Defendant, Brian J. Shackelton, appeared with counsel for a non-jury trial on September 3, 2013. The People appeared at the time of trial and informed the Court that they would not be participating in the trial. Defendant duly waived his right to a jury trial in accordance with CPL [*2]§320.10. Defendant also expressly waived his presence at the time of the handing down of the non-jury Decision/Order and Verdict.

By way of background, the defendant was charged with Driving While Ability Impaired/Alcohol in violation of Vehicle and Traffic Law §1192(1); the Simplified Traffic Information was issued as a result of a field sobriety checkpoint conducted by the New York State Police. The DWI Bill of Particulars alleges that at the time of the stop the defendant emitted an odor of alcoholic beverages, and possessed glassy eyes, impaired speech, and impaired motor coordination; the defendant also allegedly made certain admissions and failed four out of five field sobriety tests. In addition, the New York State Police filed a Certified Breath Alcohol Analysis Record affirming that the defendant had a positive breath screening, and indicating a blood alcohol content of .07 of one per centum by weight of alcohol in his blood.

At the time of arraignment, the People offered the pro se defendant an adjournment in contemplation of dismissal; the Court rejected the aforesaid proposed plea disposition, noted that the defendant had a prior DWI conviction within the past ten years, and adjourned the matter for the defendant to obtain counsel. The defendant appeared with counsel and the People again offered an adjournment in contemplation of dismissal; when the Court rejected the proposed disposition, the People withdrew prosecution. The parties orally sought to have the Court dismiss the matter for failure to prosecute, but the Court denied the request in accordance with People v. Douglass, 60 NY2d 194 (1983). The Court gave both parties an opportunity to make 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 his right and privilege to a jury trial, defendant waived his right to a trial by jury and requested a non-jury trial.

In order to prove that the defendant is guilty of Driving While Ability Impaired/Alcohol (Vehicle and Traffic Law §1192[1]) 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 March 24, 2012, in the Town of Kinderhook, County of Columbia and State of New York, the defendant, Brian J. Shackelton, operated a motor vehicle; and

2.That the defendant did so while his ability to operate the motor vehicle was impaired by the consumption of alcohol.

NY CJI2d §1192(1). A motor vehicle is a vehicle propelled by any power other than muscular power. Vehicle and Traffic Law §125. To operate a motor vehicle means to drive it. NY CJI2d §1192(1). A person's ability to operate a motor vehicle is impaired by the consumption of alcohol when that person's consumption of alcohol has actually impaired, to any extent, the physical and mental abilities which such person is expected to possess in order to operate a vehicle as a reasonable and prudent driver. NY CJI2d §1192(1), citing People v. Cruz, 48 NY2d 419, 427 (1979). 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 by the consumption of alcohol. 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) [*3]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(1). Evidence that there was .07 of one per centum or more but less than .08 of one per centum by weight of alcohol in the defendant's blood is prima facie evidence that the ability of the defendant to operate a motor vehicle was impaired. Vehicle and Traffic Law §1195(2)(c).

Although the Court recognizes the seriousness of the charges lodged against the defendant, it is fundamental that the defendant is deemed innocent until proven guilty. The People have the burden to prove defendant's guilt beyond a reasonable doubt. Not only have the People failed to meet their burden, but 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. Douglass, supra.; Matter of Donnaruma v. Carter, 2013 NY Slip Op. 23225, 969 NYS2d 755, 766 (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. Matter of Donnaruma, 969 NYS2d at 766.

The question posed at the time of trial, however, is whether the People met their considerable burden of proof; failure to do so requires the Court to dismiss on that ground for lack of evidence. While a trial at which a District Attorney declines to put on any proof may be described as a waste of judicial resources by some (see, People v. Beckman, 38 Misc 3d 878, 882 [2012]), it is imperative that those charged with holding District Attorney's accountable be aware of such practices in order to make informed judgments and hold said District Attorney's responsible for their deliberate acts or omissions. See, Matter of Donnaruma, 969 NYS2d at 767. It remains for the electorate and/or the Governor to decide whether the District Attorney fulfilled his Constitutional mandate to prosecute all matters in the County and to protect the public interests. See, Id. at 768-769; NY Const., Art. XIII, §13; Executive Law §63(2); County Law §700(1).

Accordingly, based upon the fact that the District Attorney refused to introduce any testimony or evidence at trial, and after due deliberation, the Court finds that the People have failed to meet their burden of proof and the defendant must, therefore, be found not guilty of the charge of Driving While Ability Impaired/Alcohol in violation of Vehicle and Traffic Law §1192(1). The foregoing shall constitute the Findings of Fact, Conclusions of Law, Decision/Order and Verdict of the Court.

ENTER.SO ORDERED.

September 10, 2013________________________

Kinderhook, New YorkDavid A. Dellehunt

Kinderhook Town Justice