# Petition for Writ of Certiorari — Belsito v. New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 809

## Text

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

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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

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