Relates to the filing of a special information alleging previous convictions involving certain traffic offenses

1 Co-sponsor

• Antoine M. Thompson

Title of bill

An act to amend the criminal procedure law, in relation to the filing of a special information alleging previous convictions involving certain traffic offenses

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Criminal Law and Procedure.

This measure would amend the Criminal Procedure Law to allow a prosecutor to file a special information after a court informs the parties that it will submit a lesser included offense of a traffic infraction. This change would only affect those cases where the defendant's prior convictions would raise the lesser included offense from an infraction to a misdemeanor.

The Vehicle and Traffic Law sets forth a graduated scheme of criminal penalties attendant to a conviction for driving while ability impaired DWAI (see VTL § 1193(1)). First and second offenses are traffic infractions. A third offense within 10 years, however, elevates the offense to a misdemeanor and provides for significantly stiffer penalties, including up to 180 days in jail. Several courts have held that in order to sentence the defendant to the misdemeanor penalties, a prosecutor must file an appropriate accusatory instrument and prove, at trial that the defendant had twice before been previously convicted of DWAI (see People v Greer, 189 Misc.2d 310 App Term, 2d Dept 2001 ); People v Lazaar, 3 Mise.3d 328 Webster Just Ct 2004 ); People v Jamison, 170 Misc.2d 974 Rochester City Ct 1996 ).

When a defendant is initially accused of driving while intoxicated DWI , however, the accusatory instrument does not allege the defendant's prior history of DWAI because those convictions are not relevant to a DWI charge. Where the proof at trial later provides a reasonable view that the defendant was impaired but not intoxicated, the court in its discretion may submit, and at the request of a party must submit, the lesser included offense of DWAI (see CPL 300.50; People v Hoag, 51 NY2d 632 1981 ). If a defendant is then acquitted of DWI, but convicted of the lesser included offense of DWAI, there is currently no mechanism to elevate the traffic infraction to a misdemeanor on the basis of the defendant's prior driving record. This results in an undeserved windfall for defendants who have a history of impaired driving.

This measure insures that the defendant's prior driving history is taken into account by providing the prosecutor with an opportunity to file a special information when a court agrees to submit a lesser included offense of a traffic infraction. We believe that by utilizing a special information under CPL 200.60, an appropriate balance is struck between protecting the defendant from any prejudice that might result from the jury hearing evidence of the defendant's prior driving record, and giving the People an opportunity to prove the previous convictions before the lesser included offense is put before the jury.

This measure, which would have no fiscal impact on the State, would take effect on the first day of November next succeeding the date on which it shall have become a law and apply to all criminal actions whenever commenced.

2008 LEGISLATIVE HISTORY : None. New proposal.