Opinion
651 KA 16–02251
08-22-2019
The PEOPLE of the State of New York, Respondent, v. Amy DELL, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT–APPELLANT. AMY DELL, DEFENDANT–APPELLANT PRO SE. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT–APPELLANT.
AMY DELL, DEFENDANT–APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of two counts of aggravated vehicular homicide ( Penal Law § 125.14[1], [3] ) and one count of aggravated unlicensed operation of a motor vehicle in the first degree ( Vehicle and Traffic Law § 511[3][a] ). Defendant failed to preserve her contention in her pro se supplemental brief that County Court should have suppressed the chemical test results measuring her blood alcohol content from two blood samples (see generally People v. Holland, 126 A.D.3d 1514, 1514, 6 N.Y.S.3d 873 [4th Dept. 2015], lv denied 25 N.Y.3d 1165, 15 N.Y.S.3d 297, 36 N.E.3d 100 [2015] ). In any event, that contention lacks merit because both samples were properly obtained by law enforcement; the first sample was obtained by warrant after it had been collected by medical personnel for medical purposes, and the second sample was drawn from defendant pursuant to a court order (see People v. Elysee, 12 N.Y.3d 100, 105, 876 N.Y.S.2d 677, 904 N.E.2d 813 [2009] ). We likewise reject defendant's contention in her main brief that the court erred in admitting the chemical test results at trial based on purported gaps in the chain of custody. "Where, as here, the circumstances provide reasonable assurances of the identity and unchanged condition of the evidence, any deficiencies in the chain of custody go to the weight of the evidence and not its admissibility" ( People v. Joseph, 75 A.D.3d 1080, 1081, 903 N.Y.S.2d 651 [4th Dept. 2010], lv denied 15 N.Y.3d 853, 909 N.Y.S.2d 30, 935 N.E.2d 822 [2010] [internal quotation marks omitted] ). Contrary to defendant's further contention in her main brief, her Sixth Amendment right of confrontation was not violated under Bullcoming v. New Mexico, 564 U.S. 647, 652, 131 S.Ct. 2705, 180 L.Ed.2d 610 [2011], where the People called as witnesses both crime laboratory analysts who tested the blood samples.
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that an acquittal would have been unreasonable given the two chemical test results, video evidence, witness testimony, and accident reconstruction (see id. at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). Thus, we reject defendant's contention in her main brief that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Defendant also contends in her pro se supplemental brief that the evidence is legally insufficient to establish that her driver's license had either been suspended or revoked and that she had previously been convicted under Vehicle and Traffic Law § 1192. Defendant waived that contention by admitting to those facts prior to trial (see generally People v. Lawrence, 141 A.D.3d 1079, 1082–1083, 34 N.Y.S.3d 827 [4th Dept. 2016], lv denied 28 N.Y.3d 1029, 45 N.Y.S.3d 380, 68 N.E.3d 109 [2016] ; People v. Ward, 57 A.D.3d 582, 583, 868 N.Y.S.2d 297 [2d Dept. 2008], lv denied 12 N.Y.3d 789, 879 N.Y.S.2d 65, 906 N.E.2d 1099 [2009] ).
Defendant contends in her main brief that the court erred in admitting testimony regarding her refusals to consent to blood draws for purposes of chemical testing because the police violated her limited right to counsel (see generally People v. Gursey, 22 N.Y.2d 224, 227, 292 N.Y.S.2d 416, 239 N.E.2d 351 [1968] ). We agree. Defendant requested her attorney before deciding whether to consent to a blood draw and, upon such a request, the police " ‘may not, without justification, prevent access between the [defendant] and his [or her] lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand’ " ( People v. Smith, 18 N.Y.3d 544, 549, 942 N.Y.S.2d 426, 965 N.E.2d 928 [2012], quoting Gursey, 22 N.Y.2d at 227, 292 N.Y.S.2d 416, 239 N.E.2d 351 ). Here, the record establishes that, despite defendant's requests, the police made no effort to either contact or to facilitate defendant's contact with her attorney, and there is no evidence that a limited delay in testing to allow defendant an opportunity to consult with her attorney would have unduly interfered with law enforcement's efforts to collect a sample (cf. People v. Horsey, 45 A.D.3d 1378, 1379, 845 N.Y.S.2d 604 [4th Dept. 2007], lv denied 10 N.Y.3d 766, 854 N.Y.S.2d 328, 883 N.E.2d 1263 [2008] ). Under these circumstances, where defendant was in a hospital bed and had no apparent ability to contact her attorney without assistance, we conclude that her limited right to counsel was violated, and thus her resulting statements refusing chemical testing should have been suppressed (see generally Smith, 18 N.Y.3d at 549–550, 942 N.Y.S.2d 426, 965 N.E.2d 928 ). Nevertheless, we conclude that the error was harmless (see People v. Warren, 160 A.D.3d 1132, 1137, 75 N.Y.S.3d 611 [3d Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018] ; cf. Smith, 18 N.Y.3d at 552, 942 N.Y.S.2d 426, 965 N.E.2d 928 ). We further conclude that any error in admitting defendant's statements invoking her right to counsel was also harmless (see generally People v. Daniels, 115 A.D.3d 1364, 1365, 982 N.Y.S.2d 689 [4th Dept. 2014], lv denied 23 N.Y.3d 1019, 992 N.Y.S.2d 802, 16 N.E.3d 1282 [2014] ).
We reject defendant's contention in her pro se supplemental brief that the court erred in refusing to suppress statements that she made during her arraignment, to law enforcement, and to others, which were spontaneous and were not the result of a custodial interrogation (see People v. Gonzales, 75 N.Y.2d 938, 939–940, 555 N.Y.S.2d 681, 554 N.E.2d 1269 [1990], cert denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ).
Defendant's contentions in her pro se supplemental brief with respect to the grand jury proceedings "are not reviewable on appeal because the grand jury minutes are not included in the record on appeal" ( People v. Barill, 120 A.D.3d 951, 952, 991 N.Y.S.2d 214 [4th Dept. 2014], lv denied 24 N.Y.3d 1042, 998 N.Y.S.2d 312, 23 N.E.3d 155 [2014], reconsideration denied 25 N.Y.3d 949, 7 N.Y.S.3d 278, 30 N.E.3d 169 [2015] [internal quotation marks omitted] ). We reject defendant's contention in her main brief that the sentence is unduly harsh and severe (see generally People v. Drouin, 115 A.D.3d 1153, 1156, 982 N.Y.S.2d 226 [4th Dept. 2014], lv denied 23 N.Y.3d 1019, 992 N.Y.S.2d 802, 16 N.E.3d 1282 [2014] ). We have reviewed defendant's remaining contentions in her pro se supplemental brief and conclude that none warrants modification or reversal of the judgment.