People v. Bowen

• Decision Date: 12 July 1996
• Citation: 645 N.Y.S.2d 381,229 A.D.2d 954
• Parties: PEOPLE of the State of New York, Respondent, v. Gary BOWEN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 381

645 N.Y.S.2d 381

229 A.D.2d 954

PEOPLE of the State of New York, Respondent, v. Gary BOWEN, Appellant.

Supreme Court, Appellate Division Fourth Department.

July 12, 1996.

John Cirando, Syracuse, for appellant.

John Tunney by Brooks Baker, Bath, for respondent.

Before DENMAN, P.J., and PINE, CALLAHAN, BALIO and DAVIS, JJ.

MEMORANDUM:

Defendant contends that County Court erred in permitting a witness to testify about statements defendant made upon arrival at the hospital by ambulance. We disagree. The witness, who was training as an emergency medical technician, testified that defendant said that his blood alcohol content was "way up there", that he had consumed six beers, and that he was "polluted". Those statements were made spontaneously, not in response to questions, and there is no evidence that the information communicated in those statements was necessary for treatment (see, CPLR 4504[a]; Dillenbeck v. Hess, 73 N.Y.2d 278, 283-284, 539 N.Y.S.2d 707, 536 N.E.2d 1126). Thus, even assuming, arguendo, that the witness qualified as "a person authorized to practice medicine" under CPLR 4504(a), defendant failed to establish that his statements were confidential and protected by the physician-patient privilege (see, Koump v. Smith, 25 N.Y.2d 287, 294-295, 303 N.Y.S.2d 858, 250 N.E.2d 857). In any event, any error is harmless (see, People v. Carkner, 213 A.D.2d 735, 738, 623 N.Y.S.2d 350, lv. denied 85 N.Y.2d 970, 86 N.Y.2d 733, 629 N.Y.S.2d 730, 631 N.Y.S.2d 613, 653 N.E.2d 626, 655 N.E.2d 710; People v. Ballard, 173 A.D.2d 480, 570 N.Y.S.2d 101, lv. denied 78 N.Y.2d 961, 574 N.Y.S.2d 940, 580 N.E.2d 412). Several other prosecution witnesses testified that they heard defendant say that he was drunk and had consumed six beers, and defendant does not challenge the admissibility of their testimony.

We further conclude that the court properly denied the motion of defendant to suppress his statements to police officers at the hospital. The court found, following a Huntley hearing, that defendant was not in custody before being advised of his Miranda rights. That finding is supported by the record. Although defendant was confined to a hospital bed, he was not physically restrained (see, People v. Ripic, 182 A.D.2d 226, 230-231, 587 N.Y.S.2d 776, appeal dismissed 81 N.Y.2d 776, 594 N.Y.S.2d 712, 610 N.E.2d 385, rearg. denied 81 N.Y.2d 955, 598 N.Y.S.2d 759, 615 N.E.2d 216). Moreover, the questions asked by the officers were investigatory rather than accusatory in nature (see, People v. Baker, 188 A.D.2d 1012, 592 N.Y.S.2d 161, lv. denied 81 N.Y.2d 967, 598 N.Y.S.2d 768, 615 N.E.2d 225).

Contrary to defendant's contention, the court did not err in admitting results of a blood test to which defendant consented at the hospital. Shortly before consenting to the test, defendant informed police officers of his phone number, age, hair and eye color, height, weight, and marital status, as well as the names of his parents and the town in which they live. Thus, although defendant was suffering from serious injuries when he consented to the blood test, he was not so incoherent that he was incapable of consenting to it (see, People v. Delosh, 195 A.D.2d 769, 770, 600 N.Y.S.2d 351, lv. denied 82 N.Y.2d 753, 603 N.Y.S.2d 994, 624 N.E.2d 180; People v. Osburn, 155 A.D.2d 926, 927, 547 N.Y.S.2d 749, lv. denied 75 N.Y.2d 816, 552 N.Y.S.2d 566, 551 N.E.2d 1244). In any event, had defendant been incapable of consent, the blood test results were admissible pursuant to the implied consent provisions of Vehicle and Traffic Law § 1194(2)(a)(1). The test was conducted within two hours of defendant's arrest, and the police had reasonable cause to believe that defendant had been driving while intoxicated (see, People v. Carkner, supra, at 739, 623 N.Y.S.2d 350; People v. Bagley, 211 A.D.2d 882, 883, 621 N.Y.S.2d 166, lv. denied 86 N.Y.2d 779, 631 N.Y.S.2d 625, 655 N.E.2d 722).

We reject defendant's contention that the jury's verdict is against the weight of the evidence and unsupported by legally sufficient evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Because defendant did not request that vehicular manslaughter be charged to the jury, the court did not err in failing to do so (see, CPL 300.50[2]; People v. Skinner, 203 A.D.2d 891, 611 N.Y.S.2d 720, lv....