap to cover the bed, and the arresting police officer testified at trial that such a vehicle requires commercial license plates. The subject vehicle, however, bore passenger plates.

Section 402[4] of the Vehicle and Traffic Law states in relevant part:

"No person shall operate or drive a motor vehicle upon the public highways of this state having displayed thereon number plates not proper for such vehicle ..."

While reference to a pick-up truck, or any other type of vehicle, is not mentioned or defined for purposes of the statute, such specifics are addressed in the Code, Rules and Regulations of the State of New York. Section 106.2 of 15 NYCRR defines a pick-up truck as "[a] truck with a cargo bed and side walls, regardless of the seating capacity within the cab." Such vehicles require commercial license...