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Retired Judge Found Incompetent to Sign Certificate of Conviction

February 14, 2008

Time and time again, we have stressed the utility of interposing a full and complete discovery demand prior to the preparation and filing of pre-trial motions. Indeed, if we had our druthers, we would impose a two-tiered analysis which would view more strictly non or late compliance with a timely imposed demand. Precedent for divergent treatment can be found in the manner in which the Court of Appeals differentiated between specific and general discovery demands in People v. Vilardi, 76 NY2d 67, 556 NYS2d 518 (1990). Why, you ask, well, you never know just what you are likely to find. Initially, there is the obvious, material to use for pretrial motions founded upon evidentiary issues, but then again there is the odd ball item that you will know only when the material is timely provided.

This week's lead note includes just such a case. In People v. Miller, the defendant was charged with Driving While Intoxicated as a felony. A demand to produce, served at arraignment, produced a variety of documents, one of which was the certificate of conviction utilized before the Grand Jury. Significant in this document was that, upon close examination, it was apparent that the document was signed by the Town Justice three days after he left office. Incredibly, at the motion stage, reasonable minds differed as to the implications of this event. The People argued quite vociferously that the event was of no consequence inasmuch as the document was signed by one who clearly had presumptive knowledge of the court's records. The defense, on the other hand, saw the error as having dispositive significance, at least insofar as a felony was concerned. The operative statute, it was argued, held no authority for a former judge.

We thought you would find this one interesting, so it is reprinted in full herein.





vs. Ind. No.: 2000-0060







For the People: Assistant District Attorney

Karen Holt


For the Defendant: Edward Fiandach, Esq.

Attorney at Law



MARK, JSC. Defendant Christopher Miller is charged in this indictment with two counts Driving While Intoxicated pursuant to Vehicle and Traffic Law ''1192(2) and (3). Having granted defendant's motion to inspect the Grand Jury minutes, and having thereafter reviewed the transcript of said proceeding, this Court finds that the evidence was sufficient to establish every element of each of the crimes charged and the defendant's commission thereof (People v. Bello, 92 NY2d 523; People v. Jennings, 69 NY2d 103; People v. Zelaya, 232 AD2d 261; People v. Olivo, 230 AD2d 653). Defendant was found sleeping at the wheel of his car with the engine running and his foot on the brake pedal at the intersection of Mount Read and Latta Roads in Greece, and when finally awakened by the arresting officer, exhibited all of the so-called common law signs of intoxication. When subjected to a breathalyzer test about one hour later, his blood alcohol content was .21.

These two counts were charged as felonies, the prosecutor having introduced into evidence a Certificate of Conviction signed by Greece Town Justice Terry Servis showing that defendant had been convicted of common law driving while intoxicated in that court on March 13, 1997. This Certificate of Conviction was signed by the Court on January 3, 2000, however, after Justice Servis' term of office expired. Defendant consequently moves to dismiss the indictment upon the grounds that Justice Servis had no authority to sign a Certificate of Conviction beyond his term of office.

This court agrees that this Certificate of Conviction is defective, so that these two counts of the indictment cannot stand as felonies. '7-1 of the Judiciary Law specifically provides that

After a judge is out of office, he may settle a transcript or statement for a record on appeal or make any return of proceedings had before him while he was in office, and may be compelled so to do by the court in which the action or special proceeding is pending.


These two powers (settling the record and making a return) are the only powers that a judge retains beyond his term of office, however (People v. Ozarowski, 87 Misc2d 607; Katz v. McCosh, 19 Misc2d 627; People v. Poole, -Misc2d-, 133 NYS2d 465). Thus, a court does not retain the authority to sign an order beyond his term of office even if the order implements or executes a lawful order or decision made by him when he was in office. In People v. Poole, supra., for example, the defendant moved pursuant to the predecessor statute of Judiciary Law '7-a ('79 of the Civil Practice Act) for an order directing a Judge to sign an order carrying out the terms of his memorandum denying the defendant coram nobis relief. The denial decision was rendered by the Judge when he was still in office, but by the time the order was presented for signature, that court's terms of office had expired. The Poole court held that a retired judge had the authority to exercise only those powers specifically delineated in the statute, which were to settle a case or exceptions, or make any return of the proceedings. The retired Judge had no authority to sign the proposed order, therefore.[1]

While Poole is an old case, and deals with the language of the predecessor statute to Judiciary Law '7-a, there is very little difference legally between the circumstances in Poole and the facts of this case. Like Civil Practice Act '79, Judiciary Law '7-a authorizes a judge who is out office only to settle a transcript or statements for purposes of clarifying the record on appeal (see, People v. Roldan, 96 AD2d 476, affd 64 NY2d 821; People v. Carney, 73 AD2d 9, affd following remand 86 AD2d 987; revd on otr grds 58 NY2d 51), or to make a return of proceedings held before him while he was in office. Authenticating a certificate of conviction does not fall within either one of these two categories, and is functionally no different than signing an order implementing a coram nobis decision previously and properly rendered. As such, the Certificate of Conviction in this case cannot be considered presumptive evidence of the facts stated therein, pursuant to CPL '60.60(1). The DWI charges contained in these two counts are accordingly reduced to charge defendant with DWI as a misdemeanor only (see CPL '210.20[1-a], requiring the court to reduce the charges to a lesser included offense where the Grand Jury evidence is sufficient to make out the lesser crime but not the higher). The prosecution can, of course, either appeal from this decision or resubmit this case to a different Grand Jury within 30 days of the entry of this order as per CPL Section 210.20(6).

Defendant's motion to dismiss the indictment is denied; courts one and two are reduced to charge defendant with Driving While Intoxicated as a misdemeanor in violation of Vehicle and Traffic Law ''1192(2) and (3).

This decision constitutes the order of the Court.

Date: Rochester, New York

June 1, 2000


Hon. Donald J. Mark

Justice Supreme Court

[1]Most of the cases cited by defendant in support of this dismissal motion concern the requirement that there be additional proof of identification, showing that the defendant is the same individual as the individual named in the Certificate of Conviction (People v. VanBuren, 82 NY2d 878; People v. O'Bannard, - Misc2d-, Supreme Court, Queens County, 5/20/94 NYLJ 25, col. 2; see also, People v. Vollick, 75 NY2d 877; People v. Dugan, 188 AD2d 927, lv to app den 81 NY2d 839). The case of People v. Smith (258 AD2d 245, lv to app den 94 NY2d 829 deals primarily with the admissibility of a DMV abstract into evidence, finding that the Certificate of Conviction relied upon was sufficient to support the DWI charges as a felony. Thus, these cases are not applicable to the issue raised here.

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