In this DWI case, defendant was originally charged with common law driving while intoxicated (DWI), but he waived his right to trial by jury on that charge and was convicted after a bench trial of the offense of driving while his ability to do so was impaired by alcohol (DWAI).
Following the verdict and before sentencing, it was brought to the court’s attention that in the past 10 years the defendant had been convicted twice of DWAI. Since our law provides that a third violation of any subdivision of Vehicle and Traffic Law § 1192 within such a time period may constitute a crime, and because no accusatory instrument charging the defendant with misdemeanor DWAI (third DWAI) had been filed with the court, an issue arose regarding whether the court had the authority to consider sentencing the defendant as a third DWAI offender.
This court finds neither federal nor state constitutional provisions preclude the entry of such a misdemeanor conviction following a trial verdict. In addition, while New York’s commonlaw tradition and its statutory scheme both reflect a historical sensitivity to issues connected with the use of prior convictions in criminal prosecutions, the New York Legislature has chosen to balance due process interests by allowing the issue of recidivist sentencing to be addressed postverdict by the judge in local court cases such as this. Thus, while the court is aware of several decisions which have reached a contrary conclusion, this court holds that when a defendant with two Vehicle and Traffic Law § 1192 convictions within the past 10 years is tried on a DWI charge resulting in an acquittal and a verdict of guilty is returned as to DWAI, it is appropriate to follow the provisions of Criminal Procedure Law § 400.40 in determining whether the DWAI conviction is one for a violation or a misdemeanor.
Article 400 outlines “Pre-sentence Proceedings” for all levels of offenses and contains the “[p]rocedure for determining prior convictions for the purpose of sentence in certain cases.” By its terms, CPL 400.40 applies “[w]here a conviction is entered for an unclassified misdemeanor or for a traffic infraction and the authorized sentence depends upon whether the defendant has a previous judgment of conviction for an offense.”5 In cases where a court is considering imposing a sentence applicable only to such a recidivist, a statement alleging the prior conviction(s) must be filed and the defendant is given an opportunity to admit, deny or stand mute regarding its contents. Unless the defendant admits the prior convictions, a hearing must be held “before the court without a jury. The burden of proof is upon the people and a finding that the defendant has been convicted of any offense alleged in the statement must be based upon proof beyond a reasonable doubt by evidence admissible under the rules applicable to trial of the issue of guilt.”
Consequently, the design and legislative history of CPL 400.40 clearly demonstrate that the factual setting within which this court finds itself is precisely the circumstance CPL 400.40 was intended by the Legislature to address. A number of issues, however, still need to be resolved. First, the question of a right to a jury trial needs to be dealt with since all of the other reported cases which have previously decided the issues before the courts have been decided primarily on a defendant’s right to a jury trial. In addition, this court should account for the constitutional concerns raised in recent Supreme Court and Court of Appeals cases and evaluate whether CPL 400.40 can be used to designate the level of offense as a misdemeanor.
Defendants who are initially charged with misdemeanor or felony DWI have a constitutional right to a jury trial. The same cannot be said, however, for a person initially charged with a third DWAI. Such a person has no constitutional right to a jury trial since a third DWAI is classified as a “petty” offense for purposes of constitutional jury trial analysis. Marijuana was not found.
More than 15 years ago, the Supreme Court found that a state’s statutory scheme denying a jury trial in certain drunk driving cases was constitutional.21 While the court evaluated the array of sentencing options available to a judge following conviction22 and recognized that “a prison term of six months or less will seldom be viewed by the defendant as trivial or petty,” it nonetheless found that “the disadvantages of such a sentence, onerous though they may be, may be outweighed by the benefits that result from speedy and inexpensive nonjury adjudications.” In holding that crimes punishable by six months or less in jail are presumptively “petty” offenses, the Supreme Court noted that the presumption may be overcome if a defendant “can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a `serious’ one.” The Court of Appeals has adopted this presumptive constitutional analysis.
Recognizing there is no constitutional jury trial right for a “petty” offense does not, however, resolve all the constitutional issues raised by the use of CPL 400.40 in this case. To complete the analysis, an assessment of recent Supreme Court and Court of Appeals cases involving postconviction judicial involvement in enhanced sentencing proceedings is in order. In 2000, the Supreme Court extended to state court proceedings its year-old holding that
“under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.””the constitutional proposition that drives our concern in no way call[s] into question the principle that the definition of the elements of a criminal offense is entrusted to the legislature. The constitutional guarantees that give rise to our concern in no way restrict the ability of the legislatures to identify the conduct they wish to characterize as criminal or to define the facts whose proof is essential to the establishment of criminal liability. The constitutional safeguards that figure in our analysis concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment; these are the safeguards going to the formality of notice, the identity of the factfinder, and the burden of proof.”35
One of the defendant’s most virulent objections to the court’s use of CPL 400.40 is his allegation that employing the procedure violates fundamental rights by convicting him of an offense without ever having been formally accused of a third DWI or tried for that crime. That position is unsustainable for several reasons.
The court having concluded that either a Harris or a CPL 400.40 hearing was appropriate, the People proffered sworn testimony and exhibits that the defendant was the same individual who had previously been twice convicted of DWAI in the past 10 years. Their first witness was the arresting officer who identified the petitioner as the person he had arrested in the case now before the court. He noted the date of birth and testified he brought the defendant to the Monroe County Jail for processing on his arrest. Next the People called a police identification technician whom the court found over objection was qualified to render an opinion as an expert in fingerprint comparison. Also over objection, the court allowed fingerprint cards from the present arrest and two prior arrests in a local town court to be admitted pursuant to CPL 60.60 (2). The witness then testified that he concluded based on his training and experience and having found at least 10 points of similarity between the known inked prints and the fingerprint cards that appeared on all three cards. The People also introduced certificates of conviction from that town court indicating that petitioner was convicted of DWAI before, which are both dates within 10 years of the DWAI of which he stands convicted in this court. Comparing all the documents admitted and considering the credible testimony of the witnesses based not only on the words they spoke but their nonverbal communication and demeanor in court, this court found both as a factfinder and as a judicial officer that the People had proven that petitioner had in fact been convicted twice of DWAI within the 10 years preceding the commission of the present offense. Thus, he stood before the court having been convicted of a misdemeanor DWAI.
It has been said that any courtroom advocate’s arguments can be distilled into the three reasons which our kindergarten teachers gave us for the decisions they made in our first years in school: “[W]e do it because that’s the rule”; “we do it because that’s the way it has always been done”; and “we do it because if we didn’t, that just wouldn’t be fair.” By any of those standards, the procedure utilized by this court under the specific facts of this case was appropriate and not in violation of the defendant’s statutory or constitutional rights.
First, the court has adhered to the “rule” established by the New York Legislature when it chose how to separately address due process issues in the case of local court prosecutions of habitual offenders by enacting legislation which has now become CPL 400.40. Second, this court has followed “what has always been done” in applying the recidivist sentencing exception recognized by our courts since colonial times. Lastly, to have proceeded in any other fashion would have been patently unfair. In the face of that legislative history and common-law tradition accepting the defendant’s position would preclude the imposition of the sentence which the court has imposed and the defendant so desperately needs: three years of probation supervision with abstention from alcohol and mandated treatment with the possibility of six months in jail hanging over the defendant’s head if he were to be convicted of violating his probation. Drug possession was not an issue.
Our highest Court has recognized the sui generis nature of our comprehensive laws addressing the issue of drinking and driving.55 It seems that each year, new provisions are added to this complex statutory scheme which are intended to make our highways safer by deterring alcohol impaired driving and providing offenders with opportunities to successfully confront issues of alcohol abuse in their lives. When individuals repeatedly violate those laws, the public may reasonably expect that the Legislature has the right to direct and courts have the responsibility to consider enhanced penalties for habitual offenders. As they increase the number of statutory provisions addressing recidivists, it is hoped that the Legislature will soon specifically address the practice and procedure prosecutors and the courts should utilize in these cases given the conflicting judicial opinions on this issue.
While an offender violates a crime, he must be entitled to his constitutional rights. One of these important rights is a right to a jury. Here in Stephen Bilkis and Associates, we have our New York DWI Defense attorneys who will protect your rights. We will make it a point that in every proceedings, your right as an accused is protected. We also have New York Criminal lawyers from whom you can obtain a reliable and sensible legal advice. Call us now for more information.