New trial ordered in DWI case over ineffective assistance of counsel

A state appeals court has ordered a new trial, because of ineffective assistance of counsel, for a defendant convicted of drunk driving.

Defendant Bridget Despen was convicted in October 2018 in Nassau County Court of driving while intoxicated and failing to use a designated lane.

Now the Appellate Division of state Supreme Court, Second Department, reversed the convictions and ordered a new trial.

During the trial, a New York State Trooper testified that he saw Despen’s car drifting out of the proper lane of traffic.

After stopping Despen, she told the trooper she had had a glass of wine at a restaurant earlier that evening. The trooper testified that Despen had bloodshot, watery eyes and slurred speech, and her breath smelled of alcohol.

The trooper administered the horizontal gaze nystagmus test, which checks involuntary jerking movements of the eyeballs. Despen failed the test and the trooper concluded she was drunk.

The trooper did not administer any other field sobriety tests because Despen was wearing high heels and he was afraid that she would fall, according to the decision.

Despen took a breathalyzer test at the police office, which indicated a blood alcohol content of .13%.

Despen’s appellate lawyer argued that the evidence was insufficient to convict her and the verdicts were against the weight of the evidence. And, they claimed, Despen’s trial attorney’s performance constituted ineffective assistance of counsel.

The panel ruled that an acquittal on the charge of failing to use a designated lane would not have been unreasonable and the guilty verdict on that charge was against the weight of the evidence. In addition, the prosecution conceded that Despen was charged with the wrong section of the Vehicle and Traffic Law.

“Consequently, that charge must be dismissed,” the court wrote.

The panel ruled that the evidence was legally sufficient to convict Despen, but she was granted a new trial to insure her constitutional right to effective assistance of counsel.

“Here, we find, based upon the totality of the circumstances presented, that defendant was deprived of the effective assistance of counsel,” the panel wrote.

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