Motion to Dismiss or Affirm — Cruz v. New York

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 79-6094

HECTOR CRUZ,

Appellant,

Vv.

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MOTION TO DISMISS OR AFFIRM

MARIO MEROLA

District Attorney

Bronx County

Attorney for Appellee

215 East 161 Street

Bronx, New York

(212) 590-2060

ALAN D. MARRUS

DAVID H. FROMM

Assistant District Attorneys

Of Counsel

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CETATIGNIS S Code eS ee See OO KORE CESOOERES SOHN OO CER OO EOC CES ROS

MOTION TO DISMISS OR APPT cccccdccccccccccceecccecececs

THE STATE STATUTES INVOLVED

AND THE NATURE OF THE CASE

The SCACUGR sc ccccsccccccececcccseccncecccccecccccccce

The Facts amd Proceedings BelOw....ceccsccsccecscees

ARGUMENT

POINT ONE

The Court lacks jurisdiction to hear this case

because the Court of Appeals order is not final.....

POINT TWO

This case presents no substantial question..........

CERPAS Re bees secncderoccedoecdecesocreccncecoecceoecens

PAGE

CITATIONS

Constitution

U.S. Const. amend MEV EVGERCENSON SAGE 60U40 80040 CRbd bs RSE wS

Statutes

N.Y. Vehicle & Traffic Law § 510(2)(9)(iii)

(McKinney Cum. Supp. oo. | ee eer

N.Y. Vehicle & Traffic Law § 510(2)(b)(i)

(McKinney Cum. Supp. Te PNas bbanueeensieeedensecce

N.Y. Vehicle & Traffic Law § 1192(1) and (3)

(McKinney Cum. Supp. NPs bb 606466 660s tba ceeres

N.Y. Vehicle & Traffic Law § 1192(5)

(McKinney Cum. Supp. WETOP TO ee eiCiwcbuuscesebaccewd

28 U.8.C. § Peer baeabeoelenecusdénsteectasdscoosecccatdse

Cases

Abney Ve United States, 431 U.S. 651 CTDT 7 deccccccccccess

Bass v. Commonwealth, 209 Va. 422, 164 S.E.2d 667 (1968).

Berman v. United States, 302 U.S. 211 (1937)..ccccscccces

Brooks v. State, 41 Md. App. 129, 395 A.2d 1224

. pec. App. WU 9664 6686655508 hOdSKbb OKéeedeoceee

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).........

Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949)......

Colautti v. Franklin, 439 U.S. 379 (1979)...ccccccccccces

Conally v. General Construction Co., 269 U.S. 385 (1926).

Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978)........

Nash Ve United States, 229 U.S. 373 CUPRS devssccesenacise

Parr Ve United States, 351 U.S. 513 a) |} Se

People Ve Cruz, 48 N.Y. 2d 419 | ee

People v. Cruz, 99 Misc.2d 634

. rm, Ist Dept. PTE Sahat bbs bones 64ee8 chanted

People v. Lambert, 395 Mich. 296, 235 N.W.2d 338 (1975)..

Smith Ve Goguen, 415 U.S. 570 | ae ee

Shaffer Ve Heitner, 433 U.S. 186 EoFT pedeseceesscesesévs

State Ve Bryce, 243 A. 2d 726 (Me. Wee cesecvcccecnessece

Thompson v. People, 181 (slo. 194, 510 P.2d 311 (1973)...

United States v. Channel, 423 F. Supp. 1017

United States Vv. Harris, 374 U.S. 612 (1956p cccccecccscce

United States v. MacDonald, 435 U.S. 850 (1978)...essees.

PAGE

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 79-6094

HECTOR CRUZ,

Appellant,

ON APPEAL FROM THE COURT OF

APPEALS OF THE STATE OF NEW YORK

MOTION TO DISMISS OR AFFIRM

The Appellee moves the Court to dismiss the appeal herein or, in

the alternative, to affirm the order of the Court of Appeals of the State

of New York on the ground that the Court lacks jurisdiction within the

meaning of 28 U.S.C. 1257 because the order appealed fram is not final, and

on the ground that it is manifest that the question on which the decision

of the cause depends is so unsubstantial as not to need further argument.

ane

ee ee

THE STATE STATUTES INVOLVED

AND THE NATURE OF THE CASE

The Statute

This appeal raises the question of the constitutionality of New York

Vehicle and Traffic Law sections 1192(1) and 1192(3). They provide:

1. No person shall operate a motor vehicle while

his ability to operate such motor vehicle is

impaired by the consumption of alcohol.

* * *

3. No person shall operate a motor vehicle while

he is in an intoxicated condition.

A violation of section 1192(1), driving while impaired, is a traffic

infraction punishable by a fine of up to fifty dollars, imprisonment of up

to fifteen days, or both, and a mandatory 60-day suspension of driving

privileges. New York Vehicle and Traffic Law (hereafter referred to as

V.T.L.) §§ 510(2)(b)(i), 1800(b). A violation of section 1192(3), driving

while intoxicated, is a misdemeanor punishable by a fine of no more than

$500, imprisonment of no more than one year, or both, and a mandatory

revocation of ones driver's license. V.T.L. §§ 510(2)(a)(iii), 1192(5).

“The Facts and Proceedings Below

On the evening of January 28, 1978, a police officer observed

appellant driving in an erratic manner on Third Avenue in Bronx County,

New York. When appellant drove through a red light the «fficer stopped him

and as appellant left his car, the officer detected a strong odor of

alcohol on his breath, saw that appellant's eyes were watery and blood

shot, that his speech was slurred, and that he was unsteady on his feet.

When asked to produce his driver's license and registration appellant threw

them at the police officer. After appellant admitted having a couple of

drinks, he was placed under arrest. Appellant, who refused to take a

breathalizer test, was charged by a misdemeanor complaint with violating

New York Vehicle and Traffic Law section 1192.

After a preliminary hearing, appellant made a pretrial motion to

dismiss the accusatory instrument on the ground, inter alia, that sub-

section 1 and 3 of section 1192 of the Vehicle and Traffic Law were so

vague as to violate the due process clause of the Fourteenth Amendment.

U.S. Const. amend. XIV. In a decision dated October 31, 1978, a Judge of

the New York City Criminal Court, granted defendant's motion. In a per

curium opinion with one Justice dissenting, the Appellate Term, First

Department, affirmed the Criminal Court's order dismissing the information.

People v. Cruz, 99 Misc.2d 634 (App. Term, Ist Dept. 1979). However the

Court of Appeals of the State of New York, finding the statute oonsti-

tutional, reinstated the accusatory instrument, and remitted the case to

the Criminal Court for further proceedings. Pecple v. Cruz, 48 N.Y.2d 419

(1979). At the present time the case is pending in the trial court.

a

> ties

ARGUMENT

POINT ONE

THE COURT LACKS JURISDICTION TO HEAR THIS CASE

BECAUSE THE COURT OF APPEALS ORDER IS NOT FINAL

The Court of Appeals of the State of New York rejected appellant's

constitutional challenge and remitted this case to the Criminal Court of

the City of New York where it is pending. Since there has been no final

judgment, and this case does not fall within the collateral order exception

to the final judgment rule, the order of the Court of Appeals is not

"final" within the meaning of 28 U.S.C. 1257. Thus, the Court lacks

jurisdiction to reach the merits of the case and should dismiss the

appeal.

The final judgment in a criminal proceeding is the sentence. Parr v.

United States, 351 U.S. 513, 518 (1956); Berman v. United States, 302 U.S.

211, 212 (1937). Since appellant has not been found guilty of any crime,

let alone sentenced, it is obvious that there has been no final judgment

in this case. Therefore, the question to finality must focus upon whether

this case is one of the small classes of cases that falls within the

“collateral order" exception to the final judgment rule as first announced

in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546-47 (1949). To come

within the exception, a case must pass three tests: (1) the decision must

fully dispose of the question of the constitutionality of the state

Statute; (2) the decision must resolve an issue completely collateral from

the principle issue in the case; and (3) the decision must involve an

important right which would probably be irreparably lost if review had to

await final judgment. United States v. MacDonald, 435 U.S. 850, 855

(1978); Abney v. United States, 431 U.S. 651, 658 (1977).

Although we recognize that the decision of the Court of Appeals has

fully disposed of the constitutional question and is completely collateral

to the central issue in the case, ie: whether or not appellant is guilty

of the offenses charged, the third factor has not been satisfied. No

important right of appellant would be “lost, probably irreparably" if

review had to await final judgment. See eg, United States v. MacDonald,

Supra at 860. The order denying appellant's motion to dismiss on due

process grounds is certainly reviewable after final judgment if appellant

is convicted of violating Vehicle and Traffic Law section 1192. See

Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978); United States

v. MacDonald, supra at 860-61.

Although appellant cites a number of cases in support of his con-

tention that the Court has jurisdiction, only two cases are worthy of

discussion. In Shaffer v. Heitner, 433 U.S. 186 (1977), the Court held

that the judgment of the Delaware Supreme Court, rejecting a due process

challenge to a state statute, was a final judgment. Id. at 195, n. 12.

However, the due process challenge in Shaffer did not involve the question

of vagueness as in the instant case, rather it concerned a question of

jurisdiction which went to the very power of the state courts to entertain

the action. Thus, the Court reasoned that, if the Delaware courts did not

have jurisdiction there should be no trial at all. Id. In the case at

bar there is no contention that the state court lacks jurisdiction.

Similarily, in Abney v. United States, supra, the court held that a

pretrial double jeopardy claim fell within the collateral order exception

Only because the very purpose of the Double Jeopardy Clause is to protect

individuals “against twice being put to trial for the same offense."

431 U.S. at 661. Rather, the case at bar, is governed United States v.

MacDonald, supra. In the instant case, appellant's due process claim, like

the speedy trial claim involved in MacDonald, does not "encompass a ‘right

not to be tried' which must be upheld prior to trial if it is to be enjoyed

at all." See, United States v. MacDonald, supra at 861. Therefore, since

appellant would not lose any right by waiting until there is a final

judgment in this case, the court lacks jurisdiction to entertain this

appeal.

POINT TWO

THIS CASE PRESENTS NO SUBSTANTIAL QUESTION

The question before the Court is whether subdivision 1 of New York

Vehicle and Traffic Law section 1192, which prohibits driving while the

ability to operate a motor vehicle “is impaired by the consumption of

alcohol," and subdivision 3, which prohibits driving “while . .. in an

intoxicated condition," are unconstitutionally vague in a case where the

driver has refused to submit to any scientific test for determining the

amount of alcohol he has consumed. It is manifest that this question is

so unsubstantial as not to need further argument.

Like the New York Court of Appeals every other jurisdiction to deal

with the question has had no difficulty distinguishing between intoxication

and impairment, People v. Lambert, 395 Mich. 296, 235 N.W.2d 338 (1975);

State v. Bryce, 243 A.2d 726 (Me. 1968), and has consistently rejected

claims that such statutes are unconstitutionally vague. Brooks v. State,

41 Md. App. 129, 395 A.2d 1224 (Ct. Spec. App. 1979); Thompson v. People,

181 Colo. 194, 510 P.2d 311 (1973); See United States v. Channel, 423 F.

Supp. 1017 (D. Md. 1976); Bass v. Commonwealth, 209 Va. 422, 164 S.E.2d

667 (1968). Appellant, on the other hand, can only support his position

by citing lower court cases in New York, decided prior to the Court of

Appeals decision in the instant case. Thus, it is obvious that there is no

conflict between any state or federal courts since the decisions of the

lower court's of New York have been effectively overruled by the Court of

Appeals decision in the case at bar.

The Court of Appeals, recognizing that the vagueness doctrine of the

due process clause requires that a criminal statute be sufficiently definite

to give a person of ordinary intelligence fair notice that his contemplated

conduct is forbidden by the statute, (Colautti v. Franklin, 439 U.S. 379,

390 [1979]; United States v. Harris, 374 U.S. 612, 617 [1954]; Conally v.

General Construction Co., 269 U.S. 385, 391 [1926]), did not merely uphold

the consitutionality of the statutes but construed the words “impairea” and

"intoxicated". The Court of Appeals construed impairment to mean whether

"by voluntarily consuming alcohol, . . . [the driver] has actually impaired,

to any extent, the physical and mental abilities which he is expected to

possess in order to operate a vehicle as a reasonable and prudent driver."

48 N.Y.2d at 426-27 [emphasis added]. Recognizing that intoxication is a

greater degree of inebriation than impairment, the court construed intoxi-

cation to mean "when the driver has voluntarily consumed alcohol to the

extent that he is incapable of employing the physical and mental abil-

ities which he is expected to possess in order to operate a vehicle as a

reasonable and prudent driver." 48 N.Y.2d at 428 [emphasis added]. Thus,

it is clear that when a driver's ability to operate a motor vehicle is

adversely affected by alcohol to any extent he has violated Vehicle and

Traffic Law section 1192(1). On the other hand, where a driver has

consumed so much alcohol that his ability to operate a motor vehicle is

so effected by alcohol that he is incapable of operating a motor vehicle

as would a reasonably prudent driver, he has violated subsection 3 of

Vehicle and Traffic Law section 1192.

Since, in determining whether a statute is unconstitutionally vague,

this Court, does not merely deal with the statute on its face, but

also looks at the interpretation given the statute by the state court,

(Chaplinsky v. New Hampshire, 315 U.S. 568, 533 [1942], see Smith v.

Goguen, 415 U.S. 570, 573 [1974]), it is clear that there is no merit to

appellant's contention that there is no distinction between "impaired" and

"intoxicated."

Finally, while it is true that whether an individual is convicted of

the misdemeanor of driving while intoxicated or the traffic infraction of

driving while impaired will depend on his degree of inebriation, this

creates no constitutional problem. As this Court stated over 65 years ago,

"the law is full of instances where a man's fate depends on his estimating

rightly that is, as the jury subsequently estimates it, some matter of

degree." Nash v. United States, 229 U.S. 373, 377 (1913). Therefore,

since the court below has drawn a distinction between driving while

impaired and intixicated, it is manifest that no substantial question is

before this Court.

CONCLUSION

FOR THE REASONS STATED HEREIN, THIS

APPEAL SHOULD BE EITHER DISMISSED OR

AFFIRMED.

Respectfully submitted,

MARIO MEROLA

District Attorney

Bronx County

: Attorney for Appellee

ALAN D. MARRUS

DAVID H. FROMM

; Assistant District Attorneys

Of Counsel

andi toe ints.

nant

MARCH 1980