The People, Respondent,v.Patrick A. Asaro, Appellant.BriefN.Y.September 10, 2013frg,neniTi,neReste4 Tgjkjjr’edB. 12 MINUTES R0BEWr [1. MIDDLEMISS COURT OF APPEALS STATE OF NEw YORK TIlE PEOPLE OF THE STATE OF NEw YORK, Respondent, - against - PATRICK ASARO, Defendant-Appellant. BRIEF FOR THE RESPONDENT FRANCIS D. PHILLIPS, 11 DISTRICT ATTORNEY FOR ORANGE COUNTY ATTORNEY FOR RESPONDENT 40 MATTHEWS STREET GOSHEN, NEw YORK 10924 TEL. 845-291-2050 ROBERT H. MIDDLEMISS ASSISTANT DISTRICT ATTORNEY ANDREW R. KA5S EXECUTIVE ASSISTANT DISTRICT ATTORNEY OF COUNSEL FEBRUARY 1,2013 TABLE OF CONTENTS TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT I INTRODUCTTON AND PROCEDURAL HISTORY 2 POINT 1 ...... 37 ThE TRIAL COURT’S ADVERSE INFERENCE JURY CHARGE WAS SUI FICIE Ni To CURE Fi IF Loss OF 1’ROOPER PIRTLE’S NOTES POINT Li 51 THE JURY’S VERDICT WAS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE. POINT III 13 REFERENCES To TIlE CAR’S SPEEDOMETER WERE FAIR COMMENT ON TIlE EVIDENCE AND DID NOT AFFECT DEFENDANT’S FUNDAMENTAL RIGHTS. CONCLUSION 70 TABLE OF AUTHORITIES Cases: Brady v Maland, 373 US 83 [1963] 38, 63 Crawford v Washingto 541 US 36 [20041 39 Delaware v Van Arsdall, 475 US 673 [1986] 39 Frye v United States 293 F 1013 [App DC 1923] 49 Green v Auz, 990 F Supp 267, 274 [SDNY 1998]; 38 InReShemiseC,91 AD3d26[2011j 40 Matter of Clara C. v William L, 96 NY2d 244 [2001] 40 Matter of Miller v Schwartz 72 NY2d 869 [1988] 38 Melendez-Diaz v Massachusetts 557 US 305 [2009] 39 Morrison v McC1e11a 903 F Supp 428, 429 [EDNY 1995] 38-39 People v Alvaz, 54 AD3d 612 [Ft Dept, 2008] 42 People v Alvarez, 174 AD2d 489 [Ft Dept. 1991] 59 People v Alvarez, 44 AD3d 562 [Ft Dept, 2007] 67 People v Asaro, 94 AD3d 773 [2 Dept, 2012] 3, 38, 40, 47, 63, 67 People v Ashwal, 39 NY2d 105 [1976] 69 People v Banch, 80 NY2d 610 [19921 42 People v Bell, 217 AD2d 575 [2m1 Dept, 1995] 41 People v Benzing 36 NY2d 29,32 [1974] 52 —ii— People v l3ogan, 78 AD3d 855 [2’ Dept, 2010J .41 People v Buannq 296 AD2d 600 [3 Dept. 2002] 61 People v Button, 276 AD2d 229 [4th Dept, 20001 38 People v Cabrera 10 NY3d 370 [20061 54 People v Calcaso1 80 Misc2d 429 [App Term, 2id Dept, 1975] 56 People v Caparell 83 AD3d 730 [2’ Dept. 20111 69 People v Carroll, 95 NY2d 375 [2000] 48 PeoplevCharle61 NY2d 321 [1984] 61 People v Clarke, 173 AD2d 550 [2’’ Dept. 1991] 69 People v Conte 60 NY2d 620 [1983] 52 People v Colavitq 87 NY2d 423 [19961 38 People v Crandall, 255 AD2d 617 [31(1 Dept, 1998] 55 People v DaGata, 86 NY2d 40 [1995] 38, 46 People v Dc Tore, 34 NY2d 199 [1974] 67 People v DiFiore, 46 AD3d 835 [211(1 Dept, 20071 41 People v Dermon, 237 AD2d 530 [2 Dept. 1997] 69 People v Drake, 7 NY3d 28 [2006] 54, 57 People v Esmail, 260 AD2d 396 [2m1 Dept, 1999] 69 People v Feliciane, 301 AD2d 480 [1st Dept. 2003] 47 —Hi— People v Fomby, 101 AD3d 1355 [3 Dept, 2012] .48 People v Ford, 11 NY3d 875 [20081 60 People v Fuente 12 NY3d 259 [20091 63, 64,67 People v Galloway, 54 NY2d 396 [1981] 68 People v Gomez-Kadawid, 66 AD3d 1124 [3rd Dept, 2009] 48 People v Gonzalez, 181 AD2d 741, 742 [‘ Dept, 19921 59 People v Gonzalez, 45 AD3d 696 [2ncJ Dept 2007] 68 People v Giuca, 58 AD3d 750 [2 Dept, 2009] 68 People v HaIm, 81 NY2d 819 [1993] 68 People v Hampton, 61 NY2d 963 [1984] 59 People v Hart, 8 AD3d 402 [211 Dept, 2004] 55, 58 People v Haupt, 71 NY2d 929 [1988] 44, 46 People v Hayes 17 NY3d 46 [20111 64 People v Heidgen, 87 AD3d 1016, 1025 [ Dept., 20111 49 People v Heinsohn, 61 NY2d 855 [1984] 55,58 People v Ken, 60 AD3d 1083 [2’ Dept, 20091 67 People v Hernandez, 25 AD3d 566 [2nd Dept, 2006] 45, 50 People v Hopkins 46 AD3d 1449 [4th Dept., 2007] 49 People v Jenkins 98 NY2d 280 [20021 41 People v Jenkins 284 AD2d 550 [2 Dept, 2001] 48 -iv- People v Johnson, 277 AD2d 395 [2fld Dept, 20001 .42, 45, 50 People v Johnson, 70 NY2d 819 [19871 59 People v Johnson, 303 AD2d 208 [1t Dept, 20031 64, 67 People v Jordan, 207 AD2d 700 [1t Dept, 19941 41 People v Joseph, 86 NY2d 565 [1995] 41 People v Killane, 203 AD2d 386 [2’’ Dept, 1994) 61 People v Kelly, 62 NY2d 516 [1984] 46,47,48 People v Kotler, 31 AD3d 787 [2t Dept, 2006] 45, 50 People v Kussius, 238 AD2d 731 [3td Dept, 1997] 59, 61 People v LeGrand, 8 NY3d 449 [2007] 49, 50 People v Leka, 209 AD2d 723 [2 Dept, 1994] 62 Peoplev Licitra, 47NY2d 554[1979] 53,60 People v Loughlin, 76 NY2d 804 [19901 59 People v Martinez, 71 NY2d 937 [1988] 40, 41,42,44,45,50 People v Maricevie, 52 AD3d 1043 [31d Dept. 2008] 49 People v Messina, 209 AD2d 642 [211d Dept, 1994] 59 People v Miller, 18 NY3d 704 [2012] 41 People v Miller, 286 AD2d 981 [4th Dept. 20011 55, 58 People v Moore, 155 AD2d 725, 727 [31d Dept, 1989] 49 -V.. People v Muhamma 17 NY3d 532 [20111.58,59,60 People v Nichols, 35 AD3d 508 [2’ Dept, 2006] 62 People v Norman, 85 NY2d 609, 620-621 [1995] 52 People v Norris, 34 AD3d 501 [2”’ Dept, 2006] 41 People v Okehoffirnim, 201 AD2d 508 [2’ Dept. 1994] 46, 47 People v Oega, 270 AD2d 137 [1st Dept, 20001 68 People v Racing 132 AD2d 899 [3’ Dept, 1987] 54, 55, 58 People v Rhodes, 49 AD3d 668 [2 Dept, 2008] 52 People v Robbin 48 AD3d 711 [2 Dept. 2008] 68 People v Rodriguez 210 AD2d 266 [2nd Dept, 1994] 46, 47 People v Romero, 7 NY3d 633 [2006] 52 People v Rooncy, 57 NY2d 822 [1982] 60, 61 People v Rosao, 9 NY2d 286 [1961], rearg denied, 9 NY2d 980; çj denied, 368 US 866 [19611 38,41 People v Rossi, 163 AD2d 660 [3rd Dept, 1990]; 56 People v Sandoz, 184 AD2d 336 [1st Dept, 1992] 45, 50 People v Schaffer, 80 AD2d 865, 866 [2’” Dept, 19811 56, 60, 61 People v Schwazma 24 NY2d 241 [1969] 39 People v Senisi, 196 AD2d 376 [2 Dept, 1994] 61 People v Smith, 266 AD2d 639 [3rd Dept, 1999] 42, 47 -vi- People v Smith, 288 AD2d 629 [3rd Dept, 20011, reversed on other grounds,30 AD3d 693 [3 Dept. 2006j 55, 58 People v Sorbell 285 AD2d 88 [2” Dept, 20011 44 People v Taylor, 94 NY2d 910 [2000] 52, 58 PeoplevTucker,55NY2d1[1981J 59, 60, 61 People v Wallace, 76 NY2d 953 [1990] 41, 42 People v Wells 53 AD3d 181 [1st Dept., 2008] 49 People v Wesley, 83 NY2d 417 [1994] 49, 50 People v Williams 277 AD2d 945 [4Lh Dept. 20001 48 People v Williams 123 AD2d 897 [2’” Dept. 1986] 54, 57 People v Wolz, 300 AD2d 606 [2’ Dept, 2002] 55, 58 People v Wrotten, 60 AD3d 165 [lt Dept. 20081, reversed on other grounds 14 NY3d33 [2009] 40 Statutes and Other Authorities CPL 240.20 41,46 CPL 240.44 39 CPL 240.45 39,41 CPL 240.70 42 CPL 240.75 42 -vii- CPL330.30.63,67 CPL 470.05 50, 68 CPL 470.35 50,68 Penal Law § I 5.05[3] 54 VTL 1192[1J 61 -viii- COURF OF APPEALS STATE OF NEW YORK x ‘[‘HE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PATRICK ASARO, Defendant-Appellant. x BRIEF FOR THE RESPONDENT PRELIMINARY STATEMENT 13y permission of the Honorable Eugene F. Piggott, Jr., defendant appeals from a decision and order of the Appellate Division, Second Department, dated April 3. 2012. That decision affirmed a judgment of the County Court, Orange County (Berry, J.), which convicted defendant, after a jury trial, of manslaughter in the second degree, two counts of assault in the second degree, assault in the third degree, reckless endangerment in the second degree and reckless driving. On July 30, 2010, the court sentenced defendant to an indeterminate term of three to ten years imprisonment on the manslaughter conviction, two determinate terms of three years imprisonment plus three years post-release supervision on the assault in the second degree convictions, and one year terms in county jail on the remaining convictions, all to run concurrently. Delendant is currently serving those sentences. INTRODUCTION AND PROCEDURAL HISTORY In the early morning hours of November 22, 2008, defendant was driving down Guymard Turnpike, a two lane road in the Town of Mount i-lope, Orange County, New York, at a high rate of speed, when he suddenly stopped his 2008 Mitsubishi Lancer in the middle of the road. After stopping, he revved the car’s engine and then quickly placed the car in gear, rocketing forward. Within a few moments, defendant had reached speeds approaching or above 100 miles per hour. As he neared a curve in the road, defendant drove across the double yellow line that separated the two lanes of traftic and collided head-on with a 1991 Chevrolet Camaro traveling in the opposite direction, driven by Brian Stevens. Stevens died from the injuries he received in the crash, and his passenger, Lindsey Ernst, was seriously injured, as were the four passengers in defendant’s car. By Orange County Indictment 2009-495, defendant was charged with manslaughter in the second degree, criminally negligent homicide, four counts of assault in the second degree, four counts of assault in the third degree, two counts of reckless endangerment in the second degree, two counts of reckless driving, and driving while ability impaired by alcohol. On April 16, 2010, defendant was convicted of manslaughter in the second degree, two counts of assault in the second degree, assault in the third degree, reckless endangerment in the second degree and reckless driving, after a jury trial (R: 147).’ On July 30, 2010, the court sentenced defendant, as noted above. On appeal, defendant raised nine issues, including complaints that the trial court had failed to impose an appropriate remedy in response to a Rosario violation and that the jury’s guilty verdict was not supported by legally sufficient evidence and was legally repugnant. On April 3, 2012, the Appellate Division, Second Department, affirmed defendant’s conviction (R: 8) (People v Asaro, 94 AD3d 773 [2 Dept. 20l2j). The Appellate Division found that defendant’s conviction was supported by legally sufficient evidence and that the jury’s verdicts were not repugnant. The Appellate Division also found that the trial court properly exercised its discretion in providing an adverse inference jury charge to remedy the People’s Rosario violation. The court based that holding on the fact that defendant had received the report prepared by the People’s accident Numbers preceded by letter R” refer to pages from defendant’s Record on Appeal. -3 reconstruction expert and was able to cross-examine the witness about the methodology he used, including the lormula and variables he employed to calculate the vehicles’ speeds at the time of the accident. Finally, the Appellate Division rejected defendant’s remaining claims, including his challenges to the denial othis request for a fry hearing, portions of the prosecutors opening and closing statements and the sufficiency of the language used in trial court’s adverse inference jury charge. On October 2,2012, this Court (Piggott, J.) granted defendant’s application for leave to appeal from the Appellate Division’s decision and order(R: 7). EVIDENCE AT TRIAL The People’s Case On the evening of November 21, 2008, Andrew Adamcyzk called eight of his friends, including defendant, and invited them to hang out at the home he shared with his parents, brother, girlfriend and children, located in the Town of Mount Hope, Orange County, New York, along Guymard Turnpike, a two lane public highway connecting the cities of Middletown and Port Jervis, in Orange County, New York (People’s Exhibit #1). The posted speed limit was 55 miles per hour. The road was not lighted, and it 4 had a number of curves, as well as long straightaways. Adamcyzk’s house was near a very sharp bend in the road (Adamcyzk: R: 206-210; Asprea: R: 326-328; Javaheri: R: 362; Ernst: R: 486: Ligenzowski: R: 749-752; Pirtle: R: 963-964). Some time between 7:00 p.m. and 9:30 p.m., Adamcyzk was standing in his driveway with his girlfriend, his brother and his son, when he heard the sound of a car’s exhaust, growing louder as it approached. Looking out to the road, he saw a black 2008 Mitsubishi Lancer, driven by defendant, speed past his home. After the car had passed by, Adamcyzk heard it turn around, then watched as defendant came back and pulled into his driveway. Adamcyzk noticed that defendant’s girlfriend, Theresa Lazaro, and a mutual friend, Kyle Ligenzowski, were also in the car. Lazaro recalled driving past the house and turning around, and Ligenzowski specifically recalled defendant speeding (Adamcyzk: R: 2 10-220, 238; Lazaro: R: 505-5 13; Ligenzowski: R: 743-756, 783-784, 816). After parking the car, defendant asked Adamcyzk and everyone else in the driveway whether they had heard the exhaust, and whether they liked it. In response, Adamcyzk told defendant, in no uncertain terms, not to ever drive past his driveway that fast again, because his children played in the front yard. Defendant apologized, and then began showing Adamcyzk the aftermarket modifications he had made to his car’s exhaust and air intake systems. Adamcyzk had made a number of modifications to his own 2006 Mitsubishi Lancer, including the replacement of its air intake and exhaust systems. and he was familiar with what such modifications could do to a vehicle. The modifications he had made to his car’s air intake had changed the sound the car made and increased its horsepower (Adamcyzk: R: 211- 219,244; Ligenzowski: R: 756-757). Ligenzowski was also familiar with defendant’s car and the modifications he had made to it because they were good friends and had talked about them before. Ligenzowski had also made modifications to a Volbwagen Jetta he had previously owned. Those modifications included replacing its exhaust muffler and air intake. Changing those parts increased the speed ofair taken into the motor, which made the car go fhster (Ligenzowski: R: 743-749). More people continued to come over to Adamcyzk’s house and Adamcyzk and defendant eventually went inside. People were having a good time in the house, in the kitchen, the living room, and Adamcyzk’s bedrooms. Other than defendant Lazaro and Ligenzowski, guests at Adamcyzk’s party included Richard Heathwood, Ryan Kelly, Anthony Asprea and Justin MacElroy. Asprea arrived in the early aftemoon, while 6 lieathwood and Kelly recalled arriving at around 9:30 p.m. There were between I 0 and I 5 people at the party, including Adamcyzk and defendant (Adamcyzk: R: 219; lleathwood: R: 257-265, 273-277; Kelly: R: 285-294, 309-311, 319-321; Asprea: R: 326-331; Lazaro: R: 5 17-523; Ligenzowski: R: 758, 763, 783-784). The party guests were all drinking beer and some were drinking liquor, and Adamcyzk heard people talking about a drinking game going on in his bedroom. Ligenzowski recalled defendant leaving Svedka vodka at the house several days before the party. Lazaro recalled bringing two bottles of vodka to the party, one of Svedka and one of Bacardi. Defendant had the bottle of Svedka while they were at the party, and he poured Lazaro a cranberry juice and vodka. Ligenzowski, Asprea, l-leathwood and Kelly all saw defendant holding the vodka, pouring it into a cup, and then drinking from both the cup and a can of Red Bull. Defendant gave Kelly a sip from the cup, and he recognized the taste of Red Bull and vodka. Ligenzowski and defendant also took two shots of vodka together. Both Kelly and 1-leathwood also spent time in Adamcyzk’s bedroom, where people, including defendant, were playing beer pong, a game in which two-player teams tried to throw ping pong balls into cups of beer, to make the other team drink the beer. Lazaro knew that people were playing beer pong, 7 although she was not in the bedroom and did not see the games. I leathwood saw defendant play approximately five games of beer pong. Ligenzowski recalled playing two games of beer pong with defendant as his partner. Defendant was speaking loudly and slurring his words, and Fleathwood thought he was drunk (Adarncyzk: R: 219; Heathwood: R: 257-265, 273- 277; Kelly: R: 285-294, 309-3 11, 319-321; Asprea: R: 326-33 1; Lazaro: R: 517-523; Ligenzowski: R: 758-763, 784-788). After they had been at the party lbr a few hours, Ligenzowski told defendant and Lazaro that two friends of his, George Ortiz and Michael Nazario were coming up to Middletown. Defendant agreed to pick them up and bring them back to the party, so defendant, Lazaro and Ligenzowski all left shortly before midnight. Adamcyzk didn’t see them leave, but he heard that they were going, so he said goodbye. Defendant said he was taking Lazaro home to get cleaned up, then going to a train station to pick up Ligenzowski’s friends, who were coming up from the city, and making one more stop before coming back to the party. Adamcyzk heard the loud noise of defendant’s car a short time later. Heathwood had a similar conversation with defendant and giving him some money before he left, because defendant had agreed to buy some beer for him. Asprea did not speak to defendant, but he saw him leave through the back door (Adamcyzk: R: 221, 8 237-239; lleathwood: R: 263-264, 275, 281; Kelly: R: 292, 321; Asprea: R: 331; Lazaro: R: 525-526; Ortiz: R: 545-547; Nazario: R: 596-598; Ligenzowski: R: 763-766, 806). When defendant left Adamcyzk’s house, he was driving, Lazaro was in the front passenger seat, and Ligenzowski was in the back seat. Lazaro had had a cold for several days, so she bought some DayQuil cough syrup that night, then took some while she was in the car and handed defendant the bottle, because he wasn’t feeling well, either. After picking Ortiz and Nazario up at the train station, defendant drove to a Sunoco gas station in Middletown. Ligenzowski had brought three bottles of Bud Light beer with him and he, Nazario, Ortiz and Ligenzowski each drank one on the way to the gas station. Once there, they bought a case of beer and some cigarettes arid then headed back toward Adamcyzk’s house, leaving the gas station some time after 1 2:00 a.rn. Defendant was still driving, with Lazaro in the front passenger seat, and Ligenzowski was sitting between his friends in the back seat. Lazaro was wearing her seatbelt, as was defendant. She did not see anyone drinking or smoking in the car, but someone in the back had a window open, so she thought they were smoking (Lazaro: R: 523-530; Ortiz: R: 547-55 1; Nazario: R: 598-601, 613, 621-622; Ligenzowski: R: 765-768, 806-807). 9 On the way from the Sunoco gas station to Adamcyzk’s house, everyone in the back seat was smoking marijuana, and Nazario and Ligenzowski were also drinking some beer. None of them were wearing a seatbelt. Ortiz recalled defendant driving normally, but then defendant told him to check out the muffler and intake he had put in the car and began speeding up. Nazario also recalled defendant driving at a high rate of speed and talking about his modifications to the car’s exhaust. When defendant started to accelerate, they were on a straightaway in the road, and he continued speeding up for three to five seconds. Ortiz leaned forward and looked at the speedometer (People’s Exhibit #29), which was lighted, and saw that defendant was driving at roughly 130 miles per hour. The car also had kilometers per hour listed in the dial, but the miles per hour were larger and clearer. After that, Ortiz remembered a car passing, a few curves in the road, and then nothing until after the accident (Ortiz: it 55 1-555, 569-575, 579, 582-591; Nazario: R: 601-605,608,618-619; Ligenzowski: R: 768- 769, 788). Ligenzowski and Nazario also recalled defendant stopping his car in the middle ofthe road a few minutes after they had started smoking the marijuana. There were no signs, signals or objects in the road to stop for. After he stopped, defendant revved the engine so that everyone could hear I0 the engine and the exhaust. Next, defendant shifted the car into gear and began driving again. Both Nazario and Ligenzowski knew that they were moving at a high rate of speed, because they heard the car’s engine loudly accelerating and felt themselves being pushed back into the car’s seats. Nazario looked at the instrument panel and saw that the car was going 60 miles an hour. After looking at the panel, he felt the pressure pushing him into the seat increase, so he thought that the car was going even faster. Ligenzowski also recalled Ortiz moving to look at the speedometer at that time. Nazario heard Ligenzowski tell defendant “Slow down, we’re about to make the turn.” Ligenzowski screamed. That was the last thing either of them remembered before regaining consciousness at the accident scene (Nazario: R: 601-609, 613, 619; Ligenzowski: R: 769-772, 779-780, 807- 808). At around 8:00 p.m. on November 21, 2008, Brian Stevens had picked up his fbrmer girlfriend, Lindsey Ernst at her home and took her to his house, located on Mountain Road, which was off of the Guymard Turnpike. The two were going to spend the evening hanging out together. The trip from her house to his typically took between 10 and 15 minutes. At Stevens’ house, they spent time watching television, playing video games, and playing with his younger brother and sister. They were not drinking, 11 smoking marijuana or taking any drugs. Some time between 12:30 and 1:00 a.m., they decided it was time for Ernst to go home, so they got back into his Chevrolet Camaro and he started driving back toward her house. Both were wearing seatbe Its. The last thing Ernst remembered from that night was telling Stevens that it was really cold outside, and then pulling out of the driveway (Ernst: R: 476-486). Adarncyzk and his guests heard the sound of the crash from inside the house and came out to investigate. Heathwood recalled the accident happening roughly 45 minutes after defendant had left the party. Adamcyzk had heard a sound like the one defendant’s car had made earlier in the evening, Ibliowed by a loud bang. Adamcyzk and his guests all saw Stevens’ green Chevrolet Camaro (People’s Exhibit #4) at the end of the driveway across the street (People’s Exhibit #1). Adamcyzk moved his car and turned on its headlights, so they could see the other car. It was initially unrecognizable, due to the amount of damage done in the crash, but someone mentioned that the car belonged to Stevens, who was friendly with nearly everyone at the party. When they walked up to the vehicle, Adamcyzk. Asprea, Heathwood and Kelly saw Stevens and Ernst sitting inside. Ernst was semiconscious, crying and mumbling, with blood coming from the area around her left eye and covering her face. Asprea held Ernst 12 arid talked to her, trying to keep her awake. Although the passenger’s side door was open, the driver’s side door was stuck. The collision had actually pushed Stevens into the car’s back seat, and he wasn’t moving (Adarncyzk: R: 222-229, 239; Heathwood: R: 268-269. 272; Kelly: R: 295-298, 323; Asprea: R: 324-336; Ernst: R: 482). After looking at Stevens’ car, Adamcyzk and the others noticed defendant’s overturned car sitting 150 to 200 leet thrther down the road, off the shoulder. The car had also sustained severe front-end damage in the crash, and everyone went over to check it out. l-Ieathwood found several passengers in defendant’s car, and he told them that 911 had been called. One of the people in the back seat asked him to get them out, so Heathwood opened the rear passenger door and began pulling people out. He didn’t see any beer bottles in the car. Heathwood didn’t think that anyone in the car had been wearing a seatbelt. As he approached the car, Kelly found Ligenzowski lying on his side in the ditch, approximately 25 to 30 yards away, dazed and moaning. After getting everyone out of the car, Heathwood went to check on defendant, and told him that he thought that he had killed Stevens. Defendant put his head in his hands and said “Oh no.” When Adamcyzk got there, he only saw defendant, who was sitting next to the car and, while he was checking on him, defendant said “I’m sorry; I only had a 13 Few.” At that point, Adamcyzk ran back to Stevens’ car to check on his girlfriend, and then went inside to call 911. Kelly also saw defendant sitting next to his ear, talking to an injured girl. Defendant appeared to he unharmed. When he got to defendant’s car, Kelly began trying to calm Ortiz, who had a large cut on his forehead and seemed confused (Adamcyzk: R: 230-232, 239; Fleathwood: R: 267-276; Kelly: R: 298-302, 316-317; Asprea: R: 332, 338; Javaheri: R: 363-364; Vazquez: R: 635). Lazaro did not remember reaching Adamcyzk’s house, or how defendant had been driving on Guymard Turnpike. Defendant had not stopped for anything that was in the road. The last thing she remembered was seeing bright lights and then waking up in the car. When she woke up, the car was on its side. She took off her seatbelt, and then Justin McElroy helped her out of the car. When she got out, she saw that the car was on the shoulder of the road. The first thing both Ortiz and Nazario recalled after the crash was a police officer pulling each of them out of the car and sitting them on the side of the road. Ortiz had a headache, didn’t know what had happened and felt like he had fallen asleep. He realized later that he had been knocked unconscious. Ligenzowski recalled waking up in a puddle, cold and feeling pain in his back, pelvis and legs, and then seeing Justin 14 McElroy walking toward him (Lazaro: R: 530-535; Ortiz: R: 554-559, 576- 577; Nazario: R: 608-609, 618; Ligenzowski: R: 77 1-772, 779, 788). New York State Troopers John Javaheri and Winston Martindale were on road patrol in or near the City of Port Jervis during the early morning hours of November 22, 2008, when they received a call directing them to respond to the accident on Guyrnard Turnpike (People’s Exhibits #7-#9). Trooper Joseph Rivera and his partner received the same call and responded to the scene as well. At the time, it was cool and clear out and roads were dry. They arrived at the scene about nine minutes later, and Javaheri parked the patrol car on the shoulder of the road, across the road from where defendant’s car was in the ditch (People’s Exhibits #3, #5, #6, #l0-#14). Defendant’s car appeared to have rolled over at least once. Rivera considered it severely damaged, to the point that he did not recognize it as a car, and he noticed debris left all over the road. Javaheri got out of his patrol car and walked over to defendant’s car with Rivera to talk to the occupants, all of whom were standing or sitting outside the car. There were about 20 people in the area, so Javaheri and Rivera both asked everyone not involved in the accident to move away, and then spoke to the people remaining: defendant, Lazaro. Ligenzowski, Ortiz and Nazario. Everyone said that they had been in the car, except for Ortiz, who was bleeding heavily from his 15 open head wound, and kept saying that he was at the train station. Martindale began trying to provide him with medical treatment After speaking to the passengers, Javaheri concluded that Lazaro had been in the front passenger seat, Ortiz had been behind her, Ligenzowski had been in the middle of the rear seat, and Nazario had been behind defendant, and that everyone but Ligenzowski had been wearing a seatbelt, since Ligenzowski had been ejected from the car (Javaheri: R: 359-366,369,372-375,382-387, 394,403-404,410411,421,451; Martindale: R: 459463,471; Lazaro: R: 534-536; Ortiz: R: 555, 577; Rivera: R: 687-699, 702-704, 710). Ortiz recalled one of the officers asking him if he knew where he was and answering that he didn’t know. Nazario punched him in the arm and told him to tell the truth. When Ortiz again said that he did not know, Nazario looked at him and then looked away. Ortiz touched his Ibce and realized that he was covered in blood. At that point, he noticed for the first time that he had been in a car accident. When the officer first asked him for I.D., Ortiz tried to deny having been in the car, because he didn’t have his wallet and thought that he would be arrested. He later told the officer that his wallet was in the car but still didn’t say what had happened, because he couldn’t remember (Ortiz: R: 556-559, 577-578; Nazario: R: 617-6 18; Rivera: R: 702,710). 16 While Javaheri was speaking with the passengers, Rivera spoke to defendant. Beibre he even asked defendant any questions. defendant was repeatedly saying ‘l’rn sorry.” When asked, defendant told Rivera that he had been driving, and said that he had been coming from a party. After running the Lancer’s registration and identifying defendant as the owner, Trooper Javaheri also talked to him. Defendant had been pacing back and forth around his car, looking at the ground, so the troopers asked him to sit down, out of concern for his safety. Defendant said that he was coming from the Middletown train station and going to a party. Javaheri asked whether he had had anything to drink, but defendant did not respond. When he was asked what happened, defendant said that he had fallen asleep and didn’t remember. While speaking to defendant, both Javaheri and Rivera detected an odor of an alcoholic beverage coming from him, hut they also smelled alcohol on all of the other passengers. but he wasn’t sure whether the smell was on their breath or a result of having had alcohol spilled on them. Martindale smelled the same odor while he was near the car. Defendant appeared to be in shock, but his responses were coherent. Both Javaheri and Rivera saw empty beer bottles and an empty 18 pack of Bud Light beer on the ground near the car, three or four feet from where defendant was standing (People’s Exhibit #3). Javaheri later retrieved the 17 bottles (People’s Exhibit #61) and put them into the patrol car. After speaking with Javaheri, defendant was treated by paramedics and placed in an ambulance. Martindale assisted in moving him (Javaheri: R: 365-369, 394-395, 401-403, 420-421, 443-444; Martindale: R: 461-462, 470, 473; Rivera: R: 687-702, 704-712; Hammer: R: 1147-1149). Within about five minutes of the troopers’ arrival, over 20 medical personnel, liremen and EMTs, had arrived and begun treating the accident victims, loading them into ambulances so that they could be taken to a landing site and airlifted to hospitals. When the troopers moved people back from the accident scene, Asprea stayed with Ernst until Trooper Martindale came to the car. Prior to being a New York State Trooper, Martindale had served in the United States Army as a combat medic and, as a result, had been trained basic medical care and wound treatment. I-fe began by asking Ernst her name, and she responded by handing him her driver’s license. She was clearly in shock, and appeared uncomfortable. While speaking to Ernst, Martindale noticed Stevens in the driver’s seat, with the upper half of his body behind Ernst’s seat, and his legs still in the driver’s seat. Martindale noted that the driver’s side of both the dashboard and the engine compartment had been destroyed. Stevens was not moving, so Martindale went to check on him. He saw no movement in Stevens’ chest, which would 18 have shown that he was breathing and, when he checked for a pulse, there was none. After a firefighter began talking to Ernst, Martindale advised Javaheri that the car had been involved in the accident and that Stevens was dead (Heathwood: R: 270; Kelly: R: 302-303, 314; Asprea: R: 33 7-346; Javaheri: R: 369-371, 443; Martindale: R: 464-474; Ortiz: R: 559; Nazario: R: 611; Vazquez: R: 633-635, 640-641). Both Javaheri and Rivera saw the heavily damaged car sitting on the side of the road a few hundred feet away, (People’s Exhibits #2, #5, #6, #15- #19), with Ernst and Stevens still inside. Based on his later inspection of the accident scene, Javaheri determined that defendant’s car had been traveling toward Port Jervis, while Stevens’ car had been going in the opposite direction, toward Middletown. The Camaro’s front end, windshield and T tops had all been destroyed in the accident. Javaheri could not see the car’s steering wheel, and it was later recovered from the rear of the vehicle. The steering wheel did not have an airbag in it. Ernst was bleeding and incoherently screaming. Stevens was motionless, laying in the driver’s seat with his head behind the passenger’s seat (Javaheri: R: 369-37 1, 3 75-379, 387-397, 402, 412-417, 425, 430; Martindale: R: 464, 467-468, 471; Rivera: R: 700). 19 Ed Myslinski, a deputy chief volunteer fireman and EMT with the Otisville Fire Department, was among the first firemen to respond to the scene (People’s Exhibit #3). His department chief directed him to treat the people in defendant’s car. The first patient he came to was Ligenzowski, who was lying in the ditch. lie also saw the other passengers sitting nearby. Another tirst responder from the fire department and some of the party guests helped Myslinski to remove Ligenzowski from the ditch and place him on a backboard. Ligenzowski remembered being sat up near the ditch, but nothing after that. Myslinski put a collar on Ligenzowski and then asked him whether he was in pain. Ligenzowski was incoherent and, based on the distance he had been tossed from the car, Myslinski chose to treat him as a critical patient. He checked Ligenzowski for fractures, and concluded that he had broken his left arm. Ligenzowki was still not responding to the questions he continued to ask. After treating Ligenzowski, Mylinski moved to Stevens’ car (Myslinski: R: 7 13-729, 737-738; Ligenzowski: R: 773-774). Natasha Vazquez and her partner were the first EMTs on the scene, although firemen were already there. She saw one of the cars, but the other wasn’t recognizable as a vehicle. She went to the recognizable car, where she found Stevens and Ernst. Stevens was dead and Ernst was unconscious, bleeding, moaning and unable to even give her name. Vazquez, who had been involved in nearly 50 accidents as an EMT, considered Ernst’s head injuries life-threatening. Vazquez stabilized Ernst’s neck and then firefighters cut her out of the vehicle using the Jaws of Life (People’s Exhibits #2, #5, #18), so that she could be removed. After being taken out of the car, Ernst was placed in an ambulance and taken from the scene. Myslinski and other firemen also used the Jaws of Life to open the driver’s side of the car, because the roofand engine had been compacted into the area where Stevens’ was sitting, and Stevens was removed from his vehicle once the medical examiner had arrived. The steering wheel was not in place or visible anywhere else when they removed defendant. After treating Ernst, Vazquez moved to assist her partner in treating defendant and his passengers. Her partner had already treated Ligenzowski and had him placed in an ambulance. She began by treating Ortiz, giving him gauze pads to cover the cut on his forehead and covering him with a jacket or blanket and then telling him to continue to apply pressure to the wound. At that point, Ortiz knew Ms name, his age and the date. Next, Vazquez treated defendant, who had injuries to his arm, leg and head. Defendant said that his leg hurt, and that he didn’t know what had happened, and then began repeatedly asking her where his car was and where Ms girlfriend was. He continued to ask those questions several times, even after she had answered 21 him, and then began drifting in and out of consciousness. She considered defendant’s injuries serious, hut not life-threatening. Finally, she treated Lazaro, who had an arm injury and was walking with a mild limp. Lazaro knew her name, where she was coming from and where she was going, but didn’t remember the accident. She also said that she had had one Red Bull and vodka. All of defendant’s passengers were wet and muddy, and she didn’t smell alcohol on them. She could not remember whether defendant had said that he had been drinking any alcohol (Javaheri: R: 378-381, 391- 394; Vazquez: R: 635-659; Idsall: R: 672-674, 680; Myslinski: R: 729-735, 73 9-740; [-1am mer: R: 11 39). Another paramedic, Mark Idsall, also treated patients at the accident scene. As soon as he arrived, firemen brought Ernst to his ambulance. He put her on a stretcher and began assessing her condition. She repeated the questions he asked her, didn’t know what had happened to her, could only tell him her name and date of birth. She was bleeding from around her left ear, which meant that she could have bleeding and swelling on her brain, life-threatening injuries. He was unsure whether Ernst was losing blood, so he started two IVs. At that point, Ortiz was placed inside of his ambulance to keep warm, so Idsall began assessing him as well, and determined that the large and deep cut to his forehead would have required a significant amount of force, which could also cause additional injuries, including head trauma, memory loss and death. After assessing Orti; he had him transferred to another ambulance and then transported Ernst several hundred yards, to a helicopter landing zone, for transport to a hospital (Idsall: R: 669486). Once paramedics had begun treating Emst Asprea moved toward defendant’s car, where he saw defendant lying on the ground, being treated by paramedics. He asked defendant whether he was OK, and he recalled defendant saying “I’m sorry, I’m so sorry, I didn’t mean to,” “I only had a couple.” and “I’m sorry, it wasn’t my fault.” Asprea smelled an odor like rubbing alcohol coming from defendant (Asprea: R: 337-346). New York State Police Investigator Brian Hammer responded to the accident scene at around 1:00 a.m. on November 22, 2008. As he approached the area, he saw the two cars offthe side ofthe road, as well as a number ofambulances and fire trucks on the scene. He was initially unable to identif3r the model ofdefendant’s car. He noted the beer bottles around defendant’s vehicle and the strong odor ofalcohol coming from it. He also noticed that the driver’s side tire had been torn offof its rim. After securing the scene and speaking to other investigators, he left the scene at around 2:45 am. and went to the hospital to conduct interviews. At Horton Hospital, he spoke to Nazario, Ortiz and Lazaro and took written statements 23 from them betbre returning to the accident scene (Hammer: R: 1133-1143, 1147, 1195-1197, 1205). Trooper Guisseppe Fralonardo was sent to the Westchester Medical Center hospital tbllowing the accident, in order to take a blood sample from defendant. He found defendant being treated by nurses in an emergency room. Fralonardo told defendant that he was there to take a blood sample from him, and asked whether he could take the sample. Defendant said that he could, although defendant did not sign anything because his left arm was injured and his right arm had an IV in it. Fralonardo handed the blood kit to a nurse, Chester Nason, who drew the sample at 2:41 a.m. (People’s Exhibit #3 1). The sample was then transported to Bear Mountain, where it was relayed to New York State Police Troopers (Fralonardo: R: 824-841; Nason: R: 841-853). Susan Gillies, a forensic toxicologist at the New York State Police Crime Lab in Newburgh, Orange County, New York, testified as an expert in the field of forensic toxicology. During the winter of 2008, Gillies conducted tests on the sample of defendant’s blood that she had received from the New York State Police (People’s Exhibits #31, #73). She screened the blood sample for the presence of alcohol and drugs. Her test confirmed the presence of delta-9 tetrahydrocannabinol. the active ingredient in 24 marijuana. A confirmatory test ot’a separate blood sample by another lab did not detect marijuana in the blood, although it was unclear what the other lab’s reporting Limits had been, and the sample was sent to the lab January 8, 2009, meaning that some breakdown could have occurred. The minimum level to register for the Newburgh lab was one nanogram per million. A person’s blood generally contained 10 nanograms per million three to four hours after marijuana had been smoked, and the lab considered one nanogram consistent with a person having used marijuana four to eight hours before the sample was taken. As a psychoactive drug, marijuana created a feeling of euphoria, slowed the body’s reactions, and accelerated the heart rate. The blood sample also tested positive for the presence of Methorphan, or dextromethorphan, a central nervous system depressant commonly used in cough syrups, such as Robatussin, Vicks 44, DayQuil and others. The blood tested negative for the presence of alcohol. An average person could metabolize approximately one drink, or .02 percent blood alcohol content, in a given hour. Thus, a person could consume alcohol for a period of time, until 11:30p.m., and register a blood alcohol content of.0O percent by 2:41 a.rn. Both dextromethorphan were central nervous system depressants, and they had the same effects on a user, slowing thinking and reaction time (Gillies: R: 1211-1239, 1249-1252). 25 At about 1:30 a.m. on November 22,2008, New York State Police Senior Investigator Terrence Mullen and Trooper Victor Pirtle, a member of his collision reconstruction unit, were sent to the crash site. The accident scene had been secured and lighted, and no traffic was being allowed through. They could see a large debris field in both lanes ofthe roadway, including glass and parts from the cars. Pirtle saw defendant’s car (People’s Exhibit #6), although he initially thought that it was a boulder, and, after moving down the road, saw Stevens’ car as well. Investigator Hammer also noted that the Camaro had heavy damage to its front end and driver’s side, which indicated that the impact had occurred in its lane. There were no medical personnel or victims present, other than Stevens’ body. The unit members brought a Total Work Station, which included a survey screen camera that captured images of the landscape and evidence such as skid marks, and another computer at the Total Work Station, where those images were transferred. A person sitting at the station could then enter commands to measure distances and produce a detailed scale drawing. It also produced a report with the number of pictures taken, what the pictures were of, where they were taken, and what code had been input for each picture. The Total Work Stations calibrated themselves, and were only used iftests showed that they were working properly after being calibrated (People’s Exhibit #55). If 26 the instrument was not working properly, it gave an error message, rather than measurements, when pictures were taken. Other times, the camera took a blown shot, capturing a picture, but then unable to measure the shot, so that no picture was taken, while the number used to identify that picture was. In those situations, investigators merely repeated the shot. The person operating the station also took notes when they had the machine measure distances (Mullen: R: 856-875, 915-916, 920-941; Pirtle: R: 956-967, 970- 983, 1046-1049; Hammer: R: 1139-1140, 1143-1147). Trooper Victor Pirtle testified as an expert in the field of collision reconstruction. He had been to over 80 accident scenes as a reconstructionist and roughly 2,000 as a trooper. Accidents generally occurred in three phases, the pre-collision, the collision and the post collision. The pre-collision involved the travel of vehicles immediately prior to the collision, while the post-collision involved the results of the collision, including damage to the vehicles, debris, and the vehicles’ final resting positions. The center mass of a car, the point at which the vehicle’s mass was evenly distributed, and its location in a vehicle determined how a car would rotate following a collision (Pirtle: R: 947-956, 966-970, 983-986). Mullen operated the camera at the accident scene, taking pictures of the scene (People’s Exhibits #33-#37, Defendant’s Exhibits K-O), while 27 Trooper Pirtle operated the Total Work Station. They were looking for evidence, including debris, scrapes, skid marks and gouges. A skid mark left rubber from a tire on the road, a scrape left a mark, and a gouge was dug into the road. Yaw marks were curved skid marks left by a car’s tires as they moved sideways, while striations were skid marks with spaces between them, caused by a vehicle jumping. When vehicles collided with a considerable amount of force, gouge marks were created at the point of impact, because parts of a vehicle, such as the engine, were pushed downward, digging into the roadway. While inspecting the scene, Mullen and Pirtle found yaw marks crossing the yellow line from the westbound side of the road, where defendant’s car had been traveling, on to the eastbound, where Stevens’ car had been traveling, as well as debris in the immediate area around those marks (People’s Exhibits #38-#42). They also found gouge marks three feet from the eastbound lane’s fog line, as well as skid marks, debris and a fluid trail from the Camaro, leading from the double yellow line at the point of impact, where the cars had collided, across the fog line and on the shoulder of the road (People’s Exhibits #43-#54, #56). The Camaro had not left any striations on the road. The rear bumper of defendant’s car had come off in the accident, and striations and dirt marks on the road showed that the car had spun after the collision and then rolled 28 over after going off the road. They also found three skid marks, following the same general path, from the point of impact, across the double yellow line, to the final resting position ofdefendant’s car. There were no skid marks to suggest that either car had been breaking before the collision. The majority of the damage done to both ofthe vehicles had been on their driver’s sides, and both vehicles had rotated after the accident The Camaro was 14.5 feet from the point of impact, on the eastbound shoulder, while defendant’s car was 226.4 feet away, having gone offofthe westbound shoulder. Although some pictures had come up as null values, the points captured had still been correctly plotted. Based on all ofthe evidence from the scene, Pirtle concluded that defendant’s car had crossed over the double yellow line and collided with Stevens’ car in the eastbound lane (Mullen: R: 856407,915416,920-941; Pirtle: R: 956-967,970-999, 1023-1032, 1064- 1073, 1088-1094, 1100). Investigator Hammer continued with his investigation of the accident after November 22, 2008, by looking for evidence in the vehicles stored at the police barracks, as well as additional witnesses, and conducting follow- up interviews with Nazario, Ortiz and Lazaro. Hammer also sent Trooper Javaheri to the Sunoco gas station in Middletown to see whether there was video ofdefendant purchasing alcohol, but he was not able to view the video 29 within 24 to 48 hours of the accident and it was erased (Javaheri: R: 450- 457; Hammer: R: 1151-1202, 1205-1210). Michael Ortiz was a certified Mitsubishi mechanic (People’s Exhibit #74), employed by a Mitsubishi dealership located in Goshen, Orange County, New York. lie was familiar with the Mitsubishi Lancer GTS, and had worked on that car model, including 2008 models, numerous times, doing maintenance, repairs, and installing afterniarket parts, including intake and exhaust systems. Those systems increased the airflow going into and out of an engine, thus increasing the power generated. The Mitsubishi Lancer had a port in its dashboard that, if connected to a computer, would provide codes that identified problems with the car’s various systems, such as the engine or the airbag restraints. He was also familiar with the car’s engine compartment, including the location of the alternator and the battery. He had assisted police in an inspection and search of defendant’s car after the accident. Upon opening the hood of defendant’s car, he found that both the battery and the battery terminals had been destroyed. In searching defendant’s vehicle, pursuant to a search warrant, Investigator Hammer found what Michael Ortiz identified as a sensory diagnostic module (People’s Exhibit #65). The module was a computer that recorded accident data, such as the deployment of airbags, but it had been destroyed in the 30 crash. The mechanic removed the remaining pieces of it from the vehicle. In examining the computer, Michael Ortiz noted that the vehicle’s computer had a piggyback computer attached to it. The piggyback computer was an aftermarket item that could manipulate signals being sent between the car’s systems and increase the amount of fuel supplied to the engine and, as a result, increase the car’s power. Even after supplying power to the car, Michael Ortiz was unable to recover any data from either computer, although the windshield wipers and taillights were working. Hammer had the Mechanicstown Fire Department remove the roof from defendant’s car, using the Jaws of Life, so that the passenger compartment could be accessed and, in searching the compartment, he found a flask (People’s Exhibit #64). After the car’s roof had been removed, Michael Ortiz checked the cabin and saw the car’s speedometer and tachometer, still attached to the dashboard in their regular locations (People’s Exhibit #69). The speedometer was stuck at 109 miles per hour, while the tachometer was stuck at 5,000 revolutions per minute (“rpms”). Hammer had the muffler, air filter and speedometer and tachometer removed from defendant’s car (People’s Exhibits #62, #63, #66- #70). At the time of the search, the car keys had been left in the Lancer’s ignition, and the car was in fifth gear. When he later searched the Camaro, Hammer found the car’s steering wheel (Defendant’s Exhibit I) in the rear 31 area of the car, which was a hatchback (Javaheri: R: 450-457; Hammer: R: 1151-1202, 1205-1210; Michael Ortiz: R: 1258-1286, 1300, 1304). Following the investigation and imaging of the accident scene, as well as a subsequent mechanical inspection of both vehicles at the Middletown state police barracks and a review of witnesses’ statements, Trooper Pirtle prepared an accident report (People’s Exhibit #57). Neither he nor Michael Ortiz had been able to download any information from the computer contained in defendant’s car, because it had been destroyed in the accident. In inspecting the cars, he determined that the engines had not been heavily damaged, and that the driver’s side door of the Camaro had been pushed into the passenger compartment, indicating that it had been a slightly offset collision, rather than head-on, with the driver’s sides of the cars in line with each other. Using the information he had gathered, including the size and weight of the cars and the paths that they had been traveling, as well as the size and location of the yaw and skid marks left on the road, he made a crush analysis, calculating the speed that defendant’s car would have been traveling if Stevens’ car had been traveling at a given speed. If Stevens had been driving at 35 miles per hour, defendant would have been driving at 94 miles per hour, while Stevens driving at 40 miles per hour would have meant that defendant was driving at 99 miles per hour. Based on Pirtle’s 32 calculations, 94 miles per hour was the minimum speed of defendant’s car before the accident. The road had a slight downward slope in the westerly direction, and he had taken that into account in making the calculations. He had consulted Trooper Haydt for measurements of the crush of the vehicles. Pirtle’s report was peer reviewed by another New York State Police reconstructionist, located in Albany, before it was submitted. The notes Pirtle used in preparing the report had been lost after he went out on medical leave (Pirtle: R: 966-970, 983-986, 1002-1046, 1049-1098; Hammer: R: 1149-1150, 1154, 1170-1171, 1202-1203). Dr. Charles Catanese, the Orange County medical examiner, testified as an expert in the tield of forensic pathology. On November 23, 2008, he conducted an autopsy on Brian Stevens. He noted that Stevens’ face had cuts, scrapes and bruises, and that both of his legs had multiple fractures, with both the left femur and the right tibia exposed through the skin. Stevens’ left ankle was also broken and dislocated. He also noted that Stevens had suffered multiple injuries to his upper body, including broken ribs, a lacerated spleen, and about two liters of blood in the abdomen. He also noted that Stevens had a skull fracture on the left side of his head, with damage to the brain beneath that area. Dr. Catanese also believed that the injuries were consistent with the lack of a seatbelt. Stevens’ blood also 33 tested positive tbr the presence of marijuana. Dr. Catanese had performed over 100 autopsies on car crash victims, and he concluded that Stevens’ death had been the result of blunt impact trauma associated with a high speed car crash, which had caused all of the injuries he identified (Catanese: R: 1113—1128). The first thing Ernst recalled after leaving Stevens’ driveway was waking up at the Westchester Medical Center hospital with a headache. She had had a tear in her brain tissue and bleeding on the brain. She did not clearly remember anything that happened in the hospital, or for a couple of days after, hut remembered later having stitches removed from her forehead, eyebrow and ear (People’s Exhibits #23, #24). She had had cuts on the side of her face and chin, and, at the time she testified, she still had pieces of glass in her scalp and her chin. Her ongoing memory problems after the accident had caused her to drop out of college. Since dropping out, she had begun taking classes at another school, which was giving her oral rather than written tests. She also experienced problems sitting, bending and lifting things, because she had three bulging disks in her back (Ernst: R: 476-501). The first thing Ligenzowski recalled after being removed from the ditch was waking up in a hospital three days later. He felt pain everywhere, but particularly in his lower back and pelvis. He was told that he had been thrown 150 feet in the car crash and that he had a broken pelvis and tailbone, a ruptured spleen. and roughly 60 stitches in his face and feet (People’s Exhibit #30). He was bedridden tbr six weeks, at which time he was moved to his girlfriends home, where he remained in bed for another six weeks, only moving through the house in a wheelchair. While living with his girlfriend, he spoke to defendant, who told him that he had fallen asleep before the accident and said that he was sony. He was first able to walk three and a half months after the accident, and still could not run at the time of trial (Ligenzowski: R: 774-780. 813, 820). After being taken from the accident scene, Ortiz was also airlifted to Westchester Medical Center. He didn’t remember being in the helicopter, or anything else before sifting on the operating table, where medical personnel put 75 to 78 stitches in his face to close up the wounds to his forehead, nose and eyelid. After the initial operation, he was bedridden in the hospital for five days, unable to walk and on painkillers, and he continued to take painkillers for a week after he left the hospital. While he was at the hospital he spoke to another police investigator and told him that he didn’t remember speaking to anyone after the accident. Since that time, some ofhis memories had come back, but he still had memory issues, as well as problems with a tear duct (Ortiz: R: 559-569). 35 Nazario had pain in his back, neck and mouth. He had lost pieces of three of his teeth in the crash. Ills neck hurt, but the pain in his lower back was severe. An ambulance took him to a hospital, where he was told that he had been in a car accident and had sustained bruising (People’s Exhibit #28). Fle was released that night, but an MRI later revealed that he had a back injury. He was required to wear a back brace, received physical therapy, and missed nearly four months of work (Nazario: R: 609-614). Following the crash, Lazaro had some pain in her left arm, but no other injuries. She was put in ambulance approximately half an hour after the crash and taken to Horton Hospital in Middletown (People’s Exhibit #26). She was referred to another doctor for a follow-up and released within a few hours. That doctor found a small fracture to her left arm. She wore a cast for two days and was prescribed Vicodin for the pain, although she mostly took Advil. She also missed her first day of work after the accident. She went to see defendant at Westchester Medical Center five days after the accident. They didn’t discuss the accident because defendant couldn’t remember what had happened. She never asked anyone else what had happened. She was still dating defendant at the time of the trial (Lazaro: R: 535-543). 36 ‘[he Defense Case Defendant did not call any witnesses or testify on his own behalt The defense rested at the close of the People’s case (R: 1 330-133 1). POINT I THE TRIAL COURT’S NEGATIVE INFERENCE JURY INS IRUC1 ION WAS SUFFICIENT 10 CURE WE LOSS OF TROOPER PIRTLE’S NOTES. (In Response to Points I, II and V) Defendant’s principal argument on appeal is that the trial court erred in admitting the expert testimony regarding the speed of his vehicle. In making that claim, defendant conflates the long-standing rules governing the loss or destruction of evidence, the discretion ordinarily accorded to the trial court in fashioning an appropriate remedy for a Rosario or discovery violation, and the constitutional right to confrontation. In defendant’s eyes, the loss of Trooper Pirtle’s handwritten notes rises to the level of a constitutional violation of his right to confrontation. Defendant’s argument should be rejected. In affirming defendant’s judgment, the Appellate Division rejected his arguments and properly found that the determination to give an adverse witness charge rather than strike the expert’s testimony represented a proper 37 exercise of the trial court’s discretion (People v Asaro, 94 AD3d 773, 774 I2’ Dept. 20121) Because the Appellatc Division applied the corrcct legal standard, and because defendant fails to demonstrate an abuse of the trial court’s discretion, the Appellate Division’s determination should be affirmed. In the first instance, defendant’s confrontation argument is entirely misplaced. This is true for several reasons. Discovery in criminal cases is a creature of statute rather than constitutional entitlement (see People v Colavito, 87 NY2d 423 [19961; People v DaGata, 86 NY2d 40, 44 [19951; Matter of Miller v Schwartz, 72 NY2d 869 { 19881) [‘he sole exception to that general principle involves the disclosure of exculpatory evidence (see Brady v Maryland, 373 US 83 [19631). However, the statutory right to discovery, including the duty to disclose prior recorded statements of a witness (CPL 240.44; 240.45), does not implicate the constitutional right to confrontation. Most notably, the disclosure of Rosario material is not a right of constitutional dimension, but is instead founded upon state law principles of fundamental fairness (see People v Rosario, 9 NY2d 286 [1961], rearg denied, 9 NY2d 980; cert denied, 368 US 866 [1961]; People v DaGata, 86 NY2d at 44; People v Button, 276 AD2d 229 [4th Dept, 2000]; also Green v Artuz, 990 F Supp 267, 274 [SDNY 1998]; Morrison v McClellan, 38 903 F Supp 428, 429 [EDNY 1995j[rejecting federal habeas corpus challenge premised on a state law Rosario claim I). Equally important, the ability to use the witness’s notes or prior statements during cross-examination is fundamentally different trorn the right to confrontation that was at issue in Crawford v Washington (541 US 36 [2004]) and Melendez-Diaz v Massachusetts (557 US 305 [2009j). In those cases, witnesses — the spouse in Crawford and the analysts in Melendez-Diaz — did not testify and thus were not subject to cross examination. In contrast, Trooper Pirtle testified, and his testimony was subject to meaningful and extensive cross-examination. As a result, defendant’s claim concerns only his access to the trooper’s handwritten notes, not the trooper’s unavailability or any limitations placed on his cross- examination of the trooper (compare People v Schwartzman, 24 NY2d 241 [1969]; Delaware v Van Arsdall, 475 US 673 [19861 [noting that the right to confrontation does not protect the right to conduct cross-examination in whatever way, and to whatever extent, the defense may wish]). Accordingly, defendant’s constitutional claim should be rejected, because neither the trial court’s ruling nor the Appellate Division’s decision implicates the constitutional right to confrontation. Moreover, there is no need to even reach that question. As reflected in the Appellate Division’s decision, defendant’s claim was properly reviewed under existing state rules, which vest the trial court with broad discretion to fashion an appropriate sanction, without the need to elevate a Rosario or discovery violation into a constitutional question (see, for example, Matter of Clara C. v William L., 96 NY2d 244, 250 [2001]; 60 AD3d 165, 186-187 [jst Dept. 2008], reversed on other grounds, 14 NY3d 33 [2009]; In Re Shernise , 91 AD3d 26 [2011 f[all recognizing that courts should avoid reaching the constitutional issue when the matter can be decided on other grounds]). Second, defendant maintains that Trooper Pirtle’s notes were either generally discoverable under CPL 240.20[11[cl or constituted Rosario material and that, once the trial court learned that there were notes that had been lost, it should’ve stricken all of Pirtle’s testimony. That request went well beyond any reasonable remedy and was correctly rejected. In viewing the matter as a Rosario violation, the trial court fashioned an appropriate remedy that took into account the broad scope of Pirtle’s testimony, a large portion of which concerned the general characteristics of the accident that resulted in the victim’s death, rather than the specific range of possible speeds for the two vehicles, which were calculated using the notes (CPL 240.45[l1; People v Asaro, 94 AD3d at 774; see, for example, People v Martinez, 71 NY2d 937 [1988j[notes concerning victim’s description of 40 defendanti; Peoplev Norris, 34 AD3d 501, 502-503 [2 Dept. 20061; People v Bell, 217 AD2d 575 [2 Dept. 19951[failure to disclose handwritten notes underlying typed complaint report warranted adverse - stinference charge; People v Jordan, _07 AD_d 700, 701 [1 Dept, 1994J). In any event, regardless of whether this Court considers the notes as subject to pre-trial discovery or to disclosure as Rosario material, both the remedies available and the analysis remain the same, and the trial court’s decision was a proper exercise of its discretion (CPL 240.70, 240.75; People v Jenkins, 98 NY2d 280 [2002]; People v Miller, 18 NY3d 704, 709 [2012j[noting that the Legislature enacted CPL 240.75 to mandate the application of harmless error analysis to all Rosario violationsl). The People undoubtedly have a duty to preserve Rosario material, including notes made by police officers in the course of their investigation of a crime (People v Joseph, 86 NY2d 565 [19951; People v Wallace, 76 NY2d 953 [19901; People v Martinez, 71 NY2d 937; People v Norris, 34 AD3d at 502-503). Nevertheless, the defense bears the burden of demonstrating prejudice based on the Rosario material’s loss (see People v Rosario, 9 NY2d 286 [1961j; People v Bogan, 78 AD3d 855 [2’ Dept, 2010j; People v DiFiore, 46 AD3d 835 [2 Dept, 20071). “Where the People fail to exercise due care in preserving Rosario material, and the defendant is prejudiced 41 thereby, the [triali court must impose an appropriate sanction” (People v Martinez, 71 NY2d at 940). Dismissal of the charges is an extreme sanction which should not be invoked if less severe measures can rectify the harm, if any, caused by the loss of the materials (PeoplevBanch, 80 NY2d 610, 616 [19921). Preclusion or striking of a witness’s entire testimony is also a disfavored sanction (see, for example, People v Alvarez, 54 AD3d 612 [ist Dept, 20081; People v Smith, 266 AD2d 639 [3rd Dept, 1999J). The determination of what is an appropriate sanction is a matter committed to the trial court’s sound discretion (People v Wallace, 76 NY2d 953; People v Martinez, 71 NY2d 937; People v Johnson, 277 AD2d 395 [2fld Dept, 20001). In this case, the decision to grant defendant’s request for an adverse inference charge was a provident exercise of the trial court’s discretion. There was no need to grant his alternative request and strike the testimony. As defense counsel acknowledged during the trial, there was nothing to suggest that the prosecutor or Trooper Pirtle were directly responsible for the loss of the calculations (R: 1103-1104). Furthermore, although the loss of the notes constituted a Rosario violation, the record makes it clear that defendant was not actually prejudiced by their loss. 42 In testifying, Pirtle was able to explain the theory of linear momentum and to identify the specific factors he had accounted for in calculating the range of possible speeds for defendant’s vehicle, as well as those he had omitted from the calculation. A number of the values Pirtle had employed, including the point of impact, the dimensions of the marks left on the road, and the distance traveled by the vehicles after the collision, were contained in his report (People’s Exhibit #57) and were also contirmed by the testimony of other witnesses who had assisted in the investigation, particularly Investigator Mullen (Mullen: R: 856-907, 915-941; Pirtle: R: 956-1100). As the Appellate Division correctly found, defendant was able to fully cross-examine Pirtle on those aspects of the calculation, as well as the general methodology of accident reconstruction. Indeed, it is apparent from the record that defendant had fully prepared his cross-examination of Trooper Pirtle based on the absence of the mathematical calculations performed. Defense counsel advised the jury in his opening statement that Pirtle had not preserved them. During his cross- examination, Pirtle also conceded that, without the notes, he did not know what specific values he had entered into the computer and could not reconstruct the calculation. Lastly, during his summation, defense counsel repeatedly attacked the credibility of Pirtle’s report based on the absence of 43 the underlying calculations, telling the jury, in part, that no one had “checked his math” (R: 187, 1039-1098, 1390-1391, 1399, 1405-1406, 1409-1412). Given that the defense was already in a position to effectively argue that Pirtle’s calculations lacked a sound mathematical basis, the addition of the handwritten notes could have added little to the cross- examination. As a result, defendant cannot credibly claim to have been prejudiced by their loss (see People v Haupt, 71 NY2d 929 [1988J[defense was able to emphasize loss of evidence by the People and its effect on the case during both cross-examination and closing; People v Martinez, 71 NY2d 937; People v Sorbello, 285 AD2d 88 [2 Dept, 2001]). Moreover, a substantial portion of Pirtle’s testimony pertained to his observation of the accident scene, including references to photographic evidence introduced by both the prosecution and the defense, and his expert opinion as to what that evidence suggested about the accident. As a result, the absence of his notes clearly did not warrant the striking of his entire testimony. Indeed, such a remedy would have been viewed as extreme, in light of the considerable portion of his testimony that was unrelated to the notes. Thus, the decision to remedy the violation by providing the jury an adverse inference charge, as defendant had specifically requested, was a proper exercise of the trial court’s discretion (People v Martinez, 71 NY2d 44 937; People v Johnson, 277 AD2d 395; People v Kotler, 31 AD3d 787 [2nd Dept, 20061; People v Kernandez, 25 AD3d 566 [2h1d Dept, 2006]; People v Sandoz, 184 AD2d 336 [1t Dept, 1992]). At the same time, even if defendant were correct in arguing that disclosure was required as a matter of pre-trial discovery under CPL 240.20, and not simply as Rosario material, that conclusion does not warrant a different result. Unlike People v DaGata (86 NY2d 40), defendant’s matter does not turn on the question of late or non-disclosure. Importantly, in DaGata, the laboratory notes received by the defendant post-verdict were available for judicial review and, thus, a reviewing court could make a determination as to whether the defendant had been prejudiced by their non disclosure. In contrast, defendant’s case involves the inadvertent loss or destruction of the trooper’s notes, so that neither the trial court nor the Appellate Division had any ability to review them. In light of those circumstances, the trial court essentially gave defendant the benefit of the doubt and appropriately exercised its discretion by providing the jury with the adverse inference charge. Under long-standing authority, the nature and extent of the sanction to be imposed for the failure to preserve discoverable material pursuant to CPL 240.20 depends on the degree of the prosecution’s bad faith, the importance 45 of the evidence lost, and the evidence of the defendant’s guilt adduced at trial, and that determination is vested in the sound discretion of the trial court (see People v 1-laupt, 71 NY2d 928; People v Kcjjy, 62 NY2d 516, 521 [19841; People v Rodriguez, 210 AD2d 266 [2nd Dept, 1994]; People v Okehoffurum, 201 AD2d 508 [21 Dept, 1994]). Here, there is no finding of had thith on the part of the prosecution. In fact, in the trial court, the defense (lid not accuse the People of acting in bad faith when the issue of the notes first came to light. It is also clear that the trooper did not intentionally destroy the notes. Rather, the notes were lost during the time period that the trooper was out on injury leave. Indeed, while actual timing of the loss of the notes is unknown, to the extent that the record sheds any light on that issue at all, it suggests that the notes were lost many months prior to the defendant’s trial. Consequently, owing to the unique circumstances under which the notes were lost, defendant cannot make any showing that the People could have produced them at an earlier point in time. Furthermore, owing to their loss, defendant cannot show the existence of any inconsistencies or inaccuracies in the data or any other errors that might have affected the trooper’s calculations, so that the actual prejudice to the defense is largely speculative. Finally, as the Appellate Division expressly found, “the defense had the expert’s report, which was prepared based upon 46 the lost notes, and was able to cross-examine the expert about his methodology for determining the speed of the vehicles involved, including the variables used in the tbrmula he employed” (People v Asaro, 94 AD3d at 774). In this light, even if the loss of the trooper’s notes had been discovered and disclosed at an earlier point in time, the granting of the adverse inference charge would have represented the appropriate sanction and there would have been no basis for the defense to have moved for preclusion of the trooper’s testimony. For these reasons, even as a matter of pretrial discovery, the decision to grant the defense request for the adverse inference charge represented a proper exercise of the trial court’s discretion, and on this record, defendant fails to demonstrate an abuse of discretion (see People v Kelly, 62 NY2d 516; People v Feliciano, 301 AD2d 480 [Ist Dept, 2003][denying defendant’s request for preclusion of all testimony as a sanction for the loss of the evidencej; People v Smith, 266 AD2d 639 [the imposition of an adverse inference, rather than dismissal or preclusion of the witness’s testimony, was adequate and appropriate under the circumstances); People v Okehoffurum, 201 AD2d 508 [trial court did not improvidently exercise its discretion in denying the defendant’s request to strike all of the testimony of the People’s key witness]; People v Rodriguez, 210 AD2d 266 [trial court did not improvidently exercise its discretion in denying the 47 defendant’s request to bar that detective’s testimony]; People v Jenkins, 284 AD2d 550 [2’ Dept, 2001] [provident exercise of the trial court’s discretion in refusing to impose the sanction of preclusion for untimely disclosure where there was no showing of prejudice or bad faith that warranted the extreme sanction of preclusion]; People v Gomez Kadawid, 66 AD3d 1124 [3rd Dept, 20091 [defendant not entitled to dismissal where any prejudice to the defendant that flowed from the People’s failure to preserve the evidence could have been ameliorated by an appropriate instructioni). Of course, in applying the appropriate standard of review, absent a showing of abuse of discretion, the trial court’s ruling must be upheld, even if this Court were to conclude that other remedies might have been preferable (see People v Carroll, 95 NY2d 375, 385 [20001; People v Kelly, 62 NY2d 516; People v Fomby, 101 AD3d 1355 [3k’ Dept, 2012]; People v Williams, 277 AD2d 945 [4 Dept, 2000]). Finally, defendant also claims that his inability to use Trooper Pirtle’s notes in his cross-examination makes it clear that the trial court erred in refusing to grant his request for a Frye hearing concerning the application of the conservation of linear momentum theory to two vehicles. There are two problems with defendant’s claim. At the outset, defendant did not renew his application for a Frye hearing after it was discovered that the expert’s notes 48 had been lost and thus, to the extent he relies on the notes’ absence to support his claim, the issue is unpreserved for this Court’s review (CPL 470.05[2J, 470.35[1]). In any event, the claim is without merit. “While foundation concerns itself with the adequacy of the specific procedures used to generate the particular evidence to be admitted, the test pursuant to Frye v United States (293 F 1013 [App DC 19231) poses the more elemental question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally” (People v Wesley, 83 NY2d 417, 422 [19941). Of course, a court does not need to conduct a hearing when it can rely on previous rulings in other court proceedings (People v LeGrand, 8 NY3d 449, 457-458 [2007); People v Wesley, 83 NY2d 417). As defendant apparently concedes, at the time of his trial, courts already recognized accident reconstruction and the use of the conservation of linear momentum equation as a generally accepted methodology (see, for example, People v Moore, 155 AD2d 725, 727 [3k’ Dept, 19891; People v Wells, 53 AD3d 181, 186-187 [1st Dept., 2008); People v Maricevic, 52 AD3d 1043, 1045 [3rd Dept, 2008); People v Hopkins, 46 AD3d 1449 [4h1 Dept., 20071; see also People v Heidgen, 87 AD3d 1016, 1025 {2 Dept., 201 1)). As a result, the trial court properly concluded that the theory’s application was a matter for trial and denied 49 defendant’s motion (People v LeGrand, 8 NY3d at 457-458; People v Wesley, 83 NY2d 417). 2 Defendant fails to demonstrate any error in that determination. In sum, the trial court’s modified adverse inference jury charge was clearly sufficient to eliminate whatever incidental prejudice defendant may have suffered due to the loss of Trooper Pirtle’s calculations and, under the circumstances, represented a proper exercise of the court’s discretion (People v Martinez, 71 NY2d 937; People v Johnson, 277 AD2d 395; People v Kotler, 31 AD3d 787; People v Hernandez, 25 AD3d 566; People v Sandoz, 184 AD2d 336). 2 Indeed, defendant’s argument on appeal makes it clear that he actually takes issue with Pirtle’s application of the conservation of angular momentum equation, rather than the actual underlying theory itself Defendant repeatedly references Pirtle’s decision to calculate a set of possible speeds for defendant’s vehicle, each based on a corresponding assumed speed for the victim’s vehicle, rather than his more general use of the conservation of angular momentum equation to calculate those numbers. 50 POINT II THE JURY’S VERDICT WAS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE. (In Response to Points HI and IV) Defendant also claims that the jury’s guilty verdict was not supported by legally sufficient evidence. More particularly, defendant claims that the People failed to offer evidence sufficient to prove that he consciously disregarded the risk of death associated with driving his car at a high rate of speed going into a curve. As a related claim, defendant also asserts that his manslaughter conviction was repugnant, given his acquittal of driving while ability impaired by alcohol, as well as a lack of evidence of his impairment by drugs. Both of defendant’s claims simply ignore the majority of the evidence presented at trial and they are without merit. As the Appellate Division found, the legally sufficient evidence established that “defendant was aware of, and consciously disregarded, a substantial and unjustifiable risk that his actions would cause the death of another, such that his conduct was reckless, and not merely negligent, or the result of carelessness, lack of foresight, or skill” (94 AD3d at 773 [citations ornittedfl. In reaching that conclusion, the Appellate Division clearly applied the appropriate legal standard for assessing the legal sufficiency of the evidence supporting a manslaughter in the second degree conviction. 51 Moreover, the court correctly concluded that the evidence fully supported defendant’s manslaughter conviction rather than the lesser crime of criminally negligent homicide. Thus, there are no grounds on which to reverse or modify defendant’s conviction. In considering the sufficiency of the evidence, an appellate court must view the evidence in a light most favorable to the People ( People v Contes, 60 NY2d 620 [1983]; People v Norman, 85 NY2d 609, 620-62 1 [1995]; People v Taylor, 94 NY2d 910 [2000]). As a result, competing inferences and inconsistencies are resolved in favor of the prosecution ( People v Benzinger, 36 NY2d 29, 32 [19741; People v Rhodes, 49 AD3d 668 [2nd Dept, 2008]), and the trier of fact’s determinations should not be disturbed unless it is clearly unsupported by the record ( People v Romero, 7 NY3d 633, 644-645 [2006]). Furthermore, the proper measure of legal sufficiency is whether the facts and inferences that flow therefrom support a finding for the People on every element of the crime or crimes charged (see People v Norman, 85 NY2d 609; People v Taylor, 94 NY2d 910). In the first instance, defendant bases his challenge to the sufficiency of the evidence on the claim that the People failed to prove that he was aware that driving his car in the manner he did created a risk of death and 52 that be ignored that risk (Penal Law § I 5.05[3]; People v Licitra, 47 NY2d 554, 558 [1979j). Defendant essentially argues that, while the evidence may have been sufficient to prove that he committed criminally negligent homicide, it was insufficient to prove manslaughter. Such a claim ignores virtually all of the evidence presented to the jury. Two witnesses, Adamcyzk and Ligenzowski, both testitied that, several hours before the accident, defendant was driving at a high rate of speed on the same stretch of road where the accident occurred (Adamcyzk: R: 210-220, 238; Ligenzowski: R: 743-757, 783-784, 816). When defendant arrived at Adamcyzk’s house, Adamcyzk specifically warned him never to drive at such a high rate of speed on the same road again, because he did not believe that it was safe (Adamcyzk: R: 211-219, 244; Ligenzowski: R: 756- 757). Yet several hours later, defendant stopped his car in the middle of the same road, revved the engine, and accelerated at a high rate of speed. Immediately prior to the accident, Ligenzowski, who was riding in defendant’s car and had ridden with defendant countless times before, including earlier in the day, also specifically told defendant to slow down and then, when he did not, started screaming (Nazario: R: 60 1-609, 613, 619; Ligenzowski: R: 769-772, 779-780, 807-808). 53 Of course, the passengers’ references to the high speed of defendant’s vehicle were sufficient to allow the jury to conclude that he had been driving at a speed well above the legal limit, since “any person of ordinary intelligence and experience, having had the opportunity of observation, may testify to the speed of such vehicles” (People v Racine, 132 AD2d 899, 900 [3rd Dept. 19871 [citing Richardson, Evidence, 10th Ed. § 364[j] at 3331). To the extent defendant references the accident reconstruction of Trooper Pirtle and his calculated range of speeds, that evidence was largely consistent with the eyewitness testimony concerning defendant’s speed immediately prior to the accident. As the trial court indicated in its jury instructions, the jury was entitled to infer that Pirtle’s calculations had been inconsistent with his conclusions, and, as with the other experts, to accept or reject his testimony as a whole, although they were not required to do either (see People v Drake, 7 NY3d 28, 33 [2006]; People v Williams, 123 AD2d 897 [2’ Dept, 1986]). Defendant’s case is readily distinguishable from those such as People v Cabrera (10 NY3d 370 [2006]), in which generally inexperienced drivers found themselves in situations they were unfamiliar with and, when no one warned them about the way in which they were driving, failed to perceive the danger. Defendant, on the other hand, was in a position to know, based on both his past experience with his vehicle and the series of specific 54 warnings he received, that the speed at which he drove around the corner posed a high risk of creating a serious accident. Moreover, there is no question that defendant disregarded those warnings, because the accident occurred immediately after Ligenzowski specifically told him to slow down. Indeed, the facts of defendant’s case make it clear that it is part of a long line of manslaughter convictions in which experienced drivers disregarded clear warnings that they were operating their vehicles in an unsafe manner, such as road signs, warnings from their passengers or their own familiarity with the roads they were on, and victims died in the subsequent accidents (ç People v Heinsohn, 61 NY2d 855 [1984]; People v Hart, 8 AD3d 402 [2’’ Dept. 20041; People v Wolz, 300 AD2d 606 [2nd Dept, 2002]; People v Smith, 288 AD2d 629 [3R Dept, 2001], reversed on other grounds, 30 AD3d 693 13td Dept, 20061, People v Miller, 286 AD2d 981 [4th Dept, 2001], People v Crandall, 255 AD2d 617 [3ft Dept, 1998]; People v Racine, 132 AD2d 899). Simply put, defendant cannot rationally claim that he was not aware of the danger caused by his driving while his best friend was screaming at him from the back seat. Defendant also dismisses all of the evidence of his impairment by both drugs and alcohol out of hand, while simultaneously refusing to acknowledge the potential relevance of such evidence in establishing his reckless mental state (see People v Schaffér, 80 AD2d 865, 866 [211 Dept. 1981] [evidence sufficient to establish recklessness based on either conscious disregard of risk created or failure to perceive it due to consumption of alcohol]). Ms. Gillies, the People’s forensic toxicology expert, testified that her tests had revealed measurable levels of both delta-9 tetrahydrocannabinol and dextromethorphan in defendant’s blood, and identified the etYects both substances could have on the human body (R: 1211-1239, 1249-1252). Thus, the jury could have reasonably found that those substances had impaired defendant’s ability to drive to some extent (see People v Rossi, 163 AD2d 660 [3ft Dept, 1990]; People v Calcasola, 80 Misc2d 429 [App Term, 2 Dept. 19751). To the extent defendant refers to the negative result for the presence of delta-9 tetrahydrocannabinol generated at another lab. Ms. Gillies acknowledged those results and identified possible reasons for the discrepancy. Defendant fully cross- examined her on the issue and argued in his summation, as he now does on appeal, that the discrepancy invalidated the positive result generated in the New York State police lab. She also offered testimony regarding the rate at which alcohol could generally be eliminated from a human body. Such testimony provided the jury with a possible basis for reconciling the consistent eyewitness testimony regarding defendant’s drinking at the party 56 with the absence of alcohol from his system several hours later. Furthermore, although no one apparently saw defendant smoking marijuana, his passengers all testified that it was being smoked in his car while he was driving, and defendant’s own girlfriend testified that she had handed him a bottle of cough syrup, a substance that contained the depressant dextrornethorphan, while they were in his car. Again, the jury was free to accept or reject the expert testimony, as well as the consistent testimony of the other witnesses, and they clearly chose to credit it (see People v Drake, 7 NY3d at 33; People v Williams, 123 AD2d 897). In sum, the legally sufficient evidence established that, at around midnight, defendant was driving on a narrow unlit road at a speed somewhere between 90 and 130 miles per hour as he approached a curve he knew was there from having driven on that same road numerous times, including earlier that night. Both witness testimony and the parts recovered from defendant’s car showed that he had specifically modified the car, replacing several parts of the engine and exhaust system in order to increase the available horsepower. The evidence also established that defendant had consumed both alcohol and cough syrup, which contained the depressant At the same time, it must be recognized that the People were not separately required to prove defendant’s impairment, in that it was not charged to the jury as an element of the crime and defendant did not object to the trial court’s charge (R: 1344) (People v Ford, 11 NY3d 875, 878-879 [20081). 57 dextromethorphan, earlier that night and also had some amount of delta-9 tetrahydrocannabinol, the depressant found in marijuana, in his system. Finally, he had repeatedly been warned to slow down, including immediately prior to the fatal collision. Hence, for the reasons expressly identified by the Appellate Division, his manslaughter conviction was supported by legally sufficient evidence (People v Norman, 85 NY2d 609; People v Taylor, 94 NY2d 910; People v Heinsohn, 61 NY2d 855; People v Hart, 8 AD3d 402; People v Wolz, 300 AD2d 606; People v Smith, 288 AD2d 629; People v Miller, 286 AD2d 981; People v Crandall, 255 AD2d 617; People v Racine, 132 AD2d 899). Defendant also raises an interrelated repugnancy claim, arguing that his acquittal on the driving while ability impaired by alcohol charge demonstrated that there was insufficient proof of his impairment by drugs or alcohol and that, as a result, the verdict was repugnant, because the People’s bill of particulars had made impairment an element of the manslaughter charge. That claim, too, is without merit. The question of whether a verdict is inconsistent or repugnant is to be resolved by a review of the elements of the crimes as charged by the trial court in order to determine whether the jury’s finding on those counts can be reconciled (see People v Muhammad, 17 NY3d 532 [2011]; People v 58 Tucker, 55 NY2d 1 [1981]; People v Loughlin, 76 NY2d 804, 806 [1990]; People v Messina, 209 AD2d 642 [2’ Dept, 1994]). The review is limited in scope, and a court reviews the verdict in light of the charge actually given to the jury, regardless of its accuracy (see People v Muhammad, 17 NY3d 532; People v Tucker, 55 NY2d 1). Moreover, the instructions are reviewed without regard to the particular facts at bar (see People v Johnson, 70 NY2d 819 [1987]; People v Hampton, 61 NY2d 963 [1984]; People v Gonzalez, 181 AD2d 741, 742 [2”’ Dept. 1992]). Consequently, in conducting such an analysis, the reviewing court specifically does not review the record to discover the underlying basis of the jury’s determination in order to ascertain the logic or illogic of the rendered verdicts (see People v Muhammad, 17 NY3d 532 People v Tucker, 55 NY2d 1; People v Kussius, 238 AD2d 731 13rd Dept. 1997]). In fact, Tucker and its progeny also expressly recognize that although the People present legally sufficient evidence to convict the defendant of the charged crimes, the verdict may simply reflect an act of mercy on the part of the jury (see People v Muhammad, 17 NY3d 532; People v Tucker, 55 NY2d at 7; People v Alvarez, 174 AD2d 489 [1st Dept, 1991]). Not only are the crimes of manslaughter in the second degree and driving while ability impaired by alcohol not identical, they have no 59 elements in common (People v Schaffer, 80 AD2d 865, 866). Indeed, the two essential elements of manslaughter, as it was charged to the jury, were causing the death of another and doing so recklessly, the latter of which the court defined as engaging in behavior that would create or contribute to a substantial, unjustifiable risk of death, which the person doing so was aware of and disregarded (R: 1500-1502) (see also People v Licitra, 47 NY2d at 558). Like driving while intoxicated, driving while ability impaired by alcohol shares none of those elements (VTL § 1 192[lj; see also People v Schaffer, 80 AD2d at 866). Defendant did not object to that jury charge, which did not mention impairment by alcohol or drugs (R: 1344). As a result, the question of the verdicts’ consistency must be viewed in light of that charge, which naturally allowed the jury to consider defendant’s behavior as a whole, rather than any specific aspect of it (see People v Muhammad, 17 NY3d 532, 543; People v Tucker, 55 NY2d 1; see also People v Ford, 11 NY3d 875, 878-879 {2008J). Of course, “[njot every fact mentioned in an indictment is essential to establish the defendant’s guilt of the crime charged, and thus it is not necessary in every case that the People prove all acts alleged in the indictment when the remaining acts alleged are sufficient to sustain a conviction” (People v Rooney, 57 NY2d 822 [1982j). Courts, including this 60 Court, have specifically recognized that when an indictment alleges that a defendant was driving in a reckless or negligent manner “while in an intoxicated condition,” there is no error in giving a standard jury charge, as the trial court did in this case (People v Rooney, 57 NY2d 822 [intoxication not an essential element of criminally negligent homicide count]; People v Schaffer, 80 AD2d at 866; see also People v Charles, 61 NY2d 321 [19841; People v Buanno, 296 AD2d 600, 601 [3 Dept, 2002] [People not required to prove make and model of “loaded firearm”]; People v Senisi, 196 AD2d 376 {2nd Dept, 1994] [People not required to prove fact of drag race]; People v Killane, 203 AD2d 386 [2h1d Dept, 1994] [indictment count’s specification that victim died during an illegal speed contest did not require People to prove that statutory “speed contest” had occurred]). Moreover, defendant’s attempt to distinguish the Fourth Department’s decision in People v Schaffer based on that defendant’s conviction of driving while ability impaired by alcohol ignores the appropriate standard of review, by essentially comparing the underlying facts of the two cases (People v Tucker, 55 NY2d 1; People v Kussius, 238 AD2d 731). 61 POINT LII REFERENCES TO DEFENDANT’S SPEDOMETER WERE FAIR COMMENT ON ‘FIlE EVIDENCE AND DID NOT AFFECT DEFENDANT’S FUNDAMENTAL RIGHTS. (In Response to Points VI and VII) Finally, defendant claims that the testimony of an accident reconstructionist in People v Gore, a separate and unrelated case, constituted Brady material and that he was prejudiced by the prosecutor’s failure to disclose its existence. Defendant also claims that the prosecutor improperly bolstered the expert testimony. These claims, too, should be rejected. At the outset, defendant’s Brady claim is partially unpreserved. Part of defendant’s factual argument is based on the transcripts that he submitted to the trial court as one of the exhibits offered in support of his motion to set aside the verdict. However, the exhibit could not be properly considered by the trial court, because it contained testimony that did not appear on the trial record and, therefore, constituted extrinsic evidence. As a result, to the extent defendant’s argument is based on that transcript, it is not properly before this Court (CPL 330.30[l1; see People v Nichols, 35 AD3d 508 [21k1 Dept, 2006]; People v Leka, 209 AD2d 723 [21K1 Dept, 1994]). In any event, this claim is also meritless. As part of his testimony, Michael Ortiz, a certified mechanic, indicated that he had removed the 62 speedometer and tachometer from defendant’s car, and that they had had readings of 109 miles per hour and 5000 rpms, respectively. Based on a separate ruling, the trial court did not permit the mechanic to render any opinion based on that observation. Subsequently, the defense claimed that the People had failed to disclose testimony given in another case, in which an accident reconstructionist indicated that a speedometer with its needle stuck in a fixed position, recovered from a vehicle following a crash, may or may not accurately reflect the speed of the vehicle at the time of the collision. Defendant argues that the reconstructionist’s opinion constituted Brady material. Without addressing the particulars of defendant’s claim, the Appellate Division found it to be without merit (People v Asaro, 94 AD3d at 774). As in the Appellate Division, defendant’s Brady claim should be rejected. To be sure, both the state and federal constitutions guarantee a defendant’s right to discover favorable evidence in the government’s possession (Brady v Maryland, 373 US 83 [19631; People v Fuentes, 12 NY3d 259, 263 [20091). To establish a Brady violation, a defendant must show that the material in question is 1) favorable to the defense, in that it is exculpatory or impeaching in nature, 2) that it was suppressed by the prosecution and 3) that they were prejudiced by its absence, because it was 63 material to their case (People v Hayes, 17 NY3d 46, 50 [201 lj; People v Fuentes, 12 NY3d at 263). Defendant cannot satisfy those criteria. In the first instance, defendant does not and cannot clearly explain how the testimony he refers to was actually exculpatory. He attempts to suggest that any reference to the speedometer served to bolster or corroborate the testimony concerning the speed of his vehicle. However, Pirtle never made any reference to the speedometer in his testimony, and there is no indication that he even considered it in performing his calculations. In fact, the speed listed on the speedometer, 109 miles per hour, was actually inconsistent with the range of potential speeds identified by the trooper. As a result, there was no basis to impeach the testimony of either Pirtle or Michael Ortiz, because neither offered an opinion as to the significance of the needle’s position. Furthermore, the People conceded the fact that, standing alone, the speed listed on the speedometer was insignificant. In sum, the potential exculpatory value of the testimony was marginal, at best (People v Fuentes, 12 NY3d 259; People v Johnson, 303 AD2d 208, 209 [1st Dept, 20031). For similar reasons, even if the testimony could be considered Brady material, defendant cannot show that it was material to his case. As defendant concedes, to the extent the speedometer was referred to, the 64 prosecutor repeatedly told the jury that it was not evidence of anything, but was merely consistent with the other evidence. Although defendant cross- examined Pirtle and other witnesses concerning the potential speeds of defendant’s car, he chose not to call his own accident reconstruction expert (R: 1319), who had been present at the time that the speedometer was removed from defendant’s vehicle (R: 1175). That expert could have offered testimony concerning both the methods Pirtle used to compute the range of speeds for defendant’s vehicle and the probative value of the numbers listed on the speedometer and tachometer. Yet defendant concluded that such testimony was unnecessary, in light of the case the People had presented (R: 1330-1331). As a result, defendant cannot reasonably claim that the addition of the evidence would have altered his trial strategy or his cross-examination (see, for example, People v Johnson, 303 AD2d at 209). Moreover, the testimony presented in People v Gore involved a separate and unrelated accident. As reflected in the portion of the record that is properly before the Court, People v Gore involved testimony from Trooper Haydt, another accident reconstructionist, concerning an accident in which the evidence appeared to show that the car involved, a Toyota, had been traveling at a low rate of speed when it struck an embankment, while 65 that car’s speedometer showed a speed of 102 miles per hour (R: 1465- 1471). Importantly, the witness, brand and model of car and circumstances of the accident in People v Gore all differed from those in this case, and defendant never made a showing of any connection between the two. Nor can he show that the addition of Haydt’s testimony would have altered the outcome of his trial, or even that the trooper could have offered any opinion concerning the reading on his speedometer. As a result, it cannot be said that the testimony related to any central issue in defendant’s case. Although it is outside the record, to the extent that the transcript of Trooper Haydt’s testimony that was attached to defendant’s CPL 330.30 motion may be considered by this Court, that testimony illustrates its lack of relevance to defendant’s case. Trooper Haydt testified that “needle slap” sometimes occurred in accidents involving heavy front end damage to a vehicle and sometimes did not. He specifically could not say whether it as unusual or not. He also testified that he assumed that the 6200 rpms shown on the Gore car’s tachometer were a result of the vehicle’s frontal collision. Finally, he testified that he had not considered the listed speed as part of his accident reconstruction. That testimony was consistent with the testimony given by Trooper Pirtle in defendant’s case. Significantly, all of the speeds Pirtle calculated were lower than the 109 miles per hour shown on 66 defendant’s speedometer, demonstrating that he did not consider the “needle slap” in performing his calculations, either. In sum, defendant cannot show that the testimony he refers to was material to his case or that he was prejudiced by its absence (People v Fuentes, 12 NY3d 259; People v Alvarez, 44 AD3d 562 [1st Dept. 20071; People v Johnson, 303 AD2d 208). Given the overwhelming evidence that showed that defendant was driving at speeds well in excess of the speed limit, the lack of any opinion concerning the evidentiary value of the speedometer and the fact that defendant cannot show any correlation between the two different cases, there is no reasonable possibility that the failure to disclose Haydt’s testimony from the other trial contributed to the jury’s verdict. As a related claim, defendant also alleges that some of the prosecutor’s comments served to bolster Pirtle’s testimony. That claim is beyond this Court’s review power. As defendant concedes, he did not object to the comments he now challenges, request any limiting or curative instructions, move to have them stricken from the record, or move for a mistrial. Theretbre, as the Appellate Division correctly found, his challenges to the trial assistant’s statements are unpreserved for appellate review (CPL 470.05 [21, 470.35[1]; People v Asaro, 94 AD3d at 774; People v De Tore, 34 NY2d 199 [19741; People v Henry, 60 AD3d 1083 [2nd Dept, 67 20091; People v Giuca, 58 AD3d 750 [2nd Dept, 2009); People v Robbins, 48 AD3d 711 [2h1d Dept, 20081; People v Gonzalez, 45 AD3d 696 [2 Dept 20071). In any event, the prosecutor’s closing remarks concerning the speedometer and tachometer recovered from defendant’s car were fair comment on the evidence before the jury and fair response to defendant’s summation. Again, as defendant acknowledges, the prosecutor repeatedly reiterated that the readings on the tachometer and speedometer were not direct evidence of anything by themselves, but that they were corroborative of the testimony of both the passengers in defendant’s car and the officers who investigated the accident, at least to the extent that there was significant evidence that showed that defendant was travelling well above the speed limit at the time of the fatal collision. Properly viewed in its entirety, the prosecutor’s closing merely marshaled the evidence as a whole, highlighting general consistencies, rather than seeking to improperly bolster the witnesses’ testimony (R: 14 18-1456). Defendant also referred to the same evidence in his own closing, arguing that it was unreliable and should not be considered at all (R: 1385-1388, 1403-1410), and the prosecutor fairly responded to that proposed line of reasoning (People v Halm, 81 NY2d 819 [1993]; People v Galloway, 54 NY2d 396 [19811; People v Ortega, 270 68 AD2d 137 [1 Dept. 20001). When the prosecutor’s summation is viewed as a whole, the comments in question were limited, and did not concern inadmissible testimony, and none of the comments made by the prosecutor were so egregious as to deny defendant his right to a fair trial (ç People v Esmail, 260 AD2d 396 [2’ Dept, 19991; People v Dermon, 237 AD2d 530 [2w’ Dept, 19971; People v Clarkc, 173 AD2d 550 [2nd Dept, 1991]; compare People v Ashwal, 39 NY2d 105 [19761; People v Caparella, 83 AD3d 730 [2 Dept, 201 1]). 69 CONCLUSION The decision and order of the Appellate Division should be affirmed. Respectfully submitted, FRANCIS D. PHILLIPS, Ii District Attorney of Orange County 40 Matthews Street Goshen, New York 10924 (845) 291-2050 I , ROBERT H. MJDDLEMISS Assistaiit District Attorney ANDREW R. KASS Executive Assistant District Attorney Of Counsel Dated: Goshen, New York February 1,2013 70 AFFIDAVIT OF SERVICE STATE OF NEW YORK) ) SS: COUNTY OF ORANGE) CAROL M. BARNES, being duly sworn, deposes and says: that on the 1st day of FEBRUARY, 2013, she served three (3) copies of RESPONDENT’S BRIEF tIled in The People of the State of New York v. PATRICK ASARO, Orange County Indictment No. 2009-495, upon Benjamin Ostrer, Esq., Ostrer and Hoovler, P.C., 111 Main Street, P.O. Box 509, Chester, New York 10918 in a securely postpaid wrapper by depositing same in a Post Office Box regularly maintained by the United States Government, Middletown, New York. Deponent is over the age of 18 years of age. V’V\ CAROL M. BARNES Sworn to before me this jday of Februari, 2013. / 1/ 1 Nory ,‘ i’(a k / Cc ?,I +,