The People, Respondent,v.Patricia Fratangelo, Appellant.

Brief

N.Y.May 6, 2014

To Be Argued By: James A. Baker Time Requested: 10 Minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff/Respondent, -vs- PATRICIA FRATANGELO, Defendant/ Appellant. DEFENDANT/APPELLANT'S BRIEF COURT OF APPEALS DOCKET NO: APL-2013-00148 JAMES A. BAKER Attorney for Defendant/ Appellant PATRICIA FRAT ANGELO 148 The Commons Ithaca, New York 14850 Telephone: (607) 275-9916 Facsimile: (607) 275-9920 Date Completed: August 7, 2013 TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................ 1 JURISDICTIONAL STATEMENT ....................................... 2 PRELIMINARY STATEMENT. ........................................ 2 QUESTION PRESENTED .............................................. 3 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT POINT I: THE COURT ERRED BY REFUSING TO INSTRUCT THE JURY THAT EVIDENCE THAT THE DEFENDANT'S B.A.C. WAS LESS THAN .08% WAS PRIMA FACIE EVIDENCE THAT THE DEFENDANT WAS NOT INTOXICATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. THE DEFENSE THAT THE DEFENDANT'S BLOOD ALCOHOL CONTENT WAS BELOW THE LEGAL LIMIT IS A RECOGNIZED DEFENSE: THE DEFENDANT WAS ENTITLED TO THE REQUESTED CHARGE . . . . . . . . . . . . . . 8 B. THE COURT'S RULINGS BELOW CREATED AN IMPERMISSIBLE IRREBUTTABLE PRESUMPTION WITH REGARD TO THE DEFENDANT'S BLOOD ALCOHOL CONTENT ................................ 11 C. AN AFFIRMANCE OF THE DECISION BELOW WOULD EVISCERATE MERTZ ........................ 12 D. THE PRINCIPALS OF MERTZ APPLY WITH EQUAL FORCE TO COMMON LAW (1192[3]) PROSECUTION, AND NOT JUST TO PER SE (1192[2]) PROSECUTIONS .... 14 CONCLUSION ...................................................... 16 TABLE OF AUTHORITIES CONSTITUTION: New York State Constitution Article 6, Section 3 STATUTES: Vehicle and Trat1ic Law § 1192(2) Vehicle and Traffic Law §1192(3) Vehicle and Traffic Law §1195(2)(c), CASES: People v, Blair, 98 NY2d 722 at 724 (2002) People v, Mertz, 68 NY2d 136 (1986) People v, Ochs, 3 NY2d 54 at 57 (1957) People v, Watts, 57 NY2d 299 (1982) People v, Zona, 14 NY3d 488,493 (2010) OTHER: Appears at Page 2 2 2 8 15-16 9, 11, 12, 14, 15,16 9 11 9,11,16 Court of Appeals, Court Rule 500,20 2 Criminal Jury Instructions 2nd [NY], Driving While Intoxicated 1192(3) 7, 13 Criminal Jury Instructions 2nd [NY], Circumstantial Evidence 13 JURISDICTIONAL STATEMENT The Court of Appeals has jurisdiction over this appeal because this appeal presents a question of law (New York State Constitution Article 6, Section 3). In particular. the question is whether the trial court committed error by failing to read the jury a reqL1ested instruction from the Unified Court System Criminal Jury Instructions on the charge of Common Law Driving While Intoxicated. In addition, this Court has jurisdiction because leave to appeal was granted by an Associate Judge of this Court upon a timely, direct application to this Court pursuant to Civil Practice Law and Rules Section 5602(a) and Court Rule 500.20 (A 2). The issue raised on this appeal was preserved for review by timely objection by defense counsel in the trial court (A 81-82 and A 87-88) and by raising the issue on the Defendant's appeal to the intermediate Appellate Court, the Seneca County Court, Appellate Term (A 3-5). PRELIMINARY STATEMENT The Defendant was charged, on September 25, 2011, with the offenses of: Speeding (V &T 1180[b]), Common Law DWI (V&T 1192[3]) and DWI Per Se (V&T 1192[2]). A jury trial was held on August 9 and 10,2012, in the Town of Ovid Justice Court, Seneca County. The jury returned a verdict finding Defendant guilty of Speeding and Common Law DWI, and finding defendant not guilty of DWI Per Se (A 106-107). The Defendant appealed her conviction to the Seneca County Court, Appellate Term. By Decision and Order dated February 21,2013, that Court affirmed the 2 conviction (A 3-4). This appeal to the Court of Appeals is by permission of Associate Judge Susan Phillips Read, pursuant to a Certificate Granting Leave to Appeal dated June 11, 2013 (A2). QUESTION PRESENTED I. Did the Courts below commit error by refusing to instruct the jury, pursuant to Unified Court System Criminal Jury Instructions language, that "under our law, evidence that there was less than .08 of one per centum by weight of alcohol in the Defendant's blood is prima facie evidence that the Defendant was not in an intoxicated condition"-· despite the testimony of Defendant's expert witness that the Defendant's blood alcohol content was only .03 to .04% at the time of the stop? The Courts below answered this question, "No." STATEMENT OF FACTS On Sunday, September 25, 2011, Patricia Fratangelo spent the day engaged in a variety of activities, including a 35 mile bike ride (Trial Transcript Day 2, pp 9-1 0; A 41- 42)1 ending at an airport/skydiving club owned and operated by her husband, John King (TT Day 2 pp 12, 42-43; A 44, A 52-53). Alcoholic beverages are not allowed to be opened or consumed on the airport premises at times when people are skydiving (IT Day 2, pp 1 1-12, 44-45; A 43-44; A 54-55). After skydiving was done for the day, Ms. Fratangelo assisted with preparing a meal for herself, her husband, and several of the "jumpers." As part of the meal, Ms. Fratangelo and three of the others present split a 1The transcriptionist numbered the transcript of the first day of trial pages 1 - 124, and the transcript of the second day of trial pages 1 - 217. In this brief they will be referred to as "TT Day 1, page_" and "TT Day 2, page_" respectively. 3 single bottle of wine between them (TT Day 2, pp 12-13; A 44-45). Ms. Fratangelo estimates that she started drinking her glass of wine at "8:15-ish" (TT Day 2, p 13; A 45). She had her last, partial, glass of wine, at about 8:55pm (TT, Day 2, pp 16-17; A 48-49). Ms. Fratangelo left the airport at approximately 9:10pm (TT Day 2, p 18; A 50), to drive to her home which was approximately 15 minutes away (TT Day 2, p 18; A 50). She was stopped by Trooper Ronald Rogers at9:21 pm(TTDay l, pp 18-19; A 15-16). Trooper Rogers suspected that she was traveling in excess of the posted speed limit (TT Day 1, p 19; A 16). Trooper Rogers observed no other moving violations or erratic operation (TT Day 1, pp 86-87; A 31-32). After smelling what he thought to be the odor of an alcohol beverage, Trooper Rogers directed Ms. Fratangelo out of her vehicle for field sobriety tests. He administered a battery of seven different tests, with the following results: -Horizontal Gaze Nystagmus: the Mr. Rogers claimed to have observed "six clues" on this test and scored ita "fail"(TTDay l,pp 31-33; A 17-19). - Alphabet: Trooper Rogers had Ms. Fratangelo recite an arbitrary pottion of the alphabet ("B" through "W"), a test which Ms. Fratangelo passed (TT Day 1, pp 33-34; A 19-20). -One-leg Stand: Mr. Rogers claimed, in a conclusory manner, that Ms. Fratangelo "failed" this test, but was unable to articulate the supposed reasons for the failure (TT Day 1, pp 34-37; A 20-23). -Walk and Turn: Ms. Fratangelo passed this test (TT Day 1, pp 37-38, 105-108; A 23-24, A 33-36). -Romberg Balance Test: Mr. Rogers "failed" Ms. Fratangelo because she held the 4 "eyes-closed" balance position for 33 or 34 seconds, rather than for the requested 30 seconds (TT Day 1, pp 38-39, 1 08-112; A 24-25, A 36-40). - Finger Count: Mr. Rogers claimed, in a conclusory manner, that Ms. Fratangelo "failed" this test, but was unable to articulate the supposed reasons for the failure (TT Day 1, p 39-41; A 25-27 ). -Finger-to-Nose Test: Ms. Fratangelo passed the Finger-to-Nose test (TT Day I, p 42; A 28). Ms. Fratangelo was placed under arrest at 9:50pm (TT Day 1, p 43; A 29). She was transported to the State Trooper's sub-station, where she submitted to a Drager Alco- Test 9510 which produced a result of .09% blood alcohol content at 10:40 pm (TT Day 1, p6l;A30). At trial, the Defense presented evidence by Dr. Oliver Brown. Dr. Brown is a Professor of Pharmacology at SUNY Medical University in Syracuse (TT Day 2, p 54; A 57). Dr. Brown qualified as an expert witness to testify about alcohol absorption and elimination rates in individuals (TT Day 2, pp 54-66; A 57-69). Dr. Brown was asked a hypothetical question - incorporating assumptions based on testimony and evidence already received at trial- with regard to Ms. Fratangelo's blood alcohol content at the time her vehicle was stopped by Trooper Rogers (TT Day 2, pp 65-76; A 68-79). Dr. Brown testified that in his opinion, to a reasonable degree of scientific certainty, Ms. Fratangelo's blood alcohol content at that point in time was .03 to .04% (TT Day 2, p 76; A 79). Defendant's Exhibit A- a graph prepared by Dr. Brown plotting Ms. Fratangelo's blood alcohol content level from 8:15 to 10:50 pm- was received into evidence (TT Day 2, p 70; A 73). The Exhibit itself is included at page A-108 of the Appendix to this 5 Appeal. At the Charge Conference the Court indicated that it would, at the Prosecution's request, eliminate certain language from the Unified Court System Criminal Jury Instructions with respect to the Common Law DWI charge. Specifically, the Court eliminated the language which states: "under our law, evidence that there was less than .08 of one per centum by weight of alcohol in the Defendant' s blood is prima facie evidence that the Defendant was not in an intoxicated condition" (TT Day 2, pp 182-184; A 84-86). Defendant objected to this omission both before the charge was given to the jury (TT Day 2, pp 132-133; A 81-82) and after the charge had been given but before the jury retired to deliberate (TT Day 2, pp 196-197; A 87-88). During its deliberations, the jury asked several questions which indicate that it was having difficulty with the question of how the blood alcohol content evidence might relate to the Common Law Driving While Intoxicated charge (TT Day 2, pp 207-208, and 211; A 98-99 and A 1 02). Although the Court re-read the Common Law Driving While Intoxicated charge several times, the language omitted over Defendant's objection was never given to the jury (TT Day 2, pp 182-184,207-210, 211-213; A 84-86, A 98-101, 102-104). The jury ultimately returned with a verdict finding Ms. Fratangelo not guilty of Driving With More than .08 Blood Alcohol Content, but guilty of Common Law Driving While Intoxicated (TT Day 2, pp 214-216; A 105-107). This Appeal ensued. 6 POINT I: ARGUMENT THE COURT ERRED BY REFUSING TO INSTRUCT THE JURY THAT EVIDENCE THAT THE DEFENDANT'S BLOOD ALCOHOL CONTENT WAS LESS THAN .08% WAS PRIMA FACIE EVIDENCE THAT THE DEFENDANT WAS NOT INTOXICATED. When the Trial Court instructed the jury with regard to the offense of Common Law Driving While Intoxicated (VTL §1192[3]), it tracked the language set forth in the Unified Court System Criminal Jury Instruction, almost in its entirety (TT Day 2, pp 182- 184; A 84-86). It advised the jury that they could consider "the results of any test of the content of alcohol in the Defendant's blood" (TT Day 2, p 183, lines 10-11; A 85). It advised the jury that it could consider the "qualifications and reliability of the person who gave the test" (TT Day 2, p 183, lines 18-21; A 85). Significantly, the Court also advised the jury could also consider "the lapse of time between the operation of the motor vehicle and the giving of the test" (TT Day 2, p 183, lines 21-23; A 85). The Court refused, however, to read the jury that portion of the Official Pattern Instruction which would have informed them that "Under our law evidence that there was less than .08 of 1 per centum by weight of alcohol in the Defendant's blood is prima facie evidence that the Defendant was not in an intoxicated condition." CJI 2d [NY] Vehicle & Traffic Law Section 1192(3) Defendant objected to the Court's omission (TT Day 2, pp 132-133, 196-197; A 81-82, A 87-88). 7 A. THE DEFENSE THAT THE DEFENDANT'S BLOOD ALCOHOL CONTENT WAS BELOW THE LEGAL LIMIT IS A RECOGNIZED DEFENSE: THE DEFENDANT WAS ENTITLED TO THE REQUESTED INSTRUCTION. The instruction that the Court omitted from it's charge to the jury has a sound basis in law: it is derived from the clear statutory language of Vehicle and Traffic Law §1195(2)(c): "(c) Evidence that there was ... less than .08 of 1 per centum by weight of alcohol in such person's blood shall be prima facie evidence that such person was not in an intoxicated condition ... " Vehicle and Traffic Law §1195(2)(c), Westlaw 2013 The erroneously omitted instruction is supported by the facts of the case. In particular, there was evidence (Ms. Fratangelo's testimony) that she began drinking her first glass of wine sometime about 8:15 in the evening of September 25th (TT Day 2, p 13: A 45), and finished her drink of wine at 8:55pm (TT Day 2, p 16-17; A 48-49). There was evidence (testimony of Trooper Rogers) that Ms. Fratangelo's blood alcohol content was .09% at 10:40 pm (TT Day 1, p 61; A 30). There was evidence (testimony of Defense witness Oliver Brown) that the alcohol consumed by Ms. Fratangelo would have been absorbed into her blood at a constant rate (TT Day 2, pp 62-66; A 65-69) producing a straight line graph showing Ms. Fratangelo's blood alcohol content at any given point in time between 8:15 and 10:40 pm (Defendant's Exhibit A, A 108). There was evidence (testimony of Dr. Brown, given as an expert within a reasonable degree of scientific certainty) that when Ms. Fratangelo was stopped at 9:20pm her blood alcohol content was between .03 and .04% (TT Day 2, pp 75-76; A 78-79). 8 In summary, the proof at trial included evidence that there was less than .08 of one per centum by weight in Ms. Fratangelo's blood at the time of the operation of her vehicle. This Court has unequivocally ruled that: "In determining whether to instruct a jury on a claimed defense, the court must view the evidence adduced at trial in the light most favorable to the defendant (see People v. Bulls, 72 NY2d 746, 750, 536 NYS2d 730, 533 NE2d 660 [1988]; People v. Steele, 26 NY2d 526, 529, 311 NYS2d 889, 260 NE2d 527 [1970]; see also Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 LEd2d 54 [1988] ["a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor"]). A failure to do so constitutes reversible error (see People v. Watts, 57 NY2d 299,301,456 NYS2d 677,442 NY3d 1188 [1982])." People v. Zona, 14 NY3d 488, 493 (2010) The evidence adduced at Ms. Fratangelo's trial, viewed in the light most favorable to the Defendant, supports the defense that Ms. Fratangelo's blood alcohol content at the time of operation was less than .08% (TT Day 2, pp 75-76; A 78-79). That defense is a "recognized" defense. People v. Mertz, 68 NY2d 136 (1986) This comi has held that: "In general, however, an error which tends to blur an important issue and prevent a proper consideration thereof by the jury, or which may have misled the jury and ini1uenced them in reaching their verdict, is in error affecting a substantial right, and may not be disregarded even though the evidence may convince us of the defendant's guilt (People v. Marenda, 213 N.Y. 600; People v. Carborano, 301 N.Y. 39; People v. Mleczko, 298 N.Y. 153; People v. Gerdvine, 210 N.Y. 184, supra)." People v. Ochs, 3 N.Y.2°d 54 at 57 (1957) 9 It is clear that the Town Court's charging error in the instant case had the effect of bluning the important issue of Ms. Fratangelo's blood alcohol content at the time of driving, and prevented proper consideration of that issue by the jury. Manifestly, as demonstrated by the jury's questions after they had received the edited instructions, the jury was struggling with that issue, and pointedly asked questions about how the blood alcohol evidence related to the Common Law Driving While Intoxicated charge (TT, Day 2, pp 207-208 and 211; A 98-99 and A 102). Furthermore, the truncated instructions given by the Town Court were edited by the cow1 in such a way as to "prevent a proper consideration of the issue" and to mislead or influence the jury in reaching its verdict. In particular, the Court included those aspects of the Common Law DWI pattern instruction which stressed considerations that benefitted the Prosecution; the jury could consider "the results of any test of the content of alcohol in the Defendant's blood (TT Day 2, p 183, lines 10-11; A 85) "That device is a generally accepted instrument for determining blood alcohol content," (TT Day 2, p 183, lines 13-15; A 85); "you must consider the qualifications and reliability of the person giving the test" (TT Day 2, p 183, lines 18-21; A 85); and "evidence that the test was administered by a person possessing a valid New York State Department of Health Permit to administer such tests allows but does not require the inference that the test was properly given" (TT Day 2, p 184, lines 5-9; A 86). Indeed, Defendant Fratangelo may well have been better off if the court had omitted all references to the breath test in the Common Law charge. 10 The trial court's failure to instruct the jury on Ms. Fratangelo's claimed defense constitutes reversible enor. See People v. Watts, 57 NY2d 299 (1982) Sec also People v. Zona, 14 NY3d 488 (2010) B. THE COURTS' RULINGS BELOW CREATED AN IMPERMISSIBLE IRREBUTTABLE PRESUMPTION WITH REGARD TO THE DEFENDANT'S BLOOD ALCOHOL CONTENT. In the landmark case of People v. Mertz, 68 NY2d 136 (1986), this Court addressed the issue presented by evidence that the Defendant's blood alcohol content at the time of operation was lower than the blood alcohol content subsequently measured at the police station. ln Mertz, supra, the trial court and lower appellate comi had both foreclosed the Defendant from arguing that his blood alcohol content was within legal limits at the time of operation. People v. Mertz, 68 NY2d 136 at 141-142 (1986). The fundamental question that this court faced in Mertz, snpra, was whether, under Vehicle and Traffic Law 1192(2), having a blood alcohol content over the legal limit at the time of measurement (without regard for the time of operation of a vehicle) is a strict liability offense, or whether the blood alcohol content at the time of measurement created a rebuttable presumption that the blood alcohol level at the time of driving was the same. Chief Judge Wachtler, in a concurring opinion-- which was joined by no other member of the court-- argued for a "strict liability" interpretation of the statute: "thus, gravamen of a violation of Vehicle and Traffic Law section 1192 (2) is not that a defendant operates a vehicle with .1 0% or higher blood alcohol content, but that he is found to have done so under the procedures prescribed by section l \94." (Emphasis in original) 11 People v. Mertz, 68 NY2d 136, concurring opinion of C.J. Wachtler at 149 The majority of this court, however, recognized the potential constitutional problems with a strict liability construction of the statute, and held: "We conclude, therefore, that proof of a breathalyzer reading of .l 0 or more within two hours after arrest establishes prima facie a violation of Vehicle and Traffic Law § 1 192 (2) which, together with evidence of one or more of defendant's deportment, speech, stability and the odor of his or her breath, is sufficient to sustain a conviction, absent evidence, expert or other and by whichever party produced, from which the trier of fact could conclude that defendant's BAC at the time of vehicle operation was less than .10." People v. Me1iz, 68 NY2d 136, at 146 (1986) It is interesting that Chief Judge Wachtler, in his concurring opinion in Mertz, supra, called upon the Legislature to redraft the law to clarify that the law's intent was as he had interpreted it: "The court having now construed the statute to permit the defendant to rebut what I believe was intended under such circumstances to be absolute liability, the Legislature should now redraft Vehicle and Traffic Law section 1192 (2) to make clear its contrary intent." People v. Mc1iz, 68 NY2d 136, concurring opinion ofC . .T. Wachtler at 149 It is telling that the Legislature, in the 27 years since this court decided Mertz, supra, has not done so. C. AN AFFIRMANCE OF THE DECISION BELOW WOULD EVISCERATE MERTZ The reasoning of the courts below, and the arguments of the Respondent on this appeal, would overturn the majority holding in Mertz, supra, and establish the blood or 12 breath test result as an element of a strict liability offense and as an irrebuttable presumption. The Respondent's argument, and the holding of the court below, that the statutory presumptions set forth at Vehicle and Traffic Law section 1195 apply strictly and solely to the blood alcohol content number generated by a blood or breath test must fail for several reasons. that First, the language ofthe Unified Court System Criminal Jury Instructions states "Under our law, evidence that there was less than .08 of 1% by weight of alcohol in the defendant's blood is prima facie evidence that the defendant was not in an intoxicated condition." (Emphasis added) CJI 2d[NY] Vehicle & Traffic Law Section 1192(3) The "evidence" under this instruction is not limited to just the machine result. The law recognizes that evidence of any proposition can be either direct evidence, or circumstantial evidence, and that "The law draws no distinction between circumstantial evidence and direct evidence in terms of weight or importance. Either type of evidence may be enough to establish guilt beyond a reasonable doubt (or establish whatever proposition at issue), depending on the facts of the case as the jury finds them to be." (Matter in parentheses added) CJI 2d [NY] Instructions of General Applicability - Circumstantial Evidence Second, there is not- and there can never be -direct evidence of a Defendant's blood alcohol content at the time of operation of the motor vehicle. Any evidence of a blood alcohol content at the time of operation of a motor vehicle--based on a test performed at some later time--is, necessarily, the product of either a presumption (that the blood alcohol content level was the same) or expert opinion (that it was not). Regardless 13 of whether the evidence of blood alcohol content is based on a presumption or on expert opinion testimony, it is still evidence of the defendant's blood alcohol content. Finally, the Respondent's argument, and the holding of the court below, completely ignores this court's clear directive in Mertz, supra, with regard to what evidence may be considered when determining the defendant's blood alcohol content at the pertinent time, that is, at the time of operation of the vehicle: "We conclude, therefore, that proof of a breathalyzer reading of .1 0 or more within two hours after arrest establishes prima facie a violation of V chicle and Traffic Law § 1192 (2) which, together with evidence of one or more of defendant's deportment, speech, stability and the odor of his or her breath, is sufiicient to sustain a conviction, absent evidence, expert or other and by whichever party produced, from which the trier of fact could conclude that defendant's BAC at the time of vehicle operation was less than .10." (Emphasis added) People v. Mertz, 68 NY2d 136, at 146 (1986) D. THE PRINCIPLES OF MERTZ APPLY WITH EQUAL FORCE TO COMMON LAW (1192[3]) PROSECUTIONS, AND NOT JUST TO PER SE (1192[2]) PROSECUTIONS. This court's ruling in People v. Mertz, 68 NY2d 136, was handed down in the context of an appeal from a conviction for a "Per Se" conviction under Vehicle and Traffic Law section 1192(2). Nevertheless, the principles of Mertz, supra, apply to prosecutions brought under the "Common Law" offense set forth at Vehicle and Traffic Law section 1192(3). The language used by this court when handing down its ruling is broad enough to cover all blood and breath test evidence, without regard to whether the prosecution is based on an alleged Per Se violation, or an alleged common law violation, or both: "\Vhen, however, as here, such evidence (that is, evidence 14 from which the trier of fact could conclude that Defendant's B.A. C. at the time of vehicle operation was Jess than .08) has been presented, defendant must be permitted to argue its significance to the jury. Because he was foreclosed from doing so and because the court's ruling during defendant's attorney's summation and its instructions at the close of the case were in conflict on this issue, there must be a reversal." (Matter in parentheses added for clarity) People v. Mertz, 68 NY2d 136 at 146-147 (1986) Furthermore, the fundamental right that this court's ruling in Mertz , supra, is designed \0 safeguard -to be protected from evidence which creates an irrebuttable presumption- is a right which requires equally vigorous protection whether the context be a Common Law Driving While Intoxicated prosecution, or a Per Se prosecution. Indeed, this court has made no distinction between Common Law and Per Se prosecutions when applying the principles of Mertz, supra. In People v. Blair, 98 NY 2d 722 (2002), the defendant was charged with violating Vehicle and Traffic Law Section 1192(3). A breathalyzer test perfmmed 45 minutes after the defendant was stopped measured a blood alcohol level of .08%. That blood alcohol level, under Vehicle and Traffic Law Section ll95(2)(e) at the time, was prima facie evidence that the defendant was not intoxicated. Despite the fact that no Per Se violation was charged, this court ruled that the prosecution was entitled to rebut that presumption at trial: "The accusatory instrument's supporting documentation contains factual allegations sufficient to establish reasonable cause that defendant violated Vehicle and Traffic Law § 1192 (3). Defendant drove without head or taillights; upon stopping defendant's vehicle, the arresting officer observed defendant had glassy eyes and impaired speech and motor coordination, smelled of alcohol and failed four field sobriety tests, including a "Finger Count Test" in which he was unable to "count his lingers correctly or in order"; and defendant admitted that he drank five to six beers prior to driving and should not have been 15 operating his vehicle. The People were thus entitled to an opportunity to rebut the section 1195 (2) (c) presumption at trial." People v. Blair, 98 N.Y. 2d 722 at 724 (2002). If the Prosecution is allowed the use of extraneous evidence to rebut the presumption created by a low blood alcohol content result in a Common Law case (Vehicle and Traffic Law section 1192[3]), surely a Defendant must be allowed to use extraneous evidence to rebut the presumption created by a high blood alcohol content result. CONCLUSION Defendant/ Appellant Patricia Fratangelo was entitled to present evidence to rebut the presumption that her blood alcohol content was .09% at the time she operated her motor vehicle, and to establish that her blood alcohol content was less than .08% at that tln1c. People v. Mertz, 68 NY2d 136 (1986) Similarly, Defendant/Appellant Fratangelo was entitled to a jury instruction infom1ing the jury of the legal significance of a blood alcohol content of less than .08%. People v. Zona, 19 NY3d 488 (2010) Without that instruction, the rights and protections afforded by this Court's decision in Mertz, supra, are hollow. The decision of the Court below must be reversed, and Defendant/ Appellant Patricia Fratangelo's conviction on the charge of Common Law Driving While 16 Intoxicated (VTL § 1192[3]) must be vacated. Dated: August 7, 2013 Ithaca, New York 17 Res ~ Jame A. Baker t