By a Criminal Court complaint dated September 4, 2012, Defendant is charged with two counts of Operating a Motor Vehicle While Under the Influence of Alcohol (VTL Sec. 1192(2), both Unclassified Misdemeanors, and (3)) and one count of Operating a Motor Vehicle While Under the Influence of Alcohol (PL Sec. 1192(1)), a traffic infraction.

By omnibus motion dated August 12, 2013, Defendant seeks the following: Dismissal of the docket pursuant to CPL Sec. 40.20 and 40.40; suppression of all physical evidence seized by law enforcement personnel; and discovery pursuant to CPL Sec. 240.20, including disclosure of materials related to the Breathalyzer used in the instant case.

The Court has reviewed the Court file, Defendant's motion, and the People's Response dated December 13, 2013.

For the reasons stated below, the motion to dismiss pursuant to CPL Sec. 40.20 and 40.40 [*2]is denied.

The motion for pre-trial hearings is denied, as all applicable hearing were previously ordered.

The motion for discovery is granted to the extent that the People are directed to provide pre-trial disclosure of all materials subject to CPL Sec. 240.20, as well as all exculpatory materials to the defense, and the People are reminded of their continuing obligations under People v. Rosario, 9 NY2d 286, 213 NYS2d 448 (1961) and Brady v. Maryland, 373 US 83, 83 S Ct 1194 (1963).

Pursuant to the Criminal Court complaint, on or about September 3, 2012, at approximately 11:15 PM, at the intersection of Gerard Avenue and East 168th Street, Bronx, New York, Police Officer Jose Almonte (deponent) "observed defendant operating a 2009 Gray Kia...in that... deponent observed defendant seated behind the steering wheel and said vehicle was moving at the above location, a public highway." See, Criminal Court complaint dated September 4, 2012, p 1.

The officer also observed defendant "to have flushed watery eyes and a strong odor of an alcoholic beverage emanating from his breath." Defendant is also alleged to be "swaying on his feet," and is alleged to have stated "I was drinking.See, Criminal Court complaint dated September 4, 2012, p 1.

Defendant is alleged to have submitted to a chemical test analysis of his breath, with a result of .109 percent. See, Criminal Court complaint dated September 4, 2012, p 2.

Defendant was initially represented by a member of the Legal Aid Society. Defendant's retained counsel made his appearance on behalf of the Defendant on November 7, 2012.

By omnibus motion dated September 21, 2012, filed by prior counsel, Defendant sought pre-trial hearings in this matter. On January 22, 2013, the Court orally granted hearings pursuant to People v. Ingle, 36 NY2d 413, 369 NYS2d 67 (1975); People v. Huntley, 15 NY2d 72, 255 NYS2d 838 (1965), and People v. Johnson, 134 Misc 2d 474, 511 NYS2d 773 (Crim Ct, Qns Cty, 1987).

Citing to the Intoxicated Driver Examination Form, Defendant asserts that the reason he was stopped by the police in the first place was based upon the arresting officers assertion that he observed the Defendant driving recklessly, with "passengers out the window and when pulled over hit the gas as he stopped and then braked and came to a full stop." See, Defendant's motion dated August 12, 2013, p 5-6, para 10.

Therefore, since all current charges against the Defendant "arise out of the same set of circumstances" as the previously dismissed charge, Defendant asserts his prosecution violates CPL Sec. 40.20 and 40.40.See, Defendant's motion dated August 12, 2013, p 6, para 12 and 14.

Under CPL Sec. 40.20,

1. A person may not be twice prosecuted for the same offense.

2. A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless:

(a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other; or

(b) Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil...

CPL Sec. 40.40 states as follows:

1. Where two or more offenses are joinable in a single accusatory instrument against a person by reason of being based upon the same criminal transaction...such person may not, under circumstances prescribed in this section, be separately prosecuted for such offenses even though separate prosecutions are not otherwise barred by any other section of this article.

2. When (a) one of two or more joinable offenses of the kind specified in subdivision one is charged in an accusatory instrument, and (b) another is not charged therein, or in any other accusatory instrument filed in the same court, despite possession by the people of evidence legally sufficient to [*4]support a conviction of the defendant for such uncharged offense, and ( c) either a trial of the existing accusatory instrument is commenced or the action thereon is disposed of by a plea of guilty, any subsequent prosecution for the uncharged offense is thereby barred.

In these two sections of the Criminal Procedure Law, New York has codified the "double jeopardy" principle of the Fifth Amendment to the United States Constitution. The test for whether or not a prosecution violates this clause is stated in Blockburger v. United States, 284 US 299, 304, 52 S Ct 180, 76 L Ed2d 306 (1932); "(W)here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact of which the other does not."

"If it turns out that both statutes require proof of an additional fact then an aquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.'" See, People v. Byrne, 34 Misc 3d 303, 305, 936 NYS2d 506 (S Ct, Bx Cty 2011), citing, Blockberger, 284 US at 304.

Under this test, it is readily apparent that the prosecution of this Defendant for Driving While Under the Influence of Alcohol does not offend the Fifth Amendment, and does not constitute double jeopardy.

Under VTL Sec. 1212, "Reckless driving shall mean driving or using any motor vehicle...in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway."

VTL Sec. 1192(1) states 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." VTL 1192(2) adds a prohibition against operation of a motor vehicle "while such person has .08 of one percentum or more by weight of alcohol in the person's blood as shown by chemical analysis," and VTL Sec. 1192(3) states that "(n)o person shall operate a motor vehicle while in an intoxicated condition."

Operation of a motor vehicle while either impaired or intoxicated could constitute an unreasonable interference "with the free and proper use of the public highway," as well as unreasonably endanger users of the same roadway. However, proof of unreasonable interference or endangerment are not elements of proof under VTL 1192(1), 1192(2), or 1192(3). See, People v. Alberto, 22 Misc 3d 786, 790, 877 NYS2d 628 (Dist Ct, Suffolk Cty, 2006), citing People v. Hagmann, 175 AD2d 502, 505, 572 NYS2d 952 (3d Dept, 1991) ("In order to meet the legal standard for intoxication, a defendant must be shown to have consumed alcohol to the point that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.'"). [*5]

Similarity, proof of guilt under VTL Sec. 1212 does not require any proof that the defendant was either impaired or intoxicated. "Reckless driving means more than mere negligence in the operation of a motor vehicle; it means a wanton or heedless indifference or disregard of consequences on the part of the operator." See, New York Jurisprudence, Automobiles and Other Vehicles, Sec. 944, updated, November 2013, and cites cited therein.

Therefore, given the demonstrable difference between the elements of proof required for a finding of guilt under these various statutes, this Court finds that the prosecution of this Defendant for the charges of Driving While Under the Influence under VTL 1192(1), 1192(2), and 1192(3) does not constitute double jeopardy.

Further, the dismissal of Summons Number 4405343500 would not invoke either CPL Sec. 40.20 or 40.40 in any event, given that the dismissal of the summons was not accomplished on the merits of the charge. Reportedly, the summons was dismissed "due to the arresting officer's failure to attend the traffic court proceedings." See, People's Response dated December 13, 2013, p 5.

Under this circumstance, "whenever a dismissal has been granted on motion by defendant, so long as the dismissal does not constitute an adjudication on the facts going to guilt or innocence," the provisions of CPL Sec. 40.20 and 40.40 do not attach. See, People v. Kurtz, 51 NY2d 380, 386, 434 NYS2d 200 (1980), citing, People v. Key, 45 NY2d 111, 117, 408 NYS2d 16 (1978).

Therefore, Defendant's motion to dismiss pursuant to CPL Sec. 40.20 and 40.40 is denied.

( C) Other Relief Requested

Defendant has moved for suppression of all physical evidence seized by law enforcement personnel at the time of his arrest.

This motion is denied; pre-trial hearings were previously granted to Defendant pursuant to People v. Ingle, 36 NY2d 413, 369 NYS2d 67 (1975); People v. Huntley, 15 NY2d 72, 255 NYS2d 838 (1965), and People v. Johnson, 134 Misc 2d 474, 511 NYS2d 773 (Crim Ct, Qns Cty, 1987).

The People are directed to provide all pre-trial disclosure of all materials subject to CPL Sec. 240.20, as well as all exculpatory materials to the defense, including all relevant materials related to the Breathalyzer used in the instant case. The People are also reminded of their continuing obligations under People v. Rosario, 9 NY2d 286, 213 NYS2d 448 (1961) and Brady v. Maryland, 373 US 83, 83 S Ct 1194 (1963).

All other arguments and requests for any additional hearings and relief that have been advanced by the Defendant has been reviewed and rejected by this Court as being not applicable, or without merit. [*6]

This shall constitute the opinion, decision, and order of the Court.

Dated: Bronx, New YorkFebruary 4, 2014

_______________________________Hon. John H. Wilson, JCC