Archive for the ‘DWI/DWAI’ Category

Understanding Vehicular Assault under New York Penal Law 120.03 and 120.04

Friday, October 28th, 2011

Vehicular assault charges are usually added to felony or misdemeanor DWI complaints where there has been an injury to someone other than the driver of the vehicle as a result of an alcohol- or drug-related accident.  For example, in People v. Mojica, 62 A.D.3d 100, the defendant allegedly “drove a pickup truck through a red traffic light and struck a marked patrol car driven by a city police officer, Richard Poluzzi. Officer Poluzzi, who was removed from the scene by ambulance and transported to St. Francis Hospital, suffered head injuries and spent one month in an in-patient rehabilitation facility before returning to work six months after the accident, in January 2007.”

The elements of the basic charge, PL 120.03, are as follows:

§ 120.03 Vehicular assault in the second degree.

A  person  is guilty of vehicular assault in the second degree when he

or she causes serious physical injury to another person, and either:

(1) operates a motor vehicle in violation of subdivision  two,  three,

four  or  four-a of section eleven hundred ninety-two of the vehicle and

traffic law or operates a  vessel  or  public  vessel  in  violation  of

paragraph   (b),   (c),  (d)  or  (e)  of  subdivision  two  of  section

forty-nine-a of the navigation law, and as a result of such intoxication

or impairment by the use of a drug, or  by  the  combined  influence  of

drugs  or of alcohol and any drug or drugs, operates such motor vehicle,

vessel or public vessel in a manner that causes  such  serious  physical

injury to such other person, or

(2)  operates  a  motor  vehicle with a gross vehicle weight rating of

more  than  eighteen  thousand  pounds  which  contains  flammable  gas,

radioactive  materials  or explosives in violation of subdivision one of

section eleven hundred ninety-two of the vehicle and  traffic  law,  and

such  flammable gas, radioactive materials or explosives is the cause of

such serious physical injury, and as a result of such impairment by  the

use of alcohol, operates such motor vehicle in a manner that causes such

serious physical injury to such other person, or

(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of

subdivision  one  of section 25.24 of the parks, recreation and historic

preservation law or operates  an  all  terrain  vehicle  as  defined  in

paragraph   (a)   of  subdivision  one  of  section  twenty-two  hundred

eighty-one  of  the  vehicle  and  traffic  law  and  in  violation   of

subdivision  two,  three,  four,  or  four-a  of  section eleven hundred

ninety-two of the vehicle and traffic law,  and  as  a  result  of  such

intoxication  or  impairment  by  the  use of a drug, or by the combined

influence of drugs or of alcohol and any drug or  drugs,  operates  such

snowmobile  or  all terrain vehicle in a manner that causes such serious

physical injury to such other person.

If it is established that the person  operating  such  motor  vehicle,

vessel,  public  vessel,  snowmobile  or all terrain vehicle caused such

serious physical injury while unlawfully intoxicated or impaired by  the

use  of  alcohol or a drug, then there shall be a rebuttable presumption

that, as a result of such intoxication  or  impairment  by  the  use  of

alcohol  or  a drug, or by the combined influence of drugs or of alcohol

and any drug or drugs, such person operated the motor  vehicle,  vessel,

public vessel, snowmobile or all terrain vehicle in a manner that caused

such serious physical injury, as required by this section.

Vehicular assault in the second degree is a class E felony.

The enhanced class D felony of Vehicular Assault in the First Degree requires first the commission of second-degree vehicular assault, but also requires the presence of at least one of 6 different “bump-up” circumstances, including (i) committing the crime after “blowing” a .18 or higher (Penal Law 120.04(1)); (ii) committing the crime with knowledge that your driver’s license is suspended (Penal Law 120.04(2)); (iii) committing the offense with a prior DWI on your record (Penal Law 120.04(3)); (iv) causing “serious physical injury” to another person (Penal Law 120.04(4)); (v) committing the offense with a prior homicide on your record (Penal Law 120.04(5));  or (vi) committing the offense with a child 15 years of age or younger as a passenger (Penal Law 120.04(6)).

One of the best strategies for defeating the charge at trial would seemingly be to challenge the DWI element.  An experienced New York DWI attorney would seemingly make that a top priority.  Other strategies would probably entail challenging whether the injury was severe enough to constitute physical injury under the Penal Law definition.

If you or a loved one has been arrested for DWI or Vehicular Assault, your best bet will always be to consult with top new york criminal defense lawyers before proceeding.

How to Make Bail in New York City

Monday, June 13th, 2011

The arrest of a friend or loved one often happens unexpectedly.  The majority of New Yorkers do not have any experience with the criminal justice system and are often thrust into a position of having to deal with the possibility of bail being set.  This post will explain a few factors that go into a judge’s decision as to whether to set bail, explain what steps should be taken immediately before the arrested person sees the judge, and finally, if bail is set, will explain the basic process.

First of all, the question may arise, “What is bail?”  Bail is simply a condition set forth by the Court that the defendant must first comply with before he can be released from the custody of the New York City Department of Corrections.  In most cases, that would be an amount of money designated by the judge in either cash or bond.  The difference between these two methods of bail will be explained later.

It should be noted that in the case of many first-time offenders, no bail will be set at all.  This is because the purpose of bail is to ensure that the defendant returns to court to answer for the charges.  Contrary to popular belief, bail is not supposed to be “preventative detention,” or a way to prevent people from committing future crimes.  Thus, if a defendant is an otherwise law-abiding citizen, and the charge is not serious enough to warrant bail, a judge may simply release him or her on their own recognizance.  This is sometimes called “ROR.”  In other cases, however, a judge may determine that a certain amount of bail is appropriate even for a first time offender.  The criteria that the judge will consider is set forth in the Criminal Procedure Law:

  2.    To  the  extent that the issuance of an order of recognizance or
  bail and the terms thereof are matters of discretion rather than of law,
  an application is determined on the basis of the following  factors  and
  criteria:
    (a)    With respect to any principal, the court must consider the kind
  and degree of control or restriction that is  necessary  to  secure  his
  court  attendance  when required.  In determining that matter, the court
  must, on the basis of available  information,  consider  and  take  into
  account:
    (i)     The  principal's  character,  reputation,  habits  and  mental
  condition;
    (ii)  His employment and financial resources; and
    (iii)  His family ties and the length of his residence if any  in  the
  community; and
    (iv)  His criminal record if any; and
    (v)   His record of previous adjudication as a juvenile delinquent, as
  retained pursuant to section 354.2 of  the  family  court  act,  or,  of
  pending  cases where fingerprints are retained pursuant to section 306.1
  of such act, or a youthful offender, if any; and
    (vi)  His previous record if any in responding  to  court  appearances
  when  required  or with respect to flight to avoid criminal prosecution;
  and
    (vii)  If he is a defendant, the weight of the evidence against him in
  the pending criminal action and any other factor indicating  probability
  or  improbability  of  conviction; or, in the case of an application for
  bail or recognizance pending appeal, the merit or lack of merit  of  the
  appeal; and
    (viii)    If  he is a defendant, the sentence which may be or has been
  imposed upon conviction.

Many of these factors are self-explanatory.  If a person has a prior criminal history, or a record of not showing up to court, the judge will probably set an amount of bail that he or she feels is necessary to secure his or her attendance in court.  However, if the charge is serious, then it is very important to try to retain an experienced New York City criminal lawyer before your friend or loved one sees the judge.  The lawyer will be able to assist in gathering information and proof that the judge will consider in making the court’s bail decision.  This material can include papers considering his or her employment, paystubs, proof of residence, and other material that will be helpful in convincing the court to either ROR the defendant or set an amount of bail that he or she can actually make.

Assuming that the judge sets bail, one needs to be informed as to the precise method specified by the court.  For example, a judge may set bail in the amount of $100,000 bond over $50,000 cash.  The best way to explain this is to start with the cash alternative.  In this example, if a family member has $50,000 in cash, that can be posted to secure the defendant’s attendance, with no other steps being necessary.  Bail can be paid either at the courthouse or the corrections facility where the defendant is being held.  If the bail is going to be made at the court, it is probably best to speak with an attorney to get an idea of how much the bail may be so that you can come prepared with money necessary.  On the other hand, if the defendant chooses to go with the $100,000 bond alternative, he or she must deal with a bail bondsperson.  The bondsperson’s job is simply to gauge the amount of risk he or she is willing to take that the defendant will return to court when required.  In exchange for taking on this risk, he or she takes a fee.  Every situation is different, but a bondsperson will usually ask the friend or family member of the arrested person to pay a percentage of the total bond amount, and then provide some sort of security for the remainder.  Again using the example of a $100,000 bond, the bondsman may ask for $10,000 cash, and the deed to a home or other form of collateral to secure the other $90,000.  At the end of the case, the bondsperson will give you back the cash you posted, less a fee that he or she takes for assuming the risk.

Remember that in dealing with a bondsperson, they may have reporting requirements or “check ins” that will occur periodically to ensure that they are in touch with the defendant.  If the defendant does not comply with the conditions of the bond, the bondsperson can go to the court and ask that the bond be revoked and that the defendant be taken into custody.

With that said, the best possible thing to do is to retain an attorney before the initial hearing because the attorney can do two things: (1) make a reasoned and cogent argument to the judge as to why no bail should be set (“ROR”) or that a lower amount of bail is necessary than what the Assistant District Attorney may ask for and (2) if bail is set, put you in touch with a respectable bail bondsperson and assist in the bail making process.

Should you need advice as to how any of this works, you should contact a New York City bail attorney.

CRIMINAL LAWYERS EXPLAIN DWI CHARGES, DWI PENALTIES AND DWI CONSEQUENCES

Monday, May 16th, 2011

In this blawg, our criminal lawyers explain DWI charges, DWI penalties and DWI consequences. Being accused of driving under the influence of alcohol, marijuana, or any controlled substance in New York is not a matter to be taken lightly. A conviction for any DWI-related offense can have serious consequences, such as incurring a permanent criminal record, driver’s license suspension and/or revocation, payment of hefty fines, enrollment in counseling programs, requirement of the use of an ignition interlock mechanism, vehicle forfeiture, and/or incarceration. In fact, merely being charged with a DWI-related offense can impose a hardship upon a person before he/she is even convicted, as certain Vehicle and Traffic Law (“VTL”) provisions provide for immediate suspension of driver’s licenses which can disrupt a working person’s life. This post will explain the most commonly used DWI charges and the penalties associated with them so that you know what to expect if you or someone you know are in the position of facing a prosecution for DWI.

The basic component or “elements” of alcohol and drug related driving offenses are the following: (a) operation of a motor vehicle or vessel, (b) on a public highway or the waters of the State, (c) while in an impaired or intoxicated condition at the time of such operation, (d) due to the voluntary consumption of alcohol or drugs.

You might be surprised to learn that a person is deemed to “operate” a motor vehicle if he/she is behind the wheel while the engine is running. As such, there is no requirement that the person charged be observed “driving” the vehicle in the traditional sense that the vehicle be observed in motion. The law is clear that “operation” of a motor vehicle is established where there is a “present intention” of placing the vehicle in operation. Courts have found that people who are asleep at the wheel of a parked car with a key in the ignition and the engine running “operated” a vehicle for purposes of a DWI charge. In fact, courts have upheld convictions where drivers were asleep or unconscious at the wheel of vehicles which were parked in their own driveways as they were deemed to have operated a vehicle on a “public highway” – public highway including highways, private roads open to motor vehicle traffic, parking lots, and even driveways to residences.

As you can see from the summary of charges below, DWI offenses are very serious, and they carry severe penalties and consequences. If you or someone close to you has been accused of driving while impaired or intoxicated, contact an experienced criminal attorney immediately.

Some of the more common drinking and driving offenses:

VTL § 1192.1: “Driving while ability impaired.” This section states that no person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol. “Impairment” means impairment to any extent of the physical and mental abilities needed to be possessed in order to operate a vehicle as a reasonable and prudent driver.

Penalties: This is the least severe of the DWI charges as it is a traffic infraction (not a crime) which is punishable by up to 15 days in jail, and/or a fine of $300-$500, and 90 day license suspension for first time offenders. Second offenders face up to 30 days in jail and increased fines and license revocation for 6 months, while third time offenders face up to 90 days in jail, as well as increased fines and 6 month license revocation.

 

VTL § 1192.2: “Driving while intoxicated, per se.” This section states that no person shall operate a motor vehicle while such person has .08 per centum or more by weight of alcohol in the person’s blood* as shown by chemical analysis of such person’s blood, breath, urine or saliva.

Penalties: first time offenders convicted under this section face up to one year in jail, and/or a fine of $500-$1000 and a mandatory license revocation of six months. The law may also require that an ignition interlock device be placed on any vehicle operated by the defendant for a specified period of time.

*Note: If a person has .18 of one per centum or more by weight of alcohol in their blood, they may be charged with aggravated driving while intoxicated, a misdemeanor which carries up to one year in jail and a fine of $10,000-$25,000.

 

VTL § 1192.3: “Driving while intoxicated (common law). This section states that no person shall operate a motor vehicle while in an intoxicated condition, meaning the consumption of alcohol has caused impairment which renders that person incapable, to a substantial extent, of employing the physical and mental abilities which are needed to be possessed in order to operate a vehicle as a reasonable and prudent driver. There is no requirement that a person submit to a breathalyzer test for a charge under this section to apply.

Penalties: This is a class “A” misdemeanor which carries up to one year in jail and/or a fine of $500-$1,000, and a mandatory license revocation of six months.

 

VTL § 1192.4: “Driving while ability impaired by drugs.” No person shall operate a vehicle while the person’s ability to operate such a motor vehicle is impaired by the use of a drug.

Penalties: This is a class “A” misdemeanor for first time offenders, which carries up to one year in jail and/or a fine of $500-$1,000 and mandatory license revocation of 6 months.

 

Felony DWI: A person who operates a vehicle in violation of § 1192.2, 1192.3 or 1192.4 can be charged with a class E felony if he or has been previously convicted of any DWI misdemeanor, vehicular assault or vehicular manslaughter within the preceding ten years*.

Penalties: As a class “E” felony, incarceration of up to 4 years may be imposed, as well as a fine of $1,000-$5,000, and mandatory license revocation for 1 year.

*If a person has two such prior convictions, they may be charged with a class “D” felony which carries up to 7 years in jail and higher fines.

“Lenadra’s Law”: Under Leandra’s Law, first time offenders driving while intoxicated or impaired by drugs who have a child passenger younger than sixteen years old can be charged with a class E felony which is punishable by up to 4 years in jail. Intoxicated drivers or those under the influence of drugs who cause the death of a child younger than 16 in the car can be charged with a Class B felony, which is punishable by up to 25 years in prison. If such a driver causes serious physical injury to a child in their vehicle, they can be charged with a Class C felony, which is punishable by up to 15 years in prison.

 

New York City Juvenile Arrests : The Family Court Process

Tuesday, April 26th, 2011

Many juveniles in New York City are arrested every week and given a family court summons for a crime that would otherwise subject him or her to a permanent criminal record.  A juvenile is “defined” in the Penal Law as a person under the age of sixteen years old.  To be more precise, it is actually a defense to a criminal charge that the defendant was less than sixteen at the time the offense was allegedly committed.  See Penal Law 30.00.  Often times juveniles are arrested for such offenses as Criminal Possession of Marijuana in the Fifth Degree, Penal Law 221.10, Unlawful Possession of Marijuana, Penal Law 221.05, Petit Larceny, Penal Law 155.25, Assault in the Third Degree, Penal Law 120.00, Criminal Mischief, Penal Law 145.00, and Making Graffiti, Penal Law 145.60.  However, in other cases, the charges can be more serious, especially where a victim has been killed or seriously injured or a felony charge, such as a drug sale, are involved.

The Family Court process can be daunting for a family inexperienced in defending against allegations such as these, even in juvenile arrest matters.  A young defendant and his or her family will most likely be interviewed by probation and if the charge warrants it, be brought before a judge where an adjudication of juvenile delinquency can be made either through an admission or, in some cases, after a fact-finding hearing.  The Family Court Act requires the attendance of the juvenile respondent and his or her counsel to be present during such a hearing.  It is for this reason, that it is important that your child’s rights are protected by a lawyer experienced in handling juvenile arrest cases.  If an adjudication of juvenile delinquency is made, the Family Court Act requires a dispositional hearing to take place within 10 days of the adjudication (if the charge is a felony) or within 50 days of the adjudication (for all other cases).   The possible outcomes of a dispositional hearing for a juvenile defendant are three: (i) a conditional discharge, which for all intents and purposes is an order from the court requiring the juvenile to stay out of trouble and comply with whatever other conditions the court deems necessary to correct the behavior, (ii) probation, which would imply reporting to a probation officer for a set period of time, or, in extreme cases (iii) placement in a juvenile detention facility.  The court’s decision will be the result of a balancing of the needs of the juvenile against the need to protect the community.

Simply put, should a loved one or family member of yours require assistance in sorting out a family court or adult criminal matter, you should call Galluzzo & Johnson LLP.

Hardship Licenses in New York DWI Matters

Wednesday, April 13th, 2011

Many people who are arrested for and accused of DWI in New York need to be able to use their car to get to work on a daily basis.  Unfortunately for those people, New York law generally requires the immediate suspension of an arrestee’s driver’s license which lasts until the end of the prosecution, at which time the suspension either goes away (in the case of an acquittal or dismissal) or becomes set for a fixed period of time.

1.  A Hardship Privilege is Known in New York Law

While it may be possible to obtain a conditional license pursuant to a negotiated plea or on account of other circumstances in a DWI case, this post deals with the hardship license, or, to be more precise, the “hardship privilege” as described in Vehicle and Traffic Law (“VTL”) 1193(2)(e)(7)(e).  That provision states, in relevant part, as follows:

If the court finds that the suspension imposed pursuant to this subparagraph will result in extreme hardship, the court must issue such suspension, but may grant a hardship privilege, which shall be issued on a form prescribed by the commissioner.

Thus, provided that a defendant can show such “extreme hardship,” he or she may be able to operate a vehicle notwithstanding any pre-conviction suspension.

2.  “Extreme Hardship” Defined

Extreme hardship is defined later in the same section:

For the purposes of this clause,”extreme hardship” shall mean the inability to obtain alternative means of travel to or from the licensee’s employment, or to or from necessary medical treatment for the licensee or a member of the licensee’s household, or if the licensee is a matriculating student enrolled in an accredited school, college or university travel to or from such licensee’s school, college or university if such travel is necessary for the completion of the educational degree or certificate.

Thus, there are exactly three circumstances under which a person may apply for a hardship license, loosely categorized here as (i) work, (ii) school, or (iii) medical.  Absent any of those reasons, the hardship license simply will not apply.

3.  Burden to Show Hardship on Defendant

The mere presence of one of those circumstances in a case does not necessarily mean that a hardship license will be granted.  It will usually be the job of the New York DWI defense attorney to demonstrate his client’s entitlement to the license.  As set forth in the statute:

The burden of proving extreme hardship shall be on the licensee who may present material and relevant evidence. A finding of extreme hardship may not be based solely upon the testimony of the licensee.

Thus, any claimant should be prepared to assemble paperwork and other evidence, including live witness testimony, to support their claim that driving is necessary to facilitate either work, school, or medical visits.

4. Timing of Hearing

The hearing must take place simultaneous to or within three days of the criminal court arraignment.  Thus, time is of the essence when it comes to presenting evidence of hardship that will allow you to keep your license.  Thus, if you are arrested, it is important to immediately contact an experienced New York DWI attorney to ensure that your driving rights are fought for as soon as possible.  As noted in the statute:

In no event shall arraignment be adjourned or otherwise delayed more than three business days solely for the purpose of allowing the licensee to present evidence of extreme hardship. The court shall set forth upon the record, or otherwise set forth in writing, the factual basis for such finding.

5.  Scope of Hardship License

Finally, the privilege is very limited.  It will only allow a driver to drive to the extent that he or she is required to do so by one of the three statutory reasons.  Courts have interpreted this provision very strictly, and a driver who drives outside the scope of a hardship license may face sanctions in his pending case, and even additional VTL charges:

The hardship privilege shall permit the operation of a vehicle only for travel to or from the licensee’s employment, or to or from necessary medical treatment for the licensee or a member of the licensee’s household, or if the licensee is a matriculating student enrolled in an accredited school, college or university travel to or from such licensee’s school, college or university if such travel is necessary for the completion of the educational degree or certificate. A hardship privilege shall not be valid for the operation of a commercial motor vehicle.

Federal Court Overturns New York Defendant’s DWI-Murder Conviction

Thursday, December 16th, 2010

On June 14, 2004, night club owner Neville Wells struck with his vehicle and and killed 37-year-old Judith Gubernikoff on Manhattan’s Lower East Side.  A grand jury charged him with one count of murder in the second degree and assault in the first degree (both under depraved indifference theories), and one count each of vehicular manslaughter in the second degree, vehicular assault in the second degree, and assault in the second degree.

The defendant “benched” the case and a trial was held without a jury before the Hon. Richard Carruthers beginning on May 3, 2005.  According to the trial transcript, Wells blew through a red light and hit the vehicle in which Ms. Gubernikoff and her father were riding.  Eyewitnesses stated that Wells was driving very fast at the time of the accident, completely disregarded the semaphore in the intersection, and was completely incoherent immediately after the accident.  In fact, Wells’ blood alcohol content at the time he was tested shortly after the accident was between .25% and .27%, which is more than three times the legal limit.

After trial, Wells was convicted of Murder in the Second Degree under a “depraved indifference” theory and sentenced by the judge to concurrent indeterminate prison terms of from seventeen years to life.  Wells appealed his conviction directly to the Supreme Court, Appellate Division, First Department, arguing that “that the evidence [was] insufficient to sustain conviction of murder in the second degree and assault in the second degree because it failed to establish that his conduct was so morally deficient and devoid of concern for life as to warrant exposing him to the same criminal liability that the law imposes for intentional conduct.”  See People v. Wells, 53 A.D. 3d 181 (1st Dep’t 2008).  Additionally, before his appeal was decided in the intermediate appellate court, New York’s highest court, the Court of Appeals, decided People v. Feingold, 7 N.Y.3d 288 (2006), which overturned People v. Register 60 N.Y.2d 270 (1983).  After Feingold, the standard for depraved indifference crimes to require courts to look at the mental state from a subjective point of view, finding guilty only where the particular defendant demonstrates “‘a willingness to act not because [he] intends harm, but because [he] simply doesn’t care whether grievous harm results or not  .  .  .  .   A defendant must possess an “utter disregard for the value of human life  .  .  .  embodied in conduct that is so wanton, so deficient in a moral sense of concern, and so blameworthy as to render the actor as culpable as one’ who intends the result of his acts.”  Wells v. Perez, 10 Civ. 1107 (S.D.N.Y. 2010) (Report and Recommendation of Francis IV, J.).

Wells’ conviction was upheld by the First Department, in a 2008 Opinion authored by Justice Tom.  In Wells, the Appellate Division ruled that since the crime took place and the trial was held in the Register era, New York’s standard of proof necessary to support a conviction of depraved indifference murder had been met.  The court set forth the standard it applied as follows:

Depraved indifference murder is committed when, “[u]nder circumstances evincing a depraved indifference to human life,” a person “recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law §125.25[2]).  Similarly, assault in the first degree under a depraved indifference theory is committed when, “[u]nder circumstances evincing a depraved indifference to human life,” a person “recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person” (Penal Law §120.10[3]).  A person acts recklessly “when he is aware of and consciously disregards a substantial and unjustifiable risk” (Penal Law §15.05[3]).  The law in effect at the time of defendant’s trial did not evaluate depraved indifference under the subjective mens rea standard announced in Feingold, 7 N.Y.3d 288, 819 N.Y.S.2d 691, 852 N.E.2d 1163 [2006], supra, but instead referred to an objective standard reflected by the “factual setting in which the risk creating conduct must occur” (see Register, 60 N.Y.2d at 276, 469 N.Y.S.2d 599, 457 N.E.2d 704).  Prior to Feingold, our jurisprudence had not progressed to the point where recklessness had been abandoned in favor of the mens rea of depraved indifference to human life, and then only by a closely divided Court of Appeals, whose dissenters saw no reason to overrule Register (see id. at 300, 469 N.Y.S.2d 599, 457 N.E.2d 704 [Ciparick, J., dissenting], 301 [Kaye, Ch. J., dissenting], 305 [Graffeo, J., dissenting]).

.  .  .

Under Register, depraved indifference murder requires that a defendant’s act be imminently dangerous, present a very high risk of death to others and be committed under circumstances that evince a wanton indifference to human life or a depravity of mind (see Register, 60 N.Y.2d at 274, 469 N.Y.S.2d 599, 457 N.E.2d 704).  The requirement of depraved indifference refers neither to the mens rea nor to the actus reus; rather, it refers to “the factual setting in which the risk creating conduct must occur” (id. at 276, 469 N.Y.S.2d 599, 457 N.E.2d 704).

The court listed several factors which led to its conclusion that the Register standard had, in fact, been met in this case:

  • Defendant chose to drive while heavily intoxicated;
  • Defendant was traveling 50-60 mph on busy NYC streets;
  • In addition to the speed, defendant drove “dangerously” as evidenced by his striking a parked car and nearly striking another before the fatal accident;
  • Although “heavily intoxicated,” defendant still had the presence of mind to attempt to flee the scene; and
  • Defendant had previously attended a class aimed at preventing drunk driving

Based on the application of these facts to the Register standard (“[t]he act of driving a vehicle while in a highly intoxicated state, at high speed, on city streets, ignoring traffic signals and failing to stop after striking a parked vehicle demonstrates reckless conduct that created a grave risk of death to others so as to constitute depraved indifference to human life”), the First Department upheld the conviction.

Six days later, however, the Court of Appeals, in People v. Jean-Baptiste, 11 N.Y.3d 539 (2008), retroactively applied Feingold to all cases pending on direct appeal “in which the defendant has adequately challenged the sufficiency of the proof as to his depraved indifference murder conviction.”  Id. at 542.

Defendant then petitioned the United States District Court for the Southern District of New York for a writ of habeas corpus.  Wells v. Perez, 10 Civ. 1107 (DLC) (JCF) (S.D.N.Y. 2010).  The case landed in front of the Honorable Denise L. Cote and Magistrate Judge James C. Francis IV.  In his petition, arguing that his state court conviction was obtained in violation of clearly established Federal law.

In a letter recommendation report to Judge Cole, Magistrate Judge Francis wrote that under recent New York law, “a defendant’s decision to drink, made hours in advance of a later accident, is insufficient to uphold a depraved indifference conviction.”  Later, Judge Francis wrote, “[t]herefore, the First Department’s holding in Wells, which upheld the petitioner’s convictions for depraved indifference crimes based on a finding of culpable mens rea at the moment he chose to begin drinking, is no longer good law.”  After a lengthy discussion of the various procedural issues that mark the case, Judge Francis noted that the First Department reached the wrong result on the merits, stating, in his letter to Judge Cote that “no rational trier of fact could have convicted the petitioner of second degree murder or first degree assault under depraved indifference theories based on the evidence at trial.”  Francis wrote that the evidence submitted that Wells had attended an alcohol rehabilitation training course was only relevant to his state of mind at the time he began drinking which under the properly applied Court of Appeals decisions, “is insufficient to support the conclusion that, prior to the acidence, he possessed a culpable state of mind tantamount to intent to harm.”  The fact of intoxication to an extreme degree actually negated his intent: “Mr. Wells’ level of intoxication  .  .  .  would have made it extremely difficult, if not impossible, for him to comprehend the nature and consequences of his actions such that he could be found to have evinced a conscious, callous disregard for those consequences; in any case, proof that Mr. Wells possessed such a culpable mindset was not presented at trial.”  Based on its analysis of these factors, among others, Judge Francis recommended that the petition be granted, but also held that a retrial of Wells would not violate double jeopardy standards.

If you have been charged with a serious offense, you need experienced counsel with knowledge of New York statutory and decisional law.


New York DWI Refusal Chart

Monday, November 1st, 2010

The following is a simplistic chart explaining the license suspension consequences of a person’s refusing to submit to a blood or breath test upon being arrested for driving while intoxicated (DWI) or driving under the influence of alcohol (DWAI) in New York.  It is not legal advice.  If you have been arrested for or charged with DWI, you should consult with experienced DWI attorneys in New York.

What is Braylon Edwards Looking At in Manhattan Criminal Court?

Tuesday, September 21st, 2010

As just about everybody in New York knows, Jets wide receiver Braylon Edwards was arrested this morning.  He was later arraigned in New York County Criminal Court and charged with the misdemeanor crime of Operating a Motor Vehicle While Under the Influence of Alcohol.  The full text of the statute is below.

Edwards was charged under section 1192.2 (a charge based on his blowing over a .08), 1192.3 (common-law DWI, which is often proves with such outward manifestations of intoxications such as red or bloodshot eyes, slurred speech, the scent of alcohol, unsteady walking, etc.), and 1192.1 (a lesser included offense for driving under the influence, a violation not a crime).

The New York County D.A.’s office will probably not make an “offer” to Edwards of a violation on account of the fact that his breath sample was over twice the legal limit (reportedly a .16) and the fact that Edwards appears to have a criminal past.

An offer that the D.A.’s office could make in such a case would be a plea to the charge of 1192.2, a hefty fine, a 6 month license revocation, the STOP DWI program, and perhaps a period of community service.  Also, pursuant to recently-enacted Leandra’s Law, Edwards, if convicted, would be required to install an ignition interlock device on every vehicle he drives.  The interlock device would require him to provide a clean blow to start the car and also periodically throughout the drive to maintain operation.

The challenges his lawyers face will be daunting, but the stop based on tinted windows only will probably be questioned as will the operability and accuracy of the machine used to collect his breath sample.  While these detail-oriented cases are often marked by intricacies that a skilled lawyer may play upon to turn the tide, the best strategy may be to negotiate a favorable plea with the D.A.’s office.

If you have any questions about the DWI laws, you should contact the experienced former Manhattan Assistant District Attorneys at Galluzzo & Johnson LLP.

§ 1192. Operating a motor vehicle while under the influence of alcohol or  drugs.

1. Driving while ability impaired. No person shall operate a motor vehicle while the person’s ability to operate such  motor  vehicle is impaired by the consumption of alcohol.

2.  Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person’s blood as shown  by  chemical  analysis  of  such person’s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.

2-a. Aggravated driving while intoxicated. (a) Per se. No person shall operate  a  motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person’s blood as  shown  by  chemical analysis  of  such person’s blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article.

(b) With a child. No person shall operate a motor vehicle in violation of subdivision two, three, four or four-a of this section while a  child who  is  fifteen  years  of  age  or  less  is a passenger in such motor vehicle.

3. Driving while intoxicated. No person shall operate a motor  vehicle while in an intoxicated condition.

4.  Driving while ability impaired by drugs. No person shall operate a motor vehicle while the person’s ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chapter.

4-a. Driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs. No person  shall  operate  a  motor vehicle  while  the  person’s  ability  to operate such motor vehicle is impaired by the combined influence of drugs or of alcohol and  any  drug or drugs.

5.  Commercial  motor  vehicles: per se – level I. Notwithstanding the provisions of section eleven hundred ninety-five  of  this  article,  no person  shall  operate  a commercial motor vehicle while such person has .04 of one per centum or more but not more than .06 of one per centum by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine  or  saliva,  made  pursuant  to  the provisions  of  section  eleven  hundred  ninety-four  of  this article; provided, however, nothing contained in this subdivision shall  prohibit the  imposition  of  a  charge of a violation of subdivision one of this section, or of section eleven hundred ninety-two-a of this article where a person under the age of twenty-one operates a commercial motor vehicle where a chemical analysis of such  person’s  blood,  breath,  urine,  or saliva,  made  pursuant  to  the  provisions  of  section eleven hundred ninety-four of this article, indicates that such operator has .02 of one per centum or more but less than .04 of one  per  centum  by  weight  of alcohol in such operator’s blood.

6.  Commercial  motor vehicles; per se – level II. Notwithstanding the provisions of section eleven hundred ninety-five  of  this  article,  no person  shall  operate  a commercial motor vehicle while such person has more than .06 of one per centum but less than .08 of one per  centum  by weight of alcohol in the person’s blood as shown by chemical analysis of such  person’s  blood,  breath,  urine  or  saliva, made pursuant to the provisions of  section  eleven  hundred  ninety-four  of  this  article; provided,  however, nothing contained in this subdivision shall prohibit the imposition of a charge of a violation of  subdivision  one  of  this section.

7.  Where  applicable. The provisions of this section shall apply upon public highways, private roads open to motor  vehicle  traffic  and  any other  parking lot. For the purposes of this section “parking lot” shall mean any area or areas of private property, including a  driveway,  near or  contiguous to and provided in connection with premises and used as a means of access to and egress from a public highway to such premises and having a capacity for the parking of four or more  motor  vehicles.  The provisions  of  this  section  shall  not  apply to any area or areas of private property comprising all or part of property on which is situated a one or two family residence.

8. Effect of  prior  out-of-state  conviction.  A  prior  out-of-state conviction  for  operating  a motor vehicle while under the influence of alcohol or drugs shall be deemed to be a prior conviction of a violation of this section for purposes of determining penalties imposed under this section or for purposes of any  administrative  action  required  to  be taken pursuant to subdivision two of section eleven hundred ninety-three of  this  article; provided, however, that such conduct, had it occurred in this state, would have constituted a misdemeanor or felony  violation of  any  of  the  provisions of this section. Provided, however, that if such conduct, had it occurred in this state, would  have  constituted  a violation of any provisions of this section which are not misdemeanor or felony  offenses,  then  such  conduct  shall  be  deemed  to be a prior conviction of a  violation  of  subdivision  one  of  this  section  for purposes  of  determining  penalties  imposed  under this section or for purposes of any administrative action required to be taken  pursuant to subdivision two of section eleven hundred ninety-three of this article.

8-a.  Effect  of  prior  finding  of  having consumed alcohol. A prior finding that a person under the age of twenty-one has operated  a  motor vehicle after having consumed alcohol pursuant to section eleven hundred ninety-four-a  of  this  article  shall  have the same effect as a prior conviction of a violation of subdivision one of this section solely  for the  purpose  of  determining  the  length  of any license suspension or revocation required to be imposed under any provision of  this  article, provided   that  the  subsequent  offense  is  committed  prior  to  the expiration of the retention period for such prior  offense  or  offenses set forth in paragraph (k) of subdivision one of section two hundred one of this chapter.

9.  Conviction  of  a different charge. A driver may be convicted of a violation  of  subdivision  one,  two  or   three   of   this   section, notwithstanding  that  the  charge  laid  before  the  court  alleged  a violation of subdivision two or three of this section, and regardless of whether or not such conviction is based on a plea of guilty.

10. Plea bargain limitations.

(a) (i) In any case wherein the  charge laid  before  the  court  alleges a violation of subdivision two, three, four or four-a of this section, any plea of guilty thereafter entered in satisfaction of such charge must include at least a plea  of  guilty  to the  violation  of  the  provisions  of  one of the subdivisions of this section, other than subdivision five or six, and no other disposition by plea of guilty to any other charge in satisfaction of such charge  shall be  authorized;  provided,  however,  if  the  district  attorney,  upon reviewing the available  evidence,  determines  that  the  charge  of  a violation  of  this section is not warranted, such district attorney may consent, and the court may allow a disposition  by  plea  of  guilty  to another charge in satisfaction of such charge; provided, however, in all such cases, the court shall set forth upon the record the basis for such disposition.

(ii)  In  any  case wherein the charge laid before the court alleges a violation of subdivision two, three, four or four-a of this section,  no plea  of  guilty to subdivision one of this section shall be accepted by the  court  unless  such  plea  includes  as  a  condition  thereof  the requirement  that the defendant attend and complete the alcohol and drug rehabilitation program established pursuant to  section  eleven  hundred ninety-six  of  this  article,  including  any  assessment and treatment required thereby; provided, however, that such requirement may be waived by the court upon application of the district attorney or the  defendant demonstrating  that  the defendant, as a condition of the plea, has been required to enter into and complete an alcohol or drug treatment program prescribed pursuant to  an  alcohol  or  substance  abuse  screening  or assessment  conducted  pursuant to section eleven hundred ninety-eight-a of this article or for other good cause shown. The  provisions  of  this subparagraph  shall  apply, notwithstanding any bars to participation in the alcohol and drug rehabilitation program set forth in section  eleven hundred  ninety-six  of this article; provided, however, that nothing in this paragraph shall authorize the issuance  of  a  conditional  license unless otherwise authorized by law.

(iii)  In  any case wherein the charge laid before the court alleges a violation of subdivision one of this section and the operator was  under the  age of twenty-one at the time of such violation, any plea of guilty thereafter entered in satisfaction of such charge must include at  least a  plea  of  guilty  to  the  violation  of  such subdivision; provided, however, such charge may instead be satisfied as provided  in  paragraph (c)  of  this  subdivision,  and, provided further that, if the district attorney, upon reviewing the available  evidence,  determines  that  the charge  of  a  violation  of  subdivision  one  of  this  section is not warranted, such district attorney may consent, and the court may allow a disposition by plea of guilty to another charge in satisfaction of  such charge;  provided, however, in all such cases, the court shall set forth upon the record the basis for such disposition.

(b) In any case wherein the charge laid before  the  court  alleges  a violation  of  subdivision  one or six of this section while operating a commercial motor vehicle, any  plea  of  guilty  thereafter  entered  in satisfaction  of  such  charge must include at least a plea of guilty to the violation of the provisions of  one  of  the  subdivisions  of  this section  and  no other disposition by plea of guilty to any other charge in satisfaction of such charge shall be authorized;  provided,  however, if   the   district  attorney  upon  reviewing  the  available  evidence determines that the charge  of  a  violation  of  this  section  is  not warranted,  he  may  consent,  and the court may allow, a disposition by plea of guilty to another charge is satisfaction of such charge.

(c) Except as provided in paragraph (b) of this  subdivision,  in  any case  wherein  the  charge  laid before the court alleges a violation of subdivision one of this section by a person who was  under  the  age  of twenty-one at the time of commission of the offense, the court, with the consent  of  both  parties, may allow the satisfaction of such charge by the defendant’s agreement to be subject to action  by  the  commissioner pursuant to section eleven hundred ninety-four-a of this article. In any such  case,  the  defendant  shall  waive  the  right to a hearing under section eleven hundred ninety-four-a of this  article  and  such  waiver shall  have  the  same  force  and effect as a finding of a violation of section eleven hundred ninety-two-a of  this  article  entered  after  a hearing conducted pursuant to such section eleven hundred ninety-four-a. The  defendant  shall  execute  such  waiver  in  open  court,  and,  if represented by counsel, in the presence of his attorney, on a form to be provided by the commissioner, which shall be forwarded by the  court  to the  commissioner within ninety-six hours. To be valid, such form shall, at a minimum,  contain  clear  and  conspicuous  language  advising  the defendant that a duly executed waiver: (i) has the same force and effect as  a  guilty  finding  following  a  hearing pursuant to section eleven hundred ninety-four-a of this article; (ii) shall subject the  defendant to  the  imposition of sanctions pursuant to such section eleven hundred ninety-four-a;  and  (iii)  may  subject  the  defendant  to   increased sanctions  upon a subsequent violation of this section or section eleven hundred ninety-two-a of this article. Upon receipt of  a  duly  executed waiver  pursuant  to  this  paragraph,  the commissioner shall take such administrative action and impose such sanctions as may  be  required  by section eleven hundred ninety-four-a of this article.

(d)  In  any  case  wherein the charge laid before the court alleges a violation of subdivision two-a of  this  section,  any  plea  of  guilty thereafter  entered in satisfaction of such charge must include at least a plea of guilty to the violation of the provisions of subdivision  two, two-a  or  three  of  this  section, and no other disposition by plea of guilty to any other charge in  satisfaction  of  such  charge  shall  be authorized;  provided, however, if the district attorney, upon reviewing the available evidence, determines that the charge  of  a  violation  of this  section  is  not warranted, such district attorney may consent and the court may allow a disposition by plea of guilty to another charge in satisfaction of such charge, provided, however, in all such  cases,  the court  shall  set  forth upon the record the basis for such disposition. Provided, further, however, that no such plea shall be accepted  by  the court  unless  such plea includes as a condition thereof the requirement that  the  defendant  attend  and  complete   the   alcohol   and   drug rehabilitation  program  established  pursuant to section eleven hundred ninety-six of this  article,  including  any  assessment  and  treatment required thereby; provided, however, that such requirement may be waived by  the court upon application of the district attorney or the defendant demonstrating that the defendant, as a condition of the plea,  has  been required to enter into and complete an alcohol or drug treatment program prescribed  pursuant  to  an  alcohol  or  substance  abuse screening or assessment conducted pursuant to section eleven  hundred  ninety-eight-a of  this  article  or for other good cause shown. The provisions of this paragraph shall apply, notwithstanding any bars to participation in  the alcohol  and  drug  rehabilitation  program  set forth in section eleven hundred ninety-six of this article; provided, however, that  nothing  in this  paragraph  shall  authorize  the issuance of a conditional license unless otherwise authorized by law.

11. No person other than an operator of a commercial motor vehicle may be charged with or convicted of a violation of subdivision five  or  six of this section.

12.   Driving   while   intoxicated   or  while  ability  impaired  by drugs–serious physical injury or death or child in the vehicle.

(a)  In every  case  where  a  person is charged with a violation of subdivision two, two-a, three, four or four-a of this section, the  law  enforcement officer  alleging  such  charge  shall  make  a  clear  notation  in the “Description of Violation” section of a simplified  traffic  information (i)  if, arising out of the same incident, someone other than the person charged was killed or suffered serious physical  injury  as  defined  in section  10.00 of the penal law; such notation shall be in the form of a “D” if someone other  than  the  person  charged  was  killed  and  such notation  shall  be  in the form of a “S.P.I.” if someone other than the person charged suffered serious physical injury; and  (ii)  if  a  child aged  fifteen  years  or  less  was present in the vehicle of the person charged with a violation of  subdivision  two,  two-a,  three,  four  or four-a  of this section; such notation shall be in the form of “C.I.V.”. Provided, however, that the failure to make such notations shall  in  no way  affect  a  charge for a violation of subdivision two, two-a, three, four or four-a of this section.

(b) Where a law enforcement officer alleges a violation  of  paragraph (b) of subdivision two-a of this section and the operator of the vehicle is  a  parent,  guardian,  or  custodian  of,  or  other  person legally responsible for, a child aged fifteen years or less who is  a  passenger in  such  vehicle, then the officer shall report or cause a report to be made,  if applicable, in accordance with title six of article six of the social services law.

Upstate New York County Officials Question Implementation of Leandra’s Law

Wednesday, August 4th, 2010

As of August 15, 2010, any and all motorists who are convicted of a misdemeanor DWI charge — even first time offenders — will be required to install an ignition interlock device on their vehicle.  The ignition interlock device would force such a person to essentially pass a breathalyzer test every 10 minutes or so or risk an automated shut-down of his or her vehicle.  It appears that at that point the device would generate an electronic report to the government, which would have to be reviewed by a person to determine what the next step must be in terms of reporting the matter to the court and to the sentencing judge.  As reported in the Chenango Evening Sun, Chenango County believes that this review of the paperwork associated with the device will extremely time consuming and will stretch the county’s tight budget.  The article in the Sun notes that some are calling the imposition of the device requirement an “unfunded mandate.”  It remains to be seen whether New York City will experience a similar budget crunch when it comes to monitoring the device on a much larger scale.

New York DWI News of the Week

Monday, July 19th, 2010
  • The section of the Leandra’s Law requiring the installation of ignition interlock devices for first time offenders will go into effect on August 15, 2010.
  • The passage of Jack Shea’s Law will expand the list of technicians qualified to draw blood samples in order to determine an arrestees blood alcohol content.
  • Another child-in-car Leandra’s Law arrest was effected in Plattsburgh, New York.
  • Fourth of July DWI holiday arrests spiked this year.