Opinion
Argued October 11, 1985
Decided November 14, 1985
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Arthur A. Darrigrand, J.
Philip J. Sanzone for appellant.
Barry M. Donalty, District Attorney (Donald R. Gerace of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant was involved in a two-car accident in which the driver of the other vehicle was fatally injured. Subsequently charged in an eight-count indictment with manslaughter in the second degree, criminally negligent homicide, driving while intoxicated, and other violations of the Vehicle and Traffic Law, he sought to suppress the results of a chemical blood test administered without his consent pursuant to a search warrant (CPL 690.10). County Court granted the motion. The Appellate Division reversed and denied suppression.
Defendant relies upon People v Moselle ( 57 N.Y.2d 97) for the proposition that the provisions of Vehicle and Traffic Law § 1194, in effect at the time of the accident, constitute the exclusive method of obtaining a blood sample for a violation of Vehicle and Traffic Law § 1192. Although two of the three prosecutions in Moselle involved Penal Law violations in addition to Vehicle and Traffic Law violations, there was not in those cases, as there is here, a court order based on probable cause, authorizing the taking of a blood sample. It is clear that a search warrant may validly be issued to obtain a blood sample in the event of a violation of the Penal Law (Matter of Abe A., 56 N.Y.2d 288), and, in such circumstances, we decline to extend Moselle to require separate resort to Vehicle and Traffic Law § 1194 to sustain Vehicle and Traffic Law offenses which are part of the same indictment. Moreover, the Legislature has amended Vehicle and Traffic Law § 1194 (L 1983, ch 481) to overrule Moselle on its facts.
Defendant's remaining contention is without merit.
Chief Judge WACHTLER and Judges JASEN, MEYER, KAYE, ALEXANDER and TITONE concur; Judge SIMONS taking no part.
Order affirmed in a memorandum.