People v. Brown , 73 A.D.2d 112 ( 1980 )

OPINION OF THE COURT

Casey, J.

The defendant was stopped shortly after midnight on October 25, 1977 in the City of Plattsburgh by a city police officer for making a right-hand turn on a red light at an intersection where such a turn was not permitted. According to the arresting officer, the defendant at the time had bloodshot eyes, smelled of alcohol, demonstrated poor co-ordination and staggered at the scene. Taken to the police station, the defendant agreed to submit to a breathalyzer test, which was administered at 12:44 a.m. and which disclosed blood alcohol content of .17 of 1%. Subsequently, the defendant was indicted for the crime of operating a motor vehicle while in an intoxicated condition in violation of section 1192 of the Vehicle and Traffic Law, and on the basis of his prior conviction, as a felony.

At the trial the police officer testified to the defendant’s condition at the scene; the manner of talking and the results of the breathalyzer test were introduced into evidence; and the defendant, testifying in his own behalf, admitted to having consumed three or four Scotch and sodas prior to his arrest.

The trial court charged the jury that it could find the defendant guilty of driving while intoxicated (Vehicle and Traffic Law, § 1192, subd 3) and of operating a motor vehicle with .10 of 1% or more of alcohol in his blood (Vehicle and Traffic Law, § 1192, subd 2). The court refused the defendant’s request to charge driving while impaired (Vehicle and Traffic Law, § 1192, subd 1) as a lesser included offense. The defendant excepted to this refusal and urges it as the principal ground for reversal on this appeal. The jury found the defendant guilty of violating subdivision 2 of section 1192 only, thereby acquitting the defendant of a violation of subdivision 3 of section 1192.

It was error for the trial court to refuse the defendant’s request to charge driving while impaired under subdivision 1 as a lesser included offense of driving while intoxicated. To qualify as a lesser included offense of the crime charged (Vehicle and Traffic Law, § 1192, subd 3) the charge of driving while impaired must satisfy (1) the statutory definition of CPL 1.20 (subd 37), i.e., that it is impossible to commit the crime of driving while intoxicated without concomitantly committing by the same conduct, the offense of driving while impaired, and (2) that a reasonable view of the evidence would support a finding that the defendant committed the lesser offense but did not commit the greater. (CPL 300.50; People v Henderson, 41 NY2d 233, 235.)

Simply stated, since it is impossible to commit the crime of driving while intoxicated without also committing by the same conduct the offense of driving while impaired, driving while impaired is a lesser included offense of the misdemeanor of driving while intoxicated (see People v Yost, 50 AD2d 577). As to the second requirement, the evidence of the defendant’s appearance and conduct at the time of his arrest supplies a reasonable factual basis for the charge of driving while impaired. Although it was error to refuse the defendant’s request in relation to the charge of driving while intoxicated, this error is inconsequential inasmuch as the defendant was acquitted of that charge.

The more important question here is whether the charge of driving while impaired is a lesser included offense of subdivision 2 of section 1192, where the defendant’s breathalyzer test resulted in .17 alcohol content, and on which charge the defendant stands convicted. Applying the dual consideration of the Henderson test (supra), it must be concluded that driving while impaired is also a lesser included offense of the misdemeanor of driving with a .10 of 1% or more of alcohol in the blood. It is simply impossible to violate subdivision 2 without concomitantly violating subdivision 1, in view of section 1195 (subd 2, par [c]) of the Vehicle and Traffic Law, which makes more than .07 of 1% but less than .10 of 1% of alcohol in the blood prima facie evidence that the operator’s ability was impaired. It would be unreasonable and unrealistic to hold that a presumption of impairment exists within those statutory limits, but evaporates when the alcohol content reaches .10 or more. Furthermore, section 1196^* of the Vehicle and Traffic Law, as interpreted in People v Farmer (36 NY2d 386), holds that the proscriptions of subdivisions 1, 2 and 3 of section 1192 are all species of the same generic offense of "operating a motor vehicle while under the influence of alcohol” and a charge under subdivision 3 gives notice to the defendant of a possible conviction under subdivision 1 or 2. Having determined that subdivision 1 is a lesser included offense of subdivision 2 as well as of subdivision 3, it follows that the defendant’s request to charge subdivision 1 should have been granted if a reasonable view of the evidence would support a conviction under subdivision 1. The jury here could disregard the results of the breathalyzer test if they believed, as urged by the defendant at trial, that the machine malfunctioned. If the jury so believed, the testimony in the case of the defendant’s condition at the time of his arrest would support a conviction of driving while impaired. The failure to so charge upon a proper defense request was, therefore, reversible error, and the judgment and conviction must be reversed and the case remitted for a new trial. Upon retrial the jury cannot consider the charge under subdivision 3, of which the defendant has been acquitted, but since the indictment is not limited to subdivision 3 and in light of section 1196, the defendant need not be reindicted (see People v Mayo, 48 NY2d 245, 253; People v Fudger, 70 AD2d 703). The other errors alleged by the defendant are inconsequential and nonreversible.

The judgment should be reversed, on the law, and a new trial ordered.

* People v Donaldson (36 AD2d 37), which held that driving while impaired is not a lesser included offense of a charge under subdivision 2 of section 1192, was decided upon statutory law as it existed prior to the effective date of section 1196.