People v. Rivera

Graffeo, J. (dissenting).

When conduct falls under two or more penal provisions, this Court has consistently held that it is within the realm of a District Attorney’s exercise of prosecutorial discretion to determine what offense to charge. Because the *660conduct at issue in this case—defendant’s operation of a motor vehicle at a time when he was not privileged to do so and while under the influence of alcohol—could be prosecuted either as a violation of Vehicle and Traffic Law § 1196 (7) (f) or Vehicle and Traffic Law § 511 (3) (a) (i), the People’s decision to charge the latter offense should…