People v Rana (2007 NY Slip Op 52561(U))

People v Rana

2007 NY Slip Op 52561(U) [20 Misc 3d 1117(A)]

Decided on October 23, 2007

Just Ct Of Vil. Of Tarrytown, Westchester County

Warhit, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

The defendant stands accused of alleged violations of Section 1192 subdivisions (2) and (3) of the Vehicle and Traffic Law. The defendant was arraigned in the Tarrytown Justice Court on July 25, 2007. On this same date the People filed a Supporting Deposition, sworn to by Tarrytown Police Officer David Kapica, as well as a Bill of Particulars. These documents collectively alleged that on July 13, 2007 at approximately 5:25 p.m. the defendant operated a 2000 Honda, New York State license plate number CF939L, southbound on East Sunnyside Lane in Tarrytown, New York and also alleged that within one hour of having been placed under arrest a chemical test was performed which revealed that the defendant had a Blood Alcohol Content ("BAC") of 0.13 of one percent.

Prior to the close of the arraignment and prior to the Court ruling with respect to whether the defendant's driving license should be suspended pending prosecution of the matter, the defendant requested a Pringle hearing. The Court granted the application and adjourned the matter to permit the defense time to prepare for the hearing. Subsequent to the arraignment, at defense counsel's request, the Court signed several subpoenas to compel witnesses to appear at the scheduled hearing. The Court held the hearing October 3, 2007 [*2]

A defendant who is charged with Driving While Intoxicated (DWI) and who is alleged to have a BAC of 0.08 of one percent or more at the time of the arrest is subject to the prompt driver's license suspension law. This law, codified in Vehicle and Traffic Law Section 1193(2)(e)(7) provides, in pertinent part:

Suspension pending prosecution; excessive blood alcohol

content. Except as provided in clause a-1 of this subparagraph,

a court shall suspend a driver's license, pending prosecution,

of any person charged with a violation of subdivision two or

three of section eleven hundred ninety two of this article who,

at the time of arrest, is alleged to have had 0.08 of one percent

or more by weight of alcohol in such driver's blood as shown

by chemical analysis of blood, breath, urine or saliva made

pursuant to subdivision two or three of section eleven hundred

ninety four of this article.

Nevertheless, VTL section 1193(2)(e)(7) directs that prior to suspending a defendant's driving privileges the Court must be satisfied that the accusatory instrument filed by the People comports with the requirements for facial sufficiency set forth in section 100.40 of the New York State Criminal Procedure Law ("CPL") and that there is reasonable cause to believe the license holder operated a motor vehicle while having a BAC of 0.08 of one percent or more of alcohol in his blood, breath, urine or saliva based upon chemical analysis. The Court may not find that a defendant had a BAC of 0.08 of one percent or more of alcohol in his blood unless it is presented with a certified document indicating the results of an applicable chemical test. See, CPLR 4518; see also, People v. DeRojas, 180 Misc 2d 690, 693 N.Y.S. 2d 404 (App. Term 1999).

In the event that a Court determines that the accusatory instrument is facially sufficient and finds that there is reasonable cause to believe the license holder operated a motor vehicle while having a BAC in excess of 0.08 of one percent, the defendant license holder is entitled to present evidence tending to rebut the Court's finding. See, VTL section 1193 (2)(e)(7)(b). In Pringle v. Wolfe the Court of Appeals recognized that license holders are entitled to due process prior to suspension of their driving privileges pending criminal prosecution. 88 NY2d 426, 646 N.Y.S. 82 (1996). Specifically, the Court of Appeals determined that a trial court may not suspend a license holder's driving privileges unless the license holder is provided with an opportunity to present evidence to rebut the Court's provisional findings. Pringle, supra. The Pringle court further held that it is incumbent upon a trial court to permit a defendant a reasonable adjournment to gather necessary evidence to rebut the prima facie showing of reasonable cause. See, Pringle at 433.

FINDINGS OF FACT

The Court held a Pringle hearing October 3, 2007. This Court reviewed the accusatory instrument and found it to be facially sufficient. See, CPL 100.40. Officer Kapica's sworn supporting deposition states that on July 13, 2007 at approximately 5:25 p.m. he observed the defendant sitting in the driver's seat of the Honda with the keys in the ignition and the engine running. In his deposition Officer Kapica described having observed the defendant's eyes to be glassy and bloodshot, his speech to be impaired and his breath to emit the odor of alcohol. Officer Kapica's deposition also included the fact that the defendant admitted to drinking three beers The Court was also provided with, and had the opportunity to review, a certified report of the defendant's chemical test which reveals that on July 13, 2007 defendant had 0.13 of one percent by weight of alcohol in his blood.

Based upon the foregoing, the Court found that a prima facie showing for license suspension pending prosecution was established. Prior to ordering a suspension of defendant's license, pursuant to the defendant's request for a Pringle hearing, the Court permitted the defendant an opportunity to make a statement regarding the Court's tentative findings and to present evidence to rebut the Court's preliminary findings. The defense called three witnesses at the hearing. The arresting officer, a "back up" officer who was present when the defendant was arrested, and the officer who performed the chemical test upon the defendant each testified. The Court finds that the three officers testified credibly in all respects.

Police Officer David Kapica testified that at about 5:20 p.m. on July 13, 2007 he received a radio call from headquarters. Officer Kapica testified that he responded to a location on East Sunnyside Lane in Tarrytown, New York where he observed the defendant sitting in the driver's seat of a 2000 Honda with the engine running. The two rear wheels of the car were in a flower garden next to the public road. Officer Kapica described the defendant as having blood shot eyes and impaired speech. This officer further testified that he detected the odor of alcohol on the defendant's breath. Based upon these observations Officer Kapica testified he placed the defendant under arrest. According to Officer Kapica's testimony, the defendant agreed to submit to a chemical test for the purpose of determining his BAC. The back up officer, Police Officer Dennis Smith, made the same observations upon arrival at the location.

Police Officer Jose Ojito, a duly qualified Datamaster chemical test operator, testified as to his observations of the defendant over a period of time. He further testified that at approximately 6:19 p.m. on July 13, 2007 he performed a chemical test at the Tarrytown Police Department on the defendant to determine his BAC. Officer Ojito further testified that he administered the test in accordance with the proper operating procedures established for the machine and that he was aware that on July 13, 2007 the machine was in proper working order and had been properly maintained and calibrated. Officer Ojito testified the test he performed upon the defendant revealed that the defendant had a BAC of 0.13 of one percent. [*3]

In recognition of the narrow scope of a Pringle hearing, the Court purposely limited the testimony and examination of the witnesses to issues and areas directly related to the sufficiency of the accusatory instrument and the results of the chemical test indicated by the certified report provided. The Court did not permit the witnesses to be questioned regarding civilian witness accounts or with regard to the actions of passengers in or near the car. The Court specifically declined to permit inquiry with respect to whether the statements made by the defendant were voluntary or whether the defendant was properly advised of chemical test warnings. These inquiries which may be relevant to the criminal proceeding are not proper subjects of exploration at a Pringle hearing.

Based upon the foregoing, this Court finds that the defendant was afforded due process to rebut the prima facie showing of reasonable cause to believe that he operated a motor vehicle while having a BAC of 0.08 or more. More particularly, this Court finds that the defendant failed to rebut the prima facie showing. Accordingly, the defendant's New York State driver's license and all privileges thereunder are suspended forthwith and shall remain so pending prosecution of this matter.

The parties are further directed to appear for an all purpose conference on November 7, 2007. This constitutes the decision and order of this court.

Dated: Tarrytown, New York