Opinion
xxxxx
03-21-2018
The PEOPLE of the State of New York, Plaintiff, v. Kelly A. ROSSI, Defendant.
FOR THE PEOPLE: PAUL CZAJKA, ESQ., Columbia County District Attorney, 325 Columbia Street, Suite 260, Hudson, New York 12534, By: Trevor O. Flike, Assistant District Attorney FOR THE DEFENDANT: GERSTENZANG, SILLS, DAVIS, COHN & GERSTENZANG, Attorneys for Defendant, 210 Great Oaks Blvd., Albany, New York 12203, By: Joseph M. Gerstenzang, Esq.
FOR THE PEOPLE: PAUL CZAJKA, ESQ., Columbia County District Attorney, 325 Columbia Street, Suite 260, Hudson, New York 12534, By: Trevor O. Flike, Assistant District Attorney
FOR THE DEFENDANT: GERSTENZANG, SILLS, DAVIS, COHN & GERSTENZANG, Attorneys for Defendant, 210 Great Oaks Blvd., Albany, New York 12203, By: Joseph M. Gerstenzang, Esq.
Carrie A. O'Hare, J.
Defendant Kelly Rossi was charged with three misdemeanors: Resisting Arrest ( Penal Law § 205.30 ), Aggravated Driving While Intoxicated ( Vehicle and Traffic Law § 1192 [2–a ] [a] ), and Driving While Intoxicated ( Vehicle and Traffic Law § 1192 [3 ] ). On January 3, 2013, this Court was presented with a "Memorandum of Plea Bargain," noting that the Office of the District Attorney was "declin[ing] to prosecute" all three charges. The Memorandum of Plea Bargain was signed by defendant, defendant's counsel, and an Assistant District Attorney; the Memorandum of Plea Bargain did not set forth a reason for the proposed disposition. By Decision and Order dated January 3, 2013 the Court rejected the proposed plea disposition pursuant to Vehicle and Traffic Law § 1192(10)(d) and People v. Douglass , 60 NY2d 194 (1983). The Court further noted that, during the pendency of this matter, it would entertain any motions filed pursuant to the Criminal Procedure Law. Defendant moved for the Court to reconsider its prior Decision and Order dated January 3, 2013. The Court denied the motion in all respects. The Court pointed out that the Legislature provided the only mechanisms for removal of a case from the local Criminal Court docket, via trial, a plea or in response to a motion made under the Criminal Procedure Law. The Court gave both parties an opportunity to make further written motions pursuant to the Criminal Procedure Law, but none were filed by defense counsel or the People. Thereafter, pursuant to CPL § 320.10, after consultation with counsel and with a full understanding of her right and privilege to a jury trial, defendant waived her right to a trial by jury in open court on January 10, 2018. The matter was scheduled for a non-jury trial.
In order to prove that the defendant is guilty of Aggravated Driving While Intoxicated ( Vehicle and Traffic Law § 1192[2–a][a] ) the People must prove, from all of the evidence in the case beyond a reasonable doubt, both of the following two elements:
1. That on or about November 20, 2012, in the Town of Stuyvesant, County of Columbia and State of New York, the defendant, Kelly A. Rossi, operated a motor vehicle; and
2. That the defendant did so when she had .18 of one per centum or more by weight of alcohol in her blood as shown by chemical analysis of such person's blood, breath, urine or saliva.
NY CJI2d § 1192(2–a)(a) ; VTL § 1192(2–a)(a). A motor vehicle is a vehicle propelled by any power other than muscular power. VTL § 125. To operate a motor vehicle means to drive it. NY CJI2d § 1192(3).
In order to prove that the defendant is guilty of Driving While Intoxicated ( Vehicle and Traffic Law § 1192[3] ) the People must prove, from all of the evidence in the case beyond a reasonable doubt, both of the following two elements:
1. That on or about November 20, 2012, in the Town of Stuyvesant, County of Columbia and State of New York, the defendant, Kelly A. Rossi, operated a motor vehicle; and
2. That the defendant did so while in an intoxicated condition.
NY CJI2d § 1192(3) ; VTL § 1192(3). A person is in an intoxicated condition when such person has consumed alcohol to the extent that she is incapable, to a substantial extent, of employing the physical and mental abilities which she is expected to possess in order to operate a vehicle as a reasonable and prudent driver. NY CJI2d § 1192(3), citing People v. Ardila , 85 NY2d 846 (1995). The law does not require any particular chemical or physical test to prove that a person's ability to operate a motor vehicle was impaired in an intoxicated condition. Rather the fact finder must consider all of the surrounding facts and circumstances including (1) the defendant's physical condition and appearance, balance, coordination and manner of speech, (2) the presence or absence of the odor of alcohol, (3) the manner in which the defendant operated the motor vehicle, (4) opinion testimony regarding the defendant's sobriety and/or (5) the results of any test of the content of alcohol in the defendant's blood. NY CJI2d § 1192(3).
In order to prove that the defendant is guilty of a violation of Penal Law § 205.30, Resisting Arrest, the People must prove, from all of the evidence in the case beyond a reasonable doubt, both of the following two elements:
1. That on or about November 20, 2012 in the Town of Stuyvesant, County of Columbia and State of New York, the defendant, Kelly A. Rossi, prevented or attempted to prevent a police officer from effecting an authorized arrest of herself; and
2. That the defendant did so intentionally.
NY CJI2d § 205.30. Intent of resisting arrest can be inferred from the defendant's words and actions. See, People v. McLean , 128 AD3d 1106 (3rd Dept. 2015), lv. den. 25 NY3d 1204 (2015). Defendant can be convicted of resisting arrest even if she is not convicted of the underlying charge. See, People v. Laltoo , 22 AD3d 230 (1st Dept. 2005).
Here the People failed to meet their burden with respect to all of the charges. The People have without explanation refused to participate in the trial, to call witnesses, or present evidence. The Court is cognizant that the District Attorney possesses broad authority and discretion over all phases of a criminal prosecution, but notwithstanding the aforesaid, the Court cannot simply dismiss a case upon the grounds that the District Attorney declines to prosecute. See, People v. Grossman , 57 Misc 3d 830, 833 (2017), citing People v. Douglass , supra. ; Donnaruma v. Carter , 41 Misc 3d 195, 206–208 (2013). By refusing to call witnesses and/or present any evidence the District Attorney is attempting to do indirectly what the Legislature has prohibited him from doing directly, that is, exercising the power of nolle prosequi . Id. at 833, citing Donnaruma v. Carter , at 206–207.
The question posed at the time of trial is whether the People met their burden of proof; failure to do so requires the Court to dismiss on that ground for lack of evidence. Id. at 833. Since the People have failed to meet their burden of proof defendant must be found not guilty of Aggravated Driving While Intoxicated in violation of Vehicle and Traffic Law § 1192(2–a)(a), Driving While Intoxicated in violation of Vehicle and Traffic Law § 1192(3), and Resisting Arrest in violation of Penal Law § 205.30. The foregoing shall constitute the Findings of Fact, Conclusions of Law, Decision/Order and Verdict of the Court.
SO ORDERED