Summary
In MacDonald, wherein the defendant had consented to take an alco-sensor test at the scene and then attempted to provide an inadequate breath sample for the test, the Court of Appeals held that evidence of the defendant's failure to properly take the PBT was admissible "as evidence of consciousness of guilt, particularly in light of the trial court's limiting instructions to the jury on this point" (id. at 910, 653 N.Y.S.2d 267, 675 N.E.2d 1219).
Summary of this case from People v. LegnettiOpinion
Argued November 19, 1996
Decided December 20, 1996
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered May 2, 1996, which affirmed a judgment of the Albany County Court (Thomas A. Breslin, J.), rendered upon a verdict convicting defendant of criminally negligent homicide and driving while ability impaired.
Lawrence H. Weintraub, Slingerlands, for appellant.
Sol Greenberg, District Attorney of Albany County, Albany (John E. Maney of counsel), for respondent.
People v MacDonald, 227 A.D.2d 672, affirmed.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Following a motorcycle accident which resulted in the death of his wife, defendant was indicted for vehicular manslaughter in the second degree, criminally negligent homicide and two counts of operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192, [3]). A jury acquitted defendant of the counts of vehicular manslaughter and drunken driving, but convicted him of criminally negligent homicide and driving while ability impaired (Vehicle and Traffic Law § 1192). Defendant was sentenced to an indeterminate term of one year to three years. The Appellate Division affirmed defendant's conviction and sentence.
Defendant failed to make a timely specific objection at trial to the sufficiency of the evidence to support the conviction of criminally negligent homicide, and to the admissibility of relation-back testimony regarding defendant's blood alcohol level at the time of the accident. Therefore, these points were not preserved for this Court's review ( People v Gray, 86 N.Y.2d 10, 19-21; People v Gonzalez, 55 N.Y.2d 720, 722, cert denied 456 U.S. 1010).
We find no merit to defendant's contention that he was denied a fair trial because of certain evidentiary rulings ( see, People v Ladd, 89 N.Y.2d 893 [decided today]). Moreover, testimony regarding defendant's attempts to avoid giving an adequate breath sample for alco-sensor testing was properly admitted as evidence of consciousness of guilt, particularly in light of the trial court's limiting instructions to the jury on this point. Furthermore, error, if any, in permitting the People's forensic scientist to report defendant's blood alcohol level beyond the second decimal point at .089 and .091% was harmless, in view of defendant's conviction for driving while ability impaired ( see, Vehicle and Traffic Law § 1195 [c]). We similarly reject defendant's claim that he was not given an individualized sentence.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
Order affirmed in a memorandum.