Surprise decisions

People v Rucinski, 2005 NY Slip Op 09437 [available here]

Green v DeMarco, __ Misc 3d ___ [available here]

The Fourth Department is not handing down decisions from the November/December term until December 22. But Christmas came early for one appellant, as the Court posted one new decision a week or two early and reversed a defendant's conviction for Assault in the Second Degree (hat tip: Sui Generis). In People v Rucinksi, the assault second was charged under the section of the penal law that elevates the degree of assault if physical injury is inflicted "in the course of and in furtherance of the commission . . . of a felony", because defendant caused physical injury as a result of driving while intoxicated. The People argued that the felony DWI could serve as the underlying "felony" for purposes of charging assault in the second degree; the Fourth Department disagreed and held the Legislature has already "created a statutory framework for vehicular assaults and the heightened risks posed by intoxicated drivers [...], thereby rendering reliance upon general assault statutes inappropriate in cases involving vehicular assaults. [...] We thus conclude that a felony DWI may not serve as the underlying felony for assault in the second degree [...]." (People v Rucinski, 2005 WL 3313144.) This decision is a welcome and logical extension of the Fourth Department's prior decision in People v Snow, where the Court reached the same conclusion as to charging the similar provision for assault in the first degree. (See People v Snow, 138 AD2d 217.)

Today's other significant decision (Green v DeMarco) comes not from the Fourth Department, but from Supreme Court Justice Kenneth Fisher, who handed down a decision in an article 78 proceeding filed by the Monroe County District Attorney that alleged a Town Court judge's ruling that two "certification" documents offered in support of DWI prosecutions to establish that the breathalyzer was working correctly were testimonial hearsay and thus inadmissible absent an opportunity to cross-examine the lab techs from Albany who prepared the certifications. Got all that? This decision is thoughtful and well-written, and requires more attention than I have the energy or time to give it tonight. The nutshell for now: Justice Fisher disagreed with the Town Court, and held that the type of certifications at issue had "primary business purposes", were not "accusatory statements", and did not otherwise "implicate the core concerns of the Confrontation Clause as interpreted by Crawford." (Green v DeMarco, cite.) Besides the obvious Crawford issues raised by this decision, another is raised: can a Supreme Court Justice essentially sit as an appellate judge and second-guess a Town Court judge on an evidentiary issue that would otherwise not be appealable by the People? Is this a proper use of an article 78 proceeding? I do not know the answer, but will post at more length on this issue and the more obvious Crawford issues over the next few days.