People v. Coker

• Decision Date: 23 October 2014
• Docket Number: 105837.
• Citation: 995 N.Y.S.2d 288,2014 N.Y. Slip Op. 07210,121 A.D.3d 1305
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard COKER, Appellant.

121 A.D.3d 1305
995 N.Y.S.2d 288
2014 N.Y. Slip Op. 07210

The PEOPLE of the State of New York, Respondent
v.
Richard COKER, Appellant.

105837.

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

Oct. 23, 2014.

995 N.Y.S.2d 289

Kathryn E. Conklin, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Before: PETERS, P.J., STEIN, GARRY, LYNCH and DEVINE, JJ.

Opinion

PETERS, P.J.

121 A.D.3d 1305

Appeal from a judgment of the Supreme Court (Milano, J.), rendered June 21, 2013 in Schenectady County, upon a verdict convicting defendant of the crime of driving while intoxicated.

In the early morning hours of April 15, 2012, Kenneth Jacqueway was awoken by what “sounded like an explosion” outside his apartment in the City of Schenectady,

995 N.Y.S.2d 290

Schenectady County. When he went to investigate, Jacqueway saw defendant standing near a black BMW that had crashed into a parked vehicle. According to Jacqueway, defendant requested that Jacqueway not call the police, disclosed that he had consumed approximately “nine drinks” and asked Jacqueway for another beer to thwart the results of any police-administered breathalyzer. When Jacqueway refused his requests, defendant fled on

121 A.D.3d 1306

foot. Police arrived at the scene soon thereafter and apprehended defendant approximately a block away, at which time they observed that defendant's speech was slurred, he was stumbling and an odor of alcohol was emanating from him.¹ Defendant refused to submit to a breathalyzer test and claimed that he was a passenger in the vehicle at the time of the collision. A visual inspection of the BMW, which was registered to defendant, revealed that only the driver-side air bag had deployed.

Charged by indictment with one count of driving while intoxicated, defendant moved to, among other things, preclude at trial any identification testimony based upon the People's failure to provide CPL 710.30 notice. Following a hearing, a Judicial Hearing Officer determined that the proffered identification evidence was not subject to the notice requirements of CPL 710.30, and County Court (Drago, J.) adopted that finding and denied defendant's motion. At the conclusion of the ensuing jury trial, defendant was convicted as charged and sentenced to 2 to 6 years in prison followed by five years of probation. He appeals, and we affirm.

We reject defendant's assertion that the integrity of the grand jury proceeding was impaired due to the presentation of inadmissible hearsay testimony (see CPL 210.35[5] ; People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ). One of the officers who responded to the scene testified before the grand jury that Jacqueway told him that “the driver of the vehicle was walking up the hill” and that defendant “was the only one in the vehicle.” Those statements were not hearsay since they were admitted not for the truth of the matters asserted, but rather “to provide background information as to how and why the police pursued and confronted defendant” (People v. Tosca, 98 N.Y.2d 660, 661, 746 N.Y.S.2d 276, 773 N.E.2d 1014 [2002] ; see People v. Jackson, 100 A.D.3d 1258, 1261, 954 N.Y.S.2d 679 [2012], lv. denied 21 N.Y.3d 1005, 971 N.Y.S.2d 256, 993 N.E.2d 1279 [2013] ; People v. McCottery, 90 A.D.3d 1323, 1325, 935 N.Y.S.2d 687 [2011], lv. denied 19 N.Y.3d 975, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012] ; People v. Abare, 86 A.D.3d 803, 805, 927 N.Y.S.2d 233 [2011], lv. denied 19 N.Y.3d 861, 947 N.Y.S.2d 410, 970 N.E.2d 433 [2012] ; People v. Lester, 83 A.D.3d 1578, 1579, 921 N.Y.S.2d 435 [2011], lv. denied 17 N.Y.3d 818, 929 N.Y.S.2d 807, 954 N.E.2d 98 [2011] ). Furthermore, the People provided adequate limiting instructions to that effect on three separate occasions (see People v. Jackson, 100 A.D.3d at 1261, 954 N.Y.S.2d 679 ; People v. McCottery, 90 A.D.3d at 1325, 935 N.Y.S.2d 687 ; People v. Abare, 86 A.D.3d at 805, 927 N.Y.S.2d 233 ; People v. Ewell, 12 A.D.3d 616, 617, 786 N.Y.S.2d 545 [2004], lv. denied 4 N.Y.3d 763, 792 N.Y.S.2d 7, 825 N.E.2d 139 [2005] ). Thus, there was no fundamental flaw in the grand jury proceeding requiring dismissal of the indictment.

121 A.D.3d 1307

Nor are we persuaded that the People were required to provide notice

995 N.Y.S.2d 291

pursuant to CPL 710.30 regarding their intent to offer identification testimony at trial. The evidence at the preclusion hearing established that, when police arrived at the scene, Jacqueway—without any prompting by police—pointed to defendant and stated to police that “[h]e's right there on the sidewalk.” As this identification of defendant occurred spontaneously without any police involvement, CPL 710.30 notice of such identification was not required (see People v. Berkowitz, 50 N.Y.2d 333, 338 n. 1, 428 N.Y.S.2d 927, 406 N.E.2d 783 [1980] ; People v. Driscoll, 251 A.D.2d 759, 760, 675 N.Y.S.2d 151 [1998], lv. denied 92 N.Y.2d 896, 680 N.Y.S.2d 60, 702 N.E.2d 845 [1998] ; People v. Baptiste, 248 A.D.2d 479, 480, 668 N.Y.S.2d 923 [1998], lv. denied 92 N.Y.2d 847, 677 N.Y.S.2d 77, 699 N.E.2d 437 [1998] ; People v. Burgos, 219 A.D.2d 504, 505, 631 N.Y.S.2d 336 [1995], lv. denied 86 N.Y.2d 872, 635 N.Y.S.2d 953, 659 N.E.2d 776 [1995] ). The second identification occurred only minutes later after the police pursued the fleeing individual and returned him to the scene, where Jacqueway confirmed that defendant was in fact the person whom he had just identified. Even assuming that the second identification was not merely confirmatory and, therefore, exempt from the notice requirements of CPL 710.30 (see People v. Woodard, 83 A.D.3d 1440, 1441, 919 N.Y.S.2d 718 [2011], lv. denied 17 N.Y.3d 803, 929 N.Y.S.2d 111, 952 N.E.2d 1106 [2011] ; People v. Benjamin, 2 A.D.3d 740, 741, 768 N.Y.S.2d 659 [2003], lv. denied 2 N.Y.3d 737, 778 N.Y.S.2d 463, 810 N.E.2d 916 [2004] ; People v. Holland, 208 A.D.2d 352, 353, 616 N.Y.S.2d 965 [1994], lv. denied 84 N.Y.2d 1032, 623 N.Y.S.2d 189, 647 N.E.2d 461 [1995] ), any error was harmless inasmuch as evidence of the second identification was not introduced by the People at trial (see generally People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).

Supreme Court properly denied defendant's request for an expanded circumstantial evidence charge. “Whenever a case relies wholly on circumstantial evidence to establish all elements of the charge, the jury should be...