Petition for Writ of Certiorari — Belsito v. New York

Supreme Court, U.S, )

. FILED

93179 OMAR 161994

No.

Urrict. Or Inc CLERK

Supreme Court of the Hnited States

tp

October Term, 1993

JOHN BELSITO, |

Petitioner,

vs.

THE PEOPLE OF THE STATE OF NEW YORK ,

Respondent.

Petition for Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

RAYMOND G. LAVALLEE

Counsel of Record

KEITH A. LAVALLEE

KEITH A. LAVALLEE, P.C.

Attorneys for Petitioner

33 Guy Lombardo Avenue

Freeport, New York 11520

(516) 546-2212

(516) 223-6270

Le te (800) 3 APPEAL « (800) 5 APPEAL (800) BRIEF 21

|

Question Presented

Does New York State Vehicle and Traffic

Law Section 1192.9 violate the due process

Clauses of the 5th and 14th Amendments to the

United States Constitution where it permits a

defendant to be convicted of a non lesser

included charge without proper notice?

wie

Parties to the Proceeding

The names of all the parties appear in

the caption.

wiie

Table of Contents

eee

Kise Re

Question Presented ..........i

Parties to the Proceeding ...... ii

ee Pe ee eee

eee eee |

DT Soe es bg 6 se iec cece 3

Constitutional Provisions,

Statutes and Rules Involved ..... 3

Statement of the Case ........ 5

Reasons for Granting the Writ ....11

Pn 2 + €'S 9S 6S 6 ee et ce ee 22

Appendix

Certificate Denying Leave

State of New York Court of

ns * |

Letter Denying Leave

State of New York Court of

ee Migee i + we 6 « « AS

Order of Supreme Court of

the State of New York ..... A4

Order of Appellate Division

of Supreme Court of the State of

T~~—~—~~PPPCES 6 & « ¢ 4... . A

Transcript of Trial Nassau

County First District Court .. ag

-iii-

a oles )

b) . Authoriti

208 F. 2d 825 (U.S. App.

i. nn. Ss ele ks & oe oe «aS 13

In Re Oliver,

8 Rm Re A.” ee

‘

23 N.Y. 2d 189, 295 N.Y.S.

2G 9i2 (€a96G6) «© © eo ee evesesee4e as

’

53 N.Y. 2d 979, 441 N.Y.S.

_ oe eel 2 ee ae oe oe ee ae ee ae ee ee

People v. Caravalho,

174 A.D. 2d 687, 571 N.Y.S.

2d 332 (App. Div. 2nd Dept.

1991, app. den., 78 N.Y. 2d

1010 : a2.s-6 oe 6 © @: 6 8 «8 ai,» a6

’

48 N.Y. 2d 419, 423 N.Y.S.

2 oe ere a ee ee er ee ee ee ee ee

People v. Farmer,

36 N.Y. 2d 386, 369 N.Y.S.

2a 44 (1975) . .. 15, 16, 17, 18, 20, 21

Opinions Below

The petitioner, John Belsito,

respectfully prays that a writ of certiorari

issue to review the judgment and opinion of

the Appellate Term of the Supreme Court of the

State of New York, 9th & 10th Judicial

Districts, entered in The People of the State

of New York v. John Belsito, on November as

1993.

The Honorable George Bundy Smith,

Associate Judge of the New York Court of

Appeals, issued a Certificate Denying Leave to

appeal to that Court on December 14, 1993.

That certificate is reprinted in the appendix

hereto, p. la, infra.

The decision and order of the Appellate

Term of the Supreme Court of the State of New

York, 9th & 10th Judicial Districts, dated

November 3, 1993, upon information and belief

has not been reported, and is reprinted in the

appendix hereto, p. 3a, 4a, infra.

The oral decision of Judge Joseph c.

Calabrese of the Nassau County District Court

during the pre-charge conference has not been

reported. The portion of the transcript

relating to the pre-charge conference is

reprinted in the appendix hereto, p. 13a-23a,

infra.

Jurisdicti

The Appellate Term of the Supreme Court

of the State of New York for the 9th & 10th

Judicial Districts, in its decision and order

dated November 3, 1993, affirmed the

petitioner’s judgments of conviction of

driving while intoxicated (Vehicle and Traffic

Law §1192.3), unlicensed operation of a motor

vehicle (Vehicle and Traffic Law §509.1), and

speeding (Vehicle and Traffic Law §1180(b)),

which had been rendered on March 13, 1992 in

Nassau County District Court. See 3a, 4a,

infra.

On December 14, 1993, the Honorable

George Bundy Smith, an Associate Judge of the

New York Court of Appeals, denied petitioner’s

application for permission to appeal to the

Court of Appeals. See p. la, 2a infra.

The jurisdiction of this Court to review

the decision and order of the Appellate Term

of the Supreme Court of the State of New York,

9th & 10th Judicial Districts, is invoked

under 28 U.S.C. §1257(3).

5 tituti LE isi

Statutes and Rules Involved

The following constitutional provisions

and statute are involved in this case.

i. Whether the application of New York

State Vehicle and Traffic Law Section 1192.9

(formerly 1192.7, 1196] in the present case

violated the Fourteenth Amendment to the

United States Constitution:

- + + that no state shall "deprive any

person of life, liberty, or property without

due process of law." ....

2. Whether the application of New York

State Vehicle and Traffic Law Section 1192.9

(formerly 1192.7, 1196] in the present case

2

— ee

violated the Fifth Amendment to the United

States Constitution in that the defendant was

denied due process of law when he was not

informed of the charges against him until

after both sides had rested their cases.

Article I, section 6 of the New York State

Constitution provides:

. « « that "[I]n any court whatever the

party accused shall ... be informed of the

nature and cause of the accusation ...". (See

Reasons for Granting the Writ).

3. New York State Vehicle and Traffic

Law Section 1192.3 is not a lesser included

charge to Section 1192.2 (See Reasons For

Granting the Writ). Pursuant to Criminal

Procedure Law Section 1.20 the definition of

a "lesser included offense" is as follows:

. . . “When it is impossible to commit a

particular crime without concomitantly

committing, by the same conduct, another

offense of lesser grade or degree, the latter

is, with respect to the former, a "lesser

included offense." ...

Statement of the Case

On December 9, 1990 at approximately 2:30

a.m., John Belsito was driving westbound on

the Long Island Expressway in Nassau County,

New York, (R. at 83; "R" referring to the

official minutes of the trial), when he was

signalled to pull his vehicle off to the side

cif the road by a Nassau County Police Officer.

After pulling his vehicle off to the side of

the road, the officer requested that Mr.

Belsito produce a driver’s license, vehicle

registration and proof of insurance.

The officer requested Mr. Belsito to step

outside his vehicle and to perform certain

Field Sobriety Tests, after which he was

placed under arrest and transported to the

Central Testing Section of the Nassau County

Police Department where he was requested to

submit to a Breath Alcohol Test and additional

sobriety tests. (R. at 135, 140).

At the conclusion of the tests the

defendant was charged with a violation of

Vehicle and Traffic Law Section 1192.2 (per se

driving while intoxicated), speeding, unsafe

lane change, failure to signal and unlicensed

operation. Mr. Belsito was arraigned upon a

misdemeanor charge of violating Vehicle and

Traffic Law (hereinafter referred to as "VTL")

section 1192.2, based upon a Breathalyzer

reading of .12%.

The defendant was arrested on December 9,

1990 and charged by Simplified Traffic

Informations with per se driving while

intoxicated (VTL section 1192.2), speeding (s.

1180b), unlicensed operation (s. 509.1),

failure to signal lane change (s. 1163d), and

unsafe lane change (s.1128a).

The matter was tried before the Honorable

Joseph C. Calabrese, District Court Judge of

Nassau County, commencing on October 8, 1991.

The prosecutor, in his opening statement to

the jury, stated:

The first {Simplified Traffic

Information] ... accuses John Belsito ... of

6

Oe aaa.

“oals hak wide, SARE

@riving ... westbound on the Long Island

Expressway ... in violation of New York State

Vehicle and Traffic Law Section 1192.2 and the

description of the operation is operating with

-10 or more percent of alcohol in blood, to

wit: .12 percent and it is affirmed under

penalty of perjury by Gregory Celentano, the

arresting officer.

(R. at 63-64). (see 5a-12a, infra). Not once

did the Assistant District Attorney mention

that the defendant was being charged with a

violation of Section 1192.3.

After receiving testimony from the

arresting officer, assisting officer, breath

technician, Deborah Cox (a passenger in the

Belsito vehicle) and Mr. Belsito, both sides

rested their cases. In a conference prior to

summations the Court addressed both parties as

follows:

All right, now, before summations

and in the absence of the jury and pursuant to

CPL 300.10, I’m informing both sides that it’s

my intention to submit to the jury for their

consideration, with respect to the first

count, a violation of Section 1192.2 with

which the defendant is charged, a violation of

Section 1192.3 and a violation of Section

1192.1. With respect to each of the other

counts the defendant is charged with, only the

particular charge that he is charged with and

no other charges.

(R. at 390) (see 13a, infra). The District

Court based its decision to charge a violation

of VTL Section 1192.3 upon VTL Section 1192.9

(formerly 1192.7), which provides:

A aqdriver may be convicted of a

violation of subdivision one, two or three of

this Section, notwithstanding that the charge

laid before the Court alleged a violation of

subdivision two or three of this Section,

regardless of whether or not such conviction

is based on a plea of guilty.

Immediately following the Court’s

announcement the defendant timely objected to

the Court’s proposed instructions on the basis

that the defendant was charged with a

violation of VTL Section 1192.2 and that the

defendant was not previously notified of the

charge of VTL Section 1192.3. (R. at 390-400).

The defendant further argued that’ the

prosecution had not amended the accusatory

instrument to include the additional charge

prior to trial, nor had the prosecution ever

stated its intention to seek a conviction

under VTL Section 1192.3.

The Court denied the defendant’s due

process objection to the jury charge of VTL

Section 1192.3 and subsequently submitted the

Section two, three and one charges to the

jury. (R. at 458-468).

In response to arguments made by defense

counsel regarding lack of notice, the

Honorable Joseph C. Calabrese stated, "I

gather a due process argument is not viable

either, because the defendant has better

notice." (R. at 400), see 23a, infra).

With respect to the impact of the

Criminal Procedure Law on Vehicle and Traffic

Law Section 1192.9 (fermerly 1192.7) the

District Court stated:

The People don’t need an amended

charge to get Section 1192.3 before the jury.

All they need do is produce evidence that

could lead a jury to show, prima facie that

the defendant could be guilty of 1192.3.

That’s what they need. They don’t need an

amended accusatory instrument whatsoever.

(R. at 398-399) (see, "5a", infra).

The District Court, despite the lack of

written or oral notice by the District

Attorney, ultimately denied defendant’s timely

9

objections to the submission of the 1192.3

charge to the jury and so charged the jury.

(see generally R. at 459-468).

The jury returned a "not guilty" verdict

to the charge of VTL Section 1192.2, yet

returned a "guilty" verdict to Section 1192.3,

the section that the defendant objected to on

the basis of notice. (R. at 506, 507).

The defendant filed a motion to vacate

the judgment pursuant to Criminal Procedure

Law Article 440, together with a Memorandum of

Law (see Appendix attached and made a part

hereto). The motion was denied and the

defendant appealed to the Appellate Term of

the Supreme Court of the State of New York for

the 9th and 10th Judicial Districts.

The decision of the Appellate Term of the

Supreme Court of the State of New York for the

9th and 10th Judicial Districts rendered its

decision on November 3, 1993, wherein the

three Justices of the Court concurred in

stating, "In our opinion, Vehicle and Traffic

10

Law Section 1192(9) is constitutional and

valid (See, People v, Farmer, 36 N.Y.2d 386;

People _v. Fielder, 78 Misc. 2d 7). (See

Appendix)

Thereafter the defendant sought leave to

the Court of Appeals of the State of New York.

The Honorable Justice George Bundy Smith

issued a Certificate Denying Leave to Appeal

to the Court of Appeals on the 14th day of

December, 1993.

Reasons For Granting the Writ

New York Vehicle and Traffic Law Section

1192.9 is unconstitutional on its face because

it denies a defendant proper due process

notice of the charges against him and permits

a conviction of a non-lesser included charge.

A. The defendant was denied Due

Process of Law when he was not informed of the

additional charges against him until after

both sides had rested their cases.

The central issue of this appeal concerns

11

whether the application of New York Vehicle

and Traffic Law Section 1192.9 [formerly

1192.7, 1196] in the present case violated the

Fourteenth Amendment guarantee that no state

shall "deprive any person of life, liberty, or

property without due process of law."

Although hundreds of books have been written

and thousands of cases decided all centering

on what due process exactly means, the

fundamental notion that it all boils down to

is notice. "A person’s right to rersonable

notice of a charge against him, ‘nd an

opportunity to be heard ... are basic in our

system of jurisprudence". In re Oliver, 333

U.S. 257, 273 (1948). Justice Frankfurter in

his dissenting opinion stated, "Due notice of

the charge and a fair opportunity to meet it,

are indispensable." In re Oliver, 333 U.S.

257, 284 (1948).

This due process guarantee of notice

permeates through the jurisprudence of the

state judicial systems as well. Article I,

12

section 6 of the New York State Constitution

provides that “[I)n any court whatever the

party accused shall ... be informed of the

nature and cause of the accusation see"

The New York Court of Appeals has stated,

"The Constitution does require that the

defendant be informed of the nature of the

charge and the circumstances under which he is

alleged to have violated the law." People v.

Boback, 23 N.Y.2d 189, 195, 295 N.Y.S.2d 912

(1968).

The U.S. Court of Appeals for the

District of Columbia formulated the following

test for determining whether a defendant was

given sufficient notice:

The Constitution requires that the

accused be informed "of the nature and cause

of the accusation" (Amendment VI), and the

cases interpret that to mean that he must be

so definitely informed as to be enabled to

present his defense. The test, say the

courts, is whether the accused was misled.

Hallman v. United States, 208 F. 2d 825, 827

(U.S. App. D.C. 1953). In the present case,

there was notice that the defendant was

13

charged with a violation of V.T.L. Section

1192.2 and that the defendant has a BAC of

greater than .10%. This was also reiterated

in the prosecution’s Bill of Particulars. In

fact the written accusatory instruments served

upon the defendant together with the

statements of the prosecution explicitly

stated the charges against the defendant to

be: speeding (1180(b)), unsafe lane change

(1128(a)), failure to signal (1163(d)),

unlicensed operation (509.1) and 1192.2 per se

Griving while intoxicated (1192.2), to wit:

-12%. The defendant’s sole theory of defense

was to discredit probable cause for the arrest

and the breathalyzer reading. The defendant

was acquitted on the 1192.2 charged but was

convicted on the 1192.3 charge, which was a

crime that was never brought to the attention

of the defendant until after both sides had

rested and proposed jury charges were

discussed. The result of the court’s election

to include the 1192.3 charge was that the jury

14

was allowed to consider a charge for which the

defendant did not endeavor to present a

defense.

The leading authority on this issue is

the case of People v. Farmer, 36 N.Y.2d 386,

369 N.Y.S.2d 44, (1975). This case appears to

hold that a Simplified traffic information

Charging a violation of subdivision 3 of

Section 1192 of the Vehicle and Traffic Law

gives ample notice to the defendant that

pursuant to 1196 (now amended as V.T.L.

1192.9, formerly 1192.7), defendant also faces

the Possibility of a4 conviction under

Subdivisions 1 and 3 of Section 1192 and that

Subdivisions 1, 2 and 3 are but a species of

the same generic offense. Upon a closer look

at the decision and the facts upon which it is

based, it is indeed not a proper reading of

the court’s decision.

The main distinction between the facts in

Farmer and this case are noted in Judge

Fuchsberg’s concurring opinion where he notes

15

that "the prosecutor indicated, during the

Voir dire, and later during his opening to the

jury, that he intended to seek a conviction

under either subdivision 2 or 3 [of VTL

Section 1192]. No surprise was claimed by the

defendant, nor was an adjournment requested.

The trial went forward." People v. Farmer, 36

N.Y. 2d 386, 391, 369 N.Y¥.S. 2d 44, 46 (1975).

The facts in the case at bar are entirely

different. The defendant was not presented

with neither written nor oral notice of the

intent to charge a violation of 1192.3 prior

to trial. Nor did the prosecutor during Voir

dire or his opening statement to the jury

indicate that he was seeking anything other

than a conviction under 1192.2; in fact, he

read to the jury the charge of 1192.2 as it

appeared on the accusatory instrument. It was

not until after both sides had rested their

cases that the intention to charge a violation

of 1192.3 was brought to the defendant’s

attention by the Court. As soon as the court

16

indicated its intention to add the additional

charge the defendant timely objected to the

inclusion of the charge based upon the failure

to notify the defendant. Thus, the

distinguishing issue between the cases is that

the defendant timely objected and did not

waive his right to due process. In the case

at bar, this Court must decide whether the

defendant in this case was given proper due

process notice.

With respect to the question of whether

a charge under any subdivision of 1192

provides the defendant with actual or

constructive notice of a possibility of a

conviction under any other subsection Judge

Fuchsberg stated, "Section 1196 [now 1192.9]

nowhere suggests that its mere existence on

the statute books accomplishes [notice]."

People vy. Farmer, Supra at 392. Judge

Fuchsberg continued, "Therefore, Section 1192

itself did not give the defendant notice that

a charge of subdivision 2 or 3 is a charge of

17

all three of its subdivisions in the absence

of Section 1196 [now 1192.9] having been

brought directly to this attention." People v.

Farmer, supra at 393.

B. Vehicle and Traffic Law Section

1192.3 is not a lesser included charge to

Section 1192.2.

Although the overriding issue in this

case involves a due process question, the

subject of lesser included offenses must be

addressed because the Court in Farmer felt

that it was able to uphold the

Constitutionality of Section 1196 [now 1192.9]

based upon a theory that somewhat parallels

the concept that as in a lesser included

situation a jury could find a defendant guilty

of a non-charged crime.

Pursuant to Criminal Procedure Law

Section 1.20 the definition of a "lesser

included offense" is as follows: "When it is

impossible to commit a particular crime

without concomitantly committing, by the same

conduct, another offense of lesser grade or

degree, the latter is, with respect to the

former, a "lesser included offense." See

People vy. Cruz, 48 N.Y. 2d 419, 423 N.Y.S. 2a

625. Criminal Procedure Law Section 220.20

establishes categories, under which conduct or

culpable mental state must fall in order to be

considered a lesser included offense. The

defendant submits that there is no subsection

of CPL Section 220.20 that would permit a

court to charge a violation of VTL Section

1192.3 on the theory of a lesser included

offense.

The elements required to prove a

violation of section 1192.2, to wit:

"operat[ion] ... while such person has .10 of

one per centum or more by weight of alcohol in

the person’s blood as shown by chemical

analysis ...", are entirely different from the

elements of Section 1192.3, to wit:

"“operat[ion] ... while in an intoxicated

condition." Using the definition of a "lesser

19

included offense" it is clearly not

"impossible to commit a particular crime

without concomitantly committing" the other.

See People v. Brown, 53 N.Y. 2d 979, 980, 441

N.Y.S. 2d 662, 663 (1981). For example, it is

entirely possible for a defendant to have had

a quantity of alcohol in his blood required

for a conviction under subdivision 2 and yet

not be found in an intoxicated condition under

subdivision 3. Likewise, a defendant could be

found to be in an intoxicated condition even

though the level of the weight of alcohol in

his blood fell below the ".190 of one per

centum" statutory level.

Previously the Court of Appeals in

dealing with this aspect of the issue in

Pecple Farmer validated the

constitutionality of Section 1196 (now 1192.9,

formerly 1192.7) under those particular

circumstances by analogizing to a conviction

of disorderly conduct versus harassment. The

Court stated, "[A] conviction will be affirmed

20

————x_ ree

Rac Sy dl le ee aS LI So

if the evidence establishes a violation of any

of the subdivisions of these sections. The

distinctions involved are no greater, and

indeed, are less than those in the charging

and conviction for lesser or included offenses

in the criminal law." People vy. Farmer, 36

N.Y. 2d 386, 390-391, 369 N.Y.S. 2a 44, 45

(1975). Yet both the concurring and dissenting

opinions reject this analysis: Concurring:

"the facts of this case make it unnecessary to

seriously consider applying the suggestion

that [the three offenses] may be regarded as

but a ‘species’ of a single ‘generic offense’.

People v. Farmer, supra at 393; Dissent: "An

analogy is not to be made between these

distinct independent offenses and categories

of offenses deemed to be lesser included."

People vy. Farmer, supra at 395.

In People vy, Caravalho, the Appellate

Division of the Second Department rejected the

defendant’s argument’ that charging both

subdivisions 2 and 3 violated the prohibition

21

against double jeopardy by stating, "It is

clear that subdivisions 2 and 3 of the Vehicle

and Traffic Law s. 1192 were intended to be

separate crimes, neither mutually inclusive

nor mutually exclusive." People vy. Caravalho,

174 A.D. 2d 687, 571 N.Y.S. 2d 332, 333 (App.

Div. 2nd Dept. 1991), app. den., 78 N.Y. 2d

1010 (Sept. 1991).

Thus, because the two subsections of

Section 1192 are not lesser included offenses,

the charge of Section 1192.3 should not have

been submitted to the jury for’ their

consideration where the only charge before the

Court was an alleged violation of Section

1192.2.

Conclusion

For the reasons cited above, this

petition for a writ of certiorari should be

granted.

22

Dated:

March 14,

Respectfully submitted,

Raymond G. Lavallee, Esq.

Counsel of Record

33 Guy Lombardo Avenue

Freeport, New York 11520

(516) 546-2212

Of Counsel:

Keith A. Lavallee, Esq.

Keith A. Lavallee, P.cC.

33 Guy Lombardo Avenue

Freeport, NY 11520

(516) 223-6270

1994

23