        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

258
OP 14-01594
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF ROBERT CASE, JR., PETITIONER,

                    V                             MEMORANDUM AND ORDER

FRANK A. SEDITA, III, ERIE COUNTY DISTRICT
ATTORNEY, AND HONORABLE JOHN L. MICHALSKI, ERIE
COUNTY SUPREME COURT JUSTICE, RESPONDENTS.


LAW OFFICE OF JOSEPH A. ABLES, JR., ORCHARD PARK (JOSEPH A. ABLES,
JR., OF COUNSEL), FOR PETITIONER.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), RESPONDENT PRO SE.


     Proceeding pursuant to CPLR article 78 (initiated in the
Appellate Division of the Supreme Court in the Fourth Judicial
Department pursuant to CPLR 506 [b] [1]) to prohibit the continued
prosecution of Erie County Indictment No. 01158-2012.

     It is hereby ORDERED that said petition is unanimously granted in
part without costs, and judgment is granted in accordance with the
following memorandum: Petitioner commenced this CPLR article 78
proceeding in this Court pursuant to CPLR 506 (b) (1), seeking, inter
alia, to prohibit his prosecution in Supreme Court, Erie County, on
that count of an indictment charging him with driving while
intoxicated, per se, as a class E felony ([DWI, per se] Vehicle and
Traffic Law §§ 1192 [2]; 1193 [1] [c] [i] [A]). Petitioner alleges
that such prosecution is barred by double jeopardy. Initially, we
agree with petitioner that relief in the nature of prohibition
pursuant to CPLR article 78, under the appropriate circumstances, is
“available to bar a retrial on double jeopardy grounds” (Matter of
Plummer v Rothwax, 63 NY2d 243, 249 n 4). We further agree with
petitioner that he is entitled to relief in the nature of prohibition
barring his retrial on the charge of DWI, per se, and we therefore
grant the petition to that extent.

     Defendant was charged with DWI, per se, along with driving while
intoxicated as a class E felony ([common-law DWI] Vehicle and Traffic
Law §§ 1192 [3]; 1193 [1] [c] [i] [A]), and related charges, and the
matter proceeded to a bench trial in Erie County Court. Defendant
objected during the trial to the introduction of the results of a
breathalyzer test, but the court overruled the objection. Before
deliberations, defendant asked the court to consider the lesser
included offense of driving while ability impaired ([DWAI] § 1192
                                 -2-                           258
                                                         OP 14-01594

[1]). After deliberating, the court acquitted defendant of common-law
DWI, but convicted him of DWI, per se, and speeding. After the
verdict was rendered, defendant moved pursuant to CPL 330.30 (1) to
set aside the verdict on the ground that the documents concerning the
breathalyzer test results were improperly admitted in evidence, and
the court agreed. Then, in an order from which the People did not
appeal, the court determined that the remaining trial evidence is
legally insufficient to establish petitioner’s guilt of DWI, per se,
and dismissed that charge (cf. CPL 330.50 [1]; 470.20 [1]; People v
Carter, 63 NY2d 530, 536-538). We therefore conclude that, under the
circumstances of this case, the trial court’s finding of legal
insufficiency was tantamount to an acquittal for purposes of double
jeopardy and bars petitioner’s retrial on that charge (see People v
Biggs, 1 NY3d 225, 229; see also Burks v United States, 437 US 1, 18).

     Petitioner contends that the prohibition against double jeopardy
bars the People from prosecuting him for the lesser included offense
of DWAI. We reject that contention. “[I]n a bench trial, it is
presumed that the Judge sitting as the trier of fact made his [or her]
decision based upon appropriate legal criteria” (People v Lucas, 291
AD2d 890, 891 [internal quotation marks omitted]). Here, the court,
upon acquitting defendant of common-law DWI, would have applied the
“acquit-first” rule (see generally People v Helliger, 96 NY2d 462,
464-465; see also Matter of Rivera v Firetog, 11 NY3d 501, 509 n 4),
and next considered DWI, per se, before reaching DWAI as a lesser
included offense under either count of DWI (see generally People v
Johnson, 87 NY2d 357, 359-360). Inasmuch as the court convicted
defendant of the count charging DWI, per se, it could not have reached
the lesser included offense of DWAI. Consequently, we conclude that
“double jeopardy concerns . . . are not present in the case at hand .
. . [because] the People here d[o] not seek to retry defendant on the
count[, i.e., DWI, per se, or common-law DWI] of which he was
acquitted at the first trial. Rather, the only count at issue in the
retrial [will be] the lesser [DWAI] charge for which the [court did
not] reach a verdict. At no point during the retrial [will] defendant
[be] in jeopardy of conviction of the greater offense. Thus, there
[i]s no constitutional double jeopardy bar to [a] second trial” on the
lesser included offense of DWAI (People v Green, 96 NY2d 195, 199).

     Finally, although not raised by the parties, we note that “the
accusatory instrument in the present case [was not] rendered a nullity
by defendant’s acquittal of [both counts of DWI] at his first trial .
. . Vehicle and Traffic Law § 1192 (9) specifically permits a
conviction of [DWAI] on an instrument charging driving while
intoxicated. Thus, the original instrument charging driving while
intoxicated also, by operation of law, charged the offense of [DWAI].
No new accusatory instrument [is] required” (Green, 96 NY2d at 199).




Entered:   May 1, 2015                          Frances E. Cafarell
                                                Clerk of the Court
