{ "id": 2967734, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN J. VAN DYK, Defendant-Appellant", "name_abbreviation": "People v. Van Dyk", "decision_date": "1976-06-11", "docket_number": "No. 62391", "first_page": "275", "last_page": "280", "citations": [ { "type": "official", "cite": "40 Ill. App. 3d 275" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "283 N.E.2d 239", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "5 Ill. App. 3d 358", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2526383 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/5/0358-01" ] }, { "cite": "174 F.2d 883", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 306316 ], "opinion_index": 0, "case_paths": [ "/f2d/174/0883-01" ] }, { "cite": "278 N.E.2d 124", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "2 Ill. App. 3d 1057", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2753022 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/2/1057-01" ] }, { "cite": "114 N.E. 181", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1962, "opinion_index": 0 }, { "cite": "275 Ill. 462", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2410127 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/ill/275/0462-01" ] }, { "cite": "135 N.E. 709", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1962, "opinion_index": 0 }, { "cite": "303 Ill. 339", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5004029 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/ill/303/0339-01" ] }, { "cite": "146 N.E. 593", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1962, "opinion_index": 0 }, { "cite": "315 Ill. 485", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2436934 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/ill/315/0485-01" ] }, { "cite": "92 N.E.2d 91", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "405 Ill. 533", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2627146 ], "opinion_index": 0, "case_paths": [ "/ill/405/0533-01" ] }, { "cite": "284 N.E.2d 440", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "6 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2465370 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/6/0001-01" ] }, { "cite": "243 N.E.2d 225", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill. 2d 364", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853826 ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0364-01" ] }, { "cite": "207 N.E.2d 76", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill. 2d 441", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2841109 ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0441-01" ] }, { "cite": "296 N.E.2d 856", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. 2d 280", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933485 ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0280-01" ] } ], "analysis": { "cardinality": 684, "char_count": 12689, "ocr_confidence": 0.88, "pagerank": { "raw": 2.191345279238835e-07, "percentile": 0.7738445368822661 }, "sha256": "6fc650dc14bd614399349f235dc6687f98a8b8b51c28f7e5dd88b474b02084df", "simhash": "1:e5aab413bb5ce9fa", "word_count": 2087 }, "last_updated": "2023-07-14T17:46:14.004939+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN J. VAN DYK, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE LORENZ\ndelivered the opinion of the court:\nAfter a bench trial, defendant was convicted of driving a vehicle while under the influence of intoxicating liquor. (Ill. Rev. Stat. 1975, ch. 95\u00bd, par. 11 \u2014 501.) He was fined $100, and his driver\u2019s license was revoked. (Ill. Rev. Stat. 1975, ch. 95\u00bd, par. 11 \u2014 501(i).) Thereafter, he filed a post-trial motion for a judgment of acquittal, which was denied. On appeal, he contends that the State\u2019s witness, who was permitted several times to refer to a vehicular report for the purpose of refreshing his memory while testifying, did not have a sufficient present recollection of the pertinent facts to support his conviction.\nThe following facts pertinent to this appeal were adduced at trial.\nFor the State\nJohn Partipilo\nHe has been a Chicago Police Officer since 1956. At the beginning of direct examination, the following exchange involving him, Assistant State\u2019s Attorney Strojny, and the court occurred:\n\u201cStrojny: Officer, do you have a present recollection\u2014\nPartipilo: No, sir.\nStrojny: \u2014of the facts surrounding this case?\nPartipilo: I have some, but others I can\u2019t recall.\nStrojny: Is there anything in the courtroom that would refresh your memory?\nPartipilo: My record of vehicular \u2014 the report I made out at that time.\nThe Court: Commonly called the visual.\nPartipilo: Yes, sir.\nThe Court: All right, Officer, you can read from that to refresh your recollection, then, you can put it down, turn it over when you put it down, and then recite what you referred to, and if you\u2019re stuck, pick it up again.\u201d\nAfter refreshing his recollection, Officer Partipilo testified that on November 18,1974, at about 2:30 a.m., he was in a patrol car proceeding northbound on Lake Shore Drive at a point where there are four lanes in each direction. The weather conditions were good and the traffic light. About 50 feet ahead, he noticed another northbound car that was changing lanes excessively. The car had moved from the extreme inside lane to the next inside lane and back approximately nine times. He signalled the car to stop. After alighting from his own vehicle, Officer Partipilo approached the car and requested that its driver, defendant, step outside. He requested defendant\u2019s driver\u2019s Acense and inquired about his inordinate lane changing. When defendant denied that he had been moving from lane to lane, Officer Partipilo detected a strong odor of alcohol on defendant\u2019s breath. He then asked whether defendant had been drinking.\nAt this point, Officer Partipilo found it necessary to refer to his vehicular report again. He then resumed testifying saying that only after six requests did defendant produce his driver\u2019s license. Defendant\u2019s face was pale, his attitude cocky, and his walking wobbly. After again consulting the report, he testified that defendant\u2019s voice was slurred, his clothing disheveled, and his ability to stand impaired. Defendant refused to take a breathahzer test after being advised of his impfied consent rights.\nIn his experience as a policeman, Officer Partipilo has had the opportunity to observe between 500 and 600 people who were under the influence of intoxicating liquors, and, in his opinion, defendant was intoxicated. On the basis of his opinion, he arrested defendant, advised him of his constitutional rights, and transported him to the district police station in the patrol car. At the police station, defendant needed assistance in cAmbing the stairs.\nOn cross-examination, Officer Partipilo was unable to repeat his observations concerning defendant\u2019s walking and balance without referring to his vehicular report.\nFor defendant\nJohn Van Dyk, defendant\nHe is a manager for a men\u2019s clothing store. On the morning of November 18, 1974, at about 2:30 a.m. he was driving northbound on Lake Shore Drive when his car was stopped by Officer Partipilo. He did not produce his driver\u2019s Acense immediately when requested because he wanted to ascertain why his car had been stopped. He recaUed that Officer Partipilo requested him to produce his driver\u2019s Acense several times. He stated that before complying with the officer\u2019s request, he \u201cwas talking to the officer trying to see if [he] could get a pass.\u201d In his opinion, upon aAghting from his car, his walking was \u201cpretty darn good.\u201d He speculated that, while driving on Lake Shore Drive, he might have strayed from the extreme right-hand lane on turns. However, he felt that he had done \u201ceverything right in driving.\u201d\nBruce Lustig\nHe works with defendant. On the morning of November 18, 1974, at about 4 a.m., he went to the district pohce station to help defendant make bail and saw defendant there. At that time, he observed defendant\u2019s walking and coordination to be normal and considered defendant to be sober. He was not with defendant, however, when his vehicle had been stopped.\nAt the close of all the evidence, the court found defendant guilty of driving a vehicle while under the influence of intoxicating liquor. He was fined *100, and his driver\u2019s license was revoked. Thereafter, defendant filed a post-trial motion for a judgment of acquittal, contending that the State\u2019s witness did not have a sufficiently independent present recollection of the pertinent facts to support his conviction. The court expressed a willingness to grant a new trial on the basis of defendant\u2019s contention, but denied the motion for a judgment of acquittal. From the denial of this motion he appeals.\nOpinion\nDefendant contends that after refreshing his memory from his report on several occasions, the State\u2019s witness did not possess a sufficient present recollection of the pertinent facts to support a conviction.\nInitially the State argues that defendant has failed to preserve this contention for review by failing to file a motion for a new trial which contained the contention. Article 116 of the Code of Criminal Procedure of 1963 provides for two types of post-trial motions, a motion for a new trial and a motion in arrest of judgment. (Ill. Rev. Stat. 1975, ch. 38, par. 116 \u2014 1 and 116 \u2014 2.) Defendant\u2019s post-trial motion was captioned \u201cmotion for judgment of acquittal.\u201d Since the instant motion did not address the insufficiency of the charge nor the court\u2019s jurisdiction, it cannot be considered a motion in arrest of judgment. Moreover, during the hearing on the instant motion, defendant\u2019s counsel specifically rejected the trial court\u2019s offer to order a new trial and stated \u201cIt\u2019s not a motion for a new trial. It\u2019s a motion for judgment of acquittal, Your Honor.\u201d\nThe purpose of the salutory rule requiring a defendant to file a motion for a new trial which specifies the grounds in order to preserve issues for appeal is to allow the trial court to correct possible errors and thereby eliminate unnecessary reviews and reversals. (People v. Pickett, 54 Ill. 2d 280, 296 N.E.2d 856; People v. Irwin, 32 Ill. 2d 441, 207 N.E.2d 76.) In the instant case defendant fulfilled the purpose of the rule through his numerous objections during the trial and his post-trial motion. The \u201cmotion for judgment of acquittal\u201d attacked the competency of Officer Partipilo\u2019s testimony and the record on appeal demonstrates that defendant\u2019s counsel argued this contention when the motion was heard. Consequently, the motion afforded the trial court the opportunity to correct the alleged error and, thus, fulfilled the purpose of the statutory post-trial motion for a new trial. We do not believe that defendant should be precluded from his right to review because his counsel merely mislabeled the post-trial motion or failed to recognize the remedies available to the trial court to dispose of the motion.\nWe note that the State\u2019s reliance upon People v. Nelson, 41 Ill. 2d 364, 243 N.E.2d 225, and People v. Garner, 6 Ill. App. 3d 1, 284 N.E.2d 440, is unfounded. In those cases, defendants filed motions for new trials which failed to include grounds later argued on appeal. In the instant case, defendant\u2019s post-trial motion clearly included the grounds now argued on appeal. The sole question here is whether the incorrect caption on the motion and defense counsel\u2019s statements now preclude review, and is not whether defendant failed to preserve the grounds at all in the trial court. Similarly, defendant can find no solace in Supreme Court Rule 366(b)(3)(ii) (Ill. Rev. Stat. 1975, ch. 110A, par. 366(b)(3)(ii)) since that rule applies to the review of post-trial motions in civil actions and has not been incorporated to apply to criminal appeals through Supreme Court Rule 612. Ill. Rev. Stat. 1975, ch. 110A, par. 612.\nSince the question raised by the State\u2019s preliminary argument is whether or not a particular contention has been preserved for appellate review, we believe that the \u201csubstance\u201d of the rule when satisfied should control over the \u201cform\u201d of the rule and, therefore, we will consider the merits of defendant\u2019s contention.\nAfter carefully reviewing the procedures used by the trial court, we cannot say that the trial court erred in finding that Officer Partipilo testified from his own present recollection of the facts pertinent to the offense.\nIt is well settled in Illinois that a witness may refresh and assist his memory by the use of a written memorandum when he is unable to remember relevant facts. (People v. Griswold, 405 Ill. 533, 92 N.E.2d 91.) Moreover, unlike those instances where through past recollection recorded the memorandum itself will be the evidence, the memorandum need not have been made by the witness nor be independently admissible into evidence, provided that, after inspecting it, the witness can speak to the facts from his own recollection. People v. Krauser, 315 Ill. 485, 146 N.E. 593; Walsh v. Chicago Railways Co., 303 Ill. 339, 135 N.E. 709; Scovill Manufacturing Co. v. Cassidy, 275 Ill. 462, 114 N.E. 181; Cleary, Handbook of Illinois Evidence \u00a76.8 (2d ed. 1962).\nThe manner and mode of refreshing a witness\u2019s memory and the reliability of the means of doing so rest largely within the discretion of the trial court. (Kerz v. Arkin, 2 Ill. App. 3d 1057, 278 N.E.2d 124.) The extent to which a witness may refer to a memory-refreshing writing is within the scope of the court\u2019s discretion, and the trial court\u2019s ruling in this respect will not be disturbed in the absence of abuse of discretion. (81 Am. Jur. 2d Witnesses \u00a7440 (1976).) Where facts related in the testimony are detailed, the witness need not speak independent of the writing throughout his entire testimony, but may refer to it for the purpose of further jogging his memory. See United States v. Riccardi (3rd Cir. 1949), 174 F.2d 883.\nIn the instant case, the trial court permitted Officer Partipilo to refresh his memory from his report at the beginning and again on two other occasions during his direct testimony. The court specifically admonished the witness to turn the report over and to put it aside before he resumed testifying. At no time did Officer Partipilo read directly from his report into evidence. After consulting the report initially, the witness demonstrated a competent grasp of the events surrounding defendant\u2019s arrest. Only when queried concerning his observations of defendant\u2019s appearance and deportment did he need to consult the report again. We do not believe that the mere fact the witness referred to his report again, by itself, indicates that he did not possess a sufficient present recollection of the pertinent facts.\nCity of Crystal Lake v. Nelson, 5 Ill. App. 3d 358, 283 N.E.2d 239, while seemingly similar to the case at bar is not controlling. In that case, the court held that while the method used in examining the testifying officer was not to be condoned, it did not constitute reversible error in that he may have read a portion directly from his report. To the contrary, at no time did the testifying officer in the instant case read directly from his report. The sole question presented here is whether multiple references to the refreshing report demonstrated the lack of a present recollection sufficient to support a conviction. We have held that on the basis of this record the trial court did not err in its judgment.\nFor the reasons stated above, the judgment of the circuit court is affirmed.\nAffirmed.\nSULLIVAN and BARRETT, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE LORENZ" } ], "attorneys": [ "Chester A. Lizak, of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Kevin Sweeney, and Michael R. Lewis, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN J. VAN DYK, Defendant-Appellant.\nFirst District (5th Division)\nNo. 62391\nOpinion filed June 11, 1976.\nRehearing denied July 14, 1976.\nChester A. Lizak, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Kevin Sweeney, and Michael R. Lewis, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0275-01", "first_page_order": 303, "last_page_order": 308 }