Therefore, as Judge MAUCERI noted in the District Court, in order to prevent a separate trial of the charge of driving while intoxicated, otherwise permissible under CPL 40.20 (subd 2, par [a]), petitioner was required to proceed pursuant to CPL 40.40 (subd 3) which he has failed to do. Petitioner relies heavily on the case of People v Montone ( 82 Misc.2d 234). Without agreeing that the Montone case correctly states the law, it can be distinguished on the grounds that the offenses with which petitioner is charged in this case, as noted by Judge MAUCERI, may be separately tried pursuant to CPL 40.20 (subd 2, par [a]), a basis independent and distinguishable from that of paragraph (b) of subdivision 2 which was the grounds for the dismissal in Montone.
Quite plainly, the offenses involved are directed at different targets (compare People v Rudd, 41 A.D.2d 875 ["rationale" for offenses specified in section 1192 Veh. Traf. of the Vehicle and Traffic Law is "to reduce human suffering and carnage caused by drinking drivers"], with People v Wenceslao, 69 Misc.2d 160, 162-163, revd on other grounds sub nom. People v Marzulli, 76 Misc.2d 971 ["The primary purpose of section 600 Veh. Traf. of the Vehicle and Traffic Law is to prevent the evasion of civil liability by a motorist who may be liable for negligently causing damage by his leaving the scene of the accident"]). To the extent that People v Montone ( 82 Misc.2d 234, 236) is to the contrary, we note that its analysis is erroneous (see Pitler, New York Criminal Practice Under the CPL, § 1.35, 1979 Cum Supp, pp 39-40; People v Green, 89 Misc.2d 639), and it is disapproved. In any event, either statutory exception would preclude application of a previous prosecution bar.
Both offenses are contained in Title VII of the Vehicle and Traffic Law and regulate the operation of motor vehicles on public highways and mandate that such operation be done safely. The defendant cites to People v Montone, a district court decision which held that Speeding (V&T Law 1180) and Driving while Impaired by Alcohol (V&T Law 1192[1]) "were not designed to prevent substantially different kinds of evil or harm" (82 Misc 2d 234 [Dist Ct Nassau Co 1975]). However, Lindsly disapproved of Montone's analysis, and the majority of courts have done likewise (See, People v Roopnarine, 11 Misc 3d 416 [Dist Ct 2006]; See also, People v Foster, 133 Misc 2d 427 (Dist Ct 1986); and see, People v Green, 89 Misc 2d 639 [Dist Ct 1977]).
( 99 AD2d at 103.) People v. Montone ( 82 Misc 2d 234 [Nassau Dist Ct 1975, Goodman, J.]) had held that a plea to a speeding ticket issued at the same time as a DWI charge, but returnable in Village of Floral Park Justice Court, precluded further prosecution of the DWI in Nassau County District Court. Montone, however, was rejected by the Appellate Division in Lindsly.
[6] It thus follows that the charges of driving while under the influence of alcohol could not have been joined in the Village Justice Court and therefore CPL 40.40 (subd. 2) has no application (cf. People ex rel. Meyer v. Warden of Nassau County Jail, 269 N.Y.426, 199 N.E. 647; Vega v. Rubin, 73 A.D.2d 658, 423 N.Y.S.2d 193, supra; People v. Riley, 58 A.D.2d 816, 396 N.Y.S.2d 271, supra). The alternative holding of People v. Montone, 82 Misc.2d 234, 236-237, 368 N.Y.S.2d 410, supra, upon which the defendant relies, failed to recognize this jurisdictional limitation and is, therefore, disapproved.
(CPL 40.20 [a].) Defendant maintains, however, that even though the offenses may be separately prosecuted for offenses containing different elements that arose out of the same transaction, further prosecution of the remaining accusatory instruments would be in violation of CPL 40.40, which prohibits multiple prosecutions when one prosecution may be had, relying on People v Montone ( 82 Misc.2d 234). The People resist, contending that People v Montone (supra) has been overruled by People v Lindsly ( 99 A.D.2d 99).
The mere fact that the simplified traffic information which truly is only a charge of improper plates, but nevertheless asserted that the improper plates were stolen does not prevent separate prosecution of a class A misdemeanor of criminal possession of stolen property. The defendant's argument appears to rest on the contention that since both charges were based upon the same "criminal transaction" under People v Montone ( 82 Misc.2d 234) and People v Telonis ( 115 Misc.2d 1014), the prosecution of the class A misdemeanor is barred pursuant to CPL 40.20 and 40.30. Crim. Proc. CPL 40.20 (subd 2) states as follows:
Indeed, the Practice Commentary following CPL 40.20 (Bellacosa, McKinney's Cons Laws of NY, Book 11A, p 247) illustrates CPL 40.20 (subd 2, par [b]) with a case involving a prosecution for a traffic misdemeanor followed by a prosecution for a traffic infraction. (See, also, People v Montone, 82 Misc.2d 234.) The District Attorney also argues that even if the charges against the defendant are "offenses" within the meaning of CPL 40.20 (subd 2, par [b]), the statutory provisions defining these offenses are designed to prevent very different kinds of harm and that, therefore, the charges against defendant fall outside the ban of CPL 40.20 (subd 2).
Upon entry of the guilty plea a subsequent prosecution such as the present one would have been barred pursuant to CPL 40.20 (subd 2) and 40.30 (subd 1, par [a]). (See People v Montone, 82 Misc.2d 234.) It is only the fortuitous circumstance of the location of the offense which now has the apparent effect of removing the statutory bar from the prosecution of this offense.
In People v Montone ( 82 Misc.2d 234), two separate simplified traffic informations were filed and both in two separate and distinct forums, charging the defendant with two offenses which arose from the same criminal transaction, i.e., speeding and a violation of subdivision 1 of section 1192 Veh. Traf. of the Vehicle and Traffic Law. The defendant took a plea in another court to a violation to cover the speeding violation.