Opinion
2014-736 Q CR
04-06-2018
The People of the State of New York, Respondent, v. Narciso Pena-Encarnacion, Appellant.
Appellate Advocates (Tammy Linn of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill and Danielle O'Boyle of counsel), for respondent.
PRESENT: :
Appellate Advocates (Tammy Linn of counsel), for appellant.
Queens County District Attorney (John M. Castellano, Johnnette Traill and Danielle O'Boyle of counsel), for respondent.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Stephanie L. Zaro, J.), rendered March 26, 2014. The judgment convicted defendant, after a nonjury trial, of driving while ability impaired and failing to stop at a steady red traffic control signal. The appeal from the judgment of conviction brings up for review so much of an order of the same court (Michelle A. Armstrong, J.), issued November 7, 2013, as, upon, in effect, reargument, adhered to a prior determination of the same court dated May 20, 2013 denying defendant's motion to dismiss the accusatory instrument on the ground that he was denied his statutory and constitutional rights to a speedy trial.
ORDERED that the judgment of conviction is modified, on the facts, by vacating so much of the judgment as convicted defendant of driving while ability impaired and dismissing the count of the accusatory instrument charging that offense; as so modified, the judgment of conviction is affirmed.
On August 29, 2011, defendant was arraigned on an accusatory instrument charging him with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and failing to stop at a steady red traffic control signal (Vehicle and Traffic Law § 1111 [d] [1]), and the People announced their readiness for trial. The case was subsequently adjourned numerous times for, among other things, motion practice and hearings. On January 18, 2013, defendant moved to dismiss the accusatory instrument on the ground that he had been denied his statutory and constitutional rights to a speedy trial. In an affirmation in support of the motion, defendant's attorney argued that, since October 16, 2012, more than 90 days had passed during which time the People had failed to produce the calibration report (one of defendant's discovery requests) and, therefore, the accusatory instrument should be dismissed pursuant to CPL 30.30. In the alternative, defendant's attorney argued that defendant's constitutional right to a speedy trial had been violated due to the extensive delay since the inception of the prosecution and, thus, the accusatory instrument should be dismissed pursuant to CPL 30.20. The People opposed the motion. The Criminal Court (Michelle A. Armstrong, J.), by order dated May 20, 2013, denied the motion, finding that only 53 days of delay were chargeable to the People. Thereafter, defendant moved, in effect, for leave to reargue. By order issued November 7, 2013, the Criminal Court (Michelle A. Armstrong, J.), in effect, granted reargument but adhered to its prior determination.
Prior to the start of a nonjury trial, a charge of driving while ability impaired (Vehicle and Traffic law § 1192 [1]) was added to the accusatory instrument, and the Criminal Court, upon the People's request, dismissed the driving while intoxicated per se and common-law driving while intoxicated charges. Following the trial, the Criminal Court (Stephanie L. Zaro, J.) convicted defendant of driving while ability impaired and failing to stop at a steady red traffic control signal.
On appeal, defendant contends that his speedy trial motion should have been granted; that he received the ineffective assistance of counsel because his trial attorney failed to include, in his speedy trial motion, the argument that all of the time from August 29, 2011 (defendant's arraignment) to May 24, 2013 (when the People provided the defense with a copy of the calibration report) is chargeable to the People; and that, in regard to so much of the judgment as convicted him of driving while ability impaired, the evidence was legally insufficient and the verdict was against the weight of the evidence.
Upon a review of the record, we find that the Criminal Court properly denied defendant's speedy trial motion. Defendant argues that the People's August 29, 2011 statement of readiness was illusory because the People could not have been ready for trial without the calibration report, and the defense did not obtain that report until May 24, 2013. We note, however, that "the People's delay in obtaining and producing the calibration report, ultimately provided to defense counsel just before trial, was at most a failure to comply with a discovery request, which does not render their prior statements of readiness illusory" (People v Zale, 137 AD3d 634, 635 [2016]; see also People v Caussade, 162 AD2d 4, 8 [1990] ["It is firmly established that the failure of a District Attorney to comply with the mandates of CPL article 240 relative to discovery is in no way inconsistent with the prosecution's continued readiness"]; see generally People v McKenna, 76 NY2d 59, 61 [1990]; People v Anderson, 66 NY2d 529 [1985]). Consequently, defendant's illusory argument lacks merit and defendant did not receive the ineffective assistance of counsel based on his trial attorney's failure to make an argument which had little chance of success (see People v Caban, 5 NY3d 143, 152 [2005]; People v Stultz, 2 NY3d 277, 287 [2004]).
For the first time on appeal, defendant argues that the time period from November 11, 2011 to January 9, 2012 is chargeable to the People because they failed to timely file their opposition papers pursuant to a court-ordered motion schedule, and that the time periods from February 23, 2012 to March 27, 2012, May 8, 2012 to June 26, 2012, and September 19, 2012 to October 16, 2012 are chargeable to the People because they were not ready for hearings or trial. However, since defendant failed to raise these specific arguments in his speedy trial motion or in his motion, in effect, for leave to reargue, he cannot do so for the first time on appeal (see People v Beasley, 16 NY3d 289, 292-293 [2011]). In any event, we note that " '[a]s to periods of delay that occur following the People's statement of readiness, any period of an adjournment in excess of that actually requested by the People is excluded' " (People v Brown, 28 NY3d 392, 404 [2016], quoting People v Boumoussa, 104 AD3d 863, 863 [2013]). Therefore, upon the People's statements that they would be ready for trial on specified dates, the Criminal Court properly only charged the People with four days of delay for the period from February 23, 2012 to February 27, 2012, six days of delay for the period from May 8, 2012 to May 14, 2012, and one day of delay for the period from September 19, 2012 to September 20, 2012.
Contrary to defendant's argument, the 94-day period from October 16, 2012 (the date by which the Criminal Court had instructed the People to provide defendant with a copy of the calibration report) to January 18, 2013 (when defendant submitted his speedy trial motion) is not entirely chargeable to the People. As previously stated, the People's delay in complying with their discovery obligations does not render the accusatory instrument subject to dismissal pursuant to CPL 30.30 (see People v McKenna, 76 NY2d at 61; People v Anderson, 66 NY2d 529; People v Zale, 137 AD3d at 635; People v Caussade, 162 AD2d at 8). Therefore, the period from October 16, 2012 to January 18, 2013 is not chargeable to the People based on their failure to provide defendant with a copy of the calibration report. Moreover, the period from October 16, 2012 to December 7, 2012 is in any event not chargeable to the People since the case had been administratively adjourned to December 7th due to Superstorm Sandy. However, the Criminal Court properly determined that the 42-day period from December 7th to January 18th is chargeable to the People based on the People's failure to be ready for trial on December 7th.
Defendant further argues that the 126-day period from January 18, 2013 to May 24, 2013, the 56-day period from July 18, 2013 to September 12, 2013, and the 56-day period from September 12th to November 7, 2013 are chargeable to the People because the People provided no explanation for their late production of the calibration report on May 24th, and the People did not state that they were ready for trial after they had produced the calibration report. However, since defendant raises these specific dates for the first time on appeal, the issue with respect thereto is unpreserved for appellate review (see People v Beasley, 16 NY3d at 292-293). In any event, for the reasons stated previously, the People's failure to provide defendant with the calibration report does not render the accusatory instrument subject to dismissal pursuant to CPL 30.30 (see People v McKenna, 76 NY2d at 61; People v Anderson, 66 NY2d 529; People v Zale, 137 AD3d at 635; People v Caussade, 162 AD2d at 8).
In view of the foregoing, the Criminal Court, upon reargument, properly found that less than 90 days of delay were chargeable to the People and adhered to so much of its prior determination as denied the branch of defendant's speedy trial motion seeking dismissal of the accusatory instrument on statutory grounds.
The Criminal Court also properly adhered to so much of its prior determination as denied the branch of defendant's speedy trial motion seeking dismissal of the accusatory instrument on constitutional grounds. In applying the Taranovich factors to the case at bar (People v Taranovich, 37 NY2d 442, 445 [1975]), we note that, although the delay was protracted (29 months from arraignment to trial and 22 months from the hearing decision to trial), defendant was not incarcerated at any time during the delay and has not shown how his defense was significantly impaired by the delay. A significant amount of the delay was due to administrative court delays and adjournments sought by defendant. Consequently, defendant has failed to show that reversal is warranted due to a violation of his constitutional right to a speedy trial (see CPL 30.20; People v Taranovich, 37 NY2d 442; see also People v Decker, 13 NY3d 12, 14-15 [2009]).
Vehicle and Traffic Law § 1192 (1) provides that "[n]o person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol." A defendant is guilty of driving while ability impaired if the evidence adduced at trial shows that "by voluntarily consuming alcohol . . . defendant has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver" (People v Cruz, 48 NY2d 419, 427 [1979]; see also People v Litto, 8 NY3d 692, 706 [2007]; People v Sykes, 31 Misc 3d 126[A], 2011 NY Slip Op 50442[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). To prove that defendant was operating the vehicle while impaired, the People were required to show that defendant's ability to operate the vehicle had been impaired to some extent (see People v Cruz, 48 NY2d at 426; People v McNamara, 269 AD2d 544, 545 [2000]).
Upon the exercise of our factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we find that the verdict convicting defendant of driving while ability impaired was against the weight of the evidence. Upon consideration of the "relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People v Zephyrin, 52 AD3d 543, 543 [2008] [internal quotation marks and citation omitted]), we find that "an acquittal . . . would not have been unreasonable based upon the evidence presented, and . . . the trial court failed to accord the evidence the weight it should have been accorded" (id.; see also People v Danielson, 9 NY3d at 348). While the quantum of proof necessary to support a conviction of driving while ability impaired is far less rigorous than the evidence required to prove driving while intoxicated (see People v Reding, 167 AD2d 716, 717 [1990]; People v Yankovich, 39 Misc 3d 133[A], 2013 NY Slip Op 50530[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]; People v Netusil, 34 Misc 3d 137[A], 2011 NY Slip Op 52410[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]), the evidence presented at trial did not establish that defendant's ability to operate the vehicle was impaired to any extent. We pass on no other issue.
Accordingly, the judgment of conviction is modified by vacating so much of the judgment as convicted defendant of driving while ability impaired and dismissing the count of the accusatory instrument charging that offense.
WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: April 06, 2018