People v. Defio

• Decision Date: 23 December 2021
• Docket Number: 962 KA 15-01321
• Citation: 2021 NY Slip Op 07400
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JENNIFER DEFIO, DEFENDANT-APPELLANT.
• Court: New York Supreme Court

2021 NY Slip Op 07400

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JENNIFER DEFIO, DEFENDANT-APPELLANT.

No. 962 KA 15-01321

Supreme Court of New York, Fourth Department

December 23, 2021

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, LINDLEY, CURRAN, AND DEJOSEPH, JJ.

Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), rendered July 24, 2015. The judgment convicted defendant upon a jury verdict of aggravated vehicular assault, assault in the second degree (three counts) and speed not reasonable or prudent.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the facts by reversing that part convicting defendant of assault in the second degree under count 11 of the indictment and dismissing that count of the indictment, and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of aggravated vehicular assault (Penal Law § 120.04-a [4]), three counts of assault in the second degree (§ 120.05 [4]), and one count of a traffic infraction, all arising from an incident that began when she drove her car into a construction barrier in the City of Syracuse. After she came to a halt, defendant initially appeared to be shaking and unresponsive, but when a Syracuse Police Officer knocked on the window of the driver's side door, defendant immediately became alert, looked at the officer, engaged the accelerator, drove through the barrier, and fled, driving at over 80 miles per hour on city streets until she struck another vehicle, injuring the occupants of the vehicle and a pedestrian.

Contrary to defendant's contention, Supreme Court properly declined to suppress the statements she made to a Syracuse Police Officer while seated in the back of a patrol car, before she was advised of her Miranda rights. No warnings were required because those "statements were not the product of police interrogation inasmuch as the officer asked defendant only preliminary questions that 'were investigatory and not accusatory'" (People v Hailey, 153 A.D.3d 1639, 1641 [4th Dept 2017], lv denied 30 N.Y.3d 1060 [2017]; see People v Towsley, 85 A.D.3d 1549, 1551 [4th Dept 2011], lv denied 17 N.Y.3d 905 [2011]; People v Hayes, 60 A.D.3d 1097, 1100-1101 [3d Dept 2009], lv denied 12 N.Y.3d 925 [2009]). Contrary to defendant's further contention, the officers had probable cause to arrest her (see generally People v Vandover, 20 N.Y.3d 235, 238-239 [2012]; People v Russ, 183 A.D.3d 1238, 1238 [4th Dept 2020], lv denied 35 N.Y.3d 1070 [2020]), and we conclude that her consent to having her blood drawn was voluntary (see generally People v Mojica, 62 A.D.3d 100, 114 [2d Dept 2009], lv denied 12 N.Y.3d 856 [2009]). The court thus properly declined to suppress the results of the tests performed on her blood (see People v Badia, 130 A.D.3d 744, 745 [2d Dept 2015], lv denied 26 N.Y.3d 1085 [2015]; see generally People v Centerbar, 80 A.D.3d 1008, 1010-1011 [3d Dept 2011]).

Defendant next contends that she is entitled to reversal based on several alleged discovery violations. Defendant failed to preserve for our review her contentions concerning the majority of those allegations inasmuch as she did not object on the specific grounds raised on appeal (see People v Delatorres, 34 A.D.3d 1343, 1344 [4th Dept 2006], lv denied 8 N.Y.3d 921 [2007]). In any event, with respect to...