Opinion
No. 2011NA011227.
2013-01-15
The PEOPLE of the State of New York, Plaintiff(s) v. Keir ARCHER, Defendant(s).
Honorable Kathleen Rice, District Attorney, Mineola. Marvin Hirsch, Esq., Flamhaft, Levy, Hirsch & Rendeiro, LLP, Mineola.
Honorable Kathleen Rice, District Attorney, Mineola. Marvin Hirsch, Esq., Flamhaft, Levy, Hirsch & Rendeiro, LLP, Mineola.
SUSAN T. KLUEWER, J.
Defendant's motion for an order dismissing count 2 of the accusatory instrument as barred by a previous prosecution is denied.
Defendant is presently accused by four informations filed under this docket of leaving the scene of an incident involving personal injury without reporting, driving while intoxicated, criminally negligent assault in the third degree, and reckless endangerment in the second degree ( seeVehicle and Traffic Law §§ 600[2], 1192[3], Penal Law §§ 120.00[3], 120.20). The accusatory documents contain allegations to the effect that, on April 30, 2011, in the vicinity of Glen Cove Avenue and Back Road, Greenvale, County of Nassau, Defendant operated a motor vehicle, that while doing so she struck a vehicle driven by Daniel Schwartz that was stopped at a stop sign, that, as a result, his passenger, Adriane Schwartz, sustained immediate, severe pain in her neck, back and shoulder, that Mr. Schwartz approached Defendant's car, that he observed that she smelled of alcohol, that her speech was slurred, that Defendant admitted that she was drunk, that Mr. Schwartz asked her for her driver's license and insurance information, that Defendant said no, that Defendant asked if she could “just pay for the damage,” that Mr. Schwartz told her no, that Mr. Schwartz told Defendant to “wait while I go check on my wife,” that Mr. Schwartz then heard a screech, that Mr. Schwartz looked up and saw Defendant drive away “nearly hitting me,” that Mr. Schwartz got back into his car and followed Defendant, that Mr. Schwartz never lost sight of Defendant, that she drove erratically, that he followed her to the Queens Midtown Tunnel Toll Plaza, that Mr. Schwartz got assistance from Bridge and Tunnel Police, and that these police placed Defendant under arrest in Queens County, apparently for violating Vehicle and Traffic Law § 1192(3).
It is not disputed that Defendant was arraigned on the charge of violating Vehicle and Traffic Law § 1192(3) in Criminal Court, Queens County on May 2, 2011 on account of an incident occurring on April 30, 2011. On May 19, 2011, the People filed the first accusatory instrument in this case, i.e., the information charging Defendant with violating Vehicle and Traffic Law § 600(2), currently designated count 1. On June 28, 2011, the People in this case filed what are designated counts 2, 3 and 4, accusing Defendant of violating, respectively, Vehicle and Traffic Law § 1192(3), and Penal Law §§ 120.00(3) and 120.20. All charges pending in this court stem from the events of April 30, 2011, and Defendant has been arraigned on each count. By order dated January 26, 2012, the court (Alexander J.) ruled that the accusatory instrument is facially sufficient. By that same order, it denied so much of Defendant's pre-trial motion as was for dismissal on double jeopardy grounds of the count accusing her of violating Vehicle and Traffic Law § 1192(3), but it did so with leave to renew “should Defendant be convicted in Queens County.” Defendant, who asserts that, on April 11, 2012, she pleaded guilty in Criminal Court, Queens County to driving while impaired on account of the incident of April 30, 2011, again seeks dismissal of the count pending in this court accusing her of violating Vehicle and Traffic Law § 1192(3).
Citing cases, Defendant urges in support of her motion that, no matter the number of crimes committed or the number of jurisdictions involved, a person cannot be prosecuted more than once for the same general conduct. She further urges that the incident in Queens is so closely related in time and circumstance to what occurred in Nassau County that it constitutes one criminal transaction, that double jeopardy principles prohibit the People from prosecuting her twice for the some offense, and that, since she has been convicted of violating a subdivision of Vehicle and Traffic Law § 1192 in Queens, her application for dismissal of count 2 pursuant to CPL 170 .30(1)(c) is ripe for determination.
In opposition, the People, who submit a copy of the transcript of the plea proceedings conducted in Criminal Court, Queens County, and the pertinent certificate of disposition, concede that Defendant pleaded guilty to driving while impaired in that court on account of an incident occurring on April 30, 2011 and that Defendant has been sentenced therefor. They, too, cite cases, and urge that actions that are not the product of one impulse may be viewed as separate crimes, that, although a defendant may be acting without interruption, a change in intentions allows for multiple prosecutions, and that since Defendant's actions in this case—setting her car in motion at two separate and distinct points—represent two distinct incidents, broken in time by the intervening car crash, she may be prosecuted twice under Vehicle and Traffic Law § 1192. They note that Defendant's arrest in Queens occurred some 40 minutes after the Nassau County incident, and urge that Defendant made a first decision to drive drunk, that she then crashed her car into another vehicle, that, after a roadside confrontation, she made a second decision to drive drunk, and that, while this prosecution is premised on one set of decisions, the prosecution in Queens County is premised on her second impulse to operate her car.
Discussing the cases the People cite, Defendant in reply urges that there is no evidence in this case of two separate impulses so as to support prosecuting her for the same crime in two counties. She posits that the People and the complaining witness “went to great lengths” to specify in the accusatory documents that she was under constant observation in both counties, and, noting there is no claim that she consumed alcohol during that period of observation, she asserts that her arrests stem from a single impulse to consume alcohol. She again urges that there was only one criminal transaction, thus precluding prosecuting her “twice in two counties, for the same incident, and specifically for the same charge.”
The double jeopardy clauses of the federal and state constitutions protect an accused from a second prosecution for the same offense after acquittal or conviction and against multiple punishments for the same offense (U.S. Constitution, 5th, 14th Amends; NY Const art 1, § 6; see also Matter of Johnson v. Morgenthau, 669 N.Y.2d 148, 512 N.Y.S.2d 797 [1987] ). CPL Article 40 also prohibits prosecution of a person twice for the same offense ( seeCPL 40.20[1] ). As Defendant suggests, absent certain exceptions, no matter the number of crimes or number of jurisdictions involved, a person may not be repeatedly prosecuted for the same general conduct ( see People v. Abbomonte, 43 N.Y.2d 74, 400 N.Y.S.2d 744 [1977];People v. Confoy, 138 Misc.2d 1049, 526 N.Y.S.2d 352 [Crim Ct, Bronx County, 1988 Griggin, J.] ). But, although she regards all of the alleged events of April 30, 2011 as one criminal transaction, not even Defendant claims that People are prohibited from prosecuting her in this court for any of the offenses arising in Nassau County, save driving while intoxicated ( see People v. Lindsly, 99 A.D.2d 99, 472 A.D.2d 115 [2d Dept.1984]; People v. Confoy, supra; see alsoCPL 40.20 [2] [a] ). Moreover, Defendant appears to concede that a person can be prosecuted twice for violating one statute so long as each prosecution is premised on a separate “impulse” ( see People v. Okafore, 72 N.Y.2d 81, 531 N.Y.S.2d 762 [1988] ). She is mistaken in assuming, however, that the prosecution in Queens County and the prosecution here are premised on a single impulse to drink alcohol, an action that, standing alone, cannot be the premise for any criminal prosecution. Each prosecution, as the People maintain, is, rather, premised on two separate decisions to drive after having allegedly consumed enough alcohol to affect her ability to drive as a reasonable and prudent person, the first one made, according to the accusatory documents, before the accident, the second after she stopped, after she conversed with the driver of the car it is claimed she struck, and thus after she had a chance to reconsider her earlier decision to drive. Since the prosecution in Queens County is premised on her second election to drive, it is permissible to prosecute her in this county for her first, discrete election to drive, allegedly while intoxicated ( cf.id.). Her motion is accordingly denied.
So Ordered.