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People v. Astacio

City Court of Rochester, Monroe County

March 27, 2017

The People of the State of New York, Plaintiff,
v.
Leticia D. Astacio, Defendant.

          Hon. R. Michael Tantillo, Ontario County District Attorney, Special Prosecutor (V. Christopher Eaggleston, of counsel), for the People.

          Fiandach and Fiandach (Edward L. Fiandach, of counsel), for Leticia D. Astacio.

          Stephen D. Aronson, J.

         This case holds that (1) an IID monitor has limited authority to transfer an IID monitoring case; and (2) a photograph posted on Facebook is insufficient to prove a person was drinking an alcoholic beverage without additional evidence.

         The defendant, Leticia D. Astacio (defendant), was convicted of driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3) by a trial verdict rendered on August 22, 2016. Her sentence on that date included a written conditional discharge providing in pertinent part that she abstain from alcoholic beverages and comply with ignition interlock device (IID) provisions. [1] The defendant was charged with violating the terms of her one-year conditional discharge by (1) violating IID requirements on three separate occasions, (2) failing to obey the law by engaging in conduct constituting a trespass, and (3) failing to abstain from the consumption of alcohol on two separate occasions. A hearing was held on March 3 and March 6, 2017. The attorneys were permitted to obtain a transcript of the testimony and to file written summations. Decision was reserved until.

         A total of five witnesses testified at the hearing-two prosecution witnesses and three defense witnesses. At the outset, the court notes that except as otherwise set forth in this decision, all of the witnesses were entirely credible, worthy of belief, and appeared to testify truthfully. At the risk of sounding too confident, I must say that while this case does pose some novel legal issues, long-standing principles of law make it actually easy to decide. As the longest presiding judge in the eight counties comprising the Seventh Judicial District, and having authored hundreds of decisions, I found that this case was not at all difficult or complex.

         IID VIOLATIONS

         The declarations of delinquency accuse the defendant of violating her IID requirements on three separate dates: (1) January 12, 2017 (alleging the defendant's vehicle was started by an unknown female and later driven by the defendant without being turned off); (2) January 30, 2017 (alleging the defendant allowed an unknown passenger to blow into the IID to start the defendant's vehicle, but shortly thereafter the defendant took a rolling retest); and (3) March 2, 2017 (alleging that the defendant's vehicle went into lockout mode after she failed to report her vehicle for a required service). In all of these violations the defendant's IID breath test was.000, and the defendant is not accused of drinking before driving.

         On November 18, 2009, Governor David A. Patterson signed into law "The Child Passenger Protection Act of 2009, " better known as "Leandra's Law." This law requires the installation of breath alcohol ignition interlock devices in the motor vehicles owned or operated by persons convicted of DWI offenses who are sentenced on or after August 15, 2010. The Division of Criminal Justice Services (DCJS) has promulgated regulations (9 NYCRR Part 358) governing the monitoring of compliance by persons ordered to install and maintain IIDs on vehicles they own or operate. A section of these rules governs the transfer of probation cases and conditional discharge cases between New York State and other states, as well as between counties within the State of New York (see NY St Div of Crim Justice Servs Memorandum No. 2010-14, December 3, 2010, "Guidance for the Interstate and Intrastate Transfer of Ignition Interlock Cases"). The Deputy Commissioner and Director of DCJS and author of the memorandum cited supra, writes: "It should be noted that there is currently no provision in New York statutes for the intrastate transfer of judicial jurisdiction over a Condition Discharge case" (id. at p. 3, emphasis added). However, intrastate transfer of an IID case for monitoring purposes is considered where a defendant (1) resides in a county other than the jurisdictional county at the time of arrest/prior to sentencing, (2) expresses a desire to relocate to a county other than the jurisdictional county prior to sentencing, or (3) expresses a desire to relocate to a county other than the jurisdictional county following sentencing (id. at p. 2, where references to "another county, " mean a county other than the jurisdictional one). In intrastate transfer cases involving a sentence of conditional discharge, notification is provided to the IID monitor in the sentencing court's jurisdiction by the sentencing court; the monitor in the sentencing county contacts the monitor in the receiving court to advise that agency of the case (id.). Clearly, the transfer of IID monitoring between counties within New York State is not contemplated where the offender is arrested, convicted and sentenced in his/her county of residence.

         The defendant's written conditions of conditional discharge state:

"2. The defendant is to: report to Monroe County Probation (hereinafter 'the monitoring authority') as directed by the court or the monitoring authority; answer all reasonable inquiries by the monitoring authority; and notify the monitoring authority prior to any change in address, vehicle ownership or access for operation."

         The credible evidence at the hearing showed that the defendant has continuously resided in the City of Rochester in Monroe County. There is no provision in the written conditions of conditional discharge authorizing the Ontario County monitor to substitute as the monitoring authority. There is no provision in the Vehicle and Traffic Law authorizing the Ontario County monitor to substitute as the monitoring authority. There is no provision in the New York Code of Rules and Regulations governing the handling of ignition interlock cases authorizing the Ontario County monitor to substitute as the monitoring authority. There is no provision in the Monroe County Ignition Interlock Program Plan authorizing the Ontario County monitor to substitute as the monitoring authority (see Monroe County Ignition Interlock Program Plan). In the People's written summation, there was no authority cited nor explanation given for the transfer of monitoring from Monroe County to Ontario County.

         So, how did the Ontario County IID monitor get involved with monitoring this IID case, where the defendant was and still is a resident of Monroe County? The Ontario County IID monitor testified that she received a letter transferring the case to her without a court order. There was no other explanation given for the transfer of monitoring. The defendant testified that her initial contact with the Ontario County IID monitor included the requirement of a GPS tracking device. People's exhibits 2 and 3 (the monitor's notifications of IID violations to the court and the D.A.) contain a reference on the front page to the fact that the defendant was sentenced to a conditional discharge on August 22, 2016, from an "Other City Court, " but the third page of each exhibit (Photo page 1) describes the Court conditions as being from an Ontario County order. However, it was not an Ontario County order; it was a Monroe County order. In any event, the order of conditional discharge remained intact-Monroe County's designation as the monitoring authority never changed. Accordingly, the declarations of delinquency based upon IID violations must be dismissed as jurisdictionally flawed.

         Even assuming that the IID monitoring violations were reachable on the merits, the defendant would not be found to have violated two of the three. The credible evidence did not establish that someone other than the defendant blew into the IID to start her vehicle on January 30, 2017, and the credible evidence established that the defendant did not violate the service requirement on March 1, 2017, because she clearly was within the five-day grace period for having her IID serviced. The defendant may have been found to have circumvented the IID device on January 12, 2017 [2]; nevertheless, her consequence for this isolated violation would have been minimal because her breath test on that ...


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