Opinion
2014-03-21
The PEOPLE of the State of New York, Respondent, v. Robin DROUIN, Defendant–Appellant.
Joseph P. Miller, Cuba, for Defendant–Appellant. Keith A. Slep, District Attorney, Belmont (Michael B. Finn of Counsel), for Respondent.
Joseph P. Miller, Cuba, for Defendant–Appellant.Keith A. Slep, District Attorney, Belmont (Michael B. Finn of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, and VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting her, upon a jury verdict, of vehicular manslaughter in the second degree (Penal Law § 125.12[1] ) and criminally negligent homicide (§ 125.10). Contrary to the contention of defendant, we conclude that the evidence is legally sufficient to support the conviction. With respect to the vehicular manslaughter conviction, defendant contends that the People failed to establish that she ingested a drug set forth in Public Health Law § 3306 or that her ability to operate the motor vehicle was impaired by such drug ( seePenal Law § 125.12[1]; Vehicle and Traffic Law §§ 114–a, 1192[4], [4–a] ). We reject that contention. Defendant admitted to the arresting officer that, prior to the accident, she ingested oxycodone and alprazolam, both of which are listed in Public Health Law § 3306 (Schedule II[b][1][14]; Schedule IV[c][1] ). Several witnesses, including law enforcement officers and a registered nurse who examined defendant at the hospital, testified that defendant exhibited classic signs of drug impairment, including glassy, bloodshot eyes; dilated pupils; slurred speech; and poor motor coordination and balance ( see People v. Gonzalez, 90 A.D.3d 1668, 1668–1669, 935 N.Y.S.2d 826;People v. Curkendall, 12 A.D.3d 710, 713, 783 N.Y.S.2d 707,lv. denied4 N.Y.3d 743, 790 N.Y.S.2d 655, 824 N.E.2d 56;People v. Kraft, 278 A.D.2d 591, 591, 717 N.Y.S.2d 718,lv. denied96 N.Y.2d 864, 730 N.Y.S.2d 38, 754 N.E.2d 1121). Defendant also failed four out of the six standard field sobriety tests administered at the hospital. Further, a certified drug recognition expert concluded based upon his evaluation of defendant that she was under the influence of a central nervous system depressant and a narcotic analgesic, and that she “was impaired and unable to operate a motor vehicle safely down the road” ( see People v. Clark, 309 A.D.2d 1076, 1077, 766 N.Y.S.2d 710;People v. Crandall, 255 A.D.2d 617, 618–619, 681 N.Y.S.2d 99). With respect to causation, once “it is established that the defendant was unlawfully ... impaired while operating the vehicle, ‘there [is] a rebuttable presumption that, as a result of such [impairment] ..., [the defendant] operated the motor vehicle ... in a manner that caused such death’ ” ( People v. Stickler, 97 A.D.3d 854, 855, 948 N.Y.S.2d 696,lv. denied20 N.Y.3d 989, 958 N.Y.S.2d 704, 982 N.E.2d 624, quoting Penal Law § 125.12 [emphasis added]; see People v. Mojica, 62 A.D.3d 100, 108–109, 874 N.Y.S.2d 195,lv. denied12 N.Y.3d 856, 881 N.Y.S.2d 668, 909 N.E.2d 591). Here, although defendant claimed that the accident occurred because she was distracted by the presence of an “unusually large number of waterfowl,” and not because she was impaired, we conclude that the above evidence, coupled with the circumstances of the accident, provided the jury with a rational basis to reject that explanation ( see Curkendall, 12 A.D.3d at 713, 783 N.Y.S.2d 707). We thus conclude that the evidence is legally sufficient to establish defendant's guilt of vehicular manslaughter in the second degree beyond a reasonable doubt ( see People v. Bain, 85 A.D.3d 1193, 1194, 926 N.Y.S.2d 301,lv. denied17 N.Y.3d 902, 933 N.Y.S.2d 657, 957 N.E.2d 1161;see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
With respect to the conviction of criminally negligent homicide, Penal Law § 125.10 provides that “[a] person is guilty of criminally negligent homicide when, with criminal negligence, he [or she] causes the death of another person.” Criminal negligence “requires a defendant to have ‘engaged in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of’ a proscribed result,” such as death ( People v. Conway, 6 N.Y.3d 869, 872, 816 N.Y.S.2d 731, 849 N.E.2d 954, quoting People v. Boutin, 75 N.Y.2d 692, 696, 556 N.Y.S.2d 1, 555 N.E.2d 253;see § 15.05[4] ). Here, we conclude that the evidence that defendant took an oxycodone tablet that was not prescribed to her, in combination with other prescription medications that had been prescribed to her, and then operated a motor vehicle “demonstrated that [she] engaged in conduct exhibiting ‘the kind of seriously blameworthy carelessness whose seriousness would be apparent to anyone who shares the community's general sense of right and wrong’ ” ( People v. Asaro, 21 N.Y.3d 677, 685, 976 N.Y.S.2d 10, 998 N.E.2d 810, quoting People v. Cabrera, 10 N.Y.3d 370, 377, 858 N.Y.S.2d 74, 887 N.E.2d 1132;see Conway, 6 N.Y.3d at 871–872, 816 N.Y.S.2d 731, 849 N.E.2d 954;Kraft, 278 A.D.2d at 592, 717 N.Y.S.2d 718).
Defendant's contention that the verdict is against the weight of the evidence “is raised for the first time in [her] reply brief and therefore is not properly before us” ( People v. Sponburgh, 61 A.D.3d 1415, 1416, 877 N.Y.S.2d 585,lv. denied12 N.Y.3d 929, 884 N.Y.S.2d 711, 912 N.E.2d 1092). Contrary to the further contention of defendant, we conclude that County Court did not err in refusing to suppress her statements to the police. Defendant was not in police custody when the police initially questioned her at the hospital and, in any event, we conclude that the questions were investigatory rather than accusatory in nature ( see People v. Prue, 8 A.D.3d 894, 897, 779 N.Y.S.2d 271,lv. denied3 N.Y.3d 680, 784 N.Y.S.2d 18, 817 N.E.2d 836;People v. O'Hanlon, 5 A.D.3d 1012, 1012, 773 N.Y.S.2d 633,lv. denied3 N.Y.3d 645, 782 N.Y.S.2d 416, 816 N.E.2d 206;People v. Bongiorno, 243 A.D.2d 719, 720, 663 N.Y.S.2d 861,lv. denied91 N.Y.2d 889, 669 N.Y.S.2d 3, 691 N.E.2d 1029;People v. Bowen, 229 A.D.2d 954, 955, 645 N.Y.S.2d 381,lv. denied88 N.Y.2d 1019, 651 N.Y.S.2d 18, 673 N.E.2d 1245). We further conclude that “the record of the suppression hearing establishes that [defendant] was not [impaired by drugs] to such a degree that [s]he was incapable of voluntarily, knowingly, and intelligently waiving [her] Miranda rights” ( People v. Cimino, 49 A.D.3d 1155, 1157, 856 N.Y.S.2d 368,lv. denied10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250 [internal quotation marks omitted]; see People v. Downey, 254 A.D.2d 794, 679 N.Y.S.2d 762,lv. denied92 N.Y.2d 1031, 684 N.Y.S.2d 496, 707 N.E.2d 451). Contrary to defendant's contention, the People met their burden of proof at the suppression hearing through the testimony of the two investigating officers who elicited the challenged statements, and the People were not required to produce a third officer who had minimal contact with defendant upon her initial arrival at the hospital ( see People v. Witherspoon, 66 N.Y.2d 973, 974, 498 N.Y.S.2d 789, 489 N.E.2d 758;People v. Caballero, 23 A.D.3d 1031, 1032, 803 N.Y.S.2d 849,lv. denied6 N.Y.3d 846, 816 N.Y.S.2d 752, 849 N.E.2d 975;People v. Holloway, 16 A.D.3d 1062, 1063, 790 N.Y.S.2d 797,lv. denied5 N.Y.3d 763, 801 N.Y.S.2d 258, 834 N.E.2d 1268).
Although we agree with defendant that the court improperly admitted in evidence a photograph of the victim taken when she was alive because such evidence was not relevant to any material fact to be proven at trial ( see People v. Stevens, 76 N.Y.2d 833, 835–836, 560 N.Y.S.2d 119, 559 N.E.2d 1278;People v. Colon, 102 A.D.3d 705, 705, 956 N.Y.S.2d 901,lv. denied21 N.Y.3d 942, 968 N.Y.S.2d 4, 990 N.E.2d 138;People v. Dove, 233 A.D.2d 751, 754, 650 N.Y.S.2d 444,lv. denied89 N.Y.2d 1011, 658 N.Y.S.2d 249, 680 N.E.2d 623), we conclude that the error is harmless inasmuch as there was “overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to [her] conviction [ ]” ( Colon, 102 A.D.3d at 705, 956 N.Y.S.2d 901;see People v. Jackson, 41 A.D.3d 1268, 1269, 839 N.Y.S.2d 377;see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
Contrary to the contention of defendant, we conclude that the sentence is not unduly harsh and severe. Finally, we have reviewed defendant's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.