The opinion of the court was delivered by: Frank P. Geraci, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The defendant appeals from a judgment entered on November 13, 2006 in Rochester City Court (Morse, J.), whereby he was convicted of misdemeanor driving while ability impaired (Vehicle and Traffic Law §§ 1192 ; 1193  [a]) and sentenced to serve a term of three years probation and to pay a fine of $500.00. The question presented upon this appeal is whether the defendant, originally charged by a simplified traffic information with misdemeanor driving while intoxicated (Vehicle and Traffic Law § 1192 ), and thereafter, following a bench trial, was convicted of the lesser included offense of driving while ability impaired (Vehicle and Traffic Law § 1192 ), may have his conviction of this traffic infraction elevated to misdemeanor status and subjected to enhanced penalties based upon proof beyond a reasonable doubt of two prior convictions of driving while ability impaired, adduced at a hearing conducted pursuant to CPL § 400.40 ("Procedure for determining prior convictions for the purpose of sentence in certain cases") and/or under the authority vested in a court of record by Judiciary Law § (2-b) (3) "to devise and make new process and forms of proceedings necessary to carry into effect the powers and jurisdiction possessed by it." For the reasons set forth below, the court answers that query in the negative.
The undisputed facts are as follows: On August 18, 2005, defendant was charged with driving while intoxicated and two other traffic violations, following too closely and unlicensed operator, arising from an incident involving defendant's moving vehicle and a parked Regional Transit Service bus on a street located in the City of Rochester, New York. Thereafter, sometime after arraignment, and prior to the filing of pretrial motions, defendant executed a written waiver of his right to a jury trial (see CPL § 320.10; § 340.40 ) and proceeded to trial before Rochester City Court Judge Thomas R. Morse. At the conclusion of all proof, the trial court held a charge conference during which both the defense attorney and the prosecutor requested consideration of the lesser included offense of driving while ability impaired, a request which the trial court granted. Closing arguments were made by the prosecutor and defense counsel, and a brief recess was taken during which time the court deliberated.
After finding the defendant guilty of the lesser included offense, the trial court stated that it had become aware that the defendant had two prior convictions for driving while ability impaired within the preceding ten years and inquired whether the defendant had just been convicted of a violation or a misdemeanor. The trial court referenced Vehicle and Traffic Law § 1193 (1) (a) which specified the following criminal penalties for the offense driving while ability impaired:
"A violation of subdivision one of section eleven hundred and ninety-two of this article shall be a traffic infraction and shall be punishable by a fine of not less than three hundred dollars nor more than five hundred dollars or by imprisonment in a penitentiary or county jail for not more than fifteen days, or by both such fine and imprisonment. A person who operates a vehicle in violation of such subdivision after having been convicted of a violation of any subdivision of section eleven hundred and ninety-two of this article within the preceding five years shall be punished by a fine of not less than five hundred dollars nor more than seven hundred fifty dollars, or by imprisonment of not more than 30 days in a penitentiary or county jail or by both such fine and imprisonment. A person who operates a vehicle in violation of such subdivision after having been convicted two or more times of a violation of any subdivision of section eleven hundred and ninety-two of this article within the preceding ten years shall be guilty of a misdemeanor, and shall be punished by a fine of not less than seven hundred fifty dollars nor more than fifteen hundred dollars, or by imprisonment of not more than one hundred eighty days in a penitentiary or county jail or by both such fine and imprisonment." (emphasis added).
The trial court further requested memoranda of law from both the prosecutor and defense counsel regarding the applicability of Apprendi v. New Jersey (530 US 466 ) and Blakely v. Washington (542 US 296 ), initially framing the issue to be considered as follows:
"The principle issue here is whether the defendant now stands before the Court convicted after trial while his ability to do so was impaired by alcohol as a misdemeanor or as a violation. There was no special information filed with the Court prior to trial indicating that the People would intend to prove at the time of trial that he had a prior conviction. Apprende "[sic]" seems to stand for the proposition that, other than a prior conviction, the Court must be given - enhancement of a sentence must be presented to the fact finder with regard to felony DWI charges. Since a prior conviction elevates it to a felony, that is done by way of a special information. If a defendant does not plead to the special information with a plea of guilty, then the People are free to present proof at the time of trial that the defendant has such prior convictions in order to prove the defendant guilty of a felony. The question for the Court is whether or not the People were required, prior to trial to file a special information if they wished the defendant to be convicted of driving while ability impaired as a misdemeanor at the conclusion of the trial or to have the opportunity to prove that during the course of the trial, whether Apprende "[sic]" requires that, whether our statute by analogous reasoning to the felonies would require it for a misdemeanor."
After reviewing the submissions of counsel, pertinent Court of Appeals, as well as Supreme Court cases, including Apprendi, the trial court surmised that, in the instant circumstances, the People were not required to file a special information or an accusatory instrument which alleged that the defendant had two prior DWAI convictions within ten years, since it was not until the defendant was found guilty of driving while ability impaired that the earlier convictions came into play. The trial court declared that it was incumbent upon the People, if they wished to have the defendant sentenced on a misdemeanor based upon the two prior DWAI convictions, to file a third DWAI information on which the defendant would be arraigned prior to sentencing and permitted to admit, deny or stand mute with respect thereto; that a hearing, if requested, would be held to determine whether there were any constitutional infirmities in the prior convictions; and that unless there was a constitutional infirmity regarding either prior conviction, the court's intention was to pronounce sentence on the misdemeanor.Subsequently, the People filed a "third DWAI information," with accompanying certificates of conviction. Upon being arraigned thereon, the defendant entered a not guilty plea and the matter was scheduled for a "Harris" hearing, denominated as such because the trial court stated, "We'll call it a Harris hearing because I'm not sure of any cases that require a hearing until my decision."
On the scheduled hearing date, the trial court adjourned the matter so that it could revisit and further research the issue of whether a hearing pursuant to Criminal Procedure Law § 400.40 would be appropriate, given opposing arguments by the defense that no hearing was necessary due to the defendant's conviction of a violation only and arguments by the People that a misdemeanor conviction resulted. As a consequence, the trial court set a new date for either sentencing or the scheduling of a hearing.
On the adjourned date, the trial court announced that, upon review of the papers submitted by defense counsel, of other proceedings and the research conducted by it, including the contrary position taken by other courts, there was no state or federal constitutional prohibition against holding a hearing pursuant to CPL § 400.40 to determine whether the defendant's two prior DWAI convictions within ten years elevated this new DWAI conviction to a misdemeanor level offense for which more severe, mandatory penalties applied. The trial court, articulating its belief that a distinctly different scenario would have been presented had the defendant initially been charged with DWAI as a misdemeanor by information with an accompanying supporting deposition, stated:
"In this case, the only charge that the People prosecuted in this case, the only charge that they went forward with, was driving while intoxication "[sic]" as a misdemeanor. It was only by virtue of the verdict that was rendered that the People became aware that they were now prosecuting a driving while ability impaired. And it is that point that the Court feels that article 400.40 kicks in and so, the Court will order, since there is a statement that's been filed, the Court will order a hearing to be held on the 19 th of July at 11:00 in the morning as to whether or not Mr. Harris is the same individual who was previously convicted as alleged in the statement in the Brighton Town court on the 27th of April 1998, and on the 6th of May 1996. Obviously at that hearing the People will have to comply with the Fourth Department and Court of Appeals cases with regard to the manner in which they go forward proving, if they can, that allegation."
On the eventual hearing date, the trial court informed the parties that it would simultaneously conduct a "Harris" hearing and a hearing pursuant to CPL § 400.40, ostensibly,
"[S]o that both records are clear should there be any Appellate recourse taken by Mr. Harris, that a decision could issue with regard to whether or not a Harris hearing before the same fact finder is an appropriate vehicle or whether or not a 400.40 hearing is an appropriate vehicle and whether in either case the court was providently using its discretion in going forward by ...