Opinion
April 15, 1994
Appeal from the Steuben County Court, Purple, Jr., J.
Present — Denman, P.J., Balio, Lawton, Doerr and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's contention that County Court erred in failing to charge sua sponte vehicular manslaughter as a lesser included offense has not been preserved for our review because defendant failed to request that such charge be given (see, People v Veras, 175 A.D.2d 710, 712, lv denied 78 N.Y.2d 1130). "In the absence of such a request, the court's failure to submit such offense does not constitute error" (CPL 300.50; see also, People v Veras, supra, at 712; People v Bovell, 154 A.D.2d 609).
Defendant contends that his blood sample, taken when he was unconscious, was illegally obtained and should have been suppressed inasmuch as he was not formally under arrest at the time. That contention lacks merit (see, People v Goodell, 79 N.Y.2d 869, affg 164 A.D.2d 321).
We reject defendant's contention that the court erred in admitting the testimony of persons who either were with defendant within one hour of the fatal automobile accident or observed his truck being driven in an erratic manner within minutes of that accident. That testimony is relevant to show defendant's subjective awareness of the risk, an essential element necessary to show that defendant acted recklessly under circumstances evincing a depraved indifference to human life, as charged in the first three counts of the indictment. That proof did not constitute evidence of a prior bad act or uncharged crime, so as to require a Ventimiglia hearing (see, People v Ventimiglia, 52 N.Y.2d 350). In any event, we conclude that the court effectively complied with the mandates of Ventimiglia and its progeny and properly admitted the challenged testimony. Moreover, any error in the admission of the challenged testimony is harmless in light of the overwhelming evidence of defendant's guilt. There is no significant probability that the jury would have acquitted defendant but for the error (see, People v Crimmins, 36 N.Y.2d 230, 242).
Under the circumstances of this case, although the court violated CPL 310.30 by failing to give defense counsel notice and an opportunity to participate in the court's response to the jury's written inquiry, reversal is not required because the jury ultimately acquitted defendant of those charges to which the inquiry was addressed (cf., People v DeRosario, 81 N.Y.2d 801; People v O'Rama, 78 N.Y.2d 270).
Lastly, defendant has not demonstrated that the court abused its discretion or that extraordinary circumstances exist that would warrant reduction of his sentence in the interest of justice.