
    The People of the State of New York, Plaintiff-Respondent, v Timothy P. Dumblewski, Defendant-Appellant.
    Supreme Court, Montgomery County,
    September 26, 1985
    APPEARANCES OF COUNSEL
    
      Robert J. Krzys for defendant-appellant. Howard M. Aison, District Attorney (Guy P. Tomlinson of counsel), for plaintiff-respondent.
   OPINION OF THE COURT

Loren N. Brown, J.

By notice of motion, dated August 2, 1985, the defendant-appellant moves for leave to reargue/renew a decision of this court which denied him a stay of execution of sentence pending the appeal of conviction for driving while ability impaired and failure to keep right.

Timothy Dumblewski was originally charged in the Amsterdam Police Court with driving while intoxicated, driving with more than .10% of alcohol in his blood and failure to keep right. After trial, Mr. Dumblewski was found not guilty of driving while intoxicated, not guilty of driving with more than .10% of alcohol in his blood, and guilty of driving while his ability was impaired, and guilty of failure to keep right. In support of the motion for a stay, the defendant-appellant challenged the conviction on several grounds. At the July 24, 1985 Special Term, the court denied the motion stating that the sole reason for its denial was that it would be illogical to grant a stay of execution pending appeal when, in any case, a statute (Vehicle and Traffic Law § 510 [2] [b] [vi] [a]) permits a temporary suspension of a driver’s license pending prosecution.

A review of the statute, and its legislative history shows that Vehicle and Traffic Law § 510 (2) (b) (vi) (a) only applies when there is a pending prosecution for driving while intoxicated. In this case, prosecution was no longer pending when the defendant was found not guilty of the more serious charges after a jury trial.

Therefore, on further reflection, and because the sole ground for denying the relief requested was invalid, the court grants the motion to reargue, and the original motion staying execution of sentence.  