People v. RundbladPeople v. Rundblad
Lead Opinion
Appeal from a judgment of the County Court of Otsego County (Mogavero, Jr., J.), rendered July 25, 1988, upon a verdict convicting defendant of the crime of operating a motor vehicle while under the influence of alcohol.
Defendant was arrested for drunken driving at approximately 1:00 a.m. on September 26, 1987 after leaving a restaurant and being followed by Sheriffs Deputies for three quarters of a mile in the Town of Worcester, Otsego County. Defendant refused to submit to a blоod test. Following a jury trial, defendant was convicted of operating a motor vehicle while under the influencе of alcohol, as a felony (Vehicle and Traffic Law § 1192 [3]).
Defendant’s first point on appeal is that there wаs insufficient evidence, as a matter of law, to support the conviction. We disagree. The arresting officеrs testified that they observed defendant’s vehicle weave across the solid double lines of the straight roadway at least three times in the span of less than a mile while they followed him, during which he was driving at a speed of 55 miles per hour in a 30-mile-per-hour zone. Defendant had to be assisted out of his vehicle after he was
The оnly other contention of defendant meriting extended discussion is that the form in which the jury verdict was announced was such that it is impossible to determine whether he was found guilty of the crime of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) or of the traffic infraction of driving with ability impaired (Vehicle and Traffic Law § 1192 [1]). We again disagree. Examining the jury verdict in the context of County Court’s instructions, to which the verdict responded, we find that the record does evince the jury’s intent to find defеndant guilty as charged in the single count of the indictment, that is, driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3). In its instructions, the court read the indictment to the jury, charging defendant with "operating a motor vehicle while under the influence of alcohol in violation of Vehicle and Traffic Law, Section 1192 Subdivision 3”, committed by defendant’s operating a motor vehicle on a named public highway "while in an intoxicated condition”. After fully defining the terms of the indicted сharge, the court then explained that if, and only if, the defendant was found not guilty of the crime charged in the indictment, the jury could then consider his guilt of the lesser offense, not charged, of driving while defendant’s ability was impaired by alcohol.
Thе confusion alluded to by defendant arises out of the form of interrogation by the court clerk in eliciting the jury’s verdict:
"thе clerk: How do you find with respect to the charge of operating a motor vehicle while under the influence of alcohol?
Thus, the most reasonable interpretation of the verdict is that the jury found defendant guilty, as charged, of a violation of Vehicle and Traffic Law § 1192 (3), which became elevated to a felony by reason of defendant’s prior conviction. To whatever extent lingering doubts on the meaning of the verdict may remain, since they could еasily have been laid to rest by timely objection or jury polling on the part of the defense when the verdict was rеndered and there was strong evidence of guilt, this is a most appropriate instance when the failure to so preserve the issue should preclude invoking it as a ground for reversal in the interest of justice (see, People v Marilla,
Since defendant’s remaining points are entirely devoid of merit, the conviction should be affirmed in all respects.
Judgment affirmed. Kane, Levine and Harvey, JJ., concur.
Dissenting Opinion
dissent and vote to reverse in a memorandum by Mahoney, P. J. Mahoney, P. J. (dissenting). We respectfully dissent. To be found guilty of "operating a motor vehicle while under the influence of alcohol” creates confusion about the exact nature of defendant’s conviction since there are felony and traffic infraction versions of this offense (see, Vehicle and Traffic Lаw § 1192 [1], [3]; § 1193 [1] [a], [c]) which were charged to the jury. Because of the ambiguity of the language employed by the court clerk, we cannot determine whether the jury found defendant guilty of the felony or traffic infraction. Considering the disparatе consequences between a felony and traffic infraction conviction and the patent lack of рrecision in the verdict, we would invoke our authority to reverse in the interest of justice and remit to County Court for a new trial.