This case is not published in a printed volume and its disposition appears in a table in the reporter.
Peter N. DeLucia, Esq.
James M. Barber, Esq.
Martin E. Smith, J.
The defendant has moved pursuant to Section 210.30 of the Criminal Procedure Law for an examination of the stenographic minutes of the Grand Jury Proceeding for the purpose of determining whether the evidence before the Grand Jury was legally sufficient to support the charge contained in the indictment and whether the legal instructions given to the Grand Jury were sufficient, and seeks dismissal of the indictment for the insufficiency of the evidence or for other defects in the grand jury proceedings. (Criminal Procedure Law 210.20.)
The People have interposed no objection to the Court's examination of the grand jury minutes and have provided same for the Court's review. Upon examination of the grand jury minutes the Court finds that release of said minutes to the defense is not necessary to assist the Court in making its determination on the motion. Accordingly, the defendant's request for release of the grand jury minutes to the defendant is denied.
The defendant stands charged with Driving While Intoxicated, in violation of Vehicle and Traffic Law 1192, a class E felony. The felony status of the crime is based on a predicate conviction on July 13, 2004 for Driving a Motor Vehicle with .10, ' in violation of Vehicle and Traffic 1192, an unclassified misdemeanor.
The evidence before the Grand Jury established that during the evening of January 29, 2007, New York State Trooper Kevin Leniek's attention was drawn to the defendant's Blazer automobile because he was driving slowly. He estimated visually that he was driving about 25 miles per hour in a 30-mile per hour zone during the late evening when no traffic was present and the roads were clear and dry. He followed him and testified that the defendant was going about 20 miles per hour in the 30-mile per hour zone. At some point her verified this speed by radar. The defendant consistently maintained this speed up hill and down hill, including a steep hill, until he pulled over at the direction of the officer. He noticed no bad driving. He testified the defendant was driving on the right-hand side of the road. He testified that he pulled him over solely because of the slow driving. He also testified, in response to a line of questions from the Grand Jury regarding driving ten miles below the speed limit that he could have issued a ticket for driving too slowly on this basis, saying driving ten miles per hour below the limit is considered impeding traffic. The district attorney did not admonish the Grand Jury on the witness' advising on the law.
The trooper testified as to certain field sobriety tests conducted, his observations of the defendant's condition, the odor of an alcoholic beverage he detected from the defendant, the defendant's refusal to submit to a chemical test of his breath, and his admission to having drunk two beers about an hour before the stop. The trooper testified that in his opinion, the defendant was intoxicated.
The Grand Jury raised a number of questions: was there evidence other than just the officer's word; what was the law on pulling someone over, could the officer pull anyone over to run to [sic] test. The district attorney advised that in this case, there was no video evidence. He also advised that the officer cannot pull someone over for no reason. "In this case, " he advised, "we would submit the reason he pulled him over was for slow driving, the Vehicle & Traffic Law, driving too slowly." This instruction was misleading, as there is no such charge. The only possible charge, provided for in Vehicle & Traffic Law 1181, entitled Minimum speed regulations, provides under subdivision [a] that "no person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law." The district attorney did advise that the defendant "has a vehicle to challenge" the basis for the stop. He did not advise that this opportunity would only arise following their return of an indictment or direction to file a prosecutor's information.
On the stop issue, the Court notes that the conduct as described by the officer, driving ten miles per hour under the speed limit at night, on the right hand side of the road, with no traffic on the road, would not make out a violation of 1181[a]. The conduct as described, could not provide a basis for stopping the defendant's vehicle. While it was accurate to advise that the question of the stop is one the Court would address on a motion to suppress, it was error to leave the Grand Jury with the impression that the defendant was in violation of the law for driving ten miles below the speed limit on empty roads at night. See, for example, People v. Beeney, 181 Misc.2d 201.
This was not the only error. The Grand Jury was advised that it would be asked to consider the one charge of driving while intoxicated as a class E felony based on one prior conviction within the preceding ten years. In support of the predicate, the district attorney offered into evidence a certificate of conviction from the Town of Vestal Justice Court. "If, however, more than 12 of you do not find there is reasonable cause to believe and legally sufficient evidence to establish that, then and only then can you consider that lesser-included offense, driving while ability impaired by alcohol, 1192, subdivision 2, of the Vehicle and Traffic Law." Later, after the witness had been recalled to testify, a Grand Juror asked, "we are being asked to vote on the DWI charge. If it goes to --when it goes to trial, would the jury be able to find him on a lesser charge than that, only charged on DWI?" The district attorney advised, accurately, that the answer was irrelevant to their decision, but did tell them that it would be up to the judge as to whether a lesser charge should be considered by the jury. A juror then asked, "now you've charged us with deliberating on a DWI as a class E felony. If we could not come to a 12 vote ...