People v. Bohacek

• Decision Date: 31 May 2012
• Citation: 945 N.Y.S.2d 460,95 A.D.3d 1592,2012 N.Y. Slip Op. 04241
• Parties: The PEOPLE of the State of New York, Respondent, v. Bonnie A. BOHACEK, Appellant.
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 1592
945 N.Y.S.2d 460
2012 N.Y. Slip Op. 04241

The PEOPLE of the State of New York, Respondent,
v.
Bonnie A. BOHACEK, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

May 31, 2012.

[945 N.Y.S.2d 461]

Abdella Law Offices, Gloversville (Robert Abdella of counsel), for appellant.

James E. Conboy, District Attorney, Fonda (Kelli P. McCoski of counsel), for respondent.

Before: MERCURE, J.P., ROSE, STEIN, GARRY and EGAN JR., JJ.

ROSE, J.

[95 A.D.3d 1593]Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered September 6, 2011, upon a verdict convicting defendant of the crime of reckless driving.

Defendant was driving on a two-lane highway in the Town of Florida, Montgomery County in the early morning hours of October 2010 when her vehicle crossed the center line of the roadway and collided head-on with a vehicle traveling in the opposite direction. The driver of the other vehicle was killed instantly and defendant was rendered unconscious. Montgomery County Undersheriff Jeffrey Smith responded to the accident scene and, after a preliminary investigation, ordered a blood draw from the still unconscious defendant. The results of the chemical test of the blood indicated the presence of various narcotics proscribed by Public Health Law § 3306. A grand jury handed down a seven-count indictment, County Court denied defendant's motion to suppress the results of the blood test and, following a jury trial, she was acquitted of the first six counts of the indictment but convicted of reckless driving. County Court sentenced defendant to 30 days in jail and one year of probation.

County Court properly denied the motion to suppress the results of the blood test. New York's implied consent law provides that a police officer having reasonable grounds to believe that a person has been operating a vehicle while under the influence of alcohol or drugs may, within two hours of the arrest of such person, direct a chemical blood test ( seeVehicle and Traffic Law § 1194[2][a][1], [2]; People v. Goodell, 79 N.Y.2d 869, 870, 581 N.Y.S.2d 157, 589 N.E.2d 380 [1992];People v. Centerbar, 80 A.D.3d 1008, 1009, 914 N.Y.S.2d 784 [2011];People v. Morrisey, 21 A.D.3d 597, 598, 799 N.Y.S.2d 642 [2005] ). If there is probable cause to arrest, a formal arrest of an unconscious driver is not required ( see People v. Goodell, 79 N.Y.2d at 870, 581 N.Y.S.2d 157, 589 N.E.2d 380;People v. LeRow, 70 A.D.3d 66, 70, 889 N.Y.S.2d 813 [2009];People v. Carkner, 213 A.D.2d 735, 739, 623 N.Y.S.2d 350 [1995],lv. denied86 N.Y.2d 733, 631 N.Y.S.2d 613, 655 N.E.2d 710 [1995] ). Probable cause is determined based on the totality of circumstances and requires “information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place' ” ( People v. Fenger, 68 A.D.3d 1441, 1442, 892 N.Y.S.2d 591 [2009], quoting People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ). It does not require proof beyond a reasonable doubt that a crime was committed and may be supported by reliable hearsay information ( see [95 A.D.3d 1594]

[945 N.Y.S.2d...