*NEW* MR. CORLETTA EARNS WELL DESERVED NOT GUILTY VERDICT IN DWI ACCIDENT CASE INVOLVING HIGH BAC BY RAISING CONFRONTATION ISSUE

 

Knowing the law and attacking every conceivable aspect of the Peoples case pays dividends.  This is what Mr. Corletta did in People v. T.M. (Perinton Town Ct., 8/10/10).  This case involved a “slip and slide” one car motor accident during the winter on an expressway exit ramp.  Mr. Corletta’s client had been drinking, and registered an alleged .17% BAC in the early morning hours.

 

Mr. Corletta immediately attacked the sufficiency of the accusatory instruments and probable cause to arrest, and although unsuccessful, Mr. Corletta planted the seeds for the acquittal of his client on the common law DWI charge at trial by attacking various aspects of the proof, which is always useful in pre-trial proceedings because it alerts the Judge to the issues in the case.

 

The breath test posed a more difficult obstacle.  However, Mr. Corletta vigorously attacked the breath test operator’s testimony, and raised an issue which has plagued DWI defense attorneys for time immemorial;   the use of documents to prove the machine was working properly, and that the chemicals used in the test were of the right kind and mixed in the proper proportions.  These documents are incapable of cross-examination, and Courts have generally been unsympathetic to defense arguments that they are testimonial documents used to establish a material element of the offense charged.

 

In this case, Mr. Corletta continued to press the Confrontation argument, this time finding defects in the document which showed a RFI (Radio Frequency Interference) problem.  Mr. Corletta, through FOIL, obtained subsequent documents which showed the defect had been remedied, but was unclear as to when.

 

Mr. Corletta cross-examined the Breath Test Operator regarding this discrepancy and he stated , as all Breath Test Operators do, that he had no knowledge whatsoever of the calibration and maintenance process conducted in Albany.  Mr. Corletta then continued the Confrontation argument and argued that the Breath Test Operator’s failure to have any knowledge of the RFI problem with the machine effectively truncated cross-examination on a material point. 

 

The Court, finding this defect fatal, precluded admissibility of the breath test and found Mr. Corletta’s client not guilty of that charge;  therefore paving the way for a conviction of the reduced charge of Driving While Ability Impaired.  Mr. Corletta submitted a twenty-five (25) page Memorandum of Law in support of his position regarding the breath test, which was met with little opposition by the District Attorney. 

 

Mr. Corletta’s persistent pressing of the Confrontation Issue resulted in an acquittal of his client on a charge where he was alleged to have blown over twice the legal limit, and assisted in paving the way for a conviction on a lesser charge.  Although the result took approximately eighteen (18) months to achieve, it was well worth it to Mr. Corletta’s grateful client, who escaped the ramifications of a Driving While Intoxicated conviction.

 

*NEW* MR. CORLETTA GOES 7 FOR 7 ON DISMISSAL OF DWI CHARGES IN ACCIDENT CASE

 

Poor preparation of accusatory paperwork in a DWI accident case resulted in outright dismissal of seven (7) separate charges against Mr. Corletta’s client in People v. C.E. (Perinton Town Ct., 8/3/10).  In that case, Mr. Corletta’s client was involved in a serious motorcycle accident after leaving a local tavern.  Mr. Corletta’s client lost control of a motorcycle and hit a telephone pole.  Mr. Corletta’s client was severely injured, and spent nearly a month in the hospital with internal injuries.

 

Investigating police thought they had a slam dunk.  However, what they failed to do is interview Mr. Corletta’s client in the hospital once he/she had recovered enough to talk.  They also failed to interview any nearby homeowners who may have seen or heard the crash, and could have observed Mr. Corletta’s client near the motorcycle, etc.   The result was inadequate and conclusory allegations as to operation and no admissions from the defendant that he/she had operated the motorcycle. 

 

Therefore, despite what appeared to be a slam dunk to police, who charged Mr. Corletta’s client with two (2) counts of Driving While Intoxicated and five (5) separate traffic violations, what the case amounted to was completely non-existent allegations of operation supporting any of the seven (7) charges, resulting in no suspension of the client’s license and outright dismissal on motion.  The District Attorney was so bewildered that no written response was submitted to Mr. Corletta’s motion, which unfortunately resulted in the Assistant District Attorney being unprepared and stammering in court. 

 

The point, once again, is to take nothing for granted; practitioners should carefully examine accusatory instruments and move against defective accusatory instruments which ask the court to assume the element of operation.  The use of maladaptive forms and poorly trained police officers has resulted in dismissal after dismissal based upon similar arguments.

 

*NEW* KNOWLEDGE OF THE LAW AND CAREFUL LISTENING RESULT IN SUPRESSION AND DISMISSAL OF CHARGES

 

In doing Driving While Intoxicated work it is necessary to know the traffic statutes.  This is because virtually all DWI arrests are initiated based upon stops for traffic violations.

 

The law requires that police have probable cause to believe the motorist committed a traffic violation before they can stop him/her.  This was a result of a case Mr. Corletta argued in the Court of Appeals in 2001; People v. Robinson, et al 97 NY2d 341.

 

These two principles came into play in People v. E. R. (Rochester City Ct., 7/26/10).  A State Trooper stopped Mr. Corletta’s client on Route 490 for “straddling the line” separating the left and center lanes, and for “weaving within his lane.”  Mr. Corletta carefully listened to the Trooper’s testimony on direct examination.

 

Mr. Corletta noted the Trooper followed his client’s vehicle for over one (1) mile. 

 

Mr. Corletta noted the Trooper admitted he was one-half mile behind the client’s vehicle when he first noticed it, and sped up to get behind it.  When cross examining the Trooper Mr. Corletta was able to get the trooper to admit he did not observe his client’s vehicle committing any traffic violation when he first saw it, therefore calling into question why he “sped up” to “catch up” to it.

 

When the Trooper’s vehicle reached a distance of three to four car lengths behind his client’s vehicle, the Trooper testified the vehicle was “straddling” the line between the left and the center lanes.  There was no other traffic behind or to the side of the client’s vehicle.

 

Mr. Corletta’s client’s vehicle then changed lanes, moving to the center lane, with the Trooper doing the same.  The Trooper then claimed he followed the vehicle for a “couple of seconds,” noticing it was “weaving within its lane,” before activating emergency equipment and pulling it over.

 

Carefully dissecting the testimony, Mr. Corletta first got the Trooper to admit that no traffic violation was discernable when he first observed his client’s vehicle.

 

Once behind his client’s vehicle, Mr. Corletta got the Trooper to admit that while it was “straddling” the two lanes, it was actually moving to the center lane; ie. changing lanes.  Once into the center lane, it did not go outside its lane.

 

Mr. Corletta argued his client’s vehicle was merely in the process of making a lane change, and there was no testimony indicating the lane change was unsafe, that he cut off any other vehicle, or that he did not signal the lane change. 

 

The applicable statute (VTL §1128(a)), requires lane movements be made with “reasonable safety.” There was no testimony Mr. Corletta’s client’s vehicle did not make the lane movement with “reasonable safety.” 

 

The Court agreed with Mr. Corletta, finding no basis for the stop and suppressing all evidence emanating from the stop; in effect, ending the People’s DWI prosecution.

 

The case points out the importance of listening carefully to testimony, knowing the applicable statutes, and conducting Pre-Trial Probable Cause Hearings.  Here, the Trooper basically attempted to penalize Mr. Corletta’s client for making a lane change.  When one changes lanes, one must “straddle” the line separating the two lanes momentarily in order to execute the lane change.  Proper cross-examination revealed this was all Mr. Corletta’s client was doing, resulting in suppression of all evidence emanating from the stop, including a .15% breath test result. Since Mr. Corletta’s client has a CDL, he was extremely grateful.

 

*NEW* MR. CORLETTA SCORES VICTORIES ON TWO CONSECUTIVE DAYS IN TRIALS IN ROCHESTER CITY COURT

 

On two consecutive days, Mr. Corletta scored victories in DWI trials tried before the same judge in Rochester City Court.

 

In the first trial; People v. S.C. (Rochester City Court, 7/21/10), Mr. Corletta’s client had five (5) charges, including Driving While Intoxicated and was convicted of none; only the lesser included offense of Driving While Ability Impaired.  Mr. Corletta attacked the credibility of the officer’s testimony as to the minor traffic violations which his client allegedly committed, and pointed out the officer had actually charged his client under the wrong section of the law on one of them.

 

Despite an open container being found in his client’s vehicle, Mr. Corletta vigorously attacked an attempt by the police to link a flask found in the trunk of the vehicle to the open container, in an attempt to prejudice his client, and pointed out there was no proof alcohol was even found in the open container, gaining an acquittal on that charge and negating its value. 

 

Mr. Corletta overcame the open container by successfully contesting the officer’s “observations” of his client, his client’s claimed erratic operation of the vehicle, and the manner in which his client was stopped and approached in an apartment complex parking lot.

 

Mr. Corletta was successfully able to show his client’s operation was not erratic and successfully showed the officer was grossly exaggerating his testimony, thereby neutralizing it.  This all resulted in conviction of the lowest possible alcohol-related offense; Driving While Ability Impaired, and dismissal and/or acquittal of all four (4) underlying traffic charges.

 

The very next day, in People v. K.K. (Rochester City Court, 7/22/10), Mr. Corletta confronted a more experienced officer who alleged, using a “high- tech” laser speed measuring device, that his client was speeding.  Mr. Corletta was able to question the officer’s credibility as to both his visual estimate of the speed and the device’s accuracy, so as to obtain a reduction to a lower charge, by successfully questioning some of the technical aspects of the machine and how it worked. 

 

This client also was not convicted of Driving While Intoxicated, as Mr. Corletta was successfully able to show that much of the problem stemmed from a passenger, who was highly intoxicated and causing a disturbance.  Mr. Corletta was able to show the passenger took up a great deal of the officer’s attention, and argued the officer unfairly imputed the passenger’s intoxication to his client, right from the beginning.

 

Mr. Corletta vigorously argued his client’s demeanor and attitude was cooperative and respectful, that his client performed many aspects of the field sobriety tests well, and exhibited no erratic operation.  As a result, this was a reduction by verdict to the lesser included offense of Driving While Ability Impaired. 

 

Hence, two DWI trials, two DWI charges, and no convictions.  A good week’s work.

 

*NEW* MR. CORLETTA OBTAINS ANOTHER REDUCTION IN A DIFFICULT CASE

 

Where cases have difficult facts; many lawyers give up.   Mr. Corletta refuses to do so.  In a case with a previous client and a confluence of difficult facts, Mr. Corletta used perseverance and skilled lawyering and managed to obtain a superior result. 

 

In People v. Anonymous (Brighton Town Court, 7/8/10), Mr. Corletta faced a confluence of difficult facts.  The case involved a previous client with multiple prior convictions spread over a long period of time, a veteran Police Officer with knowledge of Standardized Field Sobriety testing which he often exaggerated, observation of driving that took place over a three and one-half to four mile stretch through three jurisdictions, a Judge who is notoriously difficult on alcohol-related offenses and is running for higher office, and an alleged refusal to submit to a chemical test. 

 

Mr. Corletta litigated every issue that he could and took advantage of prosecutorial mistakes.  An unopened case of beer in the car was suppressed, due to an improper inventory search.

 

Speedy trial issues were raised as a result of the Deputy’s failure to be available for the first scheduled trial; which created the possibility of a reversal on appeal. 

 

The Deputy, exaggerating the circumstances, attempted to make the matter look like a three and one-half to four mile police chase, resulting in the writing of four (4) separate traffic tickets in two (2) different jurisdictions.

 

Mr. Corletta broke down the distance, using his knowledge of the roadway on which the “chase” was conducted, to prevent the deputy from exaggerating.  Mr. Corletta showed his client’s operation of his vehicle was not reckless or inattentive as the deputy claimed; and obtained a dismissal of two of the four violations for insufficient proof citing applicable caselaw and lack of jurisdiction, which the District Attorney could not counter. 

 

Mr. Corletta argued his client’s operation of his vehicle was in all respects reasonable and prudent, citing many difficult areas of the roadway which the client navigated without problem, and that the client pulled over in a well lit area, next to an athletic filed which had lighting, which he got the Deputy to admit. 

 

Mr. Corletta also attacked the notorious HGN (Horizontal Gaze Nystagmus) test as being scientifically unreliable; repeatedly attacking its admissibility, the Deputy’s knowledge of the test, and/or his qualifications to administer it.  Mr. Corletta successfully argued it should be given no greater weight than other field sobriety tests, an argument he frequently makes, citing caselaw authority. 

 

With respect to the other field sobriety tests, Mr. Corletta noted his client’s almost perfect performance on one of them, which was key in influencing the Court’s decision not to convict him of Driving While Intoxicated. 

 

Using effective cross-examination, and an effective summation weaving in the law regarding the traffic violations, and the other points regarding field sobriety tests, Mr. Corletta convinced the Court not to convict his client of Driving While Intoxicated and to dismiss two of the four original traffic charges.  His client was convicted only of the lesser included offense of Driving While Ability Impaired; a traffic infraction, thereby avoiding severe sanctions such as ignition interlock, probation and/ or incarceration.  As a result of careful preparation and not giving up, Mr. Corletta obtained a superior result. 

 

*NEW * MR. CORLETTA SCORES WIN IN DIFFICULT RURAL YATES COUNTY

 

In a small rural community with a police-oriented judge, and a local citizenry who is close-knit and knows the local police on a first-name basis, it is difficult to overcome the so-called “home court advantage”.  However, this is exactly what Mr. Corletta did in People v T.B.  (Yates County Court, 6/15/10). 

 

Despite a prosecution-oriented judge, and the aforementioned factors, Mr. Corletta’s client was found not guilty of Felony Driving While Intoxicated.  Since the client had several priors, and had rejected a favorable plea bargain which Mr. Corletta had negotiated, the client was at great risk of a State Prison sentence.  On the eve of trial, the People further reduced their offer, offering a misdemeanor; however, the presiding judge would hear nothing of it.

 

Faced with this sort of pressure, Mr. Corletta obtained a not guilty verdict on the Felony Driving While Intoxicated charge, and a dismissal outright, at the close of the proof, on the underlying traffic infraction, based upon a failure of the People to prove a material element of the offense charged; something many lawyers would not have even questioned. Mr. Corletta obtained this ruling from, as aforementioned, a police-oriented judge.

 

Mr. Corletta’s client was found guilty only of the lesser included traffic infraction of Driving While Ability Impaired, and escaped not only a State Prison sentence but a probationary sentence as well.  This was accomplished through careful preparation, skillful jury selection and a summation which pointed out all the weaknesses in the Peoples’ case, which was short, summary and in many aspects, inadequately investigated.  Still, these cases are often the most difficult to win in rural counties based upon the level of trust local citizens place in the police.

 

Therefore, rather than attack the police, it was necessary to obtain jurors who understood the burdens of proof required to obtain a conviction in criminal cases, and the stringent burden of proof which is required to prove an individual is intoxicated for DWI purposes under New York caselaw. Mr. Corletta did so, and hammered constantly at applying these principles to the lack of proof in the case, leaving the jury with virtually no  choice but to acquit his client of the more serious Felony Driving While Intoxicated charge.

 

*NEW * MR. CORLETTA OBTAINS FRYE HEARING ON ALCOTEST 9510

 

The Alcotest 9510 is a new Windows-based software breath test device now being used by the New York State Police.

 

In typically arrogant fashion, the State Police began using this device without notifying either the courts or District Attorney.

 

As with the its predecessor device, the Alcotest 7110 MKIII-C, there have been problems which have purportedly been addressed by the manufacturer, Draeger, a German-based technological company which makes evidentiary breath test devices for use in a variety of contexts in police, security, or employment settings.

 

The predecessor device, the Alcotest 7110 MKIII-C, was subject to major litigation in New Jersey regarding its reliability, which led to Draeger revealing the “source code” for the machine, which shows how the computer software is programmed to detect the presence of alcohol and other substances.

 

The New Jersey Supreme Court, while upholding the overall reliability of the machine’s technology, did recommend several changes and adjustments, as well as disclosure of the software and training to defense attorneys. This resulted in dismissals of hundreds of New Jersey Driving While Intoxicated prosecutions. 

 

The Monroe County District Attorney’s Office, in December, 2009, distributed a “Memorandum” to defense attorneys stating that the Alcotest 9510 had similar problems, but assured defense counsel and the Courts that those problems had been corrected by the manufacturer and did not affect pending cases.  At least one Judge has questioned why the “Memorandum” was distributed to begin with.

 

Mr. Corletta, seizing upon his knowledge of the New Jersey litigation, filed motions for Frye Hearings in three (3) separate cases, focusing on language in one well-known case; People v. Hampe 181 AD2d 238 (3^d Dept., 1992), which accorded judicial reliability to all breath test devices on the “Federal Conforming Products List,” unless specific defects were brought to the Court’s attention.

 

Mr. Corletta, using the District Attorney’s letter against them, and utilizing his knowledge of the prior New Jersey litigation, convinced two separate Courts that the Alcotest 9510 may not be reliable, and achieved a rare Frye Hearing, putting the burden on the Monroe County District Attorney’s office to bring in proof directly from the manufacturer of the specific software modifications that have been made and how they do not impact the machine’s reliability. 

 

The significance of such a ruling is that it forces the government to bring the manufacturer of this device to Court and be subject to cross-examination regarding how it works, at their expense. This is something manufacturers of these machines do not want to do, and resist at all costs.

 

This is critical in Driving While Intoxicated Per Se cases, which involve a result generated by a machine which is always touted as being infallible.  Any attacks on the machine money requiring the government to produce scientific proof it is reliable always opens up the possibility that defects will be exposed.  This is highly significant, since most DWI Defendants do not have the financial wherewithal to make these challenges on their own by hiring experts.

 

 Mr. Corletta, by educating himself on the history and operation of this machine by reading whatever he can; be it literature or out-of-state court decisions, has not only placed his client in a position to discredit a breath test device through the use of proof provided by the manufacturer, but has given all Driving While Intoxicated Defendants who are being prosecuted through use of this machine a chance in their own cases.

 

*NEW * MR. CORLETTA CITES SEVENTEEN (17) YEAR OLD PRIOR DECISION IN OBTAINING ANOTHER DISMISSAL

 

Judges, particularly veteran local Town Justices, remember their rulings. Mr. Corletta used a seventeen year-old decision of a local Town Justice to his client’s advantage in People v S.S.  (Chili Town Court, 5/10/10)

 

In a case that would make many lawyers throw up their hands, Mr Corletta obtained a dismissal citing a seventeen year-old decision of the same Town Justice that established strict guidelines for accusatory instruments in Driving While Intoxicated cases.

 

Mr. Corletta’s client was found on the side of a road after allegedly hitting a guardrail.  His statements to the police allegedly amounted to gibberish; to the point they were non-understandable.  However, not one of his statements admitted prior operation of the vehicle.

 

In a frequently made mistake, the police thought Defendant’s alleged gross intoxication could be inferred through the accusatory paperwork, and that that was enough. However, they forgot to make any allegations of operation, or plead any circumstantial facts tending to connect Defendant to the vehicle and recent operation

 

Further, they forgot to obtain any admission from Defendant that he had actually driven the car, As a matter of fact, they failed to connect Defendant to the vehicle in any way.

 

Citing a similar seventeen year- old decision from the same Town Justice, as well as numerous other cases involving proper pleading of circumstantial facts establishing vehicle operation in Driving While Intoxicated cases, Mr. Corletta obtained an outright dismissal of the Driving While Intoxicated and all other traffic-related charges.  As a result, some five (5) charges against his client where dismissed.

 

Judges remember their prior decisions, and feel constrained by them, particularly when confronted with similar facts.  Although it was obvious from the accusatory instrument that Mr. Corletta’s client was grossly intoxicated, the Town Justice, to his credit, applied the law, and dismissed the charges, finding the People had failed to make even the most minimal showing of vehicle operation.  

The Town Justice did not allow himself  to be swayed by the “C’mon its obvious” argument of the People, and instead looked at the four corners of the accusatory instrument and determined whether any facts where  alleged as to operation. The Town Justice found that the People, although they could have easily plead the proper facts, failed to do so, and that it was the People’s fault the accusatory instrument was “insufficient as a matter of law.” Knowing the law, applying it, and citing previous case decisions of the same Court are an effective way of representing clients in local criminal court cases in Town Courts. 

 

*NEW * MR. CORLETTA GETS ANOTHER CPL § 30.30 DISMISSAL

 

Once again. Mr. Corletta demonstrated that knowledge of the law, particularly in the speedy trial area, often results in dismissals of otherwise meritorious Driving While Intoxicated prosecutions.

 

In People v. S.C. (Greece Town Ct., 5/7/10), Mr. Corletta’s client was stopped and charged with Driving While Intoxicated and Driving While Intoxicated Per Se after being followed for approximately five (5) miles on two (2) expressways. Her BAC was well over the legal limit.

 

Vigorously contesting the charge as he always does, and noting the stopping officer was involved in a local police department scandal, Mr. Corletta filed the appropriate motions challenging the stop and arrest. Predictably, the government was lax in responding to the Motions and two (2) police officers failed to appear for a scheduled Probable Cause hearing.

 

Waiting the appropriate amount of time, and filing the appropriate CPL § 30.30 Motion after the government failed to properly re-declare readiness, Mr. Corletta obtained an outright dismissal for his client, which the government conceded. The government failed to keep the record clear as to the availability of their witnesses, resulting in liability for CPL § 30.30 time.

 

Mr. Corletta demonstrated that knowledge of the law, and always having a working knowledge of the procedural history of each case he is handling, can result in benefits for his clients;  in this case an outright dismissal with no license suspension or revocation whatsoever.

 

This was the third such CPL § 30.30 dismissal Mr. Corletta received from this Court within the past year under similar circumstances. Mr. Corletta was able to cite those previous cases in support of his argument, including one from the same Judge who dismissed this case. Prior dismissals give Mr. Corletta credibility with the Court and working precedents to cite.  Judges are constrained by their own previous rulings, and are likely to rule the same way on future cases with similar facts.

 

*NEW * DISTRICT ATTORNEY DROPS APPEAL IN “PROLONGED DETENTION” CASE

 

As previously reported on this site, Mr. Corletta obtained complete suppression of all DWI-related evidence, completely destroying the People’s case in People v. J.D. ( Henrietta Town Ct. 11/30/09), a case which has precedential  value and which is now reported at 25 Misc3d 1203 (A) 2009.

 

The People, following the Decision and Order, first asked for time to “review their options,” which Mr. Corletta objected to. They then filed a Notice of Appeal and Statement that they could not prosecute the case because all their evidence had been suppressed, only after Mr. Corletta formally served them with a copy of the Decision and Order, starting a very short thirty (30) day clock running. This forced the government to initiate the appeals process, as Mr. Corletta had consented to no adjournments for them to “review their options.”

 

Forced to obtain the transcript of the Probable Cause Hearing to perfect their appeal, the People saw that Mr. Corletta was right. Their deputy set forth no basis to detain Mr. Corletta’s client following the stop. They stipulated to withdraw their appeal and dismiss the charges.

 

Not only does this show Mr. Corletta (and the Court) was right to begin with, but it also shows Mr. Corletta knows what to do after a Dismissal or Suppression Order is granted and the People attempt to stall while “evaluating” their appeal, a luxury Defendants do not have.

 

Mr. Corletta, demonstrating his knowledge of the technical aspects of appellate procedure and the time limitations involved, forced the People’s hand and forced them to file the appeal and obtain the transcript of the Hearing. The result? A conceded withdrawal by the People, and a benefit to Mr. Corletta’s client, in that not have an appeal hanging over his head for the next year, and will also be saved the expense of defending it. Concessions from the government are not easy to obtain. However, as this site shows, Mr. Corletta has been obtaining alot of them.

 

*NEW * MR. CORLETTA USES RECENT PRIOR SUPRESSION RULING TO OBTAIN ACQUITTAL

 

In People v. J.D. (Henrietta Town Court, Piampiano, J.; 11/30/09) which was previously reported on this site, and which is now a published New York State Decision at 26 Misc 3d 1203 (A) (2009), Mr. Corletta used the extended detention doctrine on a stop for a tail light violation to obtain suppression of all subsequently obtained evidence in a Driving While Intoxicated case.

 

In People v. S. C. (Irondequoit Tn. Ct., 1/25/10) Mr. Corletta utilized the same argument in a combined Probable Cause Hearing and Bench Trial.

 

The purpose of making this argument in a combined Probable Cause Hearing and Bench Trial was if it did not result in suppression of evidence, it could result in outright acquittal, which could not be appealed by the government. This is exactly what happened. 

 

Mr. Corletta’s client was stopped by one police officer and detained by a second officer.  The second officer was not called to testify at the hearing.  Mr. Corletta argued there was an improper detention and gap in the proof as there was no articulated basis for detaining his client beyond what was necessary to write a ticket for a minor traffic violation. 

 

The People hastily summoned the second officer, who had no independent recollection of the events in question.  The trial judge, foregoing the suppression issue, simply found Mr. Corletta’s client not guilty of the Driving While Intoxicated related charges, an even better result, because it could not be appealed.

 

Therefore, this is an example of exercising the procedural quirk of a combined Probable Cause Hearing and Bench Trial, and using a suppression-type argument to the client’s advantage in the guilt phase of the proceeding.  Since a questionable detention can also case doubt upon the underlying credibility of the police officers, this can supply a basis for acquittal of the main charges, which is better than a suppression ruling because it cannot be appealed and Double Jeopardy protects the client against re-prosecution.

 

 

*NEW * MR. CORLETTA USES KNOWLEDGE OF AUTOMOBILE SEARCH AND SEIZURE LAW TO HELP DWI DEFENDANT

 

Automobile search and seizure law is somewhat arcane and complicated, with numerous exceptions heaped upon exceptions and differences between State and Federal Constitutional principles.

 

However, it can be extremely useful to a DWI defendant.  Prosecutors love to use evidence of beer or liquor found in the vehicle, even if it is unopened and there is no evidence the client was consuming in the vehicle.  In a DWI case, the prejudicial inference is overwhelming.

 

Police often use DWI arrests, and the inevitable towing of the client’s vehicle, to justify rummaging through the vehicle under the guise of a so-called “inventory search”, purportedly to inventory the contents of the vehicle and “protect” the client’s property and the police against claims of lost or stolen property.  As one can imagine, these supposedly neutral inventory searches are often used as a pretext to look for incriminating evidence.

 

Mr. Corletta used his knowledge of inventory search law, and recent precedents from the Court of Appeals, which have narrowed the legal justifications for inventory searches and required the police to produce a full inventory, to his client’s advantage in People v. B.W. (Brighton Town Ct., 1/25/09).  Mr. Corletta’s client was arrested for DWI and refused to submit to a chemical test.  Further, the facts were somewhat egregious, involving an automobile chase through three (3) jurisdictions.   The police upon finally stopping Mr. Corletta’s client and arresting him, rummaged through his vehicle, finding an unopened twelve-pack of beer.  Although unopened, the police seized it and attempted to offer it into evidence, particularly since there was a refusal to submit to a chemical test and limited proof of intoxication.  The beer was seized under the guise of a so-called “inventory search.”

 

At the pre-trial Probable Cause/Suppression Hearing however, the arresting deputy admitted he did not search the vehicle using standardized procedures required for inventory searches, and did not make a complete list of the entire contents of the vehicle, instead choosing only to seize the beer.  Citing a recent 2009 Court of Appeals case which required such searches to be neutral, with the hallmark of such a search being a “complete inventory”, Mr. Corletta argued the “inventory search” was nothing more than a pretextual search for evidence.  The District Attorney could not oppose Mr. Corletta’s argument, which was based on black-letter law.  As a result, the incriminating beer was suppressed and will not be used against Mr. Corletta’s client at the upcoming trial.  In refusal cases, small gradations and details mean a lot. This was a significant pre-trial victory in a case where the facts are not overwhelmingly favorable to Mr. Corletta’s client. 

 

 

*NEW * MR. CORLETTA ACHIEVES STILL ANOTHER DISMISSAL BASED UPON LONG STANDING ARGUMENT

 

Mr. Corletta has long argued, and indeed perfected the argument that the accusatory instruments utilized by Monroe County prosecutors in DWI accident cases are legally insufficient for a variety of reasons.  The argument boils down to the fact the forms used are maladapted to DWI accident situations because they do not contain sufficient space to describe the circumstances surrounding the accident, and police are not properly trained to obtain or provide separate non-hearsay Supporting Depositions detailing the underlying facts as to how they identified the driver and concluded he/she had recently operated a motor vehicle.  These defects have led to countless dismissals. 

 

A veteran local criminal court judge agreed entirely with Mr. Corletta in People v. T.B (Penfield Town Ct., 1/6/10).  The case had extremely troubling circumstances, including an alleged .44% BAC, and allegations Defendant drove over a center median in a grocery store parking lot and collided with a lamp post.

 

Nonetheless, the accusatory instruments were poorly prepared, did not properly identify the defendant, and contained “rank hearsay” and conclusory statements.  Further, supplemental documents that were submitted in support of the accusatory instruments were not properly verified or subscribed as required by law. 

 

The end result was the Driving While Intoxicated-related charges, including an Aggravated Driving While Intoxicated charge with an alleged .44% BAC, were dismissed. 

 

The Court’s decision echoed all of Mr. Corletta’s oft-repeated arguments and reiterated a longstanding frustration with the police and District Attorney over their failure to remedy these defects in the accusatory forms, which go back several years. It cited numerous prior decisions, many of those cases having been argued by Mr. Corletta in the early 1990’s.  The Court simply could not understand why these problems had still not been corrected.

 

The case again highlights how important it is to examine the accusatory instruments in DWI cases, and to not give up, even when faced with seemingly insurmountable circumstances.  Mr. Corletta was confronted with smug and snickering prosecutors, who pointed at his client’s alleged .44% BAC, enough to cause death in most individuals, promising jail if no plea was taken immediately.  Yet the end result was dismissal, albeit it without prejudice, due to prosecutorial sloppiness and mistakes, and a Judge who would not tolerate those mistakes and stuck to the law. 

 

*NEW * MR. CORLETTA OBTAINS SECOND CONCESSION DISMISSAL WITHIN ONE WEEK

 

The government conceding a dismissal of a Driving While Intoxicated case via a defense motion is rare. Having it occur twice within one week is unheard of. However, Mr. Corletta achieved this feat in  People v. S.S. (Penfield Town Ct., 12/23/09).

 

Less than one (1) week after achieving a similar “concession” dismissal in the Town of Ogden, Mr. Corletta achieved a second concession dismissal in the Town of Penfield. Once again, Mr. Corletta moved to dismiss the accusatory instrument filing extensive motion papers. There was again no opposition, and indeed, a concession by the government as once again, Mr. Corletta was deadly accurate on the law.

 

This dismissal was extremely beneficial to Mr. Corletta’s client, who is an out-of-state resident, with very limited ability to return to New York for Court appearances. He is also an aspiring young professional seeking to obtain government employment in a security-sensitive area. Therefore, the client needed minimal Court appearances and a clean criminal history, a difficult request under ordinary circumstances. Mr. Corletta provided this with one (1) Court appearance, arranged to meet client’s needs, resulting in a dismissal.

 

Since Mr. Corletta’s client was back in the area to visit  family for the holidays, not only did the single Court appearance not cause any problems with work, but the client received the added bonus of a Pre-Trial dismissal and not having to appear in Court again. It simply cannot get any better than that.

 

*NEW * MR. CORLETTA OBTAINS STRAIGHT “NOT GUILTY” IN CLASS D FELONY

 

Mr. Corletta obtained a straight “not guilty,” meaning that he not only obtained a “not guilty” verdict on the Felony DWI charge, but also on the lesser included offense of Driving While Ability Impaired, in People v. Anonymous (Monroe Cty. Ct., 12/17/09).

 

The client had two (2) prior misdemeanor convictions for Driving While Intoxicated within the last ten (10) years, which were both charged in the Special Information. Therefore, if convicted even of Driving While Ability Impaired, the client would have been guilty of a misdemeanor, for having three (3) alcohol-related convictions within ten years under VTL § 1193.

 

Mr. Corletta obtained a “not guilty” verdict on both charge, based upon failure of proof by the government and their reliance on speculation.

 

Mr. Corletta focused on the classic elements of any DWI case; manner of driving, motor coordination, and physical indicia. The Court found  the People’s case lacking, even under the lower Driving While Ability Impaired standard.

 

The stop of the client’s vehicle was based upon a “license plate lamp violation,” one of the most picayune charges contained in the Vehicle and Traffic Law. An increase in stops for this and other picayune violations can be traced directly back to both the Supreme Court and the Court of Appeals barring defense claims of a so-called “pretextual stops.” If an officer can articulate any violation of the Vehicle and Traffic Law, the stop will stand. These unfortunate rulings have led to stops for a multitude of picayune violations, such as license plate lamp violations, license plate cover violations, for items hanging from rearview mirrors, etc. A well-versed police officer can find a reason to stop virtually any vehicle id he/she looks hard enough.

 

In this case, although Mr. Corletta’s client was stopped for a purported “license plate lamp violation,” the officer could not articulate whether there were one or two license plate lamps and admitted on cross-examination that he did not even inspect the license plate lamp assembly or take a picture of it. However, that was the sole basis for the stop of the client’s vehicle. The statute only penalizes a non-working plate lamp that fails to illuminate the plate from a distance of 50 feet. Therefore, if a car has 2 lamps and one is working, it is not a violation. Further, the officer here testified he had to turn his own lights off to verify that the client’s plate was not illuminated, and that otherwise, he could read the plate.

 

The officer’s testimony also varied widely as to the purported “odor of an alcoholic beverage.” In prior proceedings, he had characterized as “slight,” while at the Grand Jury he characterized it as a “strong” odor “billowing” from the vehicle.

 

Mr. Corletta, utilizing a careful review of all documents, relentlessly attacked the officer’s prior testimony, exposing many inconsistencies and things that simply did not make sense.

 

The prosecutor also tried to argue that Mr. Corletta’s client attempted to avoid the officer by turning down a side street that merely provided an alternate route to the client’s home; ignoring the fact that the client pulled over voluntarily , without activation of emergency equipment, after the officer flashed his headlights on and off from behind, supposedly to “verify” that the license plate lamp did not work.

 

This confusing and illogical testimony, exposed on cross-examination, led to a straight “not guilty” verdict, as it did not come close to meeting any legal standard for intoxication or impairment and called for rank speculation. The case points out that lawyers must not forget the standard of proof for intoxication and impairment, and apply the facts of the case to those standards. This was the primary basis for the Court’s “not guilty” verdict.

 

As a result of Mr. Corletta’s representation, his client avoided a Class D Felony conviction and possible incarceration. Further, even if convicted of a misdemeanor, the client  would have received at least three (3) years probation; which would have been three (3) years without a license due to the prior convictions. Mr. Corletta’s client has much to be thankful for during this holiday season.

 

*NEW * MR. CORLETTA GETS ANOTHER CASE DISMISSED ON SPEEDY TRIAL GROUNDS; THIS TIME BY D.A. CONCESSION

 

 Mr. Corletta once again demonstrated how important it is to have a good working knowledge of speedy trial rules in People v. T.S. (Ogden Town Ct. 12/17/09).

 

In that case, the People twice asked for open-ended adjournments of a Probable Cause Hearing due to claimed unavailability of the arresting officer. Both times, they failed to properly indicate when the officer would again be available, so as to circumscribe their post-readiness delay liability under CPL § 30.30.

 

Both times they failed to file Statements of readiness indicating when the officer would available.

 

Then, when Mr. Corletta filed his Speedy Trial Motion, the People failed to respond, necessitating a further adjournment. Mr. Corletta argued that all of this time was chargeable to the government.

 

When the next adjourned date came, the People still had not responded and consented to dismissal, a rarity. Through careful preparation and logging of speedy trial time, Mr. Corletta obtained a dismissal of DWI charges for his client without ever reaching the merits of the case, the best possible result for a client charged with a criminal offense.

 

The case once again points out there are more ways to get a DWI charge dismissed other than by directly attacking the proof, a mistake many lawyers make. A DWI charge is a criminal charge, just like any other, and is subject to the rules of criminal procedure.

 

 

*NEW * MR. CORLETTA EDUCATES COURT ON ALCOTEST MACHINE, “ALCOSENSOR” ADMISSIBILITY, AND “FOGLINE” ISSUES

 

In a case that presented several interesting legal issues, Mr. Corletta demonstrated his wide spread knowledge of DWI and Traffic Law in  People v. T.G. (Greece Town Ct. 12/10/09).

 

In a case dating back well over eighteen (18) months that was extensively litigated, Mr. Corletta fully briefed this issue of whether crossing the so-called ‘fogline” is a cognizable violation of the Vehicle and Traffic Law. That issue has been dispute in lower state trial courts. Mr. Corletta obtained a “not guilty” verdict on that charge on behalf of his client.

 

Of course, Mr. Corletta’s client was also charged with two (2) counts of Driving While Intoxicated under VTL §§ 1192 (2) and 1192 (3). Numerous issues were raised on both the so-called “common law” and “test” cases.

 

The breath testing device uitilized was the Alcotest 7110 MK-III C, an infrared and fuel cell driven device. Mr. Corletta raied several arguments regarding the admissibility of the alleged .13 breath test registered on this device, ranging from the programmed use of the arrest time as the beginning of the observation period to the competency of the breath test operator, to the machine’s ability to adjust for the Defendant’s breath temperature, to latent defects in the foundational documents. The result was a “not guilty” verdict on the “test” charge.

 

 As to the “common law” charge, a major issue was the use of the PBT or “Alcosensor” device to show intoxication. Citing numerous cases from  the Court of Appeals, Appellate Division Fourth Department and numerous trial court, Mr. Corletta demonstrated that the use of the “Alcosensor” test result at trial was irrelevant, immaterial, and lacking in evidentiary foundation. This, coupled with innocuous and ambiguous evidence of erratic driving and ambiguous results on field sobriety tests,  led to a not guilty verdict on the “common law” charge.

 

Mr. Corletta’s client was found guilty only of the lesser included traffic infraction of Driving While Ability Impaired.

As a result of Mr. Corletta’s efforts, his client was found guilty of none of the original charges and only of a minor traffic infraction in the end. Further, the Court was provided with a great deal of authority with respect to issues regarding the Alcotest 7110 MK-III C (which has now been discontinued by the State Police in favor of a more “modern” device), issues involving the “fogline” violation, and admissibility of the “Alcosensor” test result.

 

Accordingly, Mr. Corletta has performed a great service to both his client and the Court. This case highlights the role of a lawyer not only an advocate, but as an information provider to the Court.   

 

 *NEW * MR. CORLETTA “GUTS IT OUT” IN MOTOR VEHICLE ACCIDENT CASE AND OBTAINS STRAIGHT “NOT GUILTY”

 

A “not guilty” is the gold standard in a DWI.  Usually, the goal is a reduction to Driving While Ability Impaired.  In People v. V.F (Rochester City Ct., 12/08/09) Mr. Corletta obtained a straight “not guilty” on a misdemeanor Driving While Intoxicated charge involving an alleged refusal, with two underlying traffic infractions, including refusal to take a breath screening test.

 

Mr. Corletta demonstrated the arresting officer’s lack of knowledge by showing  his client did in fact, take a breath screening test.  The officer believed, according to his testimony, that he was charging Mr. Corletta’s client with a refusal to take an evidentiary breath test, by charging him with refusal to take a breath screening test.  The officer admitted, upon being educated by Mr. Corletta as to the meaning of the statute, that he had made a mistake.

 

The arresting officer’s testimony involved observations of Mr. Corletta’s client at a local hospital nearly two (2) hours after the alleged motor vehicle accident.

 

The People, through a series of missteps, primarily caused by another police officer failing to appear, failed to present corroborating testimony of the police officer who observed defendant at the scene of the major motor vehicle accident, which involved a severely damaged vehicle, an uprooted tree, and sidewalk damage.

 

That police officer failed to appear at the trial’s commencement, at which time Mr. Corletta moved for dismissal and/or to place the matter on the general calendar.  The Court would not grant the requested relief, and informed Mr. Corletta, over his objection, that it was going to give the government until Tuesday of the following week to produce the witness.  This was not withstanding the fact that the witness blatantly refused to return to Court when told, despite being subpoenaed.

 

When the witness again failed to appear the following Tuesday, Mr. Corletta again moved for dismissal. The Court granted the government an additional hour to produce the witness.

 

When the witness again failed to appear, Mr. Corletta withheld his motion, and simply moved for a “not guilty” verdict, to preclude any application by the government for a further adjournment or give the government an opportunity to appeal a Dismissal Order.  The Court found Defendant “not guilty”, and discharged him.

 

In this case persistence paid off, despite facts that were not favorable.  The government failed to develop the case, and their only witness observed defendant over two hours after the accident.

 

Still, Defendant did suffer a penalty for refusal to submit to a chemical test.  Previously, the Department of Motor Vehicles had administratively revoked Defendant’s license for one year for the refusal.  As a result of the “not guilty” verdict, Mr. Corletta’s client’s license was not restored and he will not get a Conditional License.  He will have to wait until the administrative revocation expires, at which time he will have to reapply for his license despite having been found “not guilty” in the criminal case.

 

This quirk in the law, which all DWI practitioners should be aware of, actually makes it better for the client to be convicted of Driving While Ability Impaired, because if he/she is convicted of something, they become immediately eligible for a Conditional License. The case points out the disincentives  legislators have built into the law regarding refusals of chemical tests.

 

 

*NEW * MR. CORLETTA SCORES VICTORY USING PROLONGED DETENTION DOCTRINE

 

As Mr. Corletta argued before the Court of Appeals in

People v. Reynolds 97 NY2d 341 (2001), the Court’s decision permitting pretextual stops provided there was an objective basis for the stop to begin with under Whren V. United States 517 (US) 806 (1996), only shifted the frontier in DWI cases to what happened after the stop, i.e. detention of the defendant for field sobriety testing.

 

The Court, in a grudging concession to Mr. Corletta’s argument noted in Reynolds that Constitutional limitations regarding unlawful searches and seizures still applied to what occurred after the stop; in other words the “story” does not end with the  stop of the vehicle.

 

Mr. Corletta’s prediction has been playing out in an increasing trend by police to use minor traffic violations to unlawfully extend the detention of roadside defendants to investigate unrelated crimes.  Such was the case in People v. J.D. (Henrietta Town Ct. 11/30/09).  In that case, Mr. Corletta’s client was stopped on a Friday night on a busy thoroughfare populated by many bars, for a purported taillight violation.

 

The stop of his client’s vehicle was completely uneventful and according to the deputy’s testimony at the Probable Cause Hearing, there was nothing else unusual about the operation of Mr. Corletta’s client’s vehicle, nor was there anything unusual about his contact with the driver.  According to the deputy, Mr.Corletta’s client simply “turned over his information.” 

 

Nevertheless, instead of simply writing Mr. Corletta’s client a ticket for driving without tail light, the deputy called another deputy in to “investigate”.  Investigate what, Mr. Corletta asked.  Naturally, the second deputy’s investigation led to an arrest for Driving While Intoxicated.

 

Citing  evolving caselaw, including a recent Appellate Division Decision, which was just a couple of weeks old at the  time of the Hearing, Mr. Corletta argued his client ‘s detention at roadside was unlawfully extended, and all the first deputy had a right to do was issue his client a ticket and send him on his way.  Indeed, there had been nothing about the first deputy’s contact with his client which would have justified anything else.

 

The Court agreed with Mr. Corletta, citing the same caselaw.  The result was suppression of all evidence following the stop, including any observations, statements, tangible evidence and chemical test results procured by the second deputy.

 

Mr. Corletta continues to be on the cutting edge of evolving DWI juris prudence especially the law involving stops and subsequent detentions of motorists based upon claimed traffic infraction.

 

 

*NEW * MR. CORLETTA SCORES RARE QUADRUPLE VICTORY IN TWO DWI CASES

 

In a DWI involving an alleged refusal, the defense attorney is confronted with not one but two proceedings.  The defense attorney must defend the Driving While Intoxicated charge brought in criminal court. In addition, the defense attorney must defend an administrative license proceeding brought in the Department of Motor Vehicles to penalize his/her client for the alleged refusal. 

 

Under recent legislation passed two (2) years ago, the penalty for the refusal has been increased from six (6) months to one (1) year, in addition to whatever license suspension or revocation Defendant receives as a result of conviction in the criminal case.

 

Usually, the administrative license suspension proceeding occurs first, and in the overwhelming majority of those cases, the client’s license is revoked for one year.  The client is ineligible to obtain a Conditional License until the criminal case is resolved.  Since most refusal cases go to trial this means the client is without a license during the pendency of the criminal proceeding and is often better off with a quick disposition of the criminal proceeding so they can obtain a Conditional License. 

 

In many situations, an acquittal actually does not serve the client’s best interests because an acquittal may take six to eight months to obtain, during which time Defendant is without a license. 

 

Typically, if a plea is offered to a lesser charge, such as Driving While Ability Impaired, the client is actually better off taking that plea so they can obtain a Conditional License. The reason the law operates this way is to encourage individuals to take a chemical breath test.

 

In People v. R.P (Roch. City Ct., 11/09) Mr. Corletta’s client was charged in two (2) separate cases with Driving While Intoxicated where there was a chemical test refusal.

 

The first incident occurred in March 2009.  Mr.Corletta’s client’s license was suspended at arraignment.  However, at the Refusal Hearing in May, 2009, Mr. Corletta was able to get his client’s license restored due to the failure of one of the police officers to appear for the Refusal Hearing at the Department of Motor Vehicles. The Hearing was subsequently rescheduled to the summer of 2009.

 

In the meantime, Mr. Corletta was able to get the criminal charge against his client dismissed.

 

However, his client could not stand prosperity and was again charged with Driving While Intoxicatedand refusing to submit to a chemical test in June, 2009. 

 

In that case however, while the police alleged Mr. Corletta’s client refused to submit to a chemical test, they never filed the proper paperwork. Subsequent thereto, at a Pre-Trial Hearing held in September, 2009, Mr. Corletta got the refusal suppressed in criminal court.

 

Meanwhile in the first case, the administrative hearing was rescheduled to October, 2009. Based upon Mr.Corletta’s argument that there was no probable cause established for the stop based upon the documents filed with the DMV, and the stopping officer’s failure to testify, that Refusal Proceeding was dismissed.

 

In November, 2009 the second DWI case came to trial and was also dismissed.

 

The end result: two dismissals and no license suspension.  As a result Mr. Corletta saved his client hundreds of dollars in fines and civil penalties, as well as an extensive period of time without a driver license. This result is difficult to equal. 

 

*NEW * MR. CORLETTA STRIKES FIRST BLOW AGAINST NEW MACHINE

 

Mr. Corletta again demonstrated how important it is to stay “on top” of new developments in the law in People v. J.N. (Roch. City Ct., 11/16/09). Recently, in the last thirty to sixty days, the New York State Police have begun utilizing a new evidential breath testing device: the Alcotest 9510; in replacing the older Alcotest 7110MKIII-C, which Mr. Corletta had been involved in extensive challenges of.  These infrared dual technology breath testing devices have been the subject of controversy in other states; particularly in New Jersey.  The 9510 is an updated version of the 7110MKIII-C, with advancements in computer technology. 

 

Upon taking in a new case, Mr. Corletta noticed the machine being utilized was the 9510.  Mr. Corletta immediately researched the issue and checked the law to ascertain if the machine has been approved by the New York State Department of Health.  While on the so-called Federal Conforming Products List, published by the Department of Transportation/National Highway Traffic & Safety Administration, it was not on the Department of Health list, through oversight or otherwise.

 

Mr. Corletta, at his client’s arraignment in a high BAC aggravated DWI case, pointed this out to the arraigning Judge.  The Judge also checked the list, and found it not to include the Alcotest 9510.  As a result, the Judge declined to suspend Mr. Corletta’s client’s license on grounds the machine could not be found to be judicially reliable under existing caselaw.  Until the machine is placed on the New York State Department of Health list, the results obtained by the new machine will therefore be in jeopardy.  This is a significant ruling in Monroe County, given the increasing assistance provided by the State Police in making DWI arrests in the City of Rochester.  It is also a significant issue statewide.

 

Mr. Corletta’s client, a young twenty-three year old, was therefore spared a costly license suspension, which would have placed his job in jeopardy.  Once again, promptly addressing new issues and staying on top of the law produced a good result for the client. 

 

*NEW * MR. CORLETTA WINS RARE VICTORY AT REFUSAL HEARING

 

Department of Motor Vehicle Administrative Refusal Hearings, in which the motorist’s refusal to submit to a chemical test is examined by a DMV Administrative Law Judge to determine whether there will be a separate license revocation, usually end in revocation over 98% of the time.  Hearsay evidence is admissible. Based upon a 1988 Court of Appeals decision, the arresting officer need not even testify, as long as his Report of Refusal, filed with the DMV, is available.  Cross-examination concerns are not applicable at civil license suspension proceedings.

 

This puts the motorist and defense attorney in a difficultposition, and requires close examination of the Report of Refusal.

 

Mr. Corletta did this in People v. R.P. (10/19/09).  In this case, there were two (2) officers involved.  The first officer stopped the motorist for a traffic violation.  The second performed field sobriety tests, and made the arrest.  The Hearing was scheduled or re-scheduled three (3) times.  At the first Hearing the officer who stopped the motorist did not appear. The matter was adjourned and the motorist’s license temporarily restored.  At the second Hearing, the same thing happened and the case was again adjourned, with the motorist retaining his license. At the third Hearing no one appeared.

 

Under the aforementioned Court of Appeals Decision, the arresting officer’s Report of Refusal was admitted, which referred to the hearsay basis for the stop from the first officer, who had never appeared.

 

Mr. Corletta argued that this double hearsay did not establish reasonable cause to believe his client had committed a violation, which is the first element of the proof required at a VTL §1194 Refusal Hearing.  With some reluctance, the conservative DMV Administrative Law Judge agreed, restored Mr. Corletta’s client’s permanent license, and dismissed the case.  The above shows the importance of not giving up, and in using DMV Refusal Hearings as a discovery device. The least that will occur is that the defense attorney will get some free discovery, unimpeded by the District Attorney. In some circumstances, police indifference or lack of knowledge of the law will result in restoration of the client’s license.  Throwing up ones hands, or not appearing, only forecloses these opportunities.

  

*NEW * MR. CORLETTA BEATS PROSECUTION THREE DIFFERENT WAYS IN SAME CASE; RESULTING IN DISMISSAL

 

Sometimes you simply have to keep pushing until you ultimately succeed. This is what happened in People v. J.S. (Greece Town Ct., 9/29/09). 

 

Faced with a seemingly insurmountable case and a bad set of facts; ie. a serious motor vehicle accident in a snowstorm on an Interstate where the client bounced off a parked car attempting to assist a motorist stranded in the median, Mr. Corletta set aside those adverse facts, which included a Supporting Deposition from a civilian witness that had his client driving all over the road, and began looking at the technical aspects of the case.

 

Numerous errors were made by the police and  Prosecutor. When the charges were initially filed in March, 2008, Mr. Corletta noticed numerous defects in the accusatory instruments, which resulted in a so-called “insufficiency dismissal” in May, 2008. This resulted in an accrual of CPL § 30.30 time against the government, which served to help Mr. Corletta’s client later, after the charges were refiled.

 

The charges were refiled and the charges and the so-called “paperwork” errors corrected. However, errors from the first set of charges carried into the second. Mr. Corletta was never notified of any damaging statements made by his client in the first case. Therefore those statements were suppressed in the second case, depriving the government of damaging evidence.

 

Next, Mr. Corletta asked for a Pre-Trial Hearing on the admissibility of the blood test. Due to numerous errors committed by the police and serious probable cause issues, the results of the blood test were suppressed after a Pre-Trial Hearing thereby removing another damaging piece of evidence against his client.

 

Finally, over the course of this case, which took approximately nineteen (19) months to resolve, the government committed speedy trial violations by not maintaining readiness at certain junctures in the case.

Following the Pre-Trial Hearing, Mr. Corletta examined the procedural history of the case and determined an aggregate speedy trial violation had occurred. Accordingly he filed a Motion to Dismiss, which was granted with virtually no opposition by the government.

 

In this case, Mr. Corletta utilized virtually all of the weapons a defense attorney has at his disposal in a DWI case; he attacked the sufficiency of the paperwork, he suppressed statements and the blood test, and ultimately obtained a dismissal with prejudice based upon a speedy trial violation. This case was a classic example of how the application of criminal law principles to a motor vehicle case and how knowledge of the law in these valuable areas can result in dismissal in a case that looks hopeless on the merits.

 

Unfortunately, Mr. Corletta’s client could not stand prosperity; as near the end of this case he was re-arrested on another case. However, as a result of Mr. Corletta’s efforts in obtaining him a Conditional License in this case, Mr. Corletta will be able to defend his client on suspended license charges he received in the new case. A defense attorney simply has to take one case at a time.  

 

*NEW* MR. CORLETTA OBTAINS FAVORABLE DISPOSITION IN SOBRIETY CHECKPOINT CASE IN RURAL WAYNE COUNTY

 

In a county that prides itself on being “Number 2 in DWI arrests” in New York State, and in having a very limited plea bargaining policy, handling any DWI case is difficult. It is made more daunting when you are dealing with a lay Town Justice who is an ex-police officer in the jurisdiction in which he sits, and who is well known as being pro-law enforcement. It is even more difficult when you are challenging the procedures of the local police department in which the Town Justice sits.

 

Despite all of these adverse factors, Mr. Corletta obtained a favorable disposition  for his client in  People v. J. W.  (Macedon Town Court, 9/29/09).  

 

In this case, his young client was stopped at a so-called “sobriety checkpoint,” which are routinely not challenged in this county. As a result of the sobriety checkpoint stop, Mr. Corletta’s client was arrested on two (2) Counts of Driving While Intoxicated. As a result of a so-called “inventory search” of the vehicle following the stop, Mr. Corletta’s client received additional charges of Possession of a Hypodermic Instrument, Criminal Possession of a Weapon, and Unlawful Possession of Marijuana.

 

Knowledge of the technical aspects of sobriety checkpoint law was necessary to handle this case. Further, knowledge of search and seizure law and its constantly changing aspects was also necessary.

 

Going to work, Mr. Corletta immediately challenged the procedures for the set up and administration of the sobriety checkpoint under both State and Federal law. Mr. Corletta also challenged the underlying search of his client’s vehicle. This was done through the filing of Motions and an extensive Pre-Trial Hearing, which took nearly five (5) hours, and involved the testimony of four (4) police officers, including the Chief of the local police department.

 

Following the hearing, Mr. Corletta submitted four (4) separate Legal Memorandums, in which he pointed out numerous deficiencies in the procedure and administration of the checkpoint and how these deficiencies made the set up and administration of the checkpoint Constitutionally deficient.

 

Further, Mr. Corletta pointed out a recent Court of Appeals Decision

regarding inventory searches and how the police search of his client’s vehicle did not comply with that Decision.

 

As a result of the extensive memoranda submitted, the People conceded that Mr. Corletta was right, and that much of the evidence would be suppressed in the case. The People therefore recommended a plea to the lesser charge of Driving While Ability Impaired, a traffic violation, and dismissal of the two (2) Driving While Intoxicated charges and the other three (3) Misdemeanors. The People agreed the search was not conducted properly.

 

As a result, Mr. Corletta’s client pled to a traffic violation and received the minimum fine and minimum period of license suspension. Further, the Prosecutor stated on the record that the local police department would be revising its procedures and its conduct of sobriety checkpoints based upon this case.

 

The above shows the true obligation of a defense attorney; to improve the administration of justice and make sure police and Prosecutors act within the rules. Adhering to this singular purpose can result not only in a favorable disposition for the client, but in improvement of treatment of future individuals who come into contact with law enforcement.

 

*NEW * MR. CORLETTA OBTAINS FAVORABLE RESULT IN PRE-TRIAL HEARING BY BREAKING DOWN ISSUES AND OBTAINING SUPRESSION OF KEY EVIDENCE

 

Being able to assess the legal requirements for police conduct at each stage of an encounter leading to a custodial arrest can result in suppression of key evidence and weakening of the government’s case.

This is what happened in People v. R.P. (Rochester City Ct., 9/15/09). 

 

This case involved a head-on collision.  When police arrived, Mr. Corletta’s disheveled client, who smelled of alcohol because he had been drinking the night before, admitted he was driving one of the vehicles.  However, the first arriving officer conducted no field sobriety tests or any further investigation, and simply detained Mr. Corletta’s client because he smelled like alcohol.

 

Seizing on this, Mr. Corletta effectively argued his client was detained unlawfully for a period of fifteen (15) minutes until another officer arrived to administer field sobriety tests, which purportedly justified the initial detention.  Mr. Corletta used a recent Court of Appeals case to support his position, as well as an Appellate Division case which was only about two (2) weeks old.

 

Although unsuccessful in this argument, Mr. Corletta was able to put the Court in a position where if it found there was a sufficient factual basis to take his client into custody, damaging statements made to the second officer, who failed to administer Miranda warnings, such as that his client had been drinking the night before, would have to be suppressed as custodial statements taken in violation of Miranda.  That is exactly what happened and these damaging statements now cannot be used against his client at trial.

 

Mr. Corletta further was able, in evaluating testimony regarding his client’s alleged refusal to submit to a chemical test, to parse the testimony on cross-examination to show his client did not commit a persistent refusal, which is required under Vehicle and Traffic Law §1194(2)(f).

 

Mr. Corletta showed his client was only warned once where he refused. The first time he was asked to take a chemical test there were no warnings, and he asked to speak to his attorney, as opposed to refusing.  Based upon this testimony, which was repeatedly and effectively attacked on cross-examination, Mr. Corletta demonstrated his client did not persistently refuse, thereby eliminating evidence of the damaging refusal at trial , which carries a so-called “consciousness of guilt” instruction to the jury.

 

Therefore, although an outright dismissal of the charges was not obtained, Mr. Corletta was able to effectively diminish the People’s case at trial by eliminating damaging statements and the alleged refusal to submit, which is a large part of the People’s case.  

*NEW* MR. CORLETTA SPARS WITH EXPERIENCED POLICE OFFICER ON HGN RESULTING IN AQUITTAL OF HIS CLIENT ON FOUR OUT OF FIVE CHARGES

Mr. Corletta went up against an experienced Police Officer with extensive training in HGN and Field Sobriety testing in People v. R.G. (Rochester City Court, 8/12/09).  The evidence was quite strong against his client.  The case involved an alleged refusal to submit to a chemical test.

Employing a novel approach, Mr. Corletta attacked the underlying foundation for field sobriety testing, getting the officer, who had alot of knowledge about field sobriety testing, to admit they had nothing to do with the ability to operate a motor vehicle.  Effective cross examination, based upon study of numerous cases across the country, coupled with effective cross examination as to the manner of Defendant’s operation, resulted in acquittal on four out of five original charges; notwithstanding extensive evidence of prior consumption of alcoholic beverages, and poor performance on field sobriety tests.

Mr. Corletta’s client, a registered nurse, would have faced disciplinary action upon a criminal conviction. She was instead convicted only of the lesser traffic infraction of Driving While Ability Impaired, and just one of the four underlying traffic violations. This case demonstrates that knowledge of the basic principles of field sobriety testing can result in an exceptional result for the client, even in the face of seemingly overwhelming evidence of intoxication.  Mr. Corletta’s client was extremely grateful; as her nursing license would have been impacted upon conviction.

*NEW * MR. CORLETTA SCORES ANOTHER WIN IN ROCHESTER CITY COURT

In People v. G.R. (Roch. City. Ct., 8/3/09), Mr. Corletta’s client was originally charged with three (3) Counts of Failure to Maintain Lane, one Count of Common Law Driving While Intoxicated, and one Count of Driving While Intoxicated Per Se, based upon an alleged .11% breath test result.

Employing arguments regarding the unreliability of the breath test machine, citing a recent New Jersey Supreme Court case, and a recent United States Supreme Court case, which once again calls into question the hearsay use of calibration and Simulator Solution Certificates, Mr. Corletta obtained an outright “not guilty” verdict on the breath test charge, and a reduction to the lesser included traffic infraction Driving While Ability Impaired on the “Common Law” charge. In sum, Mr. Corletta’s client was found guilty of only one (1) of the original five charges and obtained a reduction on one other charge.

This was of great help to Mr. Corletta’s client, a professional whose license or certification would have been at stake if convicted.

Keeping up with the law, Mr. Corletta made new arguments with respect to the reliability of the “Alcotest” test 7110 MK III C breath testing device, used by the New York State Police. Those arguments resulted in a complete acquittal on the breath test charge.

This case once again demonstrates how important it is to maintain current on the laws of evidence, particularly hearsay, and cases involving admissibility of breath testing devices, as these cases can be utilized on a day-to-day basis to the benefit of the client.

 

*NEW* MR. CORLETTA OBTAINS DISMISSAL ON REFILED CHARGE IN BRIGHTON TOWN COURT

In a case last year, Mr. Corletta obtained an insufficiency dismissal of DWI charges against his client based upon the People’s failure to file an appropriate accusatory instrument establishing operation, despite having several adjournments to do so. (People v. D.P  Brighton Town Ct., K. Morris, J. 8/11/08). This type of dismissal gives the People an opportunity to refile the charges with the proper documents. This must be done in ninety (90) days.

As Mr. Corletta anticipated, the People were lax about refiling and reserving, either new tickets or an Arrest Warrant for the refiled charges. Defendant was not arrested on the refiled charges, which now included an Affidavit establishing operation, until March, 2009.

Mr. Corletta immediately jumped back into the fray, closely examining the refiled accusatory instruments. He immediately noticed the VTL § 1192 (2) accusatory instrument was still insufficient because it did not contain a non-hearsay Affidavit of the Breath Test Operator.  Working quickly, he prevented his client’s license suspension at his arraignment.

Then Mr. Corletta quickly researched and filed a Motion to Dismiss that charge based upon insufficiency , and a Speedy Trial Motion based upon the People’s laxity in refiling the charges and re-arresting his client.

At that point, the case took several twists and turns. The government reacted with indignation, and made several frivolous legal arguments trying to prevent the dismissal, citing Defendant’s prior history, which was irrelevant.

The Court, while not suspending the license, gave the People time to amend the accusatory instrument on the VTL § 1192 (2) charge to cure the defect, which they again did not do just like before. The Court then held that the refiled accusatory instruments were sufficient and Defendant’s license could be suspended. Mr. Corletta vigorously  objected.

Mr. Corletta kept working and kept submitting additional Memoranda to the Court. The Court then reversed its position, did not suspend the Defendant’s license, and ultimately dismissed all charges on speedy trial and sufficiency grounds, this time with prejudice, ending his client’s prosecution.

During this short period, Mr. Corletta kept directing the Court in the right direction, and the Court ultimately got it right. However, it took a full Motion and four (4) separate Memoranda in order to persuade the Court. In the end, the Court ruled completely in Defendant’s favor citing virtually all of Mr. Corletta’s legal arguments.

This case demonstrates the importance of insufficiency dismissals even if they are without prejudice, because they put pressure on the government to properly refile the accusatory instruments, and either reserve tickets or re-arrest your client. Once that burden is placed upon the government many other things can happen, such as in this case, where the government took too much time and suffered a speedy trial dismissal.

In this case, Mr. Corletta’s client was under charges on two (2) separate occasions, from June, 2008 to August, 2008, and from March, 2009 to June, 2009 and never lost his license for a single day due to Mr. Corletta’s persistence and advocacy. The Court, in dismissing the charges, advised Mr. Corletta’s client “how well represented” he was. The case again illustrates what persistence, hard work, and knowledge of the law can do for a client in a seemingly impossible position.

*NEW*  PEOPLE GIVE UP ON ROADBLOCK APPEAL

As previously reported on this website, Mr. Corletta made new law by establishing the proper standard under Federal law for analyzing roadblock stops in People v. L.H. (Brighton Town Ct., Dollinger, J., December 23, 2007).

At that time, the People promised a vigorous appeal. After over one year of delay, at Mr. Corletta’s client’s expense, the People abandoned their appeal without explanation. On January 26, 2009 ,Mr. Corletta appeared with his client in Brighton Town Court and moved for formal dismissal of all charges, which was granted without opposition. New law has now been established on the trial level in Monroe County.

The unfairness in this situation was the People’s dilatory efforts on this appeal. This resulted in Mr. Corletta’s client being placed in a legal “no man’s land”; where the case was still technically pending and his license  still suspended pending prosecution despite suppression of all evidence. Although the government finally conceded there was no merit to their appeal, their delay resulted in Mr. Corletta’s client’s license being suspended for far longer than it should have been.

Mr. Corletta made vigorous efforts to terminate the license suspension during the year the appeal was pending, but the Court had no legal authority to do so, because the case was still technically pending on appeal. This demonstrates the unfairness of a law where a Defendant, who had a meritorious Fourth Amendment suppression claim in the trial court, is still forced to go without his license while the case is “pending” on appeal, even where the government voluntarily abandons the appeal.  This is a good example of how the law is “stacked” against DWI Defendants, and why vigorous advocacy is necessary. 

 *NEW*  MR. CORLETTA SCORES ANOTHER VICTORY IN ONTARIO COUNTY 

Pointing out highly technical defects in a Blood Test Certification, which most attorneys would not even challenge, Mr. Corletta prevented suspension pending prosecution of his client’s Driver in People v. P.M. (Canandaigua City Ct., Aronson, J., January 13, 2009).

In that case, there was a so-called Blood Test Certification in a Toxicology Report. Mr. Corletta pointed out evidentiary defects under the applicable statute that rendered the Blood Test Certification defective and the Toxicology Report hearsay. The Court agreed with Mr. Corletta, and since this was the sole evidence of his client’s BAC, determined the People had submitted insufficient evidence to warrant suspension of his client’s license. As a result his young client, who has more than one job, is still able to drive back and forth to work while the matter is pending, and will keep his license until all issues are resolved.

It is noteworthy that the Toxicology Report comes from a highly respected police forensic laboratory and is seldom challenged, even by experienced defense lawyers. Mr. Corletta’s challenge required command of the laws of evidence, which often works good results for clients.

 

*NEW* MR. CORLETTA SCORES SECOND DISMISSAL IN SAME CASE IN ROCHESTER CITY COURT

 

After obtaining a dismissal for insufficiency, Mr. Corletta capitalized on further errors by the District Attorney and obtained a final dismissal for violation of his client’s speedy trial rights in People v. M.M.,(Roch. City Ct., 10/13/08).

 

In that case, Mr. Corletta capitalized on his knowledge of speedy trial rules to demonstrate to the Court that repeated failures by the District Attorney in properly reinitiating the case, and being ready for certain Pre-Trial Hearings, caused enough time to run against the People so as to result in dismissal under CPL §30.30.

 

Mr. Corletta was also able to persuade the Court to rule in his client’s favor on a highly technical legal issue under the speedy trial statute that had not been previously decided by any court in New York State.  This resulted in the case having precedental value, and being reported in the State Reporter, adding another case to the long list of cases handled by Mr. Corletta that resulted in published opinions that will be of use to other lawyers arguing the same or similar issue.

 

*NEW* MR. CORLETTA FINDS A WAY TO WIN IN 2+ YEAR OLD TOWN COURT DWI CASE

 

Sometimes waiting a matter out and waiting for the other side to make a mistake is the way to win a difficult case.  This is what happened in People v. S.S. (Sweden Town Ct., 10/15/08).  In this case, Mr. Corletta’s client was arrested September, 2006, well over two years ago.  The case Involved a so-called “sobriety checkpoint”, which implicates special issues.  Working against inexperienced Town Court District Attorneys, Mr. Corletta filed all necessary motions and applications necessary to litigate a sobriety checkpoint case.  No delays in the case were attributable to defendant other than adjournments requested for Motions and Hearings.

 

However, one Pre-trial Hearing was adjourned because the District Attorney claimed they were never notified, a second had to be adjourned because the District Attorney claimed they were not aware of the scope of the hearings, although Mr. Corletta’s motions, filed well over one year prior, clearly indicated such, and finally the Hearing was adjourned a third time at the last minute due to claimed unavailability of an officer.

 

Mr. Corletta consented to none of the adjournments and made a record of all of them. 

 

After the third adjournment, Mr. Corletta filed a comprehensive Speedy Trial Motion, under both CPL §30.30 and 30.20, setting forth the periods of delay attributable to the People, and the prejudice to his client.

 

The Town Justice, a retired Monroe County Sheriff Deputy, found persuasiveness in Mr. Corletta’s argument regarding the prejudice his client had suffered while driving with a Conditional License for over two years, and dismissed all charges.  Needless to say, Mr. Corletta’s client, who drives for a living, and had suffered the loss of a good paying job as a result of his arrest, was exceedingly grateful to have his record cleared, and told Mr. Corletta he would “recommend him to anybody”.  The case is an example of not only applying the law effectively, but in persistence. In most of these cases the government will make a mistake at some point or another, which defendant must be prepared to capitalize on.

 

*NEW* PREPARATION AND PAYING ATTENTION TO DETAIL PAYS OFF IN TOWN COURT DWI

 

Mr. Corletta often counsels clients to go to trial, even when a case appears “open and shut”, because one never knows what is going to happen.  When a Defendant goes to trial he/she puts himself/herself in a position to take advantage of preparation errors by the Prosecution.As the old saying goes, “you can’t play the game unless you go to the ballpark”.

 

This principle was vividly illustrated in People v. T.D., (Gates Town Ct. 10/14/08). Noticing during Pre-trial preparation that the arresting officer conducted the breath test observation period, as opposed to the Breath Test Operator, who customarily does so, Mr. Corletta simply sat back and waited.  The arresting officer testified as to his observations as to vehicle operation, the stop, field sobriety tests, and the arrest, and Mr. Corletta conducted his cross-examination.  However, no mention was made of the breath test observation. 

 

The Assistant District Attorney, operating from a canned “script”, and not recognizing the arresting officer had conducted the observation period, then called the Breath Test Operator.  The Assistant District Attorney then asked questions regarding what defendant “could have done” while the breath machine was being prepared, i.e. “could she” have put something in her mouth, could she have vomited, regurgitated, etc.  Mr. Corletta promptly objected to all of those questions and the objections were sustained.  The Assistant District Attorney, now recognizing the mistake, tried to dance around the issue.  Exasperated, the Court finally asked the Breath Test Operator if he had directly observed the defendant for the required observation period.  The Breath Test Operator honestly answered that the arresting officer had conducted the observation, something Mr. Corletta had already discerned.  The problem is that the observation period testimony is foundational to admission of the breath test, and the arresting officer had already been dismissed.

 

The District Attorney tried to reopen his testimony and Mr. Corletta objected.  The Court allowed the District Attorney time to try to locate the arresting officer, who had gone out on routine patrol.  He was hurriedly summoned back to the court, and his testimony reopened over objection.

 

However, the arresting officer was unprepared and flustered, and attempted to say he had directly observed the defendant from the time he arrested her until the time the breath test was administered, a period of twenty-seven minutes.

 

On cross-examination Mr. Corletta effectively broke down that period and demonstrated that he could not have observed her for that entire period and in fact, observed her for less than the required twenty (20) minute period.  Mr. Corletta then renewed his Motion to Exclude the breath test result and the Motion was granted, leaving the People with only the so-called “common law” case.  Since the breath test was an alleged .12 %, this was a significant victory for Mr. Corletta’s client, a twenty-eight year old professional woman, who had never been arrested.  The entire scenario demonstrates the importance of proper preparation and attention to detail

 

*NEW* MR. CORLETTA OBTAINS SUPPRESSION OF EVIDENCE AND RARE DISMISSAL IN ONTARIO COUNTY

 

What is rare in pro-prosecution Ontario County, where police officer’s testimony is next to gospel, is a finding by a Court that a police officer’s testimony was “not credible.” However, this a exactly what Mr. Corletta obtained, leading to suppression of all evidence and dismissal of all charges, in People v. D.F., (Canandaigua Town Ct., 9/11/08). 

 

Focusing primarily on the credibility of the police officer, Mr. Corletta vigorously attacked the deputy’s basis for stopping his client’s vehicle at a Probable Cause Hearing. Questioning his initial pursuit of the vehicle because the Defendant was driving with “his brake lights on,” Mr. Corletta pointed out that there was no provision in the Vehicle and Traffic Law penalizing such behavior.

 

The deputy then claimed he followed Mr. Corletta’s client for 2 ½ miles, and observed a tail light out. Confronted with his own report, where he said a parking light was out, Mr. Corletta effectively impeached the deputy with an inconsistent statement.

 

Still not through, Mr., Corletta filed a Memorandum of Law in which he cited extensive caselaw dealing with the standard for stopping a motor vehicle, and with issues of officers’ credibility as they affect Probable Cause for the stop. Mr. Corletta is very familiar with this, as he argued the case setting that standard before the State’s highest Court.

 

The Court, in an Oral Decision from the Bench, virtually recited Mr. Corletta’s Memorandum of Law, and repeatedly stated  the deputy’s testimony was “not credible,” repeating virtually all of Mr. Corletta’s arguments verbatim.

 

As result of the defective stop, all charges against Mr. Corletta’s young client , who faced a one year license revocation as he was under the age of 21, were dismissed.

 

The case illustrates several points. One is obtaining a complete factual narrative from the client. Another is full review of all Police Reports and documents. The third is using this information in a properly prepared cross-examination.  When all factors are utilized in the right case, a result such as this can be achieved, even in a heavily pro-prosecution jurisdiction. As a result, Mr. Corletta’s young client not only avoided a one year license revocation, but a criminal record and other collateral consequences that could have affected his student loan funding.

 

NEW* MR. CORLETTA EXCLUDES STATEMENTS IN DIFFICULT DWI CASE

Again exploiting his knowledge of the law, Mr. Corletta won preclusion of damaging statements in a difficult DWI accident case in People v. J.S. (Greece Town Ct., 8/26/08).

In this case, which began in February and was dismissed once for insufficiency and then refiled, Mr. Corletta correctly argued that the government has failed to serve him with timely notice of their intent to use certain statements against Defendant, by serving his client with the notice instead of him, despite his continuous representation of his client.

Mr. Corletta argued that this breached ethical rules providing that represented persons in litigation may not be served with papers by the opposing party and that the only proper service is on their lawyer.

By pointing out that the government served his client and not him, Mr. Corletta successfully argued that this service was improper and a nullity, keeping many damaging admissions out of evidence, and helping his client’s case. 

 

* NEW * PERSISTENT MR. CORLETTA WINS STILL ANOTHER DISMISSAL

 

Making a unique argument and sticking with it, over a two and a half month period, resulted in still another dismissal for a repeat offender client in People v. D.P (Brighton Town Ct. 8/11/08).

 

Attacking the accusatory instrument with vigor, Mr. Corletta again  pointed out that the “checkbox” form Supporting Deposition, utilized since the mid 1980’s, was maladapted to accident cases, and failed to connect his client to the vehicle in any way.

 

Mr. Corletta first employed this argument to stop a “slam dunk” license suspension, and then, expanding it into a voluminous Motion to Dismiss, convinced the Court that his clients lone admission was legally insufficient to show he was operating the vehicle at the time and place alleged, citing the “ confession corroboration” rule.

 

The Court gave the People an opportunity to “cure” the defect, but when they failed to do so, Mr. Corletta again demanded dismissal. The Court reluctantly agreed, commending Mr. Corletta for his persistence and advocacy, as his Motion had been pending for over two months. The Court also indicated it was using its Decision in Mr. Corletta’s case as precedent in another Driving While Intoxicated case with a similar issue. This is not the first time Mr. Corletta’s arguments has been cited by local judges.

 

*NEW* THIRD TIME CONTINUES TO BE A CHARM FOR MR. CORLETTA.

In a rare “trifecta” in heavily prosecution oriented Ontario County, home of the Finger Lakes Race Track, Mr. Corletta obtained his third consecutive dismissal on a Driving While Intoxicated charge for insufficiency in People v. T.G (Gorham Town Court; 8/7/08).

Mr. Corletta previously obtained two dismissals in this case for failure to provide a legally and facially sufficient Supporting Deposition. Each dismissal was without prejudice, which allowed the People leave to refile.

The original charges were filed against Mr. Corletta’s client in February.  As of mid-August, no action has been taken against his driver’s license due to Mr. Corletta’s vigorous efforts. On the third attempted amendment, the People still failed to adequately identify Mr. Corletta’s client as the driver of the vehicle, still using conclusory allegations. Working tirelessly, Mr. Corletta filed a third Motion to Dismiss, which was granted in an extensive written opinion, the second such written opinion in the same case.

In addition, all accompanying charges against Mr. Corletta’s client, an environmental technician who must drive for purposes of his employment, were also dismissed. Three consecutive insufficiency dismissals in the same case is virtually unheard of in any county, let alone a county like Ontario.

 * NEW * MR. CORLETTA OBTAINS NOT GUILTY VERDICT IN PRO-POLICE ONTARIO COUNTY

In a vitally important case for his client, who had a professional license at stake, Mr. Corletta got a “not guilty" verdict from an Ontario County jury in People v. L.C. (Ontario Cty Ct., 4/6/07). Mr. Corletta’s client, who allegedly drank in a paved “drive- off” or overlook, and then left after her car became disabled, was located at her home by deputies nearly two hours, later and breath-tested three hours later. Mr. Corletta argued that the length of time between the time of alleged operation, which was supplied only by Defendant’s statement, and the field sobriety testing, as well as the breath testing, was simply too long to be of any probative value.

Although the prosecutor claimed that police and emergency personnel were “looking” for Defendant, no witnesses were produced by the People indicating the extent of the "search", nor was there any evidence of any police investigation which established the time of driving or the time of the alleged prior consumption. The jury found the evidence insufficient to convict on either the opinion evidence charge or the breath test charge. The jury further accepted Mr. Corletta’s arguments, which included criticism of the incomplete police investigation of the case, which left many gaps.

The case was important because it again showed the value of attention to detail in DWI cases, and to concentrate not necessarily on the evidence that the People bring forward, but the evidence they do not bring forward. This strategy proved effective, and resulted in a “guilty”verdict for Mr. Corletta’s grateful and relieved client. This is a rarity in prosecution-oriented Ontario County, as the jury rejected the testimony of not one, but two Ontario County Sheriff’s deputies.

 * NEW *  MR. CORLETTA SUCESSFULLY MOUNTS ATTACK ON STATE POLICE BREATH TESTING DEVICE

Mr. Corletta obtained his second not guilty verdict in just three days in People v. C.T. (Roch. City Ct., 4/9/07). In that case, Mr. Corletta’s client, in a seemingly hopeless case, was alleged to have changed lanes without signaling and failed to maintain her lane. She was pulled over by a veteran State Trooper, who arrested her for Driving While Intoxicated and obtained a breath sample on the heralded and technologically sophisticated Alco Test 7110MKIII-C. The alleged result was .18%, over twice the legal limit.

Over eight months time, Mr. Corletta mounted a methodical attack on the prosecution’s case, whittling away at the Probable Cause Hearing and at a subsequent Bench Trial. Mr. Corletta obtained a Trial Order of Dismissal against all the traffic infractions, and prior to the Court’s entering deliberations, raised a serious question as to the admissibility and/or weight to be given to the Alco Test results, based upon the machine’s failure to monitor human breath temperature. This is also the subject of litigation in the state of New Jersey, where a broad-based attack on the machine has been mounted.

Mr. Corletta argued that the “simulator solution” test is tightly monitored, while Defendant’s breath temperature is not monitored at all, although the machine has that capability.

The Court, researching the issue outside of caselaw from New York, where no attack has been mounted on the device, cited litigation in New Jersey, which is soon to be heard in the New Jersey Supreme Court, questioning the reliability of the Alco Test machine, which is used almost exclusively in most New Jersey counties.

One of the bases for attack on the Alco Test in New Jersey was its failure to monitor the temperature of the expired breath sample given by the Defendant, although the machine clearly has the capability to do so. A Special Master’s decision found that the temperature of an expelled breath sample is often closer to 35 degrees Centigrade, which can alter the test results by as much as 6.58%. The Special Master’s finding was that the Alco Test should be equipped with a breath temperature measuring device, or the test result adjusted downward.

City Court rejected the People’s poof, which also included vague and ambiguous testimony by the breath test operator that further called the reliability of the machine into question, and found the Defendant "not guilty" not only of the test charge, but also the common law (opinion) charge as well.

This case was highly significant because it is one of the few known New York cases dealing with the reliability of the relatively new Alco Test 7110MKIII-C, which had previously gone largely unchallenged. It was the first known case in Rochester City Court questioning the weight to be given to this breath testing device, which has been in use in New York since 1999, although Mr. Corletta conducted a Frye Hearing on the same machine in 2000. For information on this decision, please feel free to contact our office, particularly if you have been arrested by  the New York State Police, and been tested using this device.

Mr. Corletta turned another potentially bad situation into a favorable result for his client in People v. T.M. (Roch. City Ct.,  4/26/07). In this latest case, Mr. Corletta obtained still another “not guilty” verdict on both Driving While Intoxicated charges, with his young client being convicted only of the minor traffic violation of Driving While Ability Impaired, thereby saving him a lifelong criminal record.

  This was despite the fact his client allegedly ran a stop sign without stopping at all, and marijuana being found on his person. Through effective cross-examination of the arresting officer, Mr. Corletta blunted most of the allegations, and demonstrated his client was not intoxicated. Mr. Corletta, through a systematic attack on the breath test, was also able to negate its probative weight, to the point the Court found his client completely “not guilty” of the breath test charge.

 As a result, his young client was not only saved a lifelong criminal record, but was permitted a Conditional License to drive back and forth to work and school.

 

In addition, Mr. Corletta obtained a dismissal of one of the underlying traffic charges based upon lack of evidence. Overall, Mr. Corletta’s client benefited from his very thorough advocacy.

 

 

Mr. Corletta ended a nearly 18-month-old case with a successful verdict in People vs. MD  (Clarkson Town Court; May 21, 2007). 

 

Mr. Corletta’s client, arrested in a rural town and appearing before a Town Justice who is a former police officer, was originally charged with two counts of Driving While Intoxicated, Failure to Keep Right, and Talking on a Cell Phone.  The alleged BAC was .48% and the client allegedly admitted to having numerous beers at a local bar.  The stop occurred in the early hours of the morning after the client was allegedly observed weaving, and allegedly failed all field sobriety tests.  The case had all the classic indicia of intoxicated operation.

 

Mr. Corletta’s client, a manager of a local car dealership, had duties that involved transporting vehicles, making it necessary for him to drive. 

 

Mr. Corletta immediately went to work on the case and prevented even a suspension pending prosecution of his client’s license, based upon deficiencies in the accusatory instrument.  This in and of itself was highly important, because it continued his clients ability to drive for purposes of his employment.

 

Trying the case to the court, Mr. Corletta pointed out numerous deficiencies in the People’s breath test presentation, finally prompting the People, at the suggestion of the trial court, to dismiss the test charge, and with that, the alleged .18 BAC.

 

Left only with a common-law case, the People were unable to meet their burden and defendant was found not guilty of common law Driving While Intoxicated; being found guilty only of the lesser offense of Driving While Ability Impaired.  Mr. Corletta even obtained a not guilty verdict on the cell phone charge.  Leaving no stone unturned, Mr. Corletta revealed, on cross examination, that his client had only spoke on the cell phone after he had been stopped, when he made an attempt to call his wife. 

 

Of the original charges, Mr. Corletta’s client was only convicted of Failure to Keep Right.  He received a fine and a minimal license suspension, which was covered by a Conditional License and the ability to attend the Drinking Driver Program.  Mr. Corletta’s grateful client suffered no loss of his ability to drive for purposes of his employment.

 

* NEW * MR. CORLETTA OBTAINS DISMISSAL OF INDICTMENT BASED UPON REFUSAL ISSUE

In a rare decision, Mr. Corletta obtained  dismissal of an Indictment based upon the District Attorney’s failure to introduce evidence to the Grand Jury of  Defendant being warned of the consequences of a refusal to submit to a chemical test in People v. D.H. (Monroe Cty. Ct., 5/29/07). In that case, Mr. Corletta moved for inspection of the Grand Jury minutes, based upon several issues, one of which was whether proper evidence of the so-called “Commissioner’s Warnings” was introduced before the Grand Jury.

The Court, examining the Grand Jury minutes, found no evidence  Defendant was properly warned of the consequences of  refusal and dismissed the Indictment, holding that  a lack of evidence that Defendant  was properly warned could cause the Grand Jury to place undue eight upon  Defendant’s alleged refusal to submit to a chemical test and also violated VTL § 1194. In Mr. Corletta’s experience, although this application has been made numerous times, this was the first time a Court had ever dismissed an Indictment based upon this issue. This decision will certainly force the People to be more circumspect about how they present Driving While Intoxicated cases involving a refusal to the Grand Jury.

* NEW *  MR. CORLETTA PREVAILS ON NOVEL ISSUE IN ONTARIO COUNTY

 In a case of  first impression, Mr. Corletta preserved his client’s jury verdict, finding her guilty  only of Driving While Ability Impaired in People v. L.C. (Ontario County Ct.; 6/6/07). In that case, as previously noted on this site, Mr. Corletta’s client was convicted by a jury only of Driving While Ability Impaired as a traffic infraction.

 

After the verdict, the People attempted to increase the level of the offense to a misdemeanor based upon two (2) prior convictions within the previous ten (10) years, one of which they failed to prove at trial by either plea or admission. Five previous cases, all dealing with lower Court misdemeanors after non-jury trials, held that the People could not ratchet up the level of the offense without putting in proper proof at trial. One recent case, from Rochester City Court in November, 2006, held in an in an extensive opinion, that the People could do this. (See e.g. People v. Harris 14 Misc.3d 997, Roch. City Ct., 11/06)

Mr. Corletta in two (2) separate Legal Memoranda vigorously  attacked this Decision on Constitutional and procedural grounds, and demonstrated its flawed reasoning. In this case, which started out as a Felony, any change in the level of the conviction would have resulted in a modification of a jury verdict, something that would have been unprecedented. The Court, agreeing with Mr. Corletta, and finding no statutory authority to do so, kept Defendant’s conviction at the violation level, thereby shielding her from further punishment that would not be justified by the proof submitted. Further, this was a case of first impression, because it was the first time this issue was ever raised at the Superior Court level following a jury trial. The other reported cases dealt with non-jury, or “Bench” trials.

*NEW*  MR CORLETTA OBTAINS DISMISSAL OR ACQUITTAL ON FOUR (4) OUT OF FIVE (5) CHARGES

In an impressive victory, Mr. Corletta obtained a dismissal or acquittal on four (4) out of five (5) original charges in People v. D.C. (Roch. City Ct., 6/12/07)

In a case tried to the Court, Mr. Corletta again demonstrated his knowledge of the law in capitalizing on numerous errors made by the prosecution. Mr. Corletta’s client was originally charged with having an Open Container in the Vehicle (VTL § 1227 (1)), Refusal to Take a Breath Screening Test (VTL § 1194(2)), Failure to Notify of Address Change (VTL  509(8)), Passing a Red Light (VTL § 1111 (d) (1)), and Driving While Intoxicated (VTL § 1192 (3)).

Mr. Corletta obtained a Trial Order of Dismissal on the first three (3) charges, and a not guilty verdict on the Driving While Intoxicated charge. Mr. Corletta’s client was convicted only of the red light violation, and assessed a small fine.

Mr. Coreltta capitalized on a weak prosecution case, and was able to exclude all evidence of his client’s alleged refusal. His client, a person with no prior criminal history, who was arrested on evidence that could be termed shaky at best, was quite please with the result, and grateful for Mr. Corletta’s advocacy.

* NEW * MR. CORLETTA OBTAINS YET ANOTHER DISMISSAL

In a seemingly hopeless case where Defendant’s vehicle flipped over several times on an interstate highway, in full view of a police officer, Mr. Corletta obtained an outright dismissal in People v. Anonymous (Greece Town Ct., 6/21/07).

Apparently, the police officer who actually observed the motor vehicle accident thought it was an obvious case, and turned the investigation over to a second officer without providing a Supporting Deposition of what he observed. The second officer simply transported Defendant to the hospital and obtained a blood test without speaking with her. The result was no factual allegations as to operation, requiring dismissal.

Mr. Corletta’s grateful client, a registered nurse, also avoided potential disciplinary action as a result of Mr. Corletta’s prompt recognition of this defect and prompt action in moving to dismiss.

* NEW * MR. CORLETTA OBTAINS SECOND DISMISSAL OF INDICTMENT ON SAME CHARGE

 Alertly spotting a defect in the people’s representation of a previously dismissed case. Mr. Corletta obtained a second consecutive dismissal of an Indictment of the same charge in People v. DH (Monroe Cty. Ct., 7/13/06)

An Indictment charging Felony DWI had been previously dismissed by the same Judge due to a defect in the Grand Jury proceeding. The People quickly represented the case to another Grand Jury without seeking leave of the Court, as required by statute.

Researching the law and spotting the defect, Mr. Corletta’s oral Motion to Dismiss was granted without opposition by the People.

 *NEW*  MR. CORLETTA SCORES UNUSUAL DISMISSAL

In a case that should have been a “slam dunk” for the prosecution, Mr. Corletta scored still yet another dismissal in People v. MW (Ogden Town Ct., 7/12/07). In that case, an identified civilian witness observed Mr. Corletta’s client allegedly driving all over the road. The witness followed Mr. Corletta’s client to his home, calling police in the process. When police arrived, the identified civilian witness directed them to Defendant’s home.

The police knocked on the door, and ultimately arrested the Defendant for Driving While Intoxicated.

The problem was that the police, believing their case was a “slam dunk”, neglected to get a statement from the civilian witness, tying up the time frames to show recent operation. Instead, they drafted an accusatory instrument that stated Defendant was arrested based upon an “investigation of a dangerous condition”, with no further elaboration.

Focusing on this obviously vague and conclusory allegation, Mr. Corletta quickly filed a detailed Motion To Dismiss attacking the facial sufficiency of the accusatory instrument. The Motion was granted from the Bench after little argument (or opposition), as the issue was quite obvious. This case illustrates what proper law enforcement practices should be, and the importance of giving proper attention to the factual allegations of an accusatory instrument, from both a defense and prosecution perspective.

 *NEW*  MR. CORLETTA OBTAINS STILL ANOTHER DISMISSAL IN A REAR-END MOTOR VEHICLE ACCIDENT CASE

Mr. Corletta scored yet another victory, in a situation where his client allegedly ran into the back of a flat-bed truck, in People v. P.W. (Greece Town Ct.,July 19, 2007).

In that case, the allegations were that Mr. Corletta’s client’s vehicle ran directly into the back of a flatbed truck, resulting in a motor vehicle accident. 

Once police arrived, Mr. Corletta’s client was allegedly found sitting in a grassy area along the side of the road. 

In this seemingly hopeless situation, the investigating officer made key mistakes, such as neglecting to obtain any admissions from Mr. Corletta’s dazed and confused client, neglecting to obtain any statements from any witnesses, or even attempting to verify ownership of Defendant’s vehicle.  In short, the officer did absolutely nothing to tie Mr. Corletta’s client to operation of the vehicle involved in the accident, or to operation at all. 

Pouncing on this obvious defect, Mr. Corletta filed a prompt motion to Dismiss.  The government, never recognizing the jurisdictional defectiveness of the accusatory instrument, never amended it, resulting, after two (2) months of Court appearances, in an outright Dismissal of the accusatory instrument, which the Court termed “obviously defective”..

This illustrates still another case where police, due to poor preparation of the accusatory instrument, have been penalized by a dismissal of a seemingly “slam-drunk” case.

*NEW * STILL ANOTHER VERDICT GOES MR. CORLETTA’S WAY IN PEOPLE V. M.B. (MONROE CTY. CT, 7/27/07)

In this Felony DWI prosecution before a judge known for requiring the People to meet their burden of proof, Mr. Corletta capitalized on several deficiencies in the People’s presentation, resulting in his client being acquitted of Felony Driving While Intoxicated, and being convicted of only the lesser included traffic violation of Driving While Ability Impaired.

Mr. Corletta’s client avoided probation and jail and was sentenced to a small fine, license revocation, and attendance at a single one-hour DWI education program.

Mr. Corletta effectively argued that his client’s operation of the vehicle was reasonable and prudent, and that the People failed to show he was incapable of operating as a reasonable and prudent driver, which is the standard required by law. Through extensive cross-examination, Mr. Corletta broke down the officer’s testimony to show his client committed only a minor lane violation, and when signaled to stop while in the middle of a heavily traveled three lane street, pulled over in a reasonable and prudent fashion.

Mr. Corletta also persuaded the court to exclude all evidence of his client’s alleged refusal to submit to a chemical test, thereby eliminating any prosecution argument as to so-called “consciousness of guilt”.

Anytime someone charged with a Felony is convicted only of a mere traffic violation, this is an exceptional result indeed. Mr. Corletta’s client was extremely grateful for this result, which was achieved only after nine months of hard work.

*NEW* MR. CORLETTA SCORES OUTRIGHT DISMISSAL IN REFUSAL CASE

Mr. Corletta scored a most impressive victory in People v. JD (Brighton Town Ct., 8/29/07). Citing insufficient evidence to support stop of his client’s vehicle under People v. Robinson and Brighton Town Court precedent, Mr. Corletta obtained suppression of all evidence and an outright dismissal of all charges following a pre-trial Probable Cause Hearing held on August 29, 2007.

The court, ruling from the bench, granted Mr. Corletta’s application in its entirety, citing the “insufficient” nature of the People’s proof and that there was “absolutely no evidence” that Mr. Corletta’s client “violated any law” justifying the stop of his vehicle. Mr. Corletta’s client was cleared of all charges, without having to undergo the risk (and expense) of a trial in a case involving an alleged chemical test refusal.

*NEW* MR. CORLETTA WINS AGAIN IN ONTARIO COUNTY!!!

 In an unusual case, where a single mother of three was returning to her own home from a date, only to be confronted by a Probation officer and  Deputy Sheriff wearing plainclothes, who were looking for her ex-husband, who had not lived at her residence for nearly three (3) years, Mr. Corletta’s client wound up on the unfortunate end of a DWI arrest in People v. KM (Victor Town Ct., 9/19/07)

Tried to the Court, the Probation Officer and Deputy Sheriff, who were on a “Nightwatch” detail designed to confront and test convicted DWI offenders on probation, were erroneously searching for Mr. Corletta’s client’s ex-husband at her residence. When Mr. Corletta’s client returned from dinner, she wound up being detained and subsequently arrested for DWI, as the Probation Officer and the Deputy Sheriff had not yet left her home. When she pulled into her driveway, she  was confronted by these men who were in plainclothes, who began asking her if she had been drinking.

In a strange case marked by exaggerated testimony as to how Mr. Corletta’s client turned into her own driveway, which was a winding, gravel driveway obstructed by potholes, Mr. Corletta effectively cross-examined the Probation Officer and the Deputy Sheriff as to his client’s manner of operation, and negated their exaggerated testimony, to the point the Court did not believe it.

Mr. Corletta was also able to successfully argue that his client’s performance of Field Sobriety Tests, administered by a Deputy summoned to the scene, was substantially satisfactory, and that his client exhibited no slurred speech, and other common indicia of intoxication.

Mr. Corletta also called into question the results of a chemical test, administered approximately one hour and fifteen minutes later, and further questioned the underlying foundational evidence that was used to enter the test results into evidence.

The end result was that Mr. Corletta’s client was found not guilty of the three (3) original charges; Driving While Intoxicated, Driving While Intoxicated Per Se, and Speed Not Reasonable and Prudent for Conditions. Mr. Corletta’s client was only convicted of the lesser included offense of Driving While Ability Impaired, and received a fine, license suspension, and Conditional License. Mr. Corletta’s client, who works two jobs and is the mother of three small children, was extremely grateful for this result.    

*NEW * MR CORLETTA WINS RARE VICTORY BASED UPON SELDOM USED GEOGRAPHIC JURSIDICTION

 In People v. SB (Greece Town Ct. 10/11/07), Mr. Corletta obtained dismissal of Driving While Intoxicated charges, including a Driving While Intoxicated Per Se  charge with an alleged .18 BAC, by utilizing a seldom used argument regarding lack of geographic jurisdiction.

Mr. Corletta’s client was observed exiting a bar parking lot near the border of the Town of Greece and City of Rochester. The bar was located in the City of Rochester. The officer claimed he observed traffic violations near the barf, which were both located in the City of Rochester, and followed the vehicle. He stopped the vehicle just as it entered the Town of Greece.  All traffic tickets were written for the Town of Greece.

Mr. Corletta vigorously challenged the officer’s testimony at a pre-trial hearing, and argued the officer only followed his client because he observed him exiting a bar. Entering a map into evidence, and citing seldom used provisions of the Criminal Procedure Law, Mr. Corletta pointed out that the alleged violations had occurred within the City of Rochester and could not possibly occurred within 100 yards of the Greece Town Line, which would have allowed prosecution in Greece.

The Court noted in its Bench Decision, which came after reviewing an extensive Memorandum of Law submitted by Mr. Corletta, that Mr. Corletta’s argument had merit, and that there was nothing in the testimony that indicated the violations had occurred in the Town of Greece. As a result, the Court dismissed all charges against Mr. Corletta’s client, a first time offender.

This  completed a rare “trifecta” of 3 cases Mr. Corletta took in in April, 2007 in that Court, all of which ended in outright dismissal.

 *NEW * THIRD TIME PROVES A CHARM IN DISMISSAL OF MONROE COUNTY INDICTMENT

In a case that had its inception on Christmas Eve 2006, a tortured and convoluted history came to an end with the unprecedented dismissal of a third Indictment in the same case In People v. DH (Monroe Cty. Ct. 10/26/07).

Two previous Indictments have been dismissed, one in May, 2007, which was referenced on this website, and one in July, 2007. Following the dismissal of the second Indictment in July, 2007 the People, undaunted, filed a third Indictment in August, 2007.

Raising a rare point of procedure regarding Grand Jury presentations, Mr. Corletta correctly pointed out that dismissal of the second Indictment, which was based upon a jurisdictional defect, barred resubmission of the case a third time, citing an obscure case from 1979. The point was little discussed because Courts seldom see a fact pattern such as this one; where there was were two previous Indictments dismissed for various technical defects.

Mr. Corletta correctly analyzed the law, which essentially prohibits repeated Grand Jury presentations against a Defendant, and with the dismissal of the third Indictment ended a felony prosecution, without the necessity of placing his client in jeopardy via trial. The result was unique, in that the point of law on which the Indictment was dismissed, a jurisdictional impediment to conviction, is rarely invoked in felony cases. The case exemplifies how important knowledge of the law is in successfully defending persons charged with crimes. These are not “technicalities”, as politicians and television actors would have the public believe, but instead valuable protections built into our law to protect people against multiple flawed prosecutions.

*NEW* MR. CORLETTA SCORES ANOTHER WIN IN GREECE REFUSAL TRIAL

Sometimes cooperation with police pays off. Such was the case in People v. P.C. (Greece Town Ct., November 14, 2007). In that case, Mr. Corletta’s client was alleged to have driven off the shoulder of the road several times, and further was alleged to have stopped Field Sobriety Testing because he claimed he was “too drunk.” Fortunately, Mr. Corletta’s client knew enough to request to speak to him, and the police officer knew Mr. Corletta. Further, Mr. Corletta’s client was polite and cooperative with the officer. Mr. Corletta, receiving a call at approximately 3:00 A.M., quickly analyzed the situation and instructed his client to refuse chemical testing, but at the same time was courteous to the officer and instructed his client to be courteous as well. Mr. Corletta correctly advised his client to refuse the test, which is his right, while at the time defusing a potentially adversarial situation.

This courtesy was paid back in spades during the trial, as the officer, while testifying to the facts, repeatedly noted his client’s politeness, courtesy and cooperation. This undoubtedly played a role in the Court’s decision to find Mr. Corletta’s client guilty only of the lesser included offense of Driving While Ability Impaired, and to find his client not guilty of two (2) other traffic violations he was charged with, therefore finding him guilty of only one (1) of the original four (4) charges. The lesson to be learned here is that sometimes common decency and courtesy can pay off in seemingly hopeless situations, and the consequences of an arrest such as this minimized as much as possible. 

 *NEW * MR. CORLETTA SCORES IMPRESSIVE YEAR ENDING VICTORY IN LANDMARK SOBRIETY CHECKPOINT CASE

In litigation spanning nearly eighteen (18) months, Mr. Corletta obtained suppression of all evidence in a potentially ground breaking, precedential sobriety checkpoint case in People v. L.H. (Brighton Town Ct., Dollinger J., December 23, 2007).

Mr. Corletta demonstrated his wide knowledge of sobriety checkpoint law by citing cases from across the nation to obtain suppression of all evidence at this Brighton sobriety checkpoint. Mr. Corletta argued that a seminal New York Court of Appeals case, People v. Scott 63 NY2d 518 (1984), applied virtually without question by lower Courts throughout New York for twenty-three (23) years, was poorly reasoned, and subsequently rejected by later Court of Appeals decisions in favor of an overriding United States Supreme Court Federal standard, enunciated under an older Supreme Court opinion, Brown v. Texas 443 US 47 (1979).

    Mr. Corletta demonstrated that the Scott analysis was not followed in numerous states and on the Federal level, and that this Defendant was entitled to have the minimum protections of the United States Constitution, as opposed to New York State law, applied in analyzing whether the Brighton sobriety checkpoint was constitutionally conceived and administered.

  Persuading the Court his analysis was correct, Mr. Corletta then  demonstrated the deficiencies in the People’s proof, and that the People’s position that Supreme Court caselaw did not control was just plain wrong. Brighton Town Court agreed on both counts. The result was suppression of all evidence, and dismissal of all charges against his client, a retired professional with no criminal record.

The case has potentially ground breaking precedential value, because it is the first known case that has formally rejected the reasoning of People v. Scott in analyzing the Constitutionality of a New York sobriety checkpoint.

Requests for copies of this Decision can made directly to Mr. Corletta’s office.

*NEW * MR. CORLETTA OVERTURNS REVOCATION FOR REFUSAL AT DMV HEARING

Once again, Mr. Corletta demonstrated the proof problems involved in motor vehicle accident cases, and what the consequences are of conclusory testimony and lack of preparation by police officers, who believe they have a “no brainer”.

In Matter of J.C. (1/15/08), a Monroe County Sheriff’s Deputy testified at a DMV Refusal Hearing in completely conclusory language that Mr. Corletta’s client operated a motor vehicle involved in a motor vehicle accident and was “determined” to be intoxicated. The deputy could not recite results of field sobriety tests, nor did he provide any other proof of either operation or intoxication, in terms of admissions or physical observations. Similarly, the Report of Refusal Form, filed with DMV, contained no such farts.

To compound matters, the Deputy could not remember the language of Mr. Corletta’s client’s alleged refusals.

Moving to dismiss, Mr. Corletta cited the correct sections of the law, and the complete lack of any factual support for the deputy’s conclusory statements. The Administrative Law Judge, a DMV employee, reluctantly agreed, dismissed the refusal proceeding and restored Mr. Corletta’s client’s license. Given the extremely low standard of proof required for these hearings, and that over 98% of them end in license revocations, this was a stunning victory for Mr. Corletta’s client, a local teacher, who was extremely grateful for the result, as his/her ability to drive back and forth to work was restored.

 *NEW * MR. CORLETTA EARNS ANOTHER DISMISSAL IN “SLEEPING MOTORIST” CASE

 Mr. Corletta once again demonstrated that finding an individual who is allegedly intoxicated sleeping in a parked vehicle does not necessarily equal a DWI in People v. R.J. (Roch. City Ct., January 16, 2008).

In that case, Mr. Corletta’s client was found by police sleeping in a parked vehicle, which was not running.

Two police officers failed to elicit how long Mr. Corletta’s client had been in the spot where he was found, how long ago he had been drinking, or when he had allegedly driven the vehicle to the spot where it was found.

Instead, police simply found Mr. Corletta’s client in an alleged intoxicated condition, seated inside the vehicle, and arrested him without eliciting any facts as to operation.

Arguing police failed to elicit any facts that Mr. Corletta’s client recently operated the vehicle to the spot where it was found, and failed to tie his alleged prior consumption of alcohol to intoxicated operation in any way, Mr. Corletta urged the Court to find a lack of probable cause to arrest. The Court agreed, resulting in dismissal of all charges.

This again underlines a basic premise. Police often believe that finding an intoxicated person in a parked car is a “no brainer” for a DWI.  This is simply not the case, particularly if the car is not being operated when the police find upon the Defendant. Police must make some effort to determine when the motorist last operated the vehicle, in order to tie his intoxicated condition when they find him to some recent operation of the vehicle. This is exactly what they failed to do here, resulting in  a dismissal for Mr. Corletta’s client.

* NEW * MR. CORLETTA  OBTAINS DISMISSAL OF HIGH BAC CASE IN PROSECUTION-ORIENTED SENECA COUNTY

 In a high BAC case dating back to April, 2004, Mr. Corletta achieved an outright dismissal for his client, a professional who travels internationally, in People v. W.M. (Seneca Falls Town Court, February 22, 2008).

Mr. Corletta’s client was arrest in April, 2004, and the case followed the customary path through motions and a Probable Cause Hearing held in October, 2004, in which several issues were raised regarding the police approach and detention of Mr. Corletta’s client, a motorcyclist who was stopped at a stop sign. The issues were extensively briefed and submitted to the Court for consideration.

While the motion was being considered, an arsonist caused a fire in the Court building, destroying many of the Court’s records and computer equipment.  In addition, many files were lost or misplaced in the chaos following the fire, as the Court was forced to relocate and send many files that were smoke or water damaged to document restoration facilities

To make matter even more complicated, the presiding Town Justice resigned in mid-2005 for health reasons, and a new Justice did not take office until January, 2006.

This resulted in a long delay, with Defendant not being summoned to return to Court until April, 2006.

Addressing this extremely complex and unusual set of facts, Mr. Corletta promptly moved for dismissal on speedy trial grounds and in the furtherance of justice, and also pointed out that under the Judiciary Law, the new Justice could not decide the issues raised at the Probable Cause Hearing because she had not heard the evidence. Mr. Corletta argued that his client was prejudiced by the delay, in that his license had already been suspended, pending prosecution for approximately eighteen (18) months.

After another lengthy delay, the Court, nearly four (4) years after Defendant’s arrest, agreed with Mr. Corletta, dismissing all charges.

This result benefited the client immensely, beyond the fact he was convicted of nothing. The client also avoided a potential sentence of probation and an even longer loss of license. In the post-9/11 world, a probationary sentence would have severely impaired his ability to travel for his job. Therefore, despite the delay, Mr. Corletta showed there was “more than one way to skin a cat”, by being persistent and citing the correct law to address these unusual facts.   

*NEW*  MR. CORLETTA SCORES IMPRESSIVE TRIFECTA IN ROCHESTER CITY COURT

 Mr. Corletta obtained dismissal of charges and/or suppression of evidence in three (3) separate cases in Rochester City Court during the first week of March, 2008. 

 

 In case No. 1, People v. M.S. (Rochester City Court 3/4/08) Mr. Corletta, used his sharp eye for details and  knowledge of the law to spot defects in the Accusatory Instrument that most attorney’s would overlook. After making the proper Motion to Dismiss, the Court dismissed DWI charges against his young client, restoring her license.

 

In Case No.2, People v. J.G. (Rochester City Court 3/4/08), Mr. Corletta demonstrated that perseverance is essential in DWI cases.  In this two officer case, Mr. Corletta exploited the neglect of the second police officer to appear on two scheduled court dates, and obtained summary suppression of virtually all evidence, over the objection of the government.  The suppression of evidence left the people with no proof against Mr. Corletta’s client, leading to dismissal of the charges.

 

In Case No. 3, People v. M.M. (Rochester City Court 3/6/08), Mr. Corletta encountered Rochester City Court Judge Thomas Rainbow Morse, widely recognized for his knowledge of the law. 

 

Once again exploiting a defect in the Accusatory Instrument, Mr. Corletta cited all the correct caselaw, which is required before an exacting judge like Judge Morse.  The result of this hard work was dismissal of the charges in a motor vehicle accident case with a high BAC, and restoral of his client’s license. 

 

All three cases continue to demonstrate the importance of knowledge of the law and perseverance in making the appropriate motions in DWI cases, particularly those involving motor vehicle accidents.  Remembering these tenets on a daily basis, Mr. Corletta continues to score impressive victories for his clients.

 

*NEW * MR. CORLETTA WINS STUNNING ACQUITTAL IN ONTARIO COUNTY

Mr. Corletta, utilizing and executing perfectly a third-party operation defense, won a complete acquittal of all charges for his client, a professional, in People v. K.W. (Canandaigua City Ct., 3/28/08). Complete acquittals are rare in heavily prosecution-oriented Ontario County.

Mr. Corletta also prevented potential disciplinary proceedings against his client, a professional. The investigation was terminated upon the acquittal.

Mr. Corletta utilized what is commonly referred to as a third-party operation defense in this “fender bender” accident case, which occurred in the parking lot of a popular local restaurant. Mr. Corletta presented testimony that someone other than his client was driving. Ironically, the person who was driving, the Defendant’s daughter, told the police so less than an hour after the arrest, and the police ignored it. Prosecutors also apparently knew of the claim, but also chose to ignore it.

When Mr. Corletta presented this proof at trial, the Prosecutor, during very sharp and aggressive cross-examination attacked the witness, severely questioned her credibility, and implying she was lying. However, the Prosecutor never called the arresting officer as a rebuttal witness, to counter the proof Mr. Corletta presented. Mr. Corletta’s witness, the daughter, testified she told the arresting officer she had been driving. The arresting officer was never called to refute her testimony. Mr. Corletta pointed this out on summation.

This apparently swayed the Court, who found the daughter’s testimony “credible.” As a result, Driving While Intoxicated charges with a high BAC (over .20) were not sustained beyond a reasonable doubt, and Mr. Corletta’s client was found not guilty. The client, a professional, was able to maintain a clean record, essential to the client’s employment. Needless to say, the client was exceedingly grateful, as the case took two (2) years to complete and was vigorously litigated.

*NEW* MR. CORLETTA SCORES ANOTHER VICTORY IN ROCHESTER CITY COURT

In a difficult “sleeping motorist” case where his client was found in the middle of an intersection asleep with the motor running and foot on the brake, Mr. Corletta did not give up and obtained a reduction to Driving While Ability Impaired, a traffic violation in People v. J.R. (Rochester City Court, April 2, 2008).

In a case that took nearly a year to litigate and two days to try, Mr. Corletta took advantage of lax attendance by police, and an unreliable machine, to exclude the results of the breath test.  Despite the fact the client was found asleep in the middle of an intersection, Mr. Corletta was able to persuade the Court that the indicia of intoxication did not rise to the level required for a Driving While Intoxicated conviction, and persuaded the Court to reduce the charge to Driving While Ability Impaired.

This saved his client, who holds two (2) fulltime jobs, a certain sentence of probation, and loss of license while on probation for at least two (2) years, which would have caused him great hardship.  Instead, the client received a nominal fine, and was required to attend the Drinking Driver’s Program with a Conditional License to allow him to drive to his jobs.  Needless to say, the client was extremely grateful and thankful that Mr. Corletta did not give up in a case where most lawyers would throw up their hands.

*NEW* MR. CORLETTA PREVENTS NEW ARRAIGNMENT IN TWO (2) PREVIOUSLY DISMISSED CASES.

Sometimes, not losing sight of the basics helps.  In two (2) cases Mr. Corletta previously got dismissed due to defects in the accusatory instrument, the People, as they are entitled to do, attempted to re-file the accusatory instruments and arraign Defendant.

However, in both cases, the People filed only Supporting Depositions and forgot to file and serve Uniform Traffic Tickets on Defendant, as required by statute.

The People forgot the basic concept that it is the Uniform Traffic Ticket that must be served on the Defendant and which initiates the prosecution.  Therefore, when each of Mr. Corletta’s client’s returned to Court, Mr. Corletta promptly objected to the failure of the People to file and serve Uniform Traffic Tickets and argued that the Court lacked jurisdiction to arraign Defendant.  Both Courts agreed, and struck the case from their calendar. Both required the People to personally serve  Defendant with the Uniform Traffic Ticket, and then file same.

Although a basic concept, what the People were doing was the equivalent of “the tail wagging the dog”; the dog being the Uniform Traffic Ticket.  The People commenced both prosecutions without filing the basic accusatory instrument first, and then filing the Supporting Deposition, which amplifies the Uniform Traffic Ticket.  Many lawyers would have allowed re-arraignment and not objected.  Mr. Corletta promptly objected, and in both cases, the court agreed.  See People v. M.S. and People v. M.M. (Rochester City Court Dixon J. 3/27/08,  Morse J. 4/8/08).

As a result, both cases remain dismissed. Both Defendants' licenses have been restored, due to Mr. Corletta’s diligent efforts. 

*NEW* MR. CORLETTA WINS SUPRESSION OF ALL EVIDENCE-“PLATE LAMP” STOP INVALIDATED BY COURT AS “RUSE”

Mr. Corletta gained notoriety through his use of pretextual stop arguments in DWI cases, ending with the Court of appeals Decision in People v. Reynolds 97 NY2d 341 (2001). Reynolds was the only DWI case in the history of New York State that was ever argued before the Court of Appeals on the issue of pretextual stops.

Although that decision went against Mr. Corletta, the Court did allow for continued challenges to the credibility of police officers in DWI motor vehicle stop situations. Mr. Corletta has vigorously pursued this, winning an appeal in Wayne County in 2003 in People v. Rotach, and has now won another case in the Greece Town Court where he attacked the credibility of a police officer who stopped his client around 2:00 A.M. for a “plate lamp” violation.

In People v. R.S. (Greece Town Ct., 4/22/08), Mr. Corletta employed a two-pronged attack, first challenging the credibility of the officer in even observing the alleged “plate lamp” violation, and presenting proof from a qualified mechanic that the plate lamp was working two (2) days after the stop. Therefore, as permitted under Reynolds, Mr. Corletta placed the credibility of the officer directly in issue.

Second, Mr. Corletta employed an analysis of the plate lamp statute, and questioned whether the officer misapplied it.

The end result was a decision by the court that the “plate lamp” was not out, and the stop was a “ruse.” This was a strong ruling, by a local Judge against a local Police Department. Suppression of all evidence emanating from the stop resulted, resulting in an outright dismissal of the charges.

This decision demonstrates that knowledge of the law and application of criminal law concepts in DWI cases indeed works.

In this case, Defendant was spared the necessity of a costly and rime consuming trial, via the best possible result, suppression of all evidence and dismissal of all charges prior to trial. Contrary to what some experts claim, there is no substitute for knowledge of the law, hard work, and application of criminal law concepts to DWI cases. There is no better result than to have all charges dismissed without a trial.

Mr. Corletta employed all of these weapons in this case, and even unscrewed the plate lamp assembly of the car and looked at the plate lamp himself to familiarize himself with how it worked, and to confirm that it did indeed work. Not many attorneys would have gone to these lengths.

*NEW* MR. CORLETTA SCORES ANOTHER VICTORY IN PROSECUTION-ORIENTED ONTARIO COUNTY

Once again, Mr. Corletta has been able to convince an ordinarily conservative, prosecution oriented Ontario County Judge to dismiss DWI charges against his client in People v. TG (Gorham Town Court 4/21/08).  The case involved a motor vehicle accident. 

The accusatory instrument contained conclusory allegations that Mr. Corletta’s client was the driver of one of the vehicles, without containing any factual basis for that conclusion.

Mr. Corletta, carefully examining the accusatory instrument, spotted the defect and made a prompt motion to dismiss prior to his clients arraignment.  Not only was a license suspension avoided, but the court agreed, in a four (4) page decision, that the accusatory instrument was insufficient and dismissed the charges.

As a result, Mr. Corletta’s client, an environmental technician who drives for purposes of his employment, was spared the loss of his driving privileges and possible loss of his job.   This case once again demonstrates that even in a prosecution-oriented County, diligent preparation and knowledge of the law will work to the client’s advantage.

*NEW* MR. CORLETTA PREVENTS LICENSE SUSPENSION IN SLEEPING CAR WASH CASE.

Mr. Corletta, once again confronted with the seemingly impossible position of a motorist passed out in a car wash, has prevented a license suspension by arguing that a car wash bay is not a public highway.

Further, this occurred over the vigorous objection of the District Attorney in prosecution-oriented Ontario County.

In People v. F.I. (Clifton Springs Village Court, 4/29/08), Mr. Corletta’s client was found sleeping in his running automobile in a car wash bay.  Subsequently charged with Driving While Intoxicated, Mr. Corletta again attacked the accusatory instrument, which stated only that Defendant was found in a “car wash bay”.  Arguing that a car wash bay was not a public highway, Mr. Corletta prevented a license suspension for his client, who had no other way to get to work and had to be to work in the early hours of the morning in a place where there was no public transportation.

Once again, by careful review of the accusatory instrument and by simply not giving up, Mr. Corletta obtained an exceptional result for his client in a seemingly hopeless situation.

* NEW * MR CORLETTA SCORES IMPRESSIVE VICTORY IN .21 BAC CASE

Mr. Corletta scored another impressive victory, this time in an Aggravated Driving While Intoxicated case (BAC over .18), in  People v. R.M . (Roch. City Ct., 5/2/08)

Faced with allegations that his client blew a .21 BAC, Mr. Corletta aggressively attacked the evidentiary basis for the admission of the breath test, ultimately gaining a Trial Order of Dismissal on the Aggravated DWI charge.

Still faced with a “common law” Driving While Intoxicated charge Mr. Corletta aggressively cross-examined both arresting officers, forcing them to admit numerous indicators of sobriety. The result was a not guilty on the Driving While Intoxicated charge, with the client being  only found guilty of the lesser included traffic infraction of Driving While Ability Impaired, for which he received a fine and ninety (90) day license suspension.

Considering where he started from, with the possibility of an Aggravated Driving While Intoxicated conviction, an enhanced license revocation, and possible probation, Mr. Corletta’s client received only a short suspension, and minimal fine. Mr. Corletta’s client was grateful for this exceptional result.

*NEW*  DISTRICT ATTORNEY MOTION TO REARGUE IN PLATE LAMP CASE DENIED

The District Attorney, after having all evidence suppressed in People v. R.S (Greece Town Ct, Nitti, J., 4/24/08), instead of stating they could not go forward and consenting to dismissal, moved to reargue the Court’s decision, claiming the Court somehow “misapprehended the law” and was wrong.  Mr. Corletta of course, pointed out the Court did not “misapprehend” anything, but simply chose to credit the defense witness over the police officer, which it was certainly entitled to do, based on the testimony, something that never occurred to the shocked District Attorney.  The government seems to believe the police officer should always be believed, and that defense witnesses are never to be believed, even when the officer gives testimony that is not credible.  The Court, obviously angered by the District Attorney’s position that his officer could not be disbelieved and that the Court must be wrong, denied the motion out of hand, pointing out that it did not find the officers testimony credible which resulted in the final dismissal of the charges.

*NEW*  MR. CORLETTA SCORES ANOTHER DISMISSAL IN GREECE TOWN COURT

In a seemingly hopeless case involving a motor vehicle accident, where his client was found in the median of Route 390, Mr. Corletta once again showed that careful examination of the accusatory instruments can bring exceptional results in People v. J.S. (Greece Town Ct. 5/13/08).  In that case, the State Police inexplicably used a piecemeal method of filing of the accusatory instruments; initially filing only the tickets, and filing the other accusatory instruments in piecemeal fashion.  In total, there were five (5) accusatory instruments, but they were not filed simultaneously and several were defective, based upon lack of factual allegations or untimely filing.  As a result, the client’s license was never suspended.

Mr. Corletta filed a 7-point motion attacking these defects.  The District Attorney, somewhat dumbfounded, was unable to specifically address these points, claiming the accusatory instruments were “overall” sufficient.

The Town Justice rejected this argument out of hand, calling it the “worst set of papers” in a criminal case he had ever seen, for the reasons set forth in Mr. Corletta’s motion, which the Court adopted.  As a result, the charges against Mr. Corletta’s young client were dismissed. This  was significant, because the case involved a motor vehicle accident and a potential lawsuit against the client and the owner of the vehicle he was allegedly operating.

 *NEW* MR. CORLETTA OBTAINS IMPORTANT DISMISSAL FOR YOUNG COLLEGE STUDENT

In another victory, this time for a young hard-working college student working three jobs to finance her education with professional aspirations, Mr. Corletta methodically picked apart errors in the prosecution’s case to obtain a dismissal in People v. R.B.  (Sweden Town Ct., 6/4/08).

 Citing a multitude of errors by police and prosecution, including late service of a Supporting Deposition, improper service of a CPL § 710.30 Notice, plus geographical jurisdiction and probable cause problems, Mr. Corletta was able to persuade the Court, after a full Probable Cause Hearing and sixteen (16) months of litigation, that the case no longer merited going to trial.

As a result, his young client’s job aspirations were greatly enhanced, and her license restored to full status. Needless to say, she was quite grateful for Mr. Corletta efforts.

In addition, a companion of hers received traffic charges as a result of a claimed opened container in the vehicle. As an added victory Mr. Corletta got those charges dismissed as well. In all, police wrote six (6) tickets and every one was dismissed.

 *NEW* MR. CORLETTA OBTAINS SECOND DISMISSAL IN SAME CASE BEFORE DIFFERENT JUDGE

As previously reported on this website, Mr. Corletta obtained a dismissal in People v. M.S., (Rochester City Ct. 3/04/08).  The charges were subsequently re-filed since the earlier dismissal was “without prejudice.”  Mr. Corletta’s client was reissued the tickets and required to appear before a different judge in May, 2008.  These charges have once again been dismissed as Mr. Corletta methodically picked apart similar defects in the re-filed accusatory instrument, some of which involve defects in the computer program being used to issue these tickets. Mr. Corletta is one of the first attorneys to successfully make this argument.

 

The presiding judge, different form the first judge, found that the re-filed accusatory instruments were not properly affirmed, dated, or signed, and were not signed when issued.  The District Attorney argued this was a mere “defect” in the computer program that issued the new tickets.  This was found unavailing, as Mr. Corletta successfully argued that the new accusatory instruments must be signed and dated at the time they are issued to Defendant. 

 

The Court, finding merit with Mr. Corletta’s argument under Criminal Procedure Law §100.30 and Department of Motor Vehicle regulations, dismissed all charges a second time, giving Mr. Corletta the rare satisfaction of having obtained two separate and distinct dismissals in the same case, from two different judges.

*NEW* MR. CORLETTA SCORES 3 WINS IN 2 DAYS IN 2 DIFFERENT COURTS

Sometimes wins come in bunches. Such was the case for Mr. Corletta in three  separate cases, in two  different courts on three different issues.

In People v. D.A. (Rochester City Ct., 12/17/08), Mr. Corletta obtained a Trial Order of Dismissal on all charges for a client with three prior convictions, including one Felony.  Due to failure of proof by the People, all charges were dismissed and the client’s license restored. Despite having a difficult case and the government threatening jail or probation if convicted, Mr. Corletta stuck with it and obtained an outstanding result for his client.

 In People v. C.B. (Ogden Town Ct., 12/16/08), Mr. Corletta obtained a dismissal in a classic “sleeping motorist” case, based upon a woefully defective accusatory instrument that failed to allege any indicia of operation. An interesting twist was that Mr. Corletta’s client, who was not from the area, chose to sleep in the vehicle to avoid driving, a wise choice. Unfortunately, he chose to leave the vehicle parked near a local police station, where an officer spotted it. Despite these circumstances, Mr. Corletta still obtained a dismissal.

In People v. L.T. (Rochester City Ct., 12/17/08), Mr. Corletta capitalized on the people’s failure to present proof FOR the reason for his client’s detention in the rear of a marked police vehicle, resulting in suppression of several incriminating statements that cannot be used at trial. Effective cross-examination on field sobriety tests also exposed several weaknesses in the People’s case.

 

 

*NEW* Mr. Corletta scores virtual sweep in Irondequoit Driving While Intoxicated/ Drug case. 

 

The original situation looked hopeless. Mr. Corletta’s client was charged with Driving While Intoxicated, Aggravated Unlicensed Operation Third Degree, Operating Without a License, Unlawful Possession of Marijuana and Inadequate Headlights. Most lawyers would have thrown up their hands and started looking for a plea.

 

Instead, Mr. Corletta went to work. Aggressively chipping away at the evidence, Mr. Corletta found insufficiencies in the Unlawful Possession of Marijuana and Aggravated Unlicensed Operation Third Degree charges, and obtained dismissals of those charges prior to trial.

 

Mr. Corletta’s client still faced the headlight charge, the No Operators License charge, and Driving While Intoxicated charge upon going to trial in. Again attacking the evidence and demonstrating his client’s non-erratic operation on a very well lit street, Mr. Corletta obtained a not guilty verdict on the Driving While Intoxicated charge, and dismissal of the No Operators License charge.

 

Mr. Corletta argued it was understandable to forget to flip ones headlights on, particularly on a well-lit street, and when not familiar with the car. Mr. Corletta introduced evidence his client was driving a rental vehicle and was unfamiliar with it.

 

This left the Court to consider the lesser included offense of Driving While Ability Impaired, and the headlight charge. The Court asked the parties to submit Memoranda regarding the evidence of Driving While Ability Impaired. Mr. Corletta submitted an extensive Memorandum, citing caselaw, and arguing the evidence showed that his client’s ability to operate a vehicle was not diminished or impaired. He cited his client’s otherwise perfect operation of the vehicle as it navigated an intersection, made a left turn and stopped and pulled over promptly upon being signaled to do so.

 

Mr. Corletta also cited his clients full cooperation with the officer and that she was wearing high heels, making it difficult for her to perform field sobriety tests, which she performed satisfactorily. 

 

The Court agreed and in People v. T.B. (Irondequoit Town Court 1/9/09), also found his client not guilty of Driving While Ability Impaired, finding her guilty of only the headlight charge. Therefore, the net result was a $100.00 fine for Mr. Corletta’s grateful client. Originally charged with a drug charge and two misdemeanors, his client was not convicted of the suspended license charge or any alcohol-related offense, which would have not only license and insurance consequences but other collateral consequences.  Since his client is a professional, the result not only impacted her immediate driving status, but also her career.

 

Once again, this only demonstrates what effective advocacy, diligence, and knowledge of the law can do.

 

 

 

 *NEW*  MR. CORLETTA OBTAINED DISMISSAL FOR EX-CLIENT

Even in cases where he ultimately has to withdraw due to a conflict with a client, Mr. Corletta never stops working. In People v. R.N. (Perinton Town Ct. 02/02/09), Driving While Intoxicated charges against an ex-client of Mr. Corletta’s were dismissed based upon a Motion researched and drafted by Mr. Corletta prior to his withdrawal from the case. Mr. Corletta withdrew due to a disagreement with his client. However, prior to withdrawing, Mr. Corletta had thoroughly researched and drafted a Motion to Dismiss, which he believed would be successful. Despite the disagreement Mr. Corletta filed the Motion anyway, and subsequently requested permission to withdraw. The client retained a new attorney who simply rested on Mr. Corletta’s papers. The Court completely agreed with Mr. Corletta’s argument and dismissed the charges against his ex-client in their entirety. Therefore, Mr. Corletta was responsible for dismissal of the charges, even though he had to withdraw from the case due to the disagreement with his client. Mr. Corletta still did his job, notwithstanding the disagreement, and the client still obtained full benefit of Mr. Corletta’s advocacy.

 

*NEW* MR. CORLETTA SCORES ANOTHER IMPRESSIVE VICTORY IN ROCHESTER CITY COURT.

 

In a case that began as a Felony well over one year ago, Mr. Corletta chiseled away at the evidence, resulting in his client being convicted only of the minor traffic infraction of Driving While Ability Impaired in People v. L.H. (Roch. City Ct. 2/4/09)

 

Mr. Corletta’s client was initially charged with Driving While Intoxicated and Driving While Intoxicated Per Se as Felonies, together with several other Vehicle and Traffic Law violations, including Driving without Insurance.

 

Mr. Corletta first obtained a favorable Grand Jury determination reducing the charges to misdemeanors.

 

When returned to Rochester City Court, Mr. Corletta kept up the attack, challenging the evidence presented to the Grand Jury, challenging probable cause and admissibility of statements, and challenging the charges on Speedy Trial Grounds. Mr. Corletta was successful, pre-trial, in getting all statements and evidence found in the vehicle suppressed.

 

At trial, the People’s proof was so minimal the Court did not have to address the issue of whether Defendant was intoxicated, instead focusing on the issue of whether Defendant’s conduct even met the threshold for Driving While Ability Impaired. This was a significant victory in and of itself, and was revealed upon Mr. Corletta’s cross-examination of the arresting officer, who was relatively inexperienced and did not understand how to administer several of the Field Sobriety Tests, including Horizontal Gaze Nystagmus.

 

The end result was that the Misdemeanor Driving While Intoxicated and Driving While Intoxicated Per Se charges were dismissed, together with all underlying traffic violations, including Driving Without Insurance, which is a relatively serious offense. The client was convicted only of Driving While Ability Impaired, and received a minimal 90-day license suspension with Conditional License, and the minimum fine. Considering Mr. Corletta’s client started out with felony charges, this was a significant victory. It is not often an individual is charged with a felony and walks out with a traffic violation.

 

 

*NEW* ROCHESTER CITY COURT JUDGE WRITES 17 PAGE OPINION ADOPTING MR. CORLETTA’S SPEEDY TRIAL ARGUMENTS

 As previously reported on this website; in People v. M.M. (12/17/08), Rochester City Court Judge Thomas Rainbow Morse dismissed DWI charges against Mr. Corletta’s client based upon Mr. Corletta’s arguments as contained in a CPL §30.30(Speedy Trial) Motion filed by Mr. Corletta in September, 2008.  Judge Morse has now written an extensive written opinion, largely adopting Mr. Corletta’s arguments, which will be submitted for publication.  The case will be extremely helpful to both defense attorneys and prosecutors with respect to issues regarding adjournments of pre-trial Hearings and the proper way to handle those adjournments from both a defense and prosecution perspective.  Mr. Corletta’s research and work in this case has led to a scholarly and well-written opinion which will be of much use to the bench and bar.

 

*NEW* MR. CORLETTA OBTAINS SUPPRESSION OF STATEMENTS IN GREECE CASE

 

In Driving While Intoxicated case, chipping away at the evidence and obtaining suppression of whatever evidence you can pre-trial is the best way to represent your client. Mr. Corletta demonstrated this in People v. T.G. (Greece Town Ct., 3/5/09) A common error that often gets unobjected to is the failure of police to obtain an affirmative Miranda rights after the Warnings are read to the Defendant. This is exactly what happened here. While the Trooper read the warnings, Defendant responded that he wanted to think about it, and the Trooper continued with questions without obtaining and affirmative consent by Defendant. The result was suppression of several incriminating statements, which will help the client at trial.

 

*MR. CORLETTA SCORES WIN FOR NON-ENGLISH SPEAKING DEFENDANT*

 

An emerging issue, given the increasing diverse statue of the population in Driving While Intoxicated cases, is how to handle the hearing impaired or non-English speaking Defendant. Since much of the Driving While Intoxicated arrest process is based upon Defendant’s understanding of instructions, commands, and various warnings, issues are raised with hearing impaired and non-English speaking Defendants as to their understanding of those instructions or warnings.

 

This raises issues as to their understanding of how to perform Field Sobriety Tests, and whether they understand their rights or submitting to a chemical test and/or speaking to police after administration of Miranda Warnings.

 

All those issues came into play in People v. P.D. (Penfield Town Ct., 3/13/09). Mr. Corletta’s client was an Asian Lawful Permanent Resident (green card). He worked as a cook and restaurant worker, in Asian restaurants.

 

His understanding and speaking of English was rudimentary at best. This was obvious, as an interpreter was appointed at the very first Court appearance due to the language barrier.

 

Nevertheless, the arresting Deputy insisted Mr. Corletta’s client had no difficulty understanding instructions for Field Sobriety Tests, the chemical test “Refusal Warnings,” and the Miranda Warnings. He even denied Mr. Corletta’s client had an Asian accent, which was obvious.

 

Going to work, Mr. Corletta cited several cases, many from out-of-state, since New York case law is surprisingly deficient on this issue. Although the Court sustained Probable Cause to arrest, Mr. Corletta kept hammering away at the same issue at trial, presenting evidence  of his client’s inability to understand English from a long-time friend who spoke the same foreign language, and assisted him on a regular basis with basic things, such as filling out forms, going to the doctor, etc.

 

Mr. Corletta creatively asked the Court to take Judicial Notice of its own rulings holding that his client needed an interpreter, which the District Attorney vigorously objected to. Mr. Corletta attacked the Deputy’s testimony and argued it was “incomprehensible” Defendant would have understood the Field Sobriety Test instructions, which noted commentators have called “moderately difficult” for people who do speak English. Mr. Corletta presented testimony from Defendant’s long -time friend that she spoke to him in very basic terms when she spoke to him in English, and that she conversed with him the same way she did with her seven year-old son.

 

Mr. Corletta cast enough doubt on the Deputy’s opinion that his client was intoxicated for the Town Justice to advise him, prior to closing arguments, that “intoxication was off the table.”

 

Of the original four charges lodged against his client, two were dismissed via Trial Order of Dismissal, including the Driving While Intoxicated Per Se (test) charge. His client was also found not guilty of the “Common Law” Driving While Intoxicated charge.

 

The client was found guilty only of a minor traffic violation and the lesser included offense of Driving While Ability Impaired, also a traffic infraction, based largely on his clients admissions to some prior consumption of alcohol.

 

Nevertheless, despite the Deputy’s testimony that his non-English speaking client performed poorly on Field Sobriety Tests, Mr. Corletta again overcame a seemingly insurmountable obstacle. This constituted a tremendous victory. The Deputy testified he had been involved in over 200 Driving While Intoxicated arrests, as a testimonial to his experience. However, through effective cross-examination, Mr. Corletta showed he did not properly perform some of the Standardized Field Sobriety Tests and although trained in it, did not perform the Horizontal Gaze Nystagmus test because he was ineffective in administering it. Through persistent cross-examination and whittling away at the Deputy’s qualifications, coupled with the language issue, Mr. Corletta achieved a superior result for his client.

 

It is important that practitioners who represent clients with language barriers in Driving While Intoxicated cases focus on these issues. Often, non-English speaking Defendants simply nod and consent to authority, which they fear and have often fled from in their native lands. This can be misinterpreted as understanding what the policeman is instructing them to do.

 

 

 

 *MR. CORLETTA WINS DISMISSAL OF FELONY AGGRAVATED UNLICENSED OPERATION CHARGE.*

 

In People v. R.H. (Monroe Cty. Ct. 3/26/09), Mr. Corletta’s young client, who already had an extensive prior history, including numerous arrests and a probation violation, faced a potential jail sentence on Misdemeanor Driving While Intoxicated and Felony Aggravated Unlicensed Operation charges.

 

However, carefully examining the case, Mr. Corletta immediately noticed his client had been granted a Conditional License on his previous conviction for Driving While Ability Impaired, which Mr. Corletta also handled.

 

Applying caselaw the People were obvisouly not aware of, Mr. Corletta made a Motion to Dismiss the Indictment, arguing his client in fact had a driver’s license, albeit a Conditional License, and that there was no legal basis for a Felony Aggravated Unlicensed Operation charge.

 

In addition, Mr. Corletta argued the People also failed to present sufficient evidence that Defendant knew about the suspension to the Grand Jury.

 

The Court, in a three page written Desicion, agreed with Mr. Corletta’s argument in its entirety; dismissing the felony charge. All that remained was the misdemeanor Driving While Intoxicated charge, to which Mr. Corletta negotiated a weekend sentence with no probation. Therefore, his young client went from a potential State Prison sentence to serving weekends; an outstanding result.

 

Obtaining this dismissal required knowledge of the law regarding Aggravated Unlicensed Operation and its various degrees; something in which Mr. Corletta has developed a degree of expertise, in conjunction with his knowledge of Driving While Intoxicated. In order for Aggravated Unlicensed Operation to constitute a felony, in most cases, some sort of alcohol-related license suspension must be shown. It must also be shown that Defendant had knowledge of the outstanding alcohol- related suspension. If Defendant has a Conditional License, and is arrested again for Driving While Intoxicated while holding a Conditional License, may not be prosecuted for Felony Aggravated Unlicensed Operation. The license must be suspended in all respects, and the motorist duly notified before such a prosecution can take place. Overzealous prosecutors cannot point to a prior alcohol-related suspension that has been terminated through issuance of a Conditional License.

 

Finally, proof Defendant had notice of the suspension usually via mailing, is also required. In this case, the Court noted that no such proof had been presented. Frequently, the proof as to notice is defective. Notice cannot be assumed.

 

 

*MR. CORLETTA OBTAINS DISMISSAL OF BLOOD TEST CHARGE IN CONSERVATIVE SENECA COUNTY BY CONCESSION OF THE PEOPLE*

 

Once again demonstrating command of the law, Mr. Corletta obtained a dismissal of a Driving While Intoxicated Per Se charge based upon a blood test in People v. C.E. ( Seneca Falls Town Ct., 3/25/09).

 

In that case, Mr. Corletta’s client was charged by Information, implicating special pleading rules against hearsay. The only document filed in support of the Information, which substantiated the results of the blood test was a “Toxicology Report,” which was not signed or certified by the person who actually performed the test on his client’s blood sample.

 

Arguing the “Toxicology Report” did not qualify as a proper Accusatory Instrument and contained hearsay, and citing a previous decision he had obtained from Canandaigua City Court preventing a license suspension, using a similar document, Mr. Corletta forced the People to concede insufficiency of the Accusatory Instrument and consent to dismissal, a rare outcome in this conservative, prosecution-oriented, rural county. 

 

*NEW * MR. CORLETTA WINS AGAIN – OUTRIGHT DISMISSAL OF DWI CHARGES IN TOWN OF GREECE

Aggressively taking apart a case that other attorneys would have pled down to Driving while Ability Impaired, Mr. Corletta  scored an outright dismissal of all charges in People v. V.V.(Greece Town Court, 4/9/09).

In that case, there was a low-end BAC that would have ordinarily resulted in a reduction to Driving While Ability Impaired under the Monroe County District Attorney’s plea bargaining policy.  Mr. Corletta, perceiving severe weaknesses in the case, rejected the “safe” approach in favor of an all-out attack on the stop and arrest.

Serious deficiencies were revealed at the Probable Cause Hearing, particularly that the arresting officer made no independent observations of defendant’s speed, and could not lay a proper foundation for radar testimony.  Exploiting his knowledge and experience in speeding cases, Mr. Corletta successfully attacked the basis for the stop, which the Court rejected in total; citing the same weaknesses Mr. Corletta did.

Further, Mr. Corletta attacked the validity of the field Sobriety Test results, methodically taking apart each one and demonstrating his client arguably passed all of them.  All that was left was an admission to two drinks, with a woman performing field sobriety tests on the edge of a dark, rural roadway in high heeled shoes.

The Court also rejected the basis for the arrest as an alternative basis for suppression, and dismissed all charges; a complete victory for Mr. Corletta’s client.

 

MR. CORLETTA OBTAINS IMPRESSIVE ACQUITTAL AFTER TWO DAY JURY TRIAL.

Forced into a corner by a Judge who insisted on a plea of guilty from his first time offender client with a promised sentence of probation, Mr. Corletta put the People to the test of their proof in People v. S.K. (Roch. Cty. Ct., 04/03/09)

Carefully selecting a jury, and eliminating eight jurors for cause based upon perceived bias against Driving While Intoxicated or alcohol in general, Mr. Corletta vigorously attacked the testimony of an experienced New York State Trooper, on both the so-called “Common Law” or opinion evidence, and the breath test evidence.

Mr. Corletta was successful in gaining a complete acquittal on the breath test charge; challenging how the machine was maintained and calibrated, how the “observation period” was conducted and several principles involving chemical breath testing. From the jury’s questions to the Court it appears they discounted the test right from the beginning of the deliberations.  

Further, despite facially damaging testimony regarding Field Sobriety Tests Mr. Corletta was able to minimize the effects of that testimony by pointing out several flaws in how the tests were administered.  He persuaded the jury to find his client not guilty of Driving While Intoxicated and to find her guilty only of the lesser included offense of Driving While Ability Impaired, a traffic infraction.

Prior to trial Mr. Corletta obtained a dismissal of the two underlying traffic charges; meaning that out of the four original charges, Mr. Corletta’s client was convicted of none of them. In the end, his client was convicted of only the minor, lesser included traffic infraction of Driving While Ability Impaired.

As a result, Mr. Corletta saved his client the gross inconvenience of three years probation, which would have been accompanied by at least a two year loss of license and no Conditional License. Mr. Corletta also saved his client from having to participate in and (pay for) mandatory alcohol treatment, probation fees, and having to make arrangements to get back and forth to work.

Mr. Corletta’s client, a 38 year-old, first time offender was neither in need of alcohol treatment or probation. By working as hard as he did against an anti-Driving While Intoxicated, pro-prosecution Judge, Mr. Corletta greatly improved his client’s quality of life and in fact, changed it for the better first by giving his client a vigorous defense, and also in educating his client on the perils of drinking and driving. Thus, Mr. Corletta preformed a great service to his client in two ways.

 

Mr. CORLETTA SCORES STILL ANOTHER DISMISSAL ON SUFFICIENCY ARGUMENT IN ROCHESTER CITY COURT.

 

Again exploiting an argument that has netted nearly dozens of dismissals, Mr. Corletta again attacked the sufficiency of an age-old accusatory instrument in People v. W.H (Roch. Cty. Ct., 4/13/09). Citing numerous decisions, including at least two decisions from the very Judge he was before, Mr. Corletta again argued the accusatory instrument was insufficient on the element of operation. In his favor was that Mr. Corletta had just completed a matter in which there was a standing decision on the same issue from the same Judge. This time the judge took no time in dismissing the accusatory instrument from the bench, holding that the two Driving While Intoxicated charges were dismissed based upon a failure to allege the element of operation.

 

Coupling this with an outright dismissal of the underlying traffic violation due to failure to file a Supporting Deposition, Mr. Corletta scored a clean sweep for his client.

 

MR. CORLETTA WINS BIG IN STEUBEN COUNTY.

Demonstrating he can win anywhere, Mr. Corletta effectively dealt with an overcharged case and a belligerent and arrogant prosecutor in People v. D.G (Erwin Town Court; 5/4/09). First; effectively using motion practice and the rules of discovery, Mr. Corletta obtained an outright dismissal of three of the original charges prior to Trial, including a Misdemeanor Marijuana Possession charge and a Misdemeanor Operating under the Combined Influence of Alcohol and Drugs charge that the government had refused to dismiss pre-trial.

Left with a Misdemeanor Driving While Intoxicated charge and two minor traffic violations; Mr. Corletta aggressively attacked the State Trooper’s opinion testimony as to his clients alleged intoxication pointing out several flaws in his investigation of the case, and in administration of the Field Sobriety Tests, despite the Troopers claimed expertise and training. Mr. Corletta also pointed out his client’s operation of the vehicle was not erratic, and was reasonable and prudent.

This earned his client a reduction despite the Prosecutors antics, which included banging his fists on the lectern and engaging in histrionics over Mr.Corletta’s objections, which were designed to force the Trooper to give more specific testimony, instead of the generalized and conclusory testimony he was giving.

Mr. Corletta stuck to his line of defense; ie the Troopers inexperience, lack of understanding of Field Sobriety Testing, and sloppy case preparation, and won a reduction for his client to Driving While Ability Impaired, a lesser included traffic violation.

This meant that of the original six charges, on which his client was incarcerated with excessive bail of $5,000.00 at the recommendation of the same prosecutor, the client was not convicted of four of them. This only demonstrates the overzealous conduct of many rural prosecutors and their often belligerent attitude towards out of county defense counsel. Mr. Corletta’s client had no prior criminal history and was a steadily employed tradesman who made all of his Court appearances.

 MR. CORLETTA OBTAINED SUPPRESSION OF BLOOD TEST IN SERIOUS ACCIDENT CASE.

Just because you have a blood test does not mean you should throw up your hands and plead the client out. Mr. Corletta demonstrated this in People v. J.S. (Greece Town Ct., 6/23/09).

This was a serious motor vehicle accident that occurred during a snowstorm. Mr. Corletta’s client was alleged to have driven erratically, hitting another vehicle parked in the median of the expressway, which was helping another motorist who was stuck in the median. There were multiple injuries as Mr. Corletta’s client’s vehicle was alleged to have bounced off one vehicle and struck the other. A civil lawsuit followed.

However, due to the complexity of the case, the police made several errors. The first set of Accusatory Instruments was facially insufficient. Mr. Corletta obtained dismissal of the original charges in May, 2008.

However, the charges were refiled, and Mr. Corletta then proceeded to Omnibus Motions and a Pre-Trial Hearing on the admissibility of evidence and probable cause to arrest. Citing little-known caselaw governing admissibility of blood test results at a Pre-Trial hearing, Mr. Corletta obtained suppression of a blood test result that was over twice the legal limit. As a result, the government lost its most key piece of evidence, and the so-called “test charge” was dismissed.

This result also helped his client in the civil lawsuit. The lesson to be learned is that accident cases involving blood tests present unique opportunities for dismissal of Accusatory Instruments and/or suppression of evidence due to errors made by police. The practitioner must be familiar with the law in this area, which is quite technical.

 *NEW * MR. CORLETTA CATCHES ERROR BY PROSECUTORS AND TURNS IT INTO SPEEDY TRIAL DISMISSAL.

Carefully monitoring the procedural history of a case is part of properly handling it. Mr. Corletta demonstrated this in People v. M.M. (Greece Town Ct., 7/2/09).

In that case, the government requested two adjournments of Pre-Trial Hearings due to claimed unavailability of the arresting officer, for various reasons.

However, the government failed to clarify the length of their request for the adjournment, or to circumscribe the time charged to them by timely filing the appropriate notice in order to keep the record clear.

Mr. Corletta, in reviewing the procedural history of the case, noticed these late filings and promptly filed a CPL § 30.30 Motion prior to trial. The government due to their laxity, had failed to stop the running of the speedy trial clock, and accumulated chargeable time in excess of the statutory limit. The government could do little when Mr. Corletta made his Motion, which was granted from the bench by the Court. This saved Mr. Corletta’s client the time and expense of going to trial, as well as the potential uncertainty of outcome. It also resulted in an immediate restoration o his driver license, and no conviction whatsoever.

Knowledge of criminal procedural rules that are just as applicable in Driving While Intoxicated cases as in other cases can turn even the most hopeless case into a dismissal, on grounds completely unrelated to the facts o the case. This is just another example o using criminal law rules in a Vehicle and Traffic case to obtain a favorable outcome.

 

*NEW* MR. CORLETTA OBTAINS SUPPRESSION OF KEY ITEM OF EVIDENCE USING INVENTORY SEARCH RATIONALE.

Police officers often rummage through a recent arrestee’s vehicle under the guise of a so-called “inventory search.” They frequently use the term “inventory search” as an excuse when they have no other basis to search the vehicle. A recent United States Supreme Court decision has restricted the scope of searches of a vehicle incident to arrest. Therefore, police are increasingly turning to the “inventory search” rationale; particularly in Driving While Intoxicated cases, to justify wholesale rummaging through the vehicle.

This is accompanied by a lack of understanding of what the purpose of an “inventory search” is, and that it is one of the most restricted type of searches, given its primary purpose is to safeguard the contents of the vehicle and protect police against claims for lost or damaged property.

In People v. R.G. ( Roch. City. Ct., Morse J., 7/13/09), police attempted to justify recovery of an open container of alcohol from Defendant’s vehicle using the “inventory search” rationale. Applying a days old Court of Appeals decision on inventory searches, which requires police to establish the existence of a standardized protocol and how they applied it, and most importantly, compilation of a true inventory of all contents of the vehicle, Mr. Corletta obtained suppression.

At the suppression hearing, while reference was made to a standard Rochester Police Department policy regarding inventory searches, there was only cursory testimony as to how the policy was applied. With respect to the inventory of the vehicle, only items of evidentiary value (i.e. contraband), were recovered. The Court, citing the last factor, agreed with Mr. Corletta that the record did not establish that the search of the vehicle was a true “inventory search,” because only items of contraband were removed from the vehicle, as opposed to everything being inventoried.  

The decision once again illustrates what a labyrinth Automobile Search and Seizure Law is, and that the practitioner must be well versed in all the various exceptions to the Warrant requirement in order to adequately defend the client. Inventory Search law continues to evolve. In this case, suppression depended on knowledge of a Court of Appeals decision that was only a few days old. Mr. Corletta, staying “right on top of things,” prevailed due to his persistence and deligence in keeping up with changes to the law.  

 *NEW* MR. CORLETTA SCORES WIN OVER-AGGRESSIVE PROSECUTOR

 In legal matters, over-aggressiveness and lack of due diligence usually produce disastrous results. This worked to Mr. Corletta’s client’s advantage in  People v. W.B.. (Gates Town Ct., 9/1/09).

An over aggressive local court prosecutor, who obviously had not reviewed the file, observed that Mr. Corletta’s client had two (2) pending misdemeanor charges for Driving While Intoxicated that occurred on separate dates. The prosecutor threatened Mr. Corletta’s client with a Felony Aggravated Unlicensed Operation charge, assuming that on the second Driving While Intoxicated charge, Mr. Corletta’s client did not have any sort of license.

The prosecutor was seeking over $9,000.00 in restitution on the first charge, which involved a minor motor vehicle accident with a thirteen (13) year old vehicle. The prosecutor believed Mr. Corletta’s client should pay the cost of an upgraded vehicle, which is not the purpose of restitution, as well as pay for all repairs done to the vehicle for a two () year period prior to the accident, also not a purpose or part of restitution.

Mr. Corletta rejected these claims out of hand, and attempted to explain to the Prosecutor that charging Felony Aggravated Unlicensed Operation was without merit, based upon the facts of the case and the law.  The Prosecutor would not listen, and told Mr. Corletta the Felony charge would be filed that evening.

Upon coming to Court, the second DWI charge was dismissed because of the failure of police to file the proper Supporting Deposition, which the Prosecutor had been given an adjournment to obtain. When asked by the Town Justice if she had obtained the Supporting Deposition, she could only answer she “assumed” it had been filed, because she had “called” the officer.

As a result, the second DWI charge, which formed the basis for the additional Felony charge was dismissed in its entirety.  Not surprisingly, no mention was made of any Felony filing that evening. This case is a good example of why a defense attorney should not be cowed by a prosecutor’s threats of additional charges, particularly when they lack factual or legal basis.