3 No. 145
The People &c.,
Appellant,
v.
Darwin Whipple,
Respondent.
_________________________________________________________________
2001 NY Int. 119
November 15, 2001
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Bonnie Mitzner, for appellant.
Michael B. Powers, for respondent.
_________________________________________________________________
KAYE, CHIEF JUDGE:
The issue on this appeal is whether, when the People rest without
evidence establishing an element of an offense, and the defendant
moves for a trial order of dismissal on that basis, the Trial Court
can permit the People to reopen their case and cure the omission. We
conclude that reopening is permissible where the missing
element is simple to prove and not seriously contested, and reopening
the case does not unduly prejudice the defense. Because this rule did
not, as a matter of law, preclude the Trial Court's decision to let
the People present limited additional evidence, we reverse the
Appellate Division order and remit the matter to the Appellate
Division for consideration of the facts (see, CPL 470.40(2)(b)).
On the afternoon of March 14, 1998, defendant Darwin Whipple was seen
driving his pickup truck into the wall of Dutch's Bar in the Town of
Thompson. Deputy Sheriff Robert Clark arrived and asked Whipple to
take a series of field sobriety tests, which Whipple failed. After his
arrest, a test showed his blood alcohol content as 0.13 percent.
Whipple was indicted under Vehicle and Traffic Law sections 1192(2)
and 1192(3), both in conjunction with section 1193(1)(C). The first
count of the indictment alleged that Whipple drove while he had a
blood alcohol content in excess of 0.10 percent; the second count
charged that he drove while intoxicated, as evidenced by his physical
condition and performance on the field sobriety tests. Each count
alleged that Whipple drove in a "public parking lot."
SNIPPETS:
This opinion is uncorrected and subject to revision before publication in the New York
The issue on this appeal is whether, when the People rest without evidence establishing an
We conclude that reopening is permissible where the missing element is simple to prove and
Because this rule did not, as a matter of law, preclude the Trial Court's decision to let the
On the afternoon of March 14, 1998, defendant Darwin Whipple was seen driving his pickup
Deputy Sheriff Robert Clark arrived and asked Whipple to take a series of field sobriety
At trial, the People asked an eyewitness whether the parking lot at Dutch's was a "public
That's not a public parking lot in the sense it's owned by the government or public, that's
Late in the People's presentation of their direct case, the Trial Court, during a precharge
Observing that this subsection pertains to driving under the influence "on public highways,
Defense counsel requested a chance to review the statute, while the prosecutor merely stated
Whipple then moved for a trial order of dismissal directed at the lack of evidence that the
Having prevailed on their motion to reopen, the People re-called Deputy Sheriff Clark and,
On Whipple's appeal, the Appellate Division reversed, concluding that "while a trial court
The court found that the need to prove the parking lot's capacity was not unexpected after
Nonetheless, review of CPL 260.30 has prompted us to observe that the statutory framework "is
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