Articles Posted in DWI/DUI

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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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The defendant was charged with driving while intoxicated on April 10, 1983 and was ordered to return to court on May 12, 1983. The defendant failed to appear on the specified date and a bench warrant was issued for his arrest after a felony complaint was filed charging the defendant with two counts of operating a vehicle under the influence of alcohol DWI, committed on April 9, 1983. The defendant appeared in court on May 17, 1983 where the matter was adjourned to June 3, 1983 in order for him to have legal representation. On June 3, 1983 the matter was again adjourned, the request of the defendant’s attorney in order for the attorney retained to become familiar with case until June 30, 1983. The matter was further adjourned to August 31, 1983 by the Court because the defendant’s Queens County Criminal Attorney was getting married.

On August 31, 1983, the matter appeared on the Criminal Court Calendar where the matter was adjourned to October 14, 1983 with consent by both the defense and the prosecution. The trial date of October 14, 1983 was set to be final date where the matter would be brought before a grand jury or there would be a dismissal of the case against the defendant. On October 14, 1983 the prosecution indicated that the case was not ready and as such the case was dismissed. However, on January 6, 1984 the defendant was indicted for two counts of operating a vehicle under the influence of alcohol DWAI committed on April 9, 1983. The defendant filed a motion to dismiss the case on the ground that he was denied a speedy trial (Criminal Procedure Law 30:30) because he defendant was indicted after the six months period had elapsed. No drug of any kind was found.

The trial was to commence on May 17, 1983 when the defendant appeared in court after the bench warrant for his arrest was issued. However, there was a delay of almost eight months when the indictment was filed on January 6, 1984. The People could not be considered ready for trial until the indictment was filed. The CPL 30.30 subsection 4 paragraph B excludes periods of delay at the request of the defendant or his counsel or with consent of defense counsel. The period of adjournment at request of defendant or his attorney between filing of accusatory and prosecutorial instruments was not subject to being excluded from computation of time within which the People must be ready for trial under the speedy trial rule unless it resulted in a delay to the prosecution. The two-month period of adjournment which was granted to trial counsel following the defendant’s appearance on the complaint so as to allow the defense counsel to get married was not an impediment to the People in obtaining an indictment. Hence, the two month adjournment was not subjected to being excluded from the computation of time within which the People were required to be ready for trial. A dismissal of the matter was required when the indictment was not filed within six months required by speedy trial rule. The period in which the People requested an adjournment was not excludable period since it was not requesting the defendant or his counsel. The period in which the case was dismissed to when the indictment was filed is also not an excluded period. The statutory obligation to be ready for trial within six months after commencing a felony action was not postpone with the dismissal of the case. As a result, the defendant’s motion to dismiss the case pursuant to the CPL 30:30 on the ground he was denied a speedy trial was granted.

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The defendant was convicted of possession of stolen property in the second degree, upon his plea of guilty while awaiting sentence on an unrelated matter. During his plea allocation, the defendant was promised a sentence of probation, to be served concurrently with his previous probation sentence, provided that he did not commit any other crime or offence before his sentencing. Two days after the plea allocation hearing, the defendant was arrested and charged with driving while intoxicated and aggravated unlicensed operation of a motor vehicle pursuant to the Vehicle and Traffic Law. As a result, the court sentenced the defendant to an indefinite term of imprisonment as he broke the terms of the plea bargain arrangement. The defendant appealed his sentence for DWI on the ground that it was harsh and excessive and to vacate the sentence.

The defendant’s criminal history was analyzed by the Appellate Division of the Supreme Court since he was a man of previous convictions. The defendant asserted that the sentence of an indefinite term of imprisonment was a violation of his due process rights because he was not convicted of the offences of with driving while intoxicated and aggravated unlicensed operation of a motor vehicle pursuant to the Vehicle and Traffic Law. However, the defendant was given the opportunity to explain or deny the circumstances of his arrest which is a part of the due process principle. The defendant, however, provided no explanation or information in order to cast doubt on the mind of the court that the accusations against him were false or for the court to formally inquire into the charges laid against him. As such, the appeal on this ground was dismissed as the terms of the plea bargain were clear, concise and the defendant was not a novice in the criminal justice system. The indeterminate sentence of imprisonment imposed following defendant’s re-arrest for charges of driving while intoxicated and aggravated operation of a motor vehicle was fair and it did not shock the conscience of the defendant. Two days prior to the re-arrest, the defendant had accepted a plea bargain sentence of probation which was imposed on the condition that defendant did not get re-arrested for any other crime or offense; however, he refused to abide to the strict conditions of the plea bargain agreement.

The defendant also sought to vacate his sentence pursuant to the Criminal Practice Law 440.20 which states that a judgment entered against the defendant may be set aside on the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law. However, the defendant failed to follow the procedure in applying for leave for the issue to be heard. The defendant sought to vacate his sentence but he did not obtain leave to appeal, as such the matter could not be heard. Issues that were not brought up for review were not properly before the appellate court. Therefore, the matter was remitted to the trial court for their consideration.

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