Opinion
Filed May 2, 2001.
Appeal from Judgment of Cattaraugus County Court, Himelein, J. — Murder, 2nd Degree.
PRESENT: PIGOTT, JR., P.J., PINE, HAYES, KEHOE AND BURNS, JJ.
Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum:
Defendant contends that the conviction of two counts of murder in the second degree (Penal Law § 125.25), two counts of assault in the first degree (Penal Law § 120.10), and two counts of driving while intoxicated (Vehicle and Traffic Law § 1192, [3]) is not supported by legally sufficient evidence. We disagree. The evidence, viewed in the light most favorable to the People ( see, People v. Contes, 60 N.Y.2d 620, 621), establishes that defendant had been drinking and, while driving, struck another vehicle from the rear. After the police pulled over his vehicle and took his keys from him, defendant took a second set of keys from his girlfriend and drove off, leading a State Trooper on a high-speed chase. Defendant drove at speeds of up to 80 miles per hour, passing cars on the right and disobeying traffic signals. He ignored the pleas of his passengers to stop, and he did not attempt to brake when he drove down an off-ramp toward a vehicle and collided broadside with that vehicle. The driver and a passenger in that vehicle were killed, and the two other passengers were injured. A blood test revealed that defendant had a blood alcohol level of 0.22%. That evidence of defendant's conduct is legally sufficient to establish a depraved indifference to human life ( see, People v. Daniels, 265 A.D.2d 909, 910, lv denied 94 N.Y.2d 878; see generally, People v. Roe, 74 N.Y.2d 20, 24-25).
Contrary to the further contention of defendant, the police had reasonable suspicion to stop his vehicle based on information from an identified citizen informant concerning a hit-and-run accident. The identified citizen informant was presumed to be reliable and his basis of knowledge was his observation of the offense ( see, People v. Hetrick, 80 N.Y.2d 344, 348-349; People v. Walker, 278 A.D.2d 852; People v. Rivera, 210 A.D.2d 895, 895-896; People v. Rowles, 176 A.D.2d 1074, 1075-1076, lv denied 79 N.Y.2d 831). The State Trooper observed a vehicle matching the description given by the informant in proximity to the offense and close in time to its commission. Based on those circumstances, the State Trooper had reasonable suspicion to believe that the driver of the vehicle had committed a crime, which justified his stop of the vehicle ( see, People v. Fricano, 267 A.D.2d 1043, 1044, lv denied 95 N.Y.2d 796; People v. Glaze, 255 A.D.2d 932, 932-933, lv denied 93 N.Y.2d 853; see generally, People v. Spencer, 84 N.Y.2d 749, 752-754, cert denied 516 U.S. 905).
Defendant contends that County Court erred in denying his motion to suppress the blood test result on the ground that the test was administered more than two hours after his arrest, in violation of Vehicle and Traffic Law § 1194 (2) (a) (1) and (2). That motion was untimely because it was not made within the 45-day time period set forth in CPL 255.20 (1), and defendant failed to establish that the motion could not reasonably have been made within that time period ( see, CPL 255.20; People v. Molling, 238 A.D.2d 915, 916; People v. Killings, 191 A.D.2d 586, 587, lv denied 81 N.Y.2d 1075). In any event, defendant's contention is without merit. The two-hour time limit does not apply where, as here, defendant expressly consented to the blood test ( People v. Atkins, 85 N.Y.2d 1007, 1008-1009; see also, People v. Turner, 234 A.D.2d 704, 706). Contrary to the further contention of defendant, the People established an adequate foundation for the admission of the blood test result in evidence at trial ( see, People v. Julian, 41 N.Y.2d 340, 342-343; People v. Parker, 217 A.D.2d 946 , lv denied 87 N.Y.2d 849). "Any deficiency in the chain of custody went to the weight of the evidence rather than its admissibility" ( People v. Hooks, 258 A.D.2d 954, lv denied 93 N.Y.2d 972; see, People v. Daniels, supra, at 910). In addition, the court properly denied the motion of defendant to suppress his statement. The statement was made in response to an officer's question that was "not aimed at eliciting an incriminating response but was asked solely to insure [his] safety" ( People v. Burgos, 255 A.D.2d 199, lv denied 93 N.Y.2d 851).
Defendant contends that he was denied a fair trial based on the People's late disclosure of the 911 tapes and the People's failure to disclose the criminal conviction of a witness. With respect to the 911 tapes, the court reopened the suppression hearing so that defendant could cross-examine the witnesses based on those tapes; defendant thus failed to show any prejudice resulting from the delay ( see, People v. Ranghelle, 69 N.Y.2d 56, 63). With respect to the criminal conviction, the prosecutor established that he did not disclose that conviction because he was not aware of it ( see, CPL 240.45 [b]). In any event, there is no reasonable possibility that the outcome of the trial would have been different had that conviction been disclosed to defendant ( see generally, People v. Vilardi, 76 N.Y.2d 67, 77; People v. Workman, 277 A.D.2d 1029).
As we determined on defendant's prior appeal from the order denying his motion pursuant to CPL 440.10, the contention of defendant that he received ineffective assistance of counsel is without merit ( see, People v. Hoffman, 256 A.D.2d 1195, lv denied 93 N.Y.2d 874, cert denied 528 U.S. 863). Defendant did not preserve for our review his contention that the court erred in granting the People's request for a missing witness charge with respect to defendant's girlfriend ( see, CPL 470.05; People v. Smith, 240 A.D.2d 600, 601, lv denied 90 N.Y.2d 898), and, in any event, that contention is without merit ( see, People v. Brown, 256 A.D.2d 1109, lv denied 93 N.Y.2d 851; see generally, People v. Keen, 94 N.Y.2d 533, 539).
We conclude, however, that the sentences imposed on the two counts of vehicular assault in the second degree (Penal Law § 120.03, [2]) are illegal ( see, Penal Law § 70.00 [e]; [3] [b]). We therefore modify the judgment by reducing the sentences imposed on those counts to terms of imprisonment of 1 to 4 years. The sentences as modified are not unduly harsh or severe. We have considered defendant's remaining contentions and conclude that they are without merit.