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Court Discusses the Motion for Summary Judgment in Relation to the Serious Injuries Sustained by the Plaintiff

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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.

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.

The plaintiffs who were passengers in a town car that was involved in a collision sued for a damaged as a result of the injuries suffered. The plaintiffs sued the both the driver of motor vehicle that was responsible for the accident as well as the owner of the town car. The first defendant, who was the driver of the motor car pleaded guilty to vehicular assault in the second degree and driving while intoxicated. The second defendant, who was the owner of the town car, requested summary judgment against the plaintiffs on the grounds that the town car was being driven and operated without his consent or permission as he only gave him permission for a test drive the car in contemplation of purchasing it. He also argued that sole cause of the accident was the failure of the first defendant to yield the right-of-way in violation of Vehicle and Traffic Law § 1142 (a). The Supreme Court granted summary judgment dismissing the complaint against the second defendant. The plaintiffs appealed. DUI was not charged.

The Appellate Division of the Supreme Court reversed the decision with cost payable to the plaintiffs as the second defendant failed to show a prima facie entitlement to summary judgment. Genuine issues of material fact existed as to whether driver had consented to operate owner’s vehicle at time of an accident and whether driver was partially at fault for accident, which precluded summary judgment for owner in passengers’ action seeking to recover damages for personal injuries they had sustained. The trial court should have denied the judgment to the second defendant for the complaint against him. There was no DWAI.

However, a passenger was successful at the trial court level in dismissing the request for summary judgment by the second defendant. The second defendant then appealed the decision of the trial court on the grounds that the driver of the town car was not authorized to operate the vehicle and that the proximate cause of the accident was actions of the first defendant. The Appellant Division held that under the requisite provision Vehicle and Traffic Law there was a presumption that the operator of the vehicle operated with the owner’s permission whether express or implied which made every owner liable for injuries resulting from negligent use or operation a vehicle. However, this presumption could be rebutted where the owner presented substantial evidence that the driver did not have consent or permission to operate the vehicle. DWI was not involved.

The plaintiff, who was deceased, drowned when the motor vehicle he was driving broke through a retaining wall, falling into the water. The plaintiff sued to recover damages for wrongful death and conscious pain and suffering. The plaintiff’s estate asserted that the retaining wall was not constructed properly to withstand the impact of a motor vehicle. The defendant, who was the City of New York, argued that the defendant was negligent as the autopsy revealed that the deceased blood alcohol content was .3 percent. The trial court dismissed the case against the defendant. The plaintiff appealed the DUI.

The Appellate Division of the Supreme Court examined the circumstances of the accident to attribute liability to blameworthy party. The accident took place on a foggy morning while the deceased was travelling in a southerly direction swerved across the two southbound lanes and a 12-foot wide sidewalk before colliding with the retaining wall. A section of the retaining wall was knocked out as a result of the collision. The plaintiff’s estate offered expert evidence by a consulting engineer to prove that the wall was not constructed to withstand an impact by a motor vehicle and that partitions which were constructed were not continuous and with impact the partitions could easily break away from each other. The defendant on the other hand provided an expert to testify that the autopsy that the plaintiff’s alcohol content was 0.3 percent in his brain and that he was therefore intoxicated. The New York Personal Injury Attorney rebutted the defendant’s assertion by presenting the last person to see the decease at 5:00 a.m., who stated that he was sober and he only drank one and half bottles of beer between the hours of 2.00-5.00 a.m.

There were no eye witnesses to the accident as such there was a reluctance by the court to attribute any liability to the plaintiff. Where contributory negligence is used as the defense, the plaintiff is presumed to have used due care as there is less stringent evidentiary standards to be applied in a wrongful death action. Questions of contributory negligence of the defendant and speed which the defendant was driving were questions for the jury to consider and decide rather than the judge. The jury was not required to accept the testimony of the expert witness who stated that the defendant was intoxicated , DWI.

The Defendant was arrested of driving under the influence after the arresting officer observed his erratic behavior including swerving and nearly striking the traffic delineators. The defendant took a breathalyzer test which revealed that his alcohol content was above the legal limit. The defendant was convicted of driving under the intoxicated pursuant to Vehicle and Traffic Law § 1192[2]. The defendant appealed his convicted on the grounds that his confrontation right was infringed and that the initial stop should be reviewed. DWI was apparant.

A person has a constitutional right to confront a complaint who makes an accusation against them in court in a criminal case. In the instant case, a breathalyzer test was done which revealed that the defendant was intoxicated; as a result, the defendant asserted that he should be presented information to show that the machine was working properly when the test was conducted. However, the records inspection and maintenance and the calibration of the instrument were not testimonial hearsay as such his confrontation rights were not violated under the principle established Crawford v Washington, 541 US 36 (2004). Additionally, the defendant’s unusual behavior while operating the motor vehicle was questionable. The observations by the arresting officer showed that the defendant was clearly under the influence as he was swerving. Therefore, the court declined to review the initial stop in the interest of justice as his behavior provided a proper basis for the stop of his motor vehicle.

A Staten Island Criminal Attorney can assist with any matter associated with driving under the influence. A Queens County Criminal Lawyer knows how to act in your best interest and to protect your rights. At Stephen Bilkis & Associates, we offer excellent legal services to assist you with your legal problems to achieve the best results. Our offices are conveniently located throughout New York City and we offer free consultations.