People v Mallet (2011 NY Slip Op 52482(U))

People v Mallet

2011 NY Slip Op 52482(U) [34 Misc 3d 1216(A)]

Decided on December 6, 2011

Criminal Court Of The City Of New York, Kings County

Pickett, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

On September 5, 2011, defendant, Jeffrey Mallet, a New York State driver-license holder, was arraigned and charged with

VTL 1192 [1]Operating A Motor Vehicle While Under The Influence Of Alcohol Or Drugs

VTL 1192 [2]Operating A Motor Vehicle While Under The Influence Of Alcohol Or Drugs

VTL 1192 [3]Operating A Motor Vehicle While Under The Influence Of Alcohol Or Drugs [*2]

The accusatory instrument alleges that on or about September 4, 2011, at approximately 12:25 a.m., at the intersection of Franklin Avenue and Putnam Avenue, Brooklyn, New York, defendant was parked inside the traffic lane asleep at the wheel with the engine running forcing other vehicles to swerve around him. The results of a chemical test showed that defendant had a blood alcohol content of .140%. On November 3, 2011, defense counsel made an oral application for a hardship privilege pursuant to VTL 1193 [2] [e] [7] [e].

Defendant testified that the works as a signal maintainer with the Metropolitan Transit Authority New York City (MTA). Defendant testified that as a signal maintainer his duties require him to troubleshoot problems within the New York City Transit system on the tracks by responding to emergency calls. Defendant further testified that he works from 10:00 p.m. to 6:00 a.m., and travels to different locations throughout the five boroughs, transporting different tools from work site to work site. Defendant testified that his employment is contingent upon his having a driver's license, and if he does not have one, he will eventually lose his job.

Defendant testified that because it unit is a three-man and he is the usual driver there is no one on the job to drive. Defendant further testified that public transportation is not possible at night because trains are not fast enough to get him to the various emergency locations. Defendant testified that he lives in Brooklyn, has access to public transportation to and from work, has no other family member that could drive him to and from work, and he typically works forty hours a week with overtime.

In support of his testimony that his employment is contingent upon having a driver's license, defendant submitted an excerpted copy of (1) the MTA rules and regulations governing employees of MTA New York City, Transit , Manhattan and Bronx Surface Transit Operating Authority and South Brooklyn Railway, (2) MTA Notice of Examination for signal maintainer, and (3) requirements to be appointed.

VTL 1193 [2] [e] [7] [e] provides in pertinent part, that, if the court finds that the suspension of defendant's license will result in "extreme hardship", the court must issue the suspension but may grant a hardship privilege. The statute defines an "extreme hardship" as the [*3]inability to obtain alternative means of travel to or from the licensee's employment, or to or from necessary medical treatment for the licensee or a member of the licensee's household, or to or from the licensee's school, college or university if such travel is necessary for the completion of an educational degree or certification (VTL 1193 [2] [e] [7] [e]).

The burden of showing the need for an extreme hardship privilege is placed on the defendant (see People v Correa, 168 Misc 2d 309, 311 [1996]). Whether or not an extreme hardship has been established is left to the discretion of the court (see People v Bridgman, 163 Misc 2d 818, 820 [1995]).

Here, the defendant has failed to established an extreme hardship with respect to his commute to and from work. Public transportation in New York City is accessible at all times, including subway, bus, or taxis. Defendant has provided no evidence that he would be unable to use public transportation to and from his employment. Although the defendant is assigned to various emergency locations throughout the City, the defendant's job requirement is not one of the factors to be considered in making the determination as to whether defendant has established an extreme hardship within the meaning of the statutory definition of "extreme hardship". Case law does not support such a consideration. Therefore, defendant's application for a hardship privilege is denied.