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Thomas Corletta
Thomas A. Corletta, ESQ. 585-546-5072
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DWI/RECENT DEVELOPMENTS, CONTINUED, PG. 3 Mr. Corletta once again has demonstrated that proper preparation, even in a seemingly hopeless situation, can pay off. In People v. P.L. (Rochester City Ct., December 4, 2006), Mr. Corletta was confronted with a situation where his non-English speaking client allegedly drove into an accident scene, allegedly breaking the yellow accident scene tape. Mr. Corletta's client was stopped and charged with Driving While Intoxicated. After first obtaining a Hardship and then Conditional license for his client, Mr. Corletta promptly filed thorough and extensive motions challenging all aspects of the stop and arrest, as well as admissibility of the chemical test. Upon the return date, the People were not prepared to go forward in response to Mr. Corletta's motion, and Mr. Corletta promptly requested summary suppression of all evidence. This was granted by the Court, effectively destroying the People's case against his client and resulting in the ultimate of restoration of his client's license. His client, a non-English speaking working person with a crucial need for a license, was extremely grateful for this result. Mr. Corletta scored a significant victory in the continuing battle to exclude Horizontal Gaze Nystagmus (HGN) testimony in People v. R.A. (Webster Town Court, DiSalvo J., December 6, 2006). In that case, Mr. Corletta promptly moved to exclude all HGN evidence at trial on grounds no Fourth Department decision has held that it's scientific reliability had been established. The Court initially showed some resistance to this position, based upon Third Department case law to the contrary. Mr. Corletta pointed out a prior decision of the Court, as well as prior inconsistent Third Department case law, and that the case law the Court was relying on was only dicta. The Court agreed with Mr. Corletta in an extensive (5) page decision, and excluded all evidence of HGN at trial based upon an insufficient expert foundation offered by the People. This was a significant benefit to Mr. Corletta's client in a "close call" common law case. Therefore, Mr. Corletta's knowledge of the law and effective advocacy prevented a sure sentence of incarceration for his client.
Once again, in two separate cases, Mr. Corletta demonstrated how important it is to attack every single aspect of the People’s evidence. In People v. G.M. ( Specifically, Mr. Corletta, through cross-examination, pointed out numerous positive aspects of his client’s driving, and performance on field sobriety tests. As a result, Mr. Corletta’s young client was convicted only of traffic infractions. In People v. R.A. (Webster Town Ct.1/12/07), Mr. Corletta employed a broad based attack against the popular Horizontal Gaze Nystagmus test, obtaining its complete exclusion prior to trial. By obtaining this ruling, which resulted in a published opinion (13 Misc3d 1242 (A)), Mr. Corletta was able to achieve removal of a key piece of the People’s evidence, based upon an effective evidentiary argument. Continuing this attack at trial against the remaining evidence, including an alleged breath test result of .14 %, Mr. Corletta, through effective cross-examination of the arresting officer and Breath Test Operator, created reasonable doubt as to his client’s ability to operate his vehicle as a reasonable and prudent driver. Mr. Corletta effectively attacked the remaining field sobriety tests and obtained a “Not Guilty” verdict on the breath test charge, pointing out numerous deficiencies in the People’s documentary proof that negated the probative weight of the breath test to the point that the Court discredited it. Mr. Corletta’s client was only convicted of the traffic infraction of Driving While Ability Impaired, which was very important for his employment, as a criminal conviction would have had adverse consequences. Mr. Corletta’s client, an older gentleman with no prior criminal history, was extremely grateful for this result.
In these two seemingly “hopeless” cases, Mr. Corletta demonstrated how careful preparation and analysis of the evidence can lead to a positive result.
Once again, Mr. Corletta obtained a highly favorable result for his client based upon sloppy preparation of the accusatory instruments by both the police and District Attorney in People v. E.C. (Rochester City Ct., 2/15/07). In this case, there was a serious motor vehicle accident, with an alleged .23% blood test. However, the accusatory instruments filed by police failed to contain any non-hearsay allegations as to operation, and even a Superseding Information, filed by the District Attorney, was also defective. Mr. Corletta, through careful analysis of four (4) accusatory instruments, successfully pointed out all defects; obtaining not only an outright dismissal, but also preventing any interim suspension of his client’s license. Mr. Corletta scored a rare double victory in People v. E.K (Roch. City Ct., 2/15/07). In that case, his client’s vehicle struck a railroad bridge abutment and overturned. An investigating State Trooper, who testified he had over eight (8) years experience and had made “several hundred” DWI arrests, stated he was dispatched to the scene. However, he made minimal observations of Defendant, who was on a gurney, and failed to elicit from Defendant that he was the driver of the vehicle. Further, he engaged in speculation as to how the accident happened. The Trooper’s notes were inadequate and he failed to obtain any statements from witnesses including emergency medical personnel. His testimony boiled down to smelling the odor of alcohol, and that the Defendant, who had a head injury, was “belligerent.” No link to the overturned vehicle was made. His testimony, distilled to its basics, was that he observed a man on a gurney near the accident scene, who smelled like alcohol. Mr. Corletta also obtained a rare pre-trial ruling suppressing Defendant’s alleged refusal to submit a blood test. The “refusal” was based on Defendant refusing to sign a State Police “consent” form, although he orally consented to the blood draw. Mr. Corletta, asserting that New York is an “implied consent” state, argued that no written consent is required, and that the Trooper was wrong in charging Defendant with a refusal. The Court agreed, and excluded all evidence of the refusal, further weakening an already weak case. The end result was a rare “not guilty” verdict on all charges for Mr. Corletta’s client ! Careful review of the breath test foundational documents and use of the Freedom of Information Law to obtain additional documentation on police breath testing machines paid off in People v. M.D. (Clarkson Town Ct., March 21, 2007). In that case, Mr. Corletta, through careful review of both the breath test documents provided by the People and additional documents obtained through the Freedom of Information Law, was able to obtain the People’s voluntary withdrawal and dismissal of the so-called “test charge” against his client, due to defects in the simulator solution documents, defects in the record of calibration, and their failure to disclose key facts. The alleged test against Mr. Corletta’s client was .18%, over twice the legal limit. As a result, this damaging test did not come into evidence against Mr. Corletta’s client at trial, resulting in voluntary dismissal of the underlying charge. Although the police filed three (3) separate accusatory instruments, charging Driving While Intoxicated, Mr. Corletta still found a defect resulting in dismissal in People v. V.V. (Greece Town Court, March 20, 2007). In that case, the People filed three (3) separate accusatory instruments charging Defendant with Driving While Intoxicated. However, a third police officer, who actually stopped the Defendant, failed to supply a Supporting Deposition as to the basis for the stop. Mr. Corletta correctly pointed out the defect and the Court had no choice but to dismiss all charges on grounds of legal insufficiency. This resulted in great benefit to Mr. Corletta’s client, who was also charged with Resisting Arrest. This again shows the value of careful review of the accusatory instrument, and not to assume anything is correctly prepared by police. Mr. Corletta scored a unique procedural victory, thereby ensuring a fairer proceeding for his client, who does not speak English fluently, in People v. P.D. (Penfield Town. Ct., 5/9/07). In that case, Mr. Corletta was recognized by Penfield Town Justice John Lomenzo for his correct analysis of the law of preclusion. Mr. Corletta, by making separate application for preclusion and suppression of statements, and noting a dichotomy between noticed and unnoticed statements, thereby preserved his client’s rights to both remedies, pre-trial, and correctly distinguished appellate case authority to the contrary. Justice Lomenzo noted the uniqueness of Mr. Corletta’s application and that it reflected the correct analysis of the law. This was of great benefit to his non-English speaking client, whose case is already difficult and needs the benefit of every favorable pre-trial ruling possible. Using caselaw from over thirty (30) years ago, Mr. Corletta gained an acquittal on DWI (test) charge in People v. L.H. (Roch. City Ct., 5/24/07), attacking a State Police practice where their breath testing devices, which have been the subject of litigation in New Jersey, are calibrated only once a year, Mr. Corletta cited case law from the 1970’s which affirmed a Court’s exclusion of a breath test result based upon a failure to ”timely” calibrate the machine, where the machine had not been calibrated for more than six (6) months. Arguing at a minimum, a six (6) month rule does exist; Mr. Corletta asserted that State Police practice of calibrating once per year was not in compliance with caselaw or custom and practice of local police agencies, who do calibrate every six (6) months. The Court accepted Mr. Corletta’s argument and acquitted his client of the VTL § 1192 (2) “test” charge, where there was an alleged .14% BAC. Mr. Corletta overcame several significant obstacles in avoiding a second DWI conviction for his client in People v. K.R. (Gates Town Ct., 5/30/07). In a case that took nearly two (2) years to complete, Mr. Corletta’s young client was charged with two (2) counts of Driving While Intoxicated and Speeding. Mr. Corletta’s client had previously been convicted of Driving Under the Influence in another state in 2002. In addition, the alleged BAC was significantly over the legal limit, and there was evidence Mr. Corletta’s client had allegedly vomited upon himself, together with several other strong indicators of intoxication. Not giving up or throwing up his hands, Mr. Corletta attacked virtually every aspect of the case, right down to the alleged speeding violation, and attacked the officer’s credibility as to the alleged vomit by using a police booking photo that contradicted his testimony. Mr. Corletta also, based upon evidentiary objections raised at trial, and an extensive post-trial Memorandum of Law, obtained outright exclusion of the chemical test result, removing that charge completely from consideration. Although the Court termed the situation “borderline”, and was not impressed by Defendant’s prior history, Mr. Corletta persuaded the Court to give his client the benefit of the doubt. Tried before the Court, Mr. Corletta’s client was convicted only of the lesser included offense of Driving While Ability Impaired. Mr. Corletta;s attack on the chemical test results played a key role in this determination. As a direct result, Mr. Corletta’s client avoided a sentence of probation, and a prolonged loss of license, and he faced only a ninety (90) day license suspension and participation in the Drinking Drivers Program. Mr. Corletta’s dogged advocacy enabled his client to continue his employment, and continue to be a productive citizen.
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