Opinion
KA 02-01374
December 30, 2002.
Appeal from a judgment of Supreme Court, Erie County (Wolfgang, J.), entered February 17, 2000, convicting defendant after a jury trial of, inter alia, vehicular manslaughter in the second degree (two counts).
HOGAN WILLIG, PLLC, AMHERST (KEVIN S. MAHONEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
On appeal from a judgment convicting her of two counts of vehicular manslaughter in the second degree (Penal Law § 125.12), one count of driving while intoxicated (Vehicle and Traffic Law § 1192), and various traffic infractions, defendant contends that she was denied a fair trial by the admission of the opinion testimony of a pharmacologist who made a "reverse extrapolation" of defendant's blood-alcohol content at the time of the accident. We conclude that the pharmacologist qualified as an expert and that a proper foundation was laid for his testimony, and that the testimony thus was properly admitted ( see People v. MacDonald, 227 A.D.2d 672, 674-675, affd 89 N.Y.2d 908, rearg denied 89 N.Y.2d 983; People v. Cross, 273 A.D.2d 702, 703; see also People v. O'Connor, 290 A.D.2d 519, 520, lv denied 97 N.Y.2d 758; People v. Stiffler, 237 A.D.2d 753, 754, lv denied 90 N.Y.2d 864).
Supreme Court properly denied defendant's motion to suppress the blood test results. It was unnecessary for police to make a telephonic application for a court order authorizing them to seize defendant's blood, inasmuch as the requirements of Vehicle and Traffic Law § 1194(2)(a)(1) were satisfied ( see People v. Hall, 91 A.D.2d 1002, 1003, affd 61 N.Y.2d 834; People v. Zawacki, 244 A.D.2d 954, lv denied 91 N.Y.2d 889; cf. People v. Demetsenare, 243 A.D.2d 777, 780, lv denied 91 N.Y.2d 833). In the absence of a suspect's express refusal to consent, including in a case in which the suspect is unconscious, police may rely on the implied consent provision of section 1194(2)(a)(1) to take and test a sample of the suspect's breath or body fluids without obtaining a court order ( see People v. Goodell, 79 N.Y.2d 869, 870-871; People v. Bradway, 285 A.D.2d 831, 832-833, lv denied 97 N.Y.2d 639; People v. Hart, 266 A.D.2d 698, 698-699, lv denied 94 N.Y.2d 880). In any event, any noncompliance with the requirements of section 1194(3)(d)(2) and (3) by the arresting officer and the court was of no moment because there was the requisite substantial compliance with the requirements of the statute ( see People v. Rollins, 118 A.D.2d 949, 950; see generally People v. Crandall, 108 A.D.2d 413, 417-418, affd 69 N.Y.2d 459, rearg denied 70 N.Y.2d 748; People v. Whelan, 165 A.D.2d 313, 323, lv denied 78 N.Y.2d 927; People v. Stratis, 137 Misc.2d 661, 667-670, affd 148 A.D.2d 557, lv denied 74 N.Y.2d 747). We further conclude that there was reasonable cause to believe that defendant drove while intoxicated, thus justifying a chemical test of her blood pursuant to section 1194(2) or (3) ( see People v. Alshoaibi, 273 A.D.2d 871, 872, lv denied 95 N.Y.2d 960; People v. Bowen, 229 A.D.2d 954, 955, lv denied 88 N.Y.2d 1019). The reliability of the citizens who witnessed defendant's erratic driving and involvement in the fatal accident may be presumed ( see People v. Parris, 83 N.Y.2d 342, 350; People v. Hetrick, 80 N.Y.2d 344, 349; People v. Hicks, 38 N.Y.2d 90, 94), and the information supplied by the citizens was based on their firsthand observations ( see People v. Adams, 224 A.D.2d 703, 703-704, lv denied 88 N.Y.2d 844; People v. Rivera, 210 A.D.2d 895, 895-896; People v. Rowles, 176 A.D.2d 1074, 1075-1076, lv denied 79 N.Y.2d 831; cf. Parris, 83 N.Y.2d at 349-350).
We agree with defendant that the prosecutor impermissibly shifted the burden of proof by suggesting that defendant could have the blood sample tested by her own expert ( see People v. Hall, 181 A.D.2d 1008, 1009, lv denied 79 N.Y.2d 948). Nevertheless, we conclude that defendant was not deprived of a fair trial by that isolated incident of misconduct ( see People v. Bennett, 298 A.D.2d 964 [Oct. 1, 2002]; People v. Robinson, 267 A.D.2d 981, lv denied 95 N.Y.2d 838).
Contrary to defendant's further contention, the prosecution did not abuse its subpoena power ( see generally CPL 610.20). Defendant has failed to preserve for our review her contention that the court erred in failing to instruct the jury that the "sole purpose of the notations" on the verdict sheet was "to distinguish between the counts" (310.20 [2]; see People v. Mariko, 267 A.D.2d 113, lv denied 94 N.Y.2d 950; People v. Rivera, 262 A.D.2d 31, lv denied 93 N.Y.2d 1013, 1025; People v. Wheeler, 257 A.D.2d 673, 673-674, lv denied 93 N.Y.2d 930). In any event, we perceive no possibility of prejudice to defendant arising from that failure, in view of the court's detailed instructions differentiating the counts ( see Mariko, 267 A.D.2d 113). We reject defendant's contention that the verdict sheet was confusing in general. The sentence imposed, an indeterminate term of incarceration of 2 to 7 years, is not unduly harsh or severe.