BILL NUMBER:  S5495

 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.