AppT No. 87 SSM 3
The People &c.,
Respondent,
v.
Edward Cunningham,
Appellant.
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2000 NY Int. 91
July 6, 2000
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Submitted by Lawrence S. Goldman, for appellant.
Submitted by Bridget Rahilly Steller, for respondent.
_________________________________________________________________
_________________________________________________________________
MEMORANDUM:
The order of the Appellate Term should be modified by vacating the
conviction for driving while intoxicated and remitting to City Court
for further proceedings in accordance with this Memorandum, and, as so
modified, affirmed. Defendant was convicted after a bench trial of
violating Vehicle and Traffic Law §§ 1192(3) and 1194(1)(b). In
reaching a verdict on the section 1192(3) charge, the Trial Judge
applied a definition of intoxication which improperly lowered the
prosecution's burden of proof (see, People v Cruz, , 48 NY2d 419;
cf., People v Ardila, , 85 NY2d 846). Upon defendant's motion to
set aside the verdict, the Judge reconsidered the evidence in light of
the Cruz definition of intoxication and again found defendant guilty.
The Appellate Term affirmed. The Court's reconsideration of its
verdict under a different standard constituted a factual determination
that "comes too late and exceeds the scope of (the court's) authority"
(People v Maharaj, , 89 NY2d 997, 999; People v Carter, , 63
NY2d 530). To allow the second verdict to stand would permit the Trial
Judge to engage in post-verdict fact-finding that would not be
possible in a jury trial, thereby according "less finality to the
verdict of a Trial Judge when sitting as (the trier of fact) than to a
jury verdict" (People v Carter, supra, at 539; see also, CPL
320.20(4)). Accordingly, defendant's conviction for driving while
intoxicated should be vacated and a new trial held on that charge.
Defendant's objection, raised for the first time at summation, to the
admission into evidence of his refusal to take the breathalyzer test
SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
for appellant.
for respondent.
The order of the Appellate Term should be modified by vacating the conviction for driving
In reaching a verdict on the section 1192charge, the Trial Judge applied a definition of
Upon defendant's motion to set aside the verdict, the Judge reconsidered the evidence in
The Court's reconsideration of its verdict under a different standard constituted a factual
To allow the second verdict to stand would permit the Trial Judge to engage in post-verdict
defendant's conviction for driving while intoxicated should be vacated and a new trial held
On review of submissions pursuant to section 500.4 of the Rules, order modified and case
Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick and Wesley concur.
Judge Rosenblatt took no part.
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