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1
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OPINION
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EXTRACTED KEY WORDS
COURT OFFENSE NY2D COMMON LAW DEFENDANT STATUTORY INTOXICATION VEHICLE TRAFFIC LAW APPELLANT INDICTMENT JUDGE GUILTY VERDICT MEMORANDUM PUBLIC HIGHWAY CONSIDERED DRIVING SENTENCING PREJUDICE FAILURE AUTHORITY CPL CARTER RESPONDENT MAHARAJ APPELLATE DIVISION MOTION NON-JURY CONVICTION |
PEOPLE, & C., RESPONDENT, v. POORAN MAHARAJ, APPELLANT.
89 N.Y.2d 997, 679 N.E.2d 631, 657 N.Y.S.2d 392 (1997).
March 25, 1997
1 No. 28 (1997 NY Int. 35)
Decided March 25, 1997
_________________________________________________________________
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Anita Khashu, for Appellant.
Susan Gliner, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be reversed and a new trial
ordered on count two of the indictment.
Defendant was indicted for driving on a public highway with a blood
alcohol level of .10 of one percentum or greater in contravention of
the per se limit set forth in Vehicle and Traffic Law § 1192(2) (count
one or the "per se statutory count") and driving on a public highway
while intoxicated, as that term has been defined in the common law, in
violation of Vehicle and Traffic Law § 1192(3) (count two or the
"common law count"), and proceeded to trial before a judge, having
waived his right to a jury trial. After summations, defendant's
counsel requested that the court consider driving while impaired
(Vehicle and Traffic Law § 1192(1)) as a lesser included offense of
driving while intoxicated as charged under the common law count. The
People objected on the mistaken belief that driving while impaired
would be a lesser included offense of the per se statutory count, not
the common law count. The court adopted the People's misguided
position and considered driving while impaired as a lesser included
offense under count one, not count two, as defendant requested.
The court found defendant not guilty of per se statutory intoxication
but guilty of the lesser included offense of driving while impaired
under count one of the indictment and guilty of the common law count
as a felony. Defendant moved by formal motion to set aside the
verdict, arguing that the trial court erred in considering driving
while impaired as a lesser included offense under the per se statutory
count (Vehicle and Traffic Law § 1192(2)), rather than under common
law intoxication (Vehicle and Traffic Law § 1192(3)).
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