The People, Respondent,v.Patricia Fratangelo, Appellant.BriefN.Y.May 6, 2014 To Be Argued By: Barry L. Porsch 5 Minutes Requested COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------------------------------------- PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, against PATRICIA FRATANGELO, DEFENDANT-APPELLANT. --------------------------------------------------------------------------------------- APL-2013-00148 RESPONDENT'S BRIEF Barry L. Porsch Seneca County District Attorney Attorney for Respondent 48 W. Williams Street Waterloo, New York 13165 Tel. 315-539-1300 Fax. 315-539-0531 Brief Completed: September 26, 2013 2 TABLE OF CONTENTS: Table of Authorities……………………………………………………….3 Question Presented………………………………………………………...4 Preliminary Statement……………………………………………………..5 Statement of Facts…………………………………………………………6 Argument 1. The court's jury instruction on the common law driving while intoxicated count was proper………………………………..11 Conclusion………………………………………………………………..15 3 TABLE OF AUTHORITIES: Statutes: Vehicle and Traffic Law § 1180 (b)……. …………………….5, 6, 9 Vehicle and Traffic Law § 1192 (2)…………. ……………….6, 10 Vehicle and Traffic Law § 1192 (3)……….…………………….5, 6, 9, 11 Vehicle and Traffic Law § 1194…………………………………13 Vehicle and Traffic Law § 1195…………………………………12, 13, 14 McKinney's Cons Laws of NY, Book 1, Statutes § 97-98………13 Cases: People v Mertz, 68 NY2d 136 (1986)…………………………...14 Heard v Cuomo, 80 NY2d 684 (1993)…………………………..13 People v Finnegan, 85 NY2d 53 (1995)…………………………13 Other: CJI2d [NY] Vehicle and Traffic § 1192 (3)…………………….12 4 QUESTION PRESENTED: Whether the Town Court erred by not instructing the jury, on the common law driving while intoxicated count, that evidence that defendant's B.A.C. was less than .08% was prima facie evidence that defendant ws not intoxicated? 5 PRELIMINARY STATEMENT: COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------------------ PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, against PATRICIA FRATANGELO, DEFENDANT-APPELLANT. ------------------------------------------------------------------------------ Defendant Patricia Fratangelo (defendant) appeals from a decision and order of the Seneca County Court (Dennis F. Bender, J.), entered February 25, 2013, which affirmed a judgment of the Ovid Town Court (Louis Van Cleef, J.), rendered August 21, 2012, convicting defendant, upon a jury verdict, of driving while intoxicated (DWI) (Vehicle and Traffic Law § 1192 [3] [common law]) and speeding in zone (Vehicle and Traffic Law § 1180 [b]). The Ovid Town Court sentenced defendant to a conditi al discharge, $1,000 fine and $400 surcharge on the DWI count, and a $150 fine and $85 surcharge on the speeding count (A14). On June 11, 2013, the Honorable Susan Phillips Read, Associate Judge of the Court of Appeals, granted defendant's application for leave to appeal. 6 STATEMENT OF FACTS: At approximately 9:21 P.M. on September 25, 2011, Trooper Ronald Rogers was operating a stationary radar unit from his patrol vehicle on Route 89 in the Town of Ovid when he detected defendant's car traveling 72 m.p.h. in a 55 m.p.h. zone (A9-11, A15-16). After executing a traffic stop, Trooper Rogers observed that defendant smelled of alcohol and had glassy eyes (A12). Defendant admitted drinking one glass of wine at the Ovid Airport (A13). Defendant exited her car and underwent seven field sobriety tests (A12, A17). Defendant filed four of the tests: the horizontal gaze nystagmus, one-leg stand, Romberg balance and finger-count tests (A12). Defendant passed the walk-and-turn, finger-to-nose, and reciting-the- alphabet tests (A12). Defendant was placed under arrest for DWI at 9:50 P.M. and was transported to the State Police substation in Romulus (A12). At 10:40 P.M., a breath test of defendant, which was performed on an Alcotest 9510 instrument, revealed a blood-alcohol concentration (BAC) of .09% (A12). Trooper Rogers was the breath test operator (A12). Defendant was charged with driving while intoxicated - per se (Vehicle and Traffic Law § 1192 [2]), driving while intoxicated - common law (Vehicle and Traffic Law § 1192 [3]), and speeding in zone (Vehicle and Traffic Law § 1180 7 [b]) (A6-A10). A jury trial was held in the Ovid Town Court on Aug st 9-10, 2012 (A3). The People were represented by Seneca County District A torney Barry Porsch. James A. Baker, Esq., represented the defendant. The People presented one witness, Trooper Rogers, and introduced several exhibits dealing with the breath test instrument and test result. The defense called four witnesses: defendant; defendant's husband, John King; defense expert Dr. Oliver Brown; and character witness Sharon Morehouse. Relevant to this appeal is the testimony of Dr. Oliver Brown, who is a Professor of Pharmacology in the College of Medicine at SUNY Upstate Medical University in Syracuse, New York (A57). He has a Ph.D. in Biochemistry from Kansas City University and has conducted post-doctoral work in pharmacology at the College of Medicine (A57). Dr. Brown's work at the College concentrates on the effect of drugs and chemicals on the nervous system (A58). Dr. Brown testified that ethyl alcohol, after it is consumed, initially resides in the stomach and then passes through the small intesti es where it is absorbed into the bloodstream (A59, A62). On an empty stomach, lcohol is absorbed within one hour (A60, A63). The presence of food in the stomach slows the absorption of alcohol into the bloodstream (A63, A65). Complete absorption (or the BAC peak) could be delayed two to three hours depending on the size and type 8 of food (A63). Once the alcohol is absorbed into the blood, it primarily affects (actually, suppresses) the central nervous system and the brain (A63). After absorption, most of the alcohol is eliminated from the body through the liver (A64). Thus, a person's blood-alcohol level rises, peeks and then falls (A64-A65). A person who starts out with a .0% BAC and then dri ks at a normal rate would have a "straight line rise unless some unusual pattern occurs" (A67). For example, a person who sips beer for five hours and then chugs three shots of Jack Daniels will "have a very complicated curve" (A66-A67). In most drinking situations it is a straight line rise; the straight line will rise very sharply if the person chugs several shots of Jack Daniels, and the straight line will rise slowly and gradually if the person is drinking beer over three hours (A67). Dr. Brown testified that he can calculate an individual's BAC level at any particular moment between the time when the individual started drinking and the individual's BAC level at an end time (A67-A68). Dr. Brown testified that if it was assumed that consumption of wine by a 115 pound woman started at 8:15 or 8:30 PM and ended at 9:00 or 9:15 PM with a meal during that time period consisting of whole bean soup and the woman's breath test result was .09% BAC at 10:40 PM., he could, within a reasonable degree of scientific certainty, plot a straight line graph showing the BAC at any given point on the linbetween 8:15 and 10:40 PM (A68-A69). 9 The People stipulated to the admission of Dr. Brown's graph (A108) on the condition that it was based, not on any quantity of wine, but on a hypothesis (A73). Dr. Brown's straight line graph in this case neither took into account the quantity of wine, nor calculated the quantity of the wine consumed by defendant (A70-A72). Defendant's BAC at 10:40 PM could have still been rising or it may have peaked (A74). Based on the straight line graph he prepared (A108), Dr. Brown testified that, within a reasonable degree of scientific certainty, defendant's BAC at 9:40 PM was between .03 and .04% (A78-A79). On cross-examination, Dr. Brown testified that the information on the graph that he prepared in this case was supplied by another person (A80). On summation, defense counsel argued that defendant's BAC at the time of the stop was .03% to .04% according to the graph, and not .09% (A83). At the charge conference and after the jury instruction, the court denied defendant's request to include the following instruction in the common law DWI charge: "Under our law, evidence that there was less than .08 of one per centum by weight of alcohol in the defendant's blood is prima facie evidence that the defendant was not in an intoxicated condition" (A81-A82, A87-A88). The jury, through its verdict, found defendant guilty of driving while intoxicated - common law (Vehicle and Traffic Law § 1192 [3]) and speeding in zone (Vehicle and Traffic Law § 1180 [b]) (A106). The jury found defendant not 10 guilty of driving while intoxicated - per se (Vehicle and Traffic Law § 1192 [2]) (A106). On August 21, 2012, the Ovid Town Court (Van Cleef, J.) sentenced defendant to a conditional discharge, $1,000 fine and $400 surcharge on the DWI conviction (A14). On the speeding conviction, the court sentenced defendant to a $150 fine and $85 surcharge (A14). Defendant timely filed and served a notice of appeal (A5). By order entered February 25, 2012 and dated February 21, 2013, the Seneca County Court (Bender, J.) affirmed the judgment of c nviction (A3-A4). The Seneca County Court held that the Ovid Town Court properly denied defendant's requested charge because it applied only to chemical test evidence, and not opinion testimony (A3-A4). On June 11, 2013, the Court of Appeals (Read, J.) granted defendant's application for leave to appeal. The sentence has not been stayed. 11 ARGUMENT: 1. The court's jury instruction on the common law driving while intoxicated count was proper. Defendant contends that the court erred by not instructing the jury that evidence that defendant's BAC was less than .08% was prima facie evidence that defendant was not intoxicated (App Br, 7). Specifically, defendant contends that Dr. Oliver Brown's testimony that defendant's BAC at the time of the stop was .03- .04 % required the common law DWI jury instruction t include the CJI paragraph, "Under our law, evidence that there was less than .08 of one per centum by weight of alcohol in the defendant's blood is prima facie evidence that the defendant was not in an intoxicated condition." (App Br, 7-8). The People submit that the court properly denied defendant's request to include the above language in the common law driving while intoxicated jury charge because that CJI paragraph cited by defendant applies only to chemical test evidence, not opinion testimony. The People concede that the issue is preserved for appellate review. The Criminal Jury Instruction (CJI) for common law DWI (Vehicle and Traffic § 1192 [3]) basically has three parts: thebeginning, which is the statutory definition; the middle, which gives the detailed meaning of three terms ("motor 12 vehicle," "operate," and "intoxicated"); and the end, which states the elements of the offense that must be proven (see CJI2d [NY] Vehicle and Traffic § 1192 [3]) . Within the middle part, the "intoxicated" meaning has three parts: the definition of "intoxicated," common-law attributes of intoxication, and test evidence of blood- alcohol content (id.). The CJI instruction at issue is contained within te latter part pertaining to test evidence of blood-alcohol content. The contested instruction states: "Under our law, evidence that there was less than .08 of one per centum by weight of alcohol in the defendant's blood is prima facie evidence that the defendant was not in an intoxicated condition.7" (id.). Footnote 7 to the instruction contains a citation to Vehicle and Traffic Law § 1195 (2) (c) (see id.). It is interesting to note that the preceding paragraph to the above CJI instruction refers to "device[s] used to measure blood alcohol content," and the paragraph in the CJI that follows the instruction pertains to "results of any test given to determine the alcohol content of defendant's blood" (id.) Defendant contends that the above-quoted instruction should have been included in the jury charge, given Dr. Brown's opinion testimony about defendant's purported B.A.C. at the time of the traffic stop. However, the above-referenced instruction, along with the paragraphs that immediately precede and follow it, deals with chemical test results, not opinion testimony. 13 The challenged paragraph in the CJI instruction contains a footnote citation to Vehicle and Traffic Law § 1195 (2) (c). Indeed, the language in the CJI instruction requested by defendant is derived from Vehicle and Traffic Law § 1195 (2) (c). In interpreting a statute, all parts of the statute are to be construed together, harmonized and given effect (see McKinney's Cons Laws of NY, Book 1, Statutes § 97-98; Heard v Cuomo, 80 NY2d 684, 689 [1993]). Vehicle and Traffic Law § 1195, entitled "Chemical test evidence," "deals with the admissibility of chemical test results" (People v Finnegan, 85 NY2d 53 [1995]). Vehicle and Traffic Law § 1195 (2) provides that paragraph (c) should be given effect "to evidence of blood alcohol content, as determined by such tests." "Such tests" are chemical tests (see Vehicle and Traffic Law § 1195 [1]). Vehicle and Traffic Law § 1195 (2) applies only to evidence of blood- alcohol content as shown by a chemical test of the def ndant's breath, blood, urine or saliva (see Vehicle and Traffic Law § 1194 [2]). Dr. Brown did not conduct any chemical test in this case. Instead, he drew a graph, using a piece of paper, pen and ruler, based on information supplied by the defendant (A78-80, A108). Dr. Brown's testimony constitutes "opinion evidenc" only. The jury considered that evidence and was given an instruction on it: the CJI common law intoxication instruction given at trial allowed the jury to consider all the surrounding facts and circumstances, including, for example, "opinion testimony 14 regarding the defendant's sobriety" (A103, see A85, A93). Dr. Brown's testimony, however, did not entitle defendant to an instruction that "evidence that there was less than .08 of one per centum by weight of alcohol in the defendant's blood is prima facie evidence that t e defendant was not in an intoxicated condition." That instruction is only permitted when a chemical test shows that the BAC was less than .08% (see Vehicle and Traffic Law § 1195 [1], [2][c]). In this case, there was no chemical test or scientific device or instrument showing a BAC less than .08%. Therefore, defendant w s not entitled to the requested CJI instruction. People v Mertz (68 NY2d 136 [1986]), cited by defendant, is not applicable. In Mertz, this Court held that the defendant was improperly denied the opportunity of arguing, on the basis of defense expert's testimony, to the jury that his BAC at the time of operation was less than the then statutory limit of .10% (68 NY2d at 142, 146-147). In the instant case, defendant was not prevented from presenting evidence on, and arguing, this issue. On summation, defense counsel was permitted to argue that defendant's BAC at the timeof the stop was .03 to .04% according to the defense expert's graph (A83). 15 CONCLUSION: The defendant was not entitled to the requested jury instruction. Accordingly, the People respectfully request that te order of the Seneca County Court be affirmed. Dated: September 26, 2013 Respectfully submitted, Barry L. Porsch Seneca County District Attorney 48 W. Williams Street Waterloo, New York 13165 Tel. 315-539-1300