Opinion
2013-12-26
The PEOPLE, etc., respondent, v. Steven TIEMAN, appellant.
Michael G. Paul, New City, N.Y., for appellant. Francis D. Phillips II, District Attorney, Middletown, N.Y. (Ryan A. Greenbaum, Lauren E. Grasso, and Andrew R. Kass of counsel), for respondent.
Michael G. Paul, New City, N.Y., for appellant. Francis D. Phillips II, District Attorney, Middletown, N.Y. (Ryan A. Greenbaum, Lauren E. Grasso, and Andrew R. Kass of counsel), for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and SYLVIA HINDS–RADIX, JJ.
Appeal by the defendant from a judgment of the County Court, Orange County (Freehill, J.), rendered December 5, 2011, convicting him of reckless endangerment in the second degree, driving while ability impaired by alcohol in violation of Vehicle and Traffic Law § 1192(1), criminal possession of a controlled substance in the seventh degree, resisting arrest, unlawful fleeing a police officer in a motor vehicle in the third degree (two counts), and reckless driving, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and evidence of the defendant's refusal to submit to a chemical test.
ORDERED that the judgment is affirmed.
The County Court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence recovered from his vehicle. “Pursuant to the automobile exception to the warrant requirement, a warrantless search of a vehicle is permitted when the police have probable cause to believe the vehicle contains contraband, a weapon, or evidence of a crime” (People v. Vargas, 89 A.D.3d 771, 772, 931 N.Y.S.2d 683; see People v. Blasich, 73 N.Y.2d 673, 678–679, 543 N.Y.S.2d 40, 541 N.E.2d 40; People v. Baptiste, 248 A.D.2d 625, 671 N.Y.S.2d 97). Here, the police had probable cause to search the defendant's vehicle based, inter alia, on the observations of a police officer who observed what appeared to be a hand-to-hand narcotics transaction inside that vehicle in an area known for drug activity ( see People v. Jones, 90 N.Y.2d 835, 837, 660 N.Y.S.2d 549, 683 N.E.2d 14; People v. Herndon, 75 A.D.3d 1083, 903 N.Y.S.2d 286; People v. Gonzalez, 277 A.D.2d 328, 716 N.Y.S.2d 69).
The County Court also properly denied that branch of the defendant's omnibus motion which was to suppress evidence of his refusal to submit to a chemical test. The evidence at the hearing demonstrated that the defendant had glassy eyes, slurred speech, and the odor of alcohol on his breath, and had driven his vehicle erratically. This evidence established that the police had probable cause to arrest the defendant for a violation of Vehicle and Traffic Law § 1192 ( see People v. Troche, 162 A.D.2d 483, 556 N.Y.S.2d 403; People v. Blajeski, 125 A.D.2d 582, 582–583, 509 N.Y.S.2d 648), thereby providing the predicate for the request for the defendant to submit to a chemical test ( seeVehicle and Traffic Law § 1194[2][a][1]; People v. Poje, 270 A.D.2d 649, 650, 706 N.Y.S.2d 733; People v. Daniger, 227 A.D.2d 846, 847–848, 642 N.Y.S.2d 732).
The defendant's contention that he was deprived of a fair trial because the People failed to disclose certain Rosario material ( see People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881), is unpreserved for appellate review ( seeCPL 470.05[2] ). In any event, the defendant's contention is without merit. There is no evidence in the record that the material in question, state police radio logs pertaining to the subject incident, actually existed ( see People v. Young, 61 A.D.3d 786, 786, 877 N.Y.S.2d 179; People v. Pines, 298 A.D.2d 179, 180, 748 N.Y.S.2d 716; see also People v. Smith, 33 A.D.3d 462, 464, 823 N.Y.S.2d 123; People v. Melendez, 259 A.D.2d 500, 684 N.Y.S.2d 881; People v. Ray, 224 A.D.2d 722, 638 N.Y.S.2d 706).
The People correctly concede that the defendant's medical records were improperly redacted to omit the results of the defendant's blood alcohol test ( seeCPLR 4518[c]; Rodriguez v. Triborough Bridge & Tunnel Auth., 276 A.D.2d 769, 716 N.Y.S.2d 24). However, the error was harmless, since the evidence of the defendant's guilt of driving while ability impaired by alcohol was overwhelming, and there is no reasonable possibility that the error might have contributed to the defendant's conviction of that offense ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
Contrary to the defendant's contention, the imposition of consecutive sentences was not illegal ( seePenal Law § 70.25[2] ). The defendant's act of possessing a controlled substance in the vehicle was a complete crime, and a separate and distinct act from the other offenses of which he was convicted ( see People v. Truesdell, 70 N.Y.2d 809, 811, 523 N.Y.S.2d 429, 517 N.E.2d 1315; People v. Salamone, 89 A.D.3d 961, 962–963, 932 N.Y.S.2d 532; People v. Gucla, 18 A.D.3d 478, 479, 794 N.Y.S.2d 126; People v. Samwell, 287 A.D.2d 663, 663–664, 731 N.Y.S.2d 747). Moreover, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's remaining contentions are without merit.