Articles Posted in DWI/DUI

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This is a proceeding wherein the defendant is charged with one count each of Operating a Motor Vehicle While Intoxicated pursuant to VTL §1192.3 and Operating a Motor Vehicle While Impaired pursuant to VTL §1192.1. The defense has made a motion to preclude the People from introducing the result of the SD-2 Intoxilyzer portable breath alcohol test administered to the defendant. A response was filed by the People.

The court grants the defense’s motion to preclude introduction of evidence relating to the portable breath alcohol test.

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On 10 October 2008, the defendant pled guilty to Common Law DWI or Driving While Intoxicated in violation of V.T.L. 1192(3). That plea satisfied the charges of Resisting Arrest, P.L. 205.30 and Failure to Take the Roadside Breath Test, V.T.L. 1194 (1)(B). Subsequent to the arraignment, the defendant appeared with his attorney, who requested an adjournment to submit motions. The motions were subsequently argued and the matter was set down for a probable cause hearing on 3 September 2008. However, instead of a hearing on that date the matter was adjourned to 10 October 2008. On that day a pre-trial conference was conducted in chambers with counsels. At that conference the People made the plea offer which resulted in the aforementioned plea. Prior to taking the defendant’s plea this court advised him of his right to a jury trial, the People’s burden of proof, and of the fact that the verdict of the six person jury must be unanimous.

The defendant was further advised that his lawyer could cross-examine the People’s witnesses, that he could present his own witnesses, and that he could testify, but if he chose not to do so that fact could not be used against him. The defendant then proceeded to waive his right to a trial. At that time the assistant district attorney engaged in a factual dialogue with the defendant wherein he asked if the defendant operated a motor vehicle under the influence of alcohol DUI on 14 March 2008 to which defendant answered in the affirmative. The defendant also admitted to drinking a “six-pack” upon further inquiry by the prosecutor.

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This proceeding involves a motion by Westchester Medical Center for summary judgment upon Progressive Casualty Insurance Company’s failure to either pay the Hospital’s no-fault benefits or deny its claim within 30 days as required by Insurance Law § 5106(a).

The court denies the motion.

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