Articles Posted in Drunk Driving

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Sometimes, people assume that attorneys do not need to hire attorneys. However, the truth is that attorneys in Manhattan understand that only a fool will defend themselves. Hiring an attorney to represent a person who has incurred a personal injury is the smart thing to do. Lawyers are people, too. That means that there are times when a lawyer will hire a lawyer to help them defend themselves from a situation. These situations can come in the form of automobile accidents, estate matters, real estate matters, or personal injury. There are even times when an attorney is required to hire another attorney to defend them against a criminal matter.

Recently, in 2012, a prominent attorney was called upon to defend himself from charges of DUI that stemmed from his driving in the city of Atlanta. He slid through a traffic light at three in the morning when he thought that no one was around on his way home from a meeting with state legislatures where he had consumed two glasses of wine with dinner. Although, his driving had not endangered anyone, and he had not demonstrated any level of impairment by failing to maintain his lane of traffic, the officer who stopped him asked that he perform field sobriety tests. Field sobriety tests are voluntary. However, if you choose to perform them, your demeanor and the results of the tests can be used against you in a court of law. The attorney decided that he would not participate. He refused to participate and he was arrested by the officer for DUI and taken for a mandatory test under the laws of the state. The charges were eventually dropped with the help of a DUI attorney that was hired by the arrested attorney to defend him. Even attorneys need one every now and then.

Another case in Staten Island that involved an attorney who required legal assistance from a specialist in the field, involved a case of defamation and breach of contract that was filed by an attorney in the State of New York in 2006. The complainant attorney was not getting along with the other attorneys in her firm and decided to resign. When she left the firm, several of the clients that she had been serving chose to leave that firm and maintain her as their lawyer. The controlling partner of the law firm wrote several letters to these clients encouraging them to leave her and return to his firm. The complaining lawyer, filed a lawsuit alleging that the managing partner of her previous firm had defamed her character and breached the hiring contract that she had with him. The managing partner filed a motion with the New York State Court System to grant him a motion of summary judgment dismissing her case against him for lack of evidence.

The complaining attorney stated that she had resigned because as her letter of resignation showed, she believed that she would soon be called to testify in disciplinary actions by the legal disciplinary committee against that firm for unethical conduct. The defendant law firm contends that the complainant poached clients and removed client case files without first obtaining permission from the firm. The firm claimed that they were owed legal fees from the cases and clients that chose to leave the firm and follow the complainant to her own firm. The complainant contends that the firm committed libel against her by sending letters to these clients that portrayed her as a novice with no experience. They claimed that she had not won any cases and was considered incompetent by the firm. The letters encouraged these clients to return to the firm since the complainant would not be able to properly attend to their cases. The letters claimed that she would not be able to disperse any winnings to them until the courts had sorted out the liens that his firm against her for attorney’s fees associated with the work that the firm considers to have been done by them. The letters inflated the possible monetary damages that the client should expect to receive in their cases by comparing their case to one that he claimed to have won for a large dollar amount. The letters were packed with exaggerated claims and derogatory comments toward the attorney who had parted from the firm.

The firm contends that the statements that were made in the letters should be protected by the qualified common interest privilege or by the absolute privilege that is between attorney and client. They contend that the statements in the letters were all either true or were non-actionable opinions aimed at providing legal advice. Because of this, they claim that the comments were not defamatory and the court should dismiss the suit. The complainant, maintains that the comments were defamatory because they were designed by the firm to injure her in her business and profession and that since the firm was no longer representing the clients, they could not confer attorney client privilege in their cases.

She further claims that she had a contract with the firm to provide her with a bonus each time a case was won. She stated that while the contract was not written, it was common knowledge in the firm that every attorney who won a case received a bonus. She stated that she had not received a bonus for a case that was won on her work the month after she left the firm and that she deserved a bonus for that work. The original trial court agreed with the complainant attorney. They felt that because the firm was no longer representing the clients that there was no longer an attorney client privilege to be protected in a letter that was unsolicited from the clients.

Further, the original trial court maintained that the comments in the letters were intended to cast aspersions on the conduct and reputation of the complainant attorney. As such, there was a triable issue of fact that should go before a jury because the comments were susceptible of being interpreted as defamatory. The firm maintained that they shared a common interest in the outcome of these client’s cases because they expected to share in the damages if the complainant attorney should win the cases. The law says that a qualified privilege exists when a person has an interest that is either legal, moral, or a social duty to speak if that person shares an interest in the object of conversation. The boundary in this case is if the comments were made with malice. If they are, then a common interest privilege does not exist. The original trial court determined that the comments made in this case did not qualify for a common privilege because they were clearly made with malice.

While the original trial court agreed with the complainant attorney, on appeal the firm won the argument by having the case dismissed. The Supreme Court of New York County did deny the firm’s request to dismiss the first, second, and tenth causes of action and the case was dismissed as to the contractual issue.
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A personal injury action arises out of a motor vehicle accident that occurred at the intersection of Oceanside Road and Erwin Place in Oceanside, New York. Among other injuries, the woman suffered a traumatic brain injury.

On June 30, 2010, the Court denied the opponents’ motions for summary judgment to dismiss the woman’s complaint. The Court determined that, as the woman had yet to testify at her sworn examination before trial, the accused men’s motion for summary judgment must be denied as premature. The Court also determined that because both accused men have failed to demonstrate that the Town of Hempstead Building Zone Ordinances do not apply to them, the motion and cross motion must be denied. Finally, the Court also held that, because the driver’s operation of his motor vehicle while under the influence of alcohol arguably may be deemed by the trier of fact to be a superseding cause of the woman’s injuries, the accused men’s motions for summary judgment to dismiss the woman’s action based in negligence must be denied.

The core of the Queens woman’s allegations against the accused men relates to certain bushes located between the residences, which bushes are alleged to block the view of traffic. The woman alleges that the overgrown nature of the bushes, which she claim are in contravention of height requirements provided in local ordinances, contributed in some measure to the occurrence of the serious traffic accident.

In an attempt to reverse the Court’s determination, the accused men both separately move for leave to renew the Court’s Decision and Order. Both accused state that their respective motions are made pursuant to the Civil Practice Law and Rules, which provides for a combined motion for leave to reargue and leave to renew.

The Civil Practice Law provides that a combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made.

In considering such a motion made pursuant to the Civil Practice Law and Rules, a Court must measure each branch of the motion according to the requirements which govern motions for re-argument and renewal, respectively.

In the instant case, one of the accused make it plain in his motion and reply papers that his motion is one for renewal, not re-argument. Specifically, in the reply it is stated that, despite the woman’s assertion that the accused men’s motion is a combined motion to renew and reargue, the accused men’s motion was in fact made as motion to renew. Yet, the accused men include in his motion and reply papers various arguments previously submitted to the Court, without identifying which matters of fact or law the NYC Court allegedly overlooked or misapprehended.

The other man is intimate that his motion is both a renewal and a re-argument motion, although the labeling of his own motion is inconsistent within the affirmation of counsel. Finally, in his reply, the accused claim that the motion is a combined one for renewal and re-argument.

In any event, the Court will consider each such motion separately, as required by statute. Firstly, with respect to the first man’s renewal motion, the Court notes that the accused have not presented any new facts for the Court’s consideration, nor have they demonstrated that there has been a change in the law that would change the Court’s prior determination. Thus, the accused man’s motion to renew is denied, but the Court will consider his motion as one seeking leave to reargue.

The other accused man’s renewal motion is likewise denied. Although the accused have submitted the woman’s deposition testimony, which he did not possess when he filed the original summary judgment motion, the woman’s testimony does not change the prior determination of the Court. The woman’s testimony consists of a total of six (6) pages wherein she testified that she remembers nothing about the accident. She did not testify about the general appearance of the roadways involved, nor did she offer testimony about the bushes in question. Despite the fact that her testimony is wholly and plainly of no moment regarding the men’s liability related to the bushes, the accused men both submitted such testimony in support of their motion.

Although both men’s motions are not specifically and properly identified, the Court will afford a broader view of their respective motions and treat those motions as motions for re-argument as well.

At his oral examination before trial, one of the men testified that he had consumed alcohol on the day of the accident. He testified that ultimately he pled guilty to driving while under the influence of alcohol and that he was sentenced upon that conviction. He stated at his deposition that he was also prosecuted and pled guilty to vehicular assault in the 2nd degree, a class E felony. He admitted that he was operating a motor vehicle while having 0.09 of 1% per centum or more of alcohol in his blood. His license was subsequently revoked.
The man also testified that at the time of the accident which resulted to the woman’s injury, he was operating his motor vehicle heading northbound on Oceanside Road. The complainant woman was operating her vehicle westbound and was attempting to make a left hand turn onto Oceanside Road when the impact occurred. The woman’s travel was governed by a stop sign on Erwin Place. The facts established that, at the intersection, Oceanside Road is slightly curved so that a vehicle traveling north on Oceanside Road, such as the accused man’s vehicle, would be driving on a bend as he approached the subject T-intersection. In fact, the man testified at his deposition that a person traveling on Oceanside Road did not have clear view of the intersection as a result of the curvature of the road, the telephone pole, the speed limit sign and also the hedgerow on the accused man’s properties.

It was also established on the underlying motions that the other man is the owner of the premises, which sits on the south-east corner of said T-intersection, and the front of which faces Erwin Place. The accused is the owner as tenants in common of the premises, which home is adjacent to the other accused man’s home, and the front of which faces Oceanside Road. It was legitimate entitlement to summary judgment as a matter of law.

The testimony of the non-party witnesses establishes that the bushes in question may have contributed to the occurrence of the accident underlying the action, thus raising triable issues of fact with respect to the personal injury liability of both the accused. Neither of the accused men submitted the non-party witness deposition testimony to the Court. The woman submitted that deposition testimony in her opposition to the instant motions made by the accused.

The woman’s former boyfriend testified that the bushes that are blocking the view of the vehicles located on Erwin Place, thus interfering with a driver’s ability to see cars traveling northbound on Oceanside Road.

A passenger in the car traveling behind the woman described that same intersection as being obstructed by bushes that were about six feet high.

A man driving the car traveling behind the woman at the time of the accident testified that the bushes in question block the view of the oncoming traffic on Oceanside Road. He saw the truck only after it had passed the bushes. According to him, the bushes started relatively close to the intersection and ran all the way down and he couldn’t really see the street at all.
The Court turns to the accused men’s claims that the town ordinances do not apply to them, and do not place any duty on them with regard to motorists.

Specifically, the ordinances alleged by the woman to have been breached by the moving accused men relate to Fences and Fences and Planting screens. Upon their instant motions to renew, the accused have failed to proffer any new or additional facts surrounding the alleged statutory breaches. Nevertheless, even overlooking the otherwise fatal procedural infirmity, the accused have failed to demonstrate, yet again on the renewed motion, that the ordinances do not apply to them.

As the Court detailed in its prior Decision and Order, the woman’s personal injury claims against the accused relate to their alleged failure to keep the hedges on their property properly trimmed so as to permit maximum view of the T-intersection. In that regard, while it is true that generally property owners have no common-law duty to control the vegetation on their property for the benefit of public highway users, the accused have failed to show that the shrubbery at issue does not apply to them. Upon their instant motions, the accused maintain that even if the shrubbery at issue is deemed to be a planting screen within the meaning of the ordinances, the language of the ordinances to not specifically outline or intimate that the ordinance is in place to protect drivers on a highway. Relying principally upon the Second Departments’ rulings as well as the Court of Appeals’ ruling, the accused argue that in addition to the fact that there is no common law duty owed to the woman by the landowners, the public policy also supports the finding that they as private landowners cannot be held liable to the accused. The arguments are unavailing.

It is true that there is no common law duty imposed upon owners or occupiers of land to control vegetation on their property for the benefit of users of a public highway. The absence of a common law duty on the abutting owner, however, does not end the inquiry into the abutting owner’s potential liability. There exists an exception to the common law rule when, as in this case, an ordinance or a specific regulatory provision places an affirmative duty on the abutting owner to maintain and keep the area free of obstructions. It is undisputed that the Town of Hempstead Building Zone Ordinance, impose upon the property owners a duty to prevent vegetation from visually obstructing the roadway. Thus, in the absence of any demonstration by the accused that they complied with said ordinances, proof of noncompliance with the regulatory provisions may give rise to tort liability for any damages proximately caused thereby.

Accordingly, the accused men’s motion for summary judgment to dismiss the woman’s complaint is again denied, even upon renewal/re-argument. Ultimately, whether the hedge grow was the proximate cause of the accident, is among the many issues that warrant a trial.
Finally, inasmuch as the accused do not address the Court’s basis for the denial of their underlying motions, to wit, that the operation of the motor vehicle while under the influence of alcohol may be deemed by the trier of fact to be a superseding cause of the woman’s injuries, the application to reverse the Court’s prior determination and order must clearly be denied.
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This case involves a ruling of the Court wherein the motion to suppress the blood test of the defendant on the ground that the court order and supporting affidavit are defective was denied.

A car accident occurred in Bayvile Avenue in the Incorporated Village of Bayville between two vehicles. The responding officer, who arrived at 2:22 A.M., noticed that the defendant was the driver of the overturned car and had some facial lacerations in the vicinity of the forehead and one of his cheeks. The other car was a red car who sustained severe damages in the front and passenger side which led to the wrongful death of one of the passengers. Drivers of both passengers were transported to the community hospital. Police officer arrived at 2:55 A.M. Upon inquiry, defendant said to the Police Officer that he was originally heading westbound on Bayville Avenue.” The Police Officer then asked the defendant, “are you sure you were westbound or eastbound?” and “were you headed toward your parents’ house or away from it?” The defendant “finally said that he was heading towards his parents’ house which was eastbound”.

While talking with the Brooklyn defendant, the Police Officer noticed an odor of alcoholic beverages on defendant’s breath. He described the odor as moderate level which wasn’t overly strong but it was noticeable even the officer was two feet away during the conversation. The Police Officer told the defendant that he is being placed under arrest for suspicion of driving while intoxicated. At 3:50 A.m., the Police Officer asked the defendant to submit himself to a chemical analysis of his breath. The defendant consulted his lawyer and thereafter refused to take the test. Following the refusal, which was about 4:20 A.M., efforts were made to get a court order. At approximately 5:30 A.M., a court order had been obtained and blood was taken from the defendant at 5:50 A.M.

The defendant was charged for Manslaughter in the Second Degree, Vehicular Manslaughter in the Second Degree, (two counts), Assault in the Second Degree, Vehicular Assault in the Second Degree, (two counts), and Operation of a Motor Vehicular While Under the Influence of Alcohol, (two counts). The defendant moved to suppress, (1) certain statements he made which he claimed were involuntary within the meaning of CPL 60.45 and (2) the results of the defendant’s blood test.

The court held that (1) the moderate odor of an alcoholic beverage on the breath of the defendant coupled with (2) a head on two car collision on a two lane roadway divided by a double yellow line, and (3) the defendant’s statements, (a) that he did not notice the other vehicle until it was in his lane and (b) that he was going west when in fact he was going east, sufficiently established a probable cause for the arrest of the defendant.

The Bronx Court further held that following the issuance of the court order, (5:27 A.M.) there was no unreasonable delay in the administering of the test (5:50 A.M.). And the time (2:20 A.M.) from the accident and the test refusal, (4:20 A.M.) to the drawing of the blood, (5:50 A.M.) from the defendant is not so remote as to make as a matter of law the results irrelevant to the central question of the defendant’s blood alcohol count at the time of the accident. Accordingly, the motion to suppress the results of the defendant’s blood test on this ground was denied.

Moreover, the court said that the purpose of the issuance of the said court order is only for the taking of blood from a designated person and there are no other variables or discretionary factors involved. From the Court’s examination of the application and the order, all the requirements of Vehicle and Traffic Law Section 1194-a were met. Accordingly, the motion to suppress the court ordered blood test of the defendant on the grounds that the court order and supporting affidavit are defective was denied.

The Court further noted that the defendant did not dispute that a court order was obtained and that he did not claim that he or anyone else demanded to see it. The Court notes that Section 1194-a of the Vehicle and Traffic Law does not require any showing of such an order to the defendant or the personnel performing the chemical test.

As to the statements made by the defendant at the hospital, the Court held that the defendant was not in custody, that the statements were voluntary, and that the matter clearly was still in the investigative stage. The Court further found that the defendant’s statements were not obtained from him by any threats, force, improper conduct, undue pressure, by means of any promise or in violation of such rights as he derives from the constitutions of this State and the United States. Accordingly, the motion to suppress defendant’s statements was denied.
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This case was brought about by a car accident involving a Pontiac automobile which crashed into the living room of the house of the plaintiff-decedent after being pursued by members of the Suffolk County Police Department. The vehicle was owned by defendant-corporation, which rented the car to defendant-lessee, who alleged that defendant-perpetrator took possession of the subject vehicle without her knowledge or consent.

Defendant-corporation sought the dismissal of the complaint and alleged that it is the owner of the subject vehicle, as well as a company in the business of renting automobiles and is therefore insulated from liability by operation of the “Graves Amendment” as codified at 42 USCA §30106 and which is a part of the Federal Transportation Equity Act. Hence, all claims asserted against defendant-corporation must be dismissed as a matter of law.

Defendant-corporation’s Senior Loss Control Administrator stated that in December of 2006, it was the owner of the 2006 Pontiac automobile bearing the license plate CWJ197. He further states that on December 20, 2006, said vehicle was rented to defendant-lessee. The two affidavits authored by defendant-lessee revealed that she was not the owner of the 2006 Pontiac automobile but rather rented same on December 20, 2006 from defendant-corporation and that defendant-perpetrator operated the subject automobile without her knowledge, permission or consent.

The Federal Transportation Equity Act of 2005 and particularly that section referred to as the Graves Amendment as embodied in 49 USCA §30106 provided the following, in relevant part:

(a) In general – An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if-

(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and
(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).

Having been determined to be a constitutional exercise in congressional power, the Graves Amendment is applicable to all actions commenced on or after August 10,2005 and has been held to preempt vicarious liability from being imposed upon commercial renters and lessors of automobiles.

In the instant matter, having reviewed the record, the Court held that defendant-corporation is entitled to the protection afforded by the statute. Even assuming that the rental agreement is in contravention of CPLR §4544 and therefore unavailable for use by defendant-corporation as competent evidence of ownership of the vehicle, defendant-corporation has demonstrated the applicability of the Graves Amendment to the extant circumstances.

Through the production of the affidavit of its Senior Loss Control Administrator, defendant-corporation in Westchester has demonstrated both that it was the owner of the vehicle in issue and that it was in fact an entity in the business of renting and or leasing motor vehicles (42 USCA §30106). Moreover, there is no evidence that defendant-corporation was negligent with respect to their maintenance of the subject vehicle or that it rented the automobile to defendant-perpetrator, the unauthorized operator of the vehicle on the day of the accident. In her affidavit, defendant-lessee clearly and unequivocally states that she was the individual who rented the car from defendant-corporation.

Based upon the foregoing, the court granted defendant-corporation’s motion pursuant to CPLR §3212 seeking an order granting summary judgment dismissing the plaintiffs complaint together with any and all cross-claims asserted against it.
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This involves a case where the court ruled that plaintiff failed to demonstrate a prima facie case that he suffered serious injury within the meaning of Insurance Law Section 5102 (d).

Plaintiff, age 24, alleged that on August 21, 2006, at approximately 11:20 a.m., a motor vehicle owned and operated by him came into contact with a vehicle owned by defendant owner and operated by defendant driver. The car accidentoccurred on Old Country Road, at its intersection with Frost Street, County of Nassau, Long Island. Defendants moved for an order dismissing plaintiffs complaint pursuant to CPLR §3212, on grounds that plaintiff failed to sustain a “serious injury” within the meaning of Insurance Law §5102(d).

Insurance Law §5102(d) provides that a “serious injury means a personal injury which results in (1) death; (2) dismemberment; (3) significant disfigurement; (4) a fracture; (5) loss of a fetus; (6) permanent loss of use of a body organ, member, function or system; (7) permanent consequential limitation of use of a body organ or member; (8) significant limitation of use of a body function or system; or (9) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment” (numbered by the Court). The Court’s consideration in this action is confined to whether plaintiffs injuries constitute a permanent consequential limitation of use of a body organ or member (7) or significant limitation of use of a body function or system.

Defendant submitted an affirmed report of examination of physician, neurologist, and radiologist for the spine injury allegedly sustained by the plaintiff.

The Court found that the reports of defendants’ examining physicians, are sufficiently detailed in the recitation of the various clinical tests performed and measurements taken during the examination, so as to satisfy the Court that an “objective basis” exists for their opinions. Accordingly, the Court finds that defendants have made a prima facie showing, that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d).

With that said, the burden shifts to plaintiff to come forward with some evidence of a “serious injury” sufficient to raise a triable issue of fact.

After the plaintiff submitted its medical evidence, the court found that plaintiff has failed to provide sufficient evidence that plaintiffs alleged injuries are causally related to the accident of August 21, 2006. Although the physician’s report covering plaintiffs cervical spine MRJ indicates “subligamentous posterior disc herniations from C3 through C7 abutting the anterior aspect of the spinal cord[;] Chiari malformation” and his report covering plaintiffs lumbar spine MRJ indicates “posterior disc herniations at L4-5 and at L5-S1 impinging on the anterior aspect of the spinal canal and abutting the nerve roots bilaterally,” the Court notes that the existence of a radiologically confirmed disc injury alone will not suffice to defeat summary judgment. The Court further held that plaintiff failed to present evidence to refute the findings of defendant’s examining physician that plaintiff has degenerative changes in his cervical and lumbar spines. This lack of evidence as to causation renders plaintiff’s physician statement, that plaintiffs alleged injuries were proximately caused by the accident highly speculative.

The court noted that there is also insufficient evidence that plaintiffs alleged injuries are permanent §5102(d)((7)). Plaintiff’s physician assertion that plaintiff sustained a permanent consequential limitation is conclusory as she fails to offer any evidence of permanency. “Mere repetition of the word `permanent’ in the affidavit of a treating physician is insufficient to establish ‘serious injury’ and [summary judgment] should be granted for defendant where plaintiffs evidence is limited to conclusory assertions tailored to meet statutory requirements.

The Court reiterated that plaintiffs complaints of subjective pain do not by themselves satisfy the “serious injury” requirement of the no-fault law. Plaintiff has also failed to submit competent medical evidence that the injuries that he sustained rendered him unable to perform all of his usual and customary daily activities for ninety days of the first one hundred eighty days following the accident.
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On 18 to 19 October 2007, at around midnight, the defendant went to the Island Rock nightclub in Hempstead with his girlfriend, a friend of his girlfriend and another individual. After drinking alcohol at the nightclub, the defendant and the other individual left and went to a nearby parking lot. At that time, the defendant did not appear intoxicated. According to the girlfriend’s friend, the defendant stated in the parking lot that he lost his shit, presumably referring to drugs, and the defendant became upset. The defendant went into the trunk of his car and searched for something. The defendant then began arguing with his girlfriend. At approximately 3:15 A.M., several witnesses heard gunshots, but no one reported having seen the defendant fire a gun. The defendant then angrily ordered the girlfriend’s friend to leave with his girlfriend, which they did, driving the defendant’s girlfriend home. The defendant and the other individual then entered the defendant’s vehicle, with the defendant driving. When police officers arrived at the parking lot only minutes later, at about 3:20 A.M., the defendant had left, and the officers recovered several 9–millimeter shell casings in the parking lot. At approximately 3:30 A.M., the defendant’s vehicle was seen traveling west in the eastbound lanes of the Southern State Parkway at a speed of 70 to 75 miles per hour. According to numerous witnesses, the defendant’s vehicle traveled in the wrong direction from about exit 19 to exit 13, a distance of approximately five miles. A witness observed the defendant driving directly at him while changing lanes. That witness had to immediately pull his vehicle onto the shoulder to avoid a collision. This long Island witness saw that the defendant continued driving the wrong way, and the witness observed the other vehicles on the parkway split apart in order to get away from the defendant. The witness testified that the defendant was steadily going, not braking, nothing; that he was just going; that he was speeding. Meanwhile, another witness, a Police Sergeant was also driving in the proper direction in the left eastbound lane of the parkway. As the Sergeant passed exit 14, he observed the defendant’s vehicle driving towards him at a very high rate of speed, which caused the Sergeant to violently turn his steering wheel to the right to avoid a collision. The defendant’s car came within inches of the Sergeant’s vehicle. According to the Sergeant, the defendant made absolutely no effort to get out of the way. Near exit 13, the defendant’s vehicle, without ever having slowed down, collided with the victim’s vehicle, killing the victim instantly and incinerating the victim’s vehicle. When emergency services and police arrived on the scene and attempted to remove the defendant from his damaged vehicle, the defendant was agitated and his breath emitted a strong odor of alcohol. Following the defendant’s arrest, a blood sample taken from him at 4:49 A.M., just over an hour after the motor vehicle accident, indicated that his blood alcohol content (hereinafter BAC) was 0.19%. After the defendant was removed from his vehicle, the police began conducting an inventory search of the vehicle. The discovery of several 9–millimeter rounds in the trunk, however, transformed the search from inventory to investigatory, during which the police recovered a 9–millimeter semiautomatic pistol, what was later determined to be .395 grams of cocaine (cocaine possession) beneath the front passenger seat, and 41 rounds of 9–millimeter bullets contained in a partially loaded magazine and a box in the trunk. The gun recovered from the defendant’s vehicle matched the shell casings found in the parking lot near the nightclub.

Consequently, the defendant was arrested and charged. On 16 September 2008, the County Court, Nassau County, found him guilty of murder in the second degree, vehicular manslaughter in the first degree, aggravated driving while intoxicated or DWI, operating a motor vehicle while under the influence of alcohol, criminal possession of a weapon in the second degree, and criminal possession of a controlled substance in the seventh degree.
The defendant filed an omnibus motion to suppress physical evidence which was denied by the court. The defendant then appeals from the said decision of the court.

The Ruling:
Under the law, a person is guilty of depraved indifference murder when, under circumstances evincing a depraved indifference to human life, he or she recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.

Here, the testimony of the New York City witnesses who observed the defendant speeding directly at them on the parkway, causing those witnesses to swerve in order to avoid a collision, demonstrates that the defendant’s mental state was one of depraved indifference to human life.

Moreover, the evidence demonstrated that the defendant helped the other individual leave the nightclub. The girlfriend’s friend testified that when the defendant left the nightclub, the defendant looked okay to him, didn’t look like intoxicated, and that the defendant seemed like he could handle himself. Clearly, the evidence did not establish that the defendant was too intoxicated to form the culpable mental state necessary to prove depraved indifference. Thus, the record supports a view of the evidence that the defendant was coherent and able to form the requisite mens rea prior to leaving the parking lot.

Furthermore, the defendant’s action of driving his vehicle towards oncoming traffic on the parkway for approximately five miles constituted reckless conduct which carried with it a grave risk of death and evinced a depraved state of mind. The negation of this intent, by extreme intoxication, is not supported by the record. For instance, the defendant helped the other individual into the car, he searched for his missing drugs, and the girlfriend’s friend testified that the defendant did not appear intoxicated. Thus, the court cannot conclude that the evidence of the defendant’s guilt of murder in the second degree was legally insufficient to support that conviction.

Evidently, the verdict of guilt as to depraved indifference murder was not against the weight of the evidence. The evidence was legally sufficient to establish the defendant’s guilt of criminal possession of a weapon in the second degree, and that the verdict of guilt as to that crime was not against the weight of evidence. The hearing court properly denied that branch of defendant’s omnibus motion which was to suppress the physical evidence seized from his vehicle. The evidence adduced at the suppression hearing demonstrated that the search of the defendant’s vehicle was authorized as a warrantless search falling within the automobile and emergency exceptions to the warrant requirement. In addition, the defendant was not deprived of the effective assistance of counsel, as defense counsel provided meaningful representation. The sentence imposed was also not excessive.

In sum, the court finds that the defendant’s contention that the evidence was legally insufficient to support his conviction of murder in the second degree and criminal possession of a weapon in the second degree is unpreserved for appellate review. The court finds that it was legally sufficient to establish the defendant’s guilt of those crimes beyond a reasonable doubt. Hence, the judgment is affirmed.
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On 16 April 2006, an officer was on routine motor patrol in Levittown, County of Nassau in the State of New York. At approximately 12:55 a.m., he received a radio assignment to respond to an automobile accident/motor vehicle accident at the intersection of Hempstead Turnpike and Wolcott Road. Upon arriving at the scene, the officer testified that he observed two vehicles which had obviously been involved in an accident. One vehicle had rear end damage and the other vehicle had extensive front end damage. The officer first approached the vehicle with extensive front end damage, a Saturn Sports Utility Vehicle. The officer asked the individual seated in the driver’s seat of the Saturn, the herein defendant, if he was ok and what happened. The defendant stated that he was driving his car when he hit the other vehicle. The officer testified that the Defendant had glassy bloodshot eyes and spoke with slurred speech. The officer also detected the odor of an alcoholic beverage emanating from the vehicle. The officer asked the defendant if he had anything to drink. The defendant stated that he had Martinis. Upon the defendant exiting the vehicle, the officer indicated that the defendant had difficulty maintaining his balance. Thus, the officer reached the conclusion that the defendant was intoxicated, Driving While Intoxicated or DWI, and arrested him at approximately 1:15 a.m. The defendant was then transported to the Nassau University Medical Center for a medical evaluation.

With the officer en route to the hospital, he contacted the Nassau County Highway Patrol Bureau to request that a Highway Patrol Officer respond to the hospital with a blood kit. The purpose of the blood kit was to take a blood sample from the defendant for the purpose of testing it for the presence of alcohol. The officer testified that a Nassau County Highway Patrol Officer eventually responded to the hospital with a blood kit. The officer testified that the patrol officer requested that an emergency room nurse draw a sample of the defendant’s blood. The officer indicated that he observed an emergency room nurse draw the defendant’s blood and the sample was sealed in the blood kit box provided by the patrol officer. The officer then took custody of the blood kit.

Consequently, the defendant is charged with one (1) count of violating the Vehicle and Traffic Law, Driving While Intoxicated or DWI as an Unclassified Misdemeanor.

On 9 August 2006, the Court conducted a hearing pursuant to an Order by the District Court Judge dated 5 January 2007. The scope of the hearing was: a Huntley, Mapp, and Dunaway hearing, and a hearing to determine whether the defendant’s blood test complied with the requirements of Vehicle and Traffic Law. The People called one witness at the hearing, the Police Officer of the Nassau County Police Department who responded to the subject automobile accident. The Defendant did not call any witnesses.

The Issues:

Is defendant liable? Is the blood sample including the corresponding test results thereof admissible in evidence?

The Ruling:

First, the Court finds the testimony of the Police Officer to be credible. The officer is a three year veteran of the Nassau County Police Department.Second, the Court finds that there was a sufficient basis for the initial Police interaction with the defendant. The officer’s interview with the defendant was justified based on his need to investigate the motor vehicle accident and determine if medical assistance was required.

Third, the Court finds that there was probable cause to arrest the defendant based on the accident in combination with the observations of the defendant by the officer during his investigation. Not only was it obvious from the scene that the defendant had been involved in a car accident, the defendant admitted driving and hitting another car, the defendant also admitted drinking alcoholic beverages, and the defendant exhibited classic signs of intoxication, i.e., glassy bloodshot eyes, slurred speech, the odor of an alcoholic beverage, and had difficulty maintaining his balance. Thus, the police officer had probable cause to arrest the defendant.

Fourth, the Court finds that when the defendant made the statements he was not in custody, he was not under arrest and he was not being interrogated. Consequently, Miranda warnings were not required. The questions asked by the officer were investigatory in nature, i.e., whether the defendant was ok, what happened, and whether the defendant had been drinking. The Court finds that the responses by the defendant were voluntarily given. Thus, the defendant’s motion to suppress the statements is denied.

Fifth, the court finds that the officer’s testimony with regard to the blood sample is hearsay. The only testimony elicited at the hearing with respect to the defendant’s blood test was that an emergency room nurse drew the blood. The nurse in question did not testify at the hearing and there was no testimony as to the name of the nurse, whether the nurse was male or female, title of the nurse, credentials of the nurse, or whether the nurse was a registered professional nurse or a registered physician’s assistant. There was no testimony regarding any of the facts or circumstances surrounding the drawing of the defendant’s blood and there was no testimony as to whether the drawing of the defendant’s blood by the nurse was supervised by or at the direction of a physician.

Sixth, the Court finds the argument that there is no basis in law to suppress the defendant’s blood test results at a pretrial hearing and therefore the defendant’s motion should be summarily denied as moot. This argument is one that should have been raised by the People before the Court considering the issue of whether to order the hearing, or in a motion to reargue/renew the Court’s ruling which ordered the hearing, or in an appeal from that Court’s decision. Said argument is not properly raised before the Court at the conclusion of a hearing ordered by another Judge.

And seventh, the Court finds that the naked hearsay testimony by a police officer that the defendant’s blood was drawn by a vague emergency room nurse is insufficient to satisfy the People’s burden of proof on this issue and does not establish that the person who drew the defendant’s blood was a person authorized to do so by the statute. The offer of the People to now re-open the hearing after its completion so that they may introduce additional testimony, if the Court deems it necessary, is contrary to the requirement that the People satisfy their burden of proof during the hearing and is, thus, rejected. The Court will not permit the People to conduct an entire hearing, rest on the testimony and evidence presented, and then request that the hearing be re-opened to cure glaring omissions identified by the Court. To allow such would be tantamount to the People receiving interim rulings from the Court as to the sufficiency of their proof.

In sum, the people failed to satisfy their burden of proving that the defendant’s blood was drawn pursuant to the provisions of the Vehicle and Traffic Law. Thus, the defendant’s motion to suppress the blood results must be granted.
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A man was driving an SUV on Oyster Bay Expressway on January 27, 1993. He was in the left lane and a red Camaro came up behind him. The Camaro flashed his headlights on high beam at him. The SUV stayed put on the left lane. The Camaro then came up on the right lane and pulled alongside the SUV. The Camaro cut off the SUV.

The SUV was startled, he left the left land and went to the center lane. Again the Camaro pulled alongside the SUV. The driver of the SUV thought he was being carjacked so he veered away from the Camaro. The Camaro was persistent. The SUV made contact with the Camaro’s fender.

The SUV driver was now in full panic that he made an illegal U-turn on the Expressway. The Camaro followed him and flashed a badge. The Camaro tried to force the SUV off the road. It was only then that the SUV driver saw clearly that the driver of the Camaro was flashing a badge. The SUV immediately pulled over.

As soon as the SUV pulled over, the Camaro driver also parked in front of his SUV. The officer got down and punched the SUV driver through his open window. The Camaro driver then opened the car door and pulled the SUV driver by the collar and punched him several more times demanding from the SUV driver that he pay for the damage he had done to his Camaro.
At that time that the officer was punching him, the SUV driver noted that the police officer smelled of alcohol. A few minutes later, two other officers, friends of the Camaro driver also came up and handcuffed the SUV driver. They arrested him for drunk driving. They took his wallet and they also took some of his credit cards. He later reported his credit cards as stolen and repudiated the illegal charges made on those credit cards for drinks that the Transit Authority officers ordered and bought at several bars that night of the incident.

The SUV driver tried asking the officers for their names but they wouldn’t give him their names. He also asked which precinct they worked for but the officers did not say either.
The SUV driver filed a complaint with the New York Transit Authority alleging illegal arrest and assault against the Transit Authority officers particularly the Camaro driver. During the investigation, the police officers all said the same thing: that they observed the SUV driver to be weaving in traffic, that he was veering left and right, unable to stick to one lane. They also said that the SUV driver kept on hitting his brakes. They said that it was the SUV that pulled into the lane occupied by the red Camaro which was why the vehicles grazed each other. All the officers averred that the SUV driver refused to pull over which rendered it necessary for the officers to give chase to the SUV flashing their badges until it stopped.

The SUV driver from Staten Island filed a case in damages against the Transit Authority officers and the Transit Authority. He claimed that the officers abused their authority and committed these acts in their official capacity. The Transit Authority filed for summary judgment asking a dismissal of the complaint on the ground that the officers acted in their personal capacity and not in their official capacity when they did those acts. The employer is only liable for the acts and omissions of its employees when they are acting on orders of the employer, or when they are acting in furtherance of the will of their employer; or when their acts are within the scope of their employment.

The only question before the Court is whether or not the Transit Authority’s motion for summary judgment should be granted.

The Court in Queens held that the Transit Authority officers were off-duty at the time of the incident and they were not in uniform or doing anything that is within the scope of their employment and thus their employer, the Transit Authority, cannot be made liable for their acts and omissions.

The Court also held that the version of the SUV driver is more credible because the Transit Authority officers never reported the alleged drunk driving of the SUV driver to the New York State Police.
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A woman was driving on Post Road on March 4, 1982. Her car slid and skidded on the road. The driver lost control of her car and she finally stopped when her car wrapped itself around a tree on the side of the road.

The woman was unconscious. The emergency crew brought the woman to the nearest hospital and she was found to have sustained a fractured rib, a dislocated ankle and foot, cardiac and pulmonary contusions and a ruptured spleen.

The woman had to undergo several surgeries to treat her internal injuries. A graft had to be made on a vein in her broken right leg. A metal pin had to be inserted into the broken shin bone. Her spleen also had to be excised. The woman stayed in the hospital for five months. She was transferred to another hospital and stayed there for one more month. When she was discharged from the hospital after six months after the accident, the woman had to stay and recuperate in bed under the constant care of a private nurse. The woman was heavily medicated as she recovered from her relatives.

The woman consulted an attorney but she could not file a case as yet because she was readmitted into the hospital because she developed complications. She developed a blodd disorder which caused her more pain, dizziness and fatigue. She was hospitalized for another month. When she was discharged from the hospital, she was also under the care of a private nurse because she was confined to bed. A month after her discharge from the hospital, she was again readmitted into the hospital two months later because of bleeding in her joints and in her mouth. Much later when her health had stabilized, she again underwent surgery.
The woman was not able to bring a suit in damages until after one year and two months had elapsed from the time of the accident. She immediately asked the trial court for leave to serve a notice of claim against the government of Nassau County for its failure to design, construct and maintain the road way in a reasonably safe condition. She claims that the failure of the County to erect guardrails on the side of the road was one of the causes why her car skidded off the road and fell into an embankment and hit a tree.

She explained her failure to timely file a notice of claim by saying that she had been totally disabled from the time of the accident until the time was finally able to file the suit in damages. She asserted that her delay was excusable considering that she suffered complications after her surgeries. She also submitted deposition testimonies of two physicians who attended to her from the time of her accident until the time of her discharge from the hospital. They testified to the nature and extent of her injuries. They also testified that she was severely and totally disabled from the time of the accident and that her disabilities persist until the present time.

The trial court denied her motion for leave to file a late notice of claim. The woman appealed this ruling of the trial court but the appellate court denied her appeal. She now comes to the Suffolk Supreme Court on the sole question of whether or not she may be given leave to file a late notice of claim against Nassau County.

The Court held that the appellate court erred when it denied the woman leave to file a late notice of claim. The Court stated that an extension of the period to file a notice of claim is allowable when the delay in filing a notice of claim is due to excusable neglect; and when the county acquired actual knowledge of the essential facts regarding the claim.

The woman was in severe pain and was confined to her bed during the time that she could have filed the notice of claim. The county of Nassau had sufficient knowledge of the facts regarding the accident because in the time after the accident, the county ordered a study to be made on the safety of the road and it accepted recommendations as to how the road can be improved.
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Police officers were called to the scene of a car accident at the corner of Connecticut and West Beach Streets. Two cars were involved in the mishap: a Chevrolet with damage to its front bumper and a Volkswagen with damage to its rear bumper.

The Long Island police officers asked for the licence and registration of both drivers. As the police officers were speaking with the drivers, they noticed that the driver of the Chevrolet did not smell of alcohol but his speech was slurred and he did not walk straight. The officers asked the driver of the Chevrolet to walk on a line on the side of the road but the man walked in a zigzag pattern instead.

The police officers arrested the driver of the Chevrolet and brought him to police headquarters for an alcohol breath test. AT the precinct, the breath analyzer test showed that the driver’s blood alcohol level was only 0.03. The friends of the driver who were also passengers in the car came to the police station and informed police that the driver spoke with a slight slurring and his gait was naturally uneven. They assured the police that their friend was not driving under the influence of drugs or alcohol.

In the meantime, the police were going to place the Chevrolet in the impounding area. The arresting officers were inspecting the car and making an inventory of the contents of the car before turning it over to the impound area. They noticed a brown envelope in the rear which they took. As they were taking it out of the car, its contents spilled onto the pavement. There was a gun and there was also a driver’s licence that had the same picture of the driver of the Chevrolet but the licence had a different name.

The police continued with the charge of driving under the influence of alcohol. The accused Manhattan driver of the Chevrolet asked the court to suppress the evidence of the gun and the driver’s licence which were found in the car. The trial court denied the motion which the driver of the Chevrolet appealed.

The Court held that there were two essential questions that had to be answered: the first is if there was probable cause to arrest the driver of the Chevrolet; the second question is whether or not the car was properly impounded.

The Court held that the Chevrolet was obstructing traffic when it was stalled in the middle of the road after it had collided with the Volkswagen which was in front of the Chevrolet. Second, the police officers directly observed the actions of the driver and concluded that the man was probably under the influence of alcohol or drugs because his speech was slurred and he could not walk a straight line. There was then probable cause for the police officers to suspect that the accused had committed a crime.

When the driver of the Chevrolet was arrested, he surrendered his keys to his passenger and friend who did not know how to drive and who did not have a driver’s licence. The police then were duty bound to remove the car from the roadway where it was obstructing traffic. They also had the obligation to make a detailed list of items found in the car. When they conducted the inventory of the contents of the car, that was when the gun and the driver’s licence were discovered.

Was the search and confiscation of the gun and the driver’s licence lawful? No, the Court held that it was a warrantless search. The car was not searched at the same time as the arrest. It was searched almost two hours after the arrest. The search was also conducted when the driver was already in custody of the police. The police raised the issue that the inventory was conducted after lawyer impounding even if the search was warrantless. The question then of whether or not the car was lawfully impounded must be determined by a jury as an issue of material fact.
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