Opinion
2014-10-23
The PEOPLE of the State of New York, Respondent, v. Richard COKER, Appellant.
Kathryn E. Conklin, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Kathryn E. Conklin, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Before: PETERS, P.J., STEIN, GARRY, LYNCH and DEVINE, JJ.
PETERS, P.J.
Appeal from a judgment of the Supreme Court (Milano, J.), rendered June 21, 2013 in Schenectady County, upon a verdict convicting defendant of the crime of driving while intoxicated.
In the early morning hours of April 15, 2012, Kenneth Jacqueway was awoken by what “sounded like an explosion” outside his apartment in the City of Schenectady, Schenectady County. When he went to investigate, Jacqueway saw defendant standing near a black BMW that had crashed into a parked vehicle. According to Jacqueway, defendant requested that Jacqueway not call the police, disclosed that he had consumed approximately “nine drinks” and asked Jacqueway for another beer to thwart the results of any police-administered breathalyzer. When Jacqueway refused his requests, defendant fled on foot. Police arrived at the scene soon thereafter and apprehended defendant approximately a block away, at which time they observed that defendant's speech was slurred, he was stumbling and an odor of alcohol was emanating from him. Defendant refused to submit to a breathalyzer test and claimed that he was a passenger in the vehicle at the time of the collision. A visual inspection of the BMW, which was registered to defendant, revealed that only the driver-side air bag had deployed.
A field sobriety test was not conducted because, at the time that defendant was apprehended, he was “a flight risk.”
Charged by indictment with one count of driving while intoxicated, defendant moved to, among other things, preclude at trial any identification testimony based upon the People's failure to provide CPL 710.30 notice. Following a hearing, a Judicial Hearing Officer determined that the proffered identification evidence was not subject to the notice requirements of CPL 710.30, and County Court (Drago, J.) adopted that finding and denied defendant's motion. At the conclusion of the ensuing jury trial, defendant was convicted as charged and sentenced to 2 to 6 years in prison followed by five years of probation. He appeals, and we affirm.
We reject defendant's assertion that the integrity of the grand jury proceeding was impaired due to the presentation of inadmissible hearsay testimony ( seeCPL 210.35[5]; People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ). One of the officers who responded to the scene testified before the grand jury that Jacqueway told him that “the driver of the vehicle was walking up the hill” and that defendant “was the only one in the vehicle.” Those statements were not hearsay since they were admitted not for the truth of the matters asserted, but rather “to provide background information as to how and why the police pursued and confronted defendant” (People v. Tosca, 98 N.Y.2d 660, 661, 746 N.Y.S.2d 276, 773 N.E.2d 1014 [2002]; see People v. Jackson, 100 A.D.3d 1258, 1261, 954 N.Y.S.2d 679 [2012], lv. denied21 N.Y.3d 1005, 971 N.Y.S.2d 256, 993 N.E.2d 1279 [2013]; People v. McCottery, 90 A.D.3d 1323, 1325, 935 N.Y.S.2d 687 [2011], lv. denied19 N.Y.3d 975, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012]; People v. Abare, 86 A.D.3d 803, 805, 927 N.Y.S.2d 233 [2011], lv. denied19 N.Y.3d 861, 947 N.Y.S.2d 410, 970 N.E.2d 433 [2012]; People v. Lester, 83 A.D.3d 1578, 1579, 921 N.Y.S.2d 435 [2011], lv. denied17 N.Y.3d 818, 929 N.Y.S.2d 807, 954 N.E.2d 98 [2011] ). Furthermore, the People provided adequate limiting instructions to that effect on three separate occasions ( see People v. Jackson, 100 A.D.3d at 1261, 954 N.Y.S.2d 679; People v. McCottery, 90 A.D.3d at 1325, 935 N.Y.S.2d 687; People v. Abare, 86 A.D.3d at 805, 927 N.Y.S.2d 233; People v. Ewell, 12 A.D.3d 616, 617, 786 N.Y.S.2d 545 [2004], lv. denied4 N.Y.3d 763, 792 N.Y.S.2d 7, 825 N.E.2d 139 [2005] ). Thus, there was no fundamental flaw in the grand jury proceeding requiring dismissal of the indictment.
Nor are we persuaded that the People were required to provide notice pursuant to CPL 710.30 regarding their intent to offer identification testimony at trial. The evidence at the preclusion hearing established that, when police arrived at the scene, Jacqueway—without any prompting by police—pointed to defendant and stated to police that “[h]e's right there on the sidewalk.” As this identification of defendant occurred spontaneously without any police involvement, CPL 710.30 notice of such identification was not required ( see People v. Berkowitz, 50 N.Y.2d 333, 338 n. 1, 428 N.Y.S.2d 927, 406 N.E.2d 783 [1980]; People v. Driscoll, 251 A.D.2d 759, 760, 675 N.Y.S.2d 151 [1998], lv. denied92 N.Y.2d 896, 680 N.Y.S.2d 60, 702 N.E.2d 845 [1998]; People v. Baptiste, 248 A.D.2d 479, 480, 668 N.Y.S.2d 923 [1998], lv. denied92 N.Y.2d 847, 677 N.Y.S.2d 77, 699 N.E.2d 437 [1998]; People v. Burgos, 219 A.D.2d 504, 505, 631 N.Y.S.2d 336 [1995], lv. denied86 N.Y.2d 872, 635 N.Y.S.2d 953, 659 N.E.2d 776 [1995] ). The second identification occurred only minutes later after the police pursued the fleeing individual and returned him to the scene, where Jacqueway confirmed that defendant was in fact the person whom he had just identified. Even assuming that the second identification was not merely confirmatory and, therefore, exempt from the notice requirements of CPL 710.30 ( see People v. Woodard, 83 A.D.3d 1440, 1441, 919 N.Y.S.2d 718 [2011], lv. denied17 N.Y.3d 803, 929 N.Y.S.2d 111, 952 N.E.2d 1106 [2011]; People v. Benjamin, 2 A.D.3d 740, 741, 768 N.Y.S.2d 659 [2003], lv. denied2 N.Y.3d 737, 778 N.Y.S.2d 463, 810 N.E.2d 916 [2004]; People v. Holland, 208 A.D.2d 352, 353, 616 N.Y.S.2d 965 [1994], lv. denied84 N.Y.2d 1032, 623 N.Y.S.2d 189, 647 N.E.2d 461 [1995] ), any error was harmless inasmuch as evidence of the second identification was not introduced by the People at trial ( see generally People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
Supreme Court properly denied defendant's request for an expanded circumstantial evidence charge. “Whenever a case relies wholly on circumstantial evidence to establish all elements of the charge, the jury should be instructed, in substance, that the evidence must establish guilt to a moral certainty. However, where a charge is supported with both circumstantial and direct evidence, the court need not so charge the jury” (People v. Daddona, 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014 [1993] [citations omitted]; accord People v. Saxton, 75 A.D.3d 755, 758, 907 N.Y.S.2d 316 [2010], lv. denied15 N.Y.3d 924, 913 N.Y.S.2d 650, 939 N.E.2d 816 [2010]; see People v. Stanton, 21 A.D.3d 576, 577, 799 N.Y.S.2d 342 [2005]; People v. Lewis, 300 A.D.2d 827, 829, 752 N.Y.S.2d 172 [2002], lv. denied99 N.Y.2d 630, 760 N.Y.S.2d 111, 790 N.E.2d 285 [2003] ). Here, Jacqueway's testimony that immediately following the crash defendant admitted to having consumed approximately “nine drinks,” together with police testimony regarding defendant's condition and demeanor, constituted direct evidence of the element of intoxication ( seeVehicle and Traffic Law § 1192[3]; People v. McRobbie, 97 A.D.3d 970, 972, 949 N.Y.S.2d 249 [2012], lv. denied20 N.Y.3d 934, 957 N.Y.S.2d 693, 981 N.E.2d 290 [2012]; People v. Cooley, 69 A.D.3d 1058, 1058, 891 N.Y.S.2d 681 [2010]; People v. Crandall, 287 A.D.2d 881, 883, 731 N.Y.S.2d 553 [2001], lv. denied97 N.Y.2d 703, 739 N.Y.S.2d 103, 765 N.E.2d 306 [2002]; People v. Merrick, 188 A.D.2d 764, 765, 591 N.Y.S.2d 564 [1992], lv. denied81 N.Y.2d 889, 597 N.Y.S.2d 951, 613 N.E.2d 983 [1993] ). As the case was not wholly circumstantial, defendant was not entitled to the requested charge ( see People v. Daddona, 81 N.Y.2d at 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014; People v. Pagan, 97 A.D.3d 963, 968, 948 N.Y.S.2d 757 [2012], lv. denied20 N.Y.3d 934, 957 N.Y.S.2d 694, 981 N.E.2d 291 [2012]; People v. Pope, 96 A.D.3d 1231, 1235, 947 N.Y.S.2d 634 [2012], lv. denied20 N.Y.3d 1064, 962 N.Y.S.2d 615, 985 N.E.2d 925 [2013] ).
Finally, we will not disturb the sentence. Supreme Court expressly noted its consideration of the presentence investigation report, the letters of support submitted on defendant's behalf and the negative implications that a sentence of imprisonment would have on defendant's family. Nevertheless, the court determined that a period of imprisonment was warranted given defendant's lengthy criminal history, which included four other drinking and driving-related offenses. Given defendant's persistent and repeated decisions to consume alcohol and drive, thereby putting the safety of the community at risk, as well as his refusal to accept responsibility for his actions, we discern no abuse of discretion or extraordinary circumstances warranting a modification of the sentence in the interest of justice ( see People v. Young, 115 A.D.3d 1013, 1015, 983 N.Y.S.2d 120 [2014]; People v. Steinhilber, 48 A.D.3d 958, 959, 852 N.Y.S.2d 437 [2008], lv. denied10 N.Y.3d 871, 860 N.Y.S.2d 497, 890 N.E.2d 260 [2008]; People v. Donaldson, 46 A.D.3d 1109, 1110, 848 N.Y.S.2d 719 [2007]; People v. Hammond, 35 A.D.3d 905, 907, 827 N.Y.S.2d 298 [2006], lv. denied8 N.Y.3d 946, 836 N.Y.S.2d 556, 868 N.E.2d 239 [2007]; People v. Beyer, 21 A.D.3d 592, 595, 799 N.Y.S.2d 620 [2005], lv. denied6 N.Y.3d 752, 810 N.Y.S.2d 420, 843 N.E.2d 1160 [2005] ).
Notably, defendant committed the instant offense just four months after his sentence of probation ended for his 2006 felony driving while intoxicated conviction.
ORDERED that the judgment is affirmed.