Opinion
CR 868-20
02-24-2021
PEOPLE of the State of New York, Plaintiff, v. James DAVIES, Defendant.
People by Miriam E. Rocah, District Attorney ( Edward Barrett, Assistant District Attorney) Defendant by Jeffrey P. Chartier, Esq., Bronx, NY
People by Miriam E. Rocah, District Attorney ( Edward Barrett, Assistant District Attorney)
Defendant by Jeffrey P. Chartier, Esq., Bronx, NY
Joseph L. Latwin, J.
Defendant was arrested on March 20, 2020 and issued a simplified traffic information for violating Vehicle and Traffic Law 1192(2)(A)(a) (Aggravated Drunk Driving), 1192(3) (Driving While Intoxicated), and 1227(1) (Consumption of Alcohol in a Motor Vehicle). The location of the violations is described as Palisade Place in the city of Rye, County of Westchester. The People also filed and served a certified Blood Alcohol Breath test with a subject reading of 0.24.
On February 9, 2021 defendant's arraignment with commenced. Defendant request a Pringle hearing. Pringle v. Wolfe, 88 NY2d 426, 646 NYS2d 82 [1996]. The completion of the arraignment was adjourned to allow for the People and defendant's attorney to confer to resolve any issues or to hold the Pringle hearing. On February 23, 2021, defendant was re-arrested on other charges pending in this Court and arraigned with counsel. After that arraignment, defendant was transported to a hospital. The People wrote asking that the Court asking to accelerate the Pringle hearing concerned about the defendant's insobriety and health and the public. With the consent of defendant's attorney, the matter was scheduled for February 24 and held virtually with defendant's counsel and the People. Defendant was not present despite being ordered to keep in daily contact with his attorney and Pre-trial Services, it being assumed he was still hospitalized.
At the conference it became clear that there were no contested issues of fact. The parties therefore stipulated as follows:
1 — Defendant was driving on Palisade Place when observed and stopped by the police;
2 — Palisade Place is a private road;
3 — Defendant owns Palisade Place;
4 — Defendant maintains and plows Palisade Place;
5 — Palisade Place is not maintained by the City of Rye;
6 — Defendant produced a survey made by Solo Surveying, Inc. dated December 23, 2010 showing Palisade Place as a gravel drive within defendant's property and running from Palisade Road and Grapal Place;
7 — there is a sewer easement under Palisade Place; &
8 — Palisade Place services defendant's home's driveway and another adjoining property's driveway to the east.
The prompt suspension law provides that, in order for the court to issue a suspension order, it must find that (1) the accusatory instrument conforms with CPL 100.40, and (2) reasonable cause exists to believe that the driver operated a motor vehicle with ".08 of one percent or more by weight of alcohol in his or her blood as was shown by chemical analysis of such person's blood, breath, urine or saliva" ( Vehicle and Traffic Law § 1193[2][e][7][b] ). Gerstenzang, Handling the DWI Case in New York § 45:3, citing Vanderminden v. Tarantino , 60 AD3d 55, 871 NYS2d 760 (3rd Dep't 2009), appeal denied , 12 NY3d 708, 879 NYS2d 55 [2009].
A review of the accusatory instrument shows that it complies with CPL 100.40. Subdivision 2 says "A simplified information is sufficient on its face when, as provided by subdivision one of section 100.25, it substantially conforms to the requirement therefor prescribed by or pursuant to law." CPL 100.25(1) says "A simplified information must be substantially in the form prescribed by the commissioner of motor vehicles .... Here, the simplified traffic informations are on New York State — Department of Motor Vehicle forms. They are also supported by a Supporting Deposition/Bill of Particulars of the arresting officer.
The certified breath test shows a reading of 0.24, in excess of 0.08, thus providing reasonable cause to believe that the driver operated a motor vehicle with ".08 of one percent ..."
The defendant contends that since he was allegedly driving the motor vehicle on a private road he owns, he cannot be suspended. VTL 1192(7) says "7. The provisions of this section shall apply upon ... private roads open to motor vehicle traffic ...." It is stipulated here that Palisade Place is a private road that provides access to at least two driveways (defendant's and the neighbor's adjoining to the east). Accordingly, Palisade Place falls within the purview of the prompt suspension law.
Despite the fact that a lawful VTL § 1192 arrest is a prerequisite to a valid request to submit to a chemical test, see, e.g. , Gagliardi v. Department of Motor Vehicles , 144 AD2d 882, 535 NYS2d 203, 204 (3rd Dep't 1988) ("In order for the testing strictures of Vehicle and Traffic Law § 1194 to come into play, there must have been a lawful arrest for driving while intoxicated"), and despite the fact that VTL § 1193(2)(e)(7) requires that the driver fail a chemical test administered pursuant to VTL § 1194, neither VTL § 1193(2)(e)(7) nor Pringle appear to contemplate that the driver can challenge the lawfulness of his or her arrest at a Pringle hearing. Gerstenzang, Handling the DWI Case in New York § 45:3.
While issues pertaining to the lawfulness of the police stop, probable cause for arrest, and whether the breath test device was working properly at the time of the test are relevant to the admissibility of breath test results at a criminal trial, and may ultimately bear on the determination of criminal culpability, they are beyond the scope of a Pringle hearing. Significantly, a Pringle hearing is a civil administrative proceeding which runs parallel to the criminal proceedings. It is not a plenary hearing requiring the same level of due process protection as a criminal trial .... Id. citing Vanderminden, supra at 59.
Accordingly, on completion of the Pringle hearing by this order, it is hereby
ORDERED that the defendant's New York State Drivers’ license I hereby suspended pending prosecution of this case, and it is further
ORDERED that defendant shall forthwith surrender, or cause to be surrendered, his physical Drivers’ license to the Clerk of the Rye City Court, and it is further
ORDERED that the Clerk shall take all required steps to notify the Department of Motor Vehicles of the suspension of the defendant's Driver's license, and it is further
ORDERED that the parties and their attorneys shall appear before the Court on March 23, 2021 for further proceedings in this case.