Opinion
1999-06739
Argued May 15, 2003.
June 9, 2003.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Spinner, J.), rendered June 25, 1999, convicting him of manslaughter in the second degree, vehicular manslaughter in the second degree (two counts), and driving while intoxicated (two counts), upon a jury verdict, and imposing sentence.
Robert C. Mitchell, Riverhead, N.Y. (Monroe A. Semble of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, HOWARD MILLER, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the law, by vacating the sentences imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Suffolk County, for resentencing in compliance with CPL 400.21.
Contrary to the defendant's contention, his court-ordered blood sample was taken in compliance with Vehicle and Traffic Law § 1194(4)(a)(1)(ii) (see People v. Moser, 70 N.Y.2d 476).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15).
However, under the circumstances of this case, we agree that the defendant was entitled to a hearing regarding his status as a second felony offender (see CPL 400.21). Moreover, since the defendant did not receive a copy of his predicate felony statement prior to the time of sentencing in this case (see CPL 400.21,[3]), the trial court erred in denying his request for an adjournment of sentencing. The defendant was entitled to an adjournment of his sentencing of at least two days (see CPL 400.21).
The defendant's remaining contentions either are unpreserved for appellate review or without merit.
SANTUCCI, J.P., GOLDSTEIN, H. MILLER and SCHMIDT, JJ., concur.