People v. O'Donnell

• Decision Date: 27 June 1968
• Citation: 291 N.Y.S.2d 233,30 A.D.2d 731
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeffrey E. O'DONNELL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 233

291 N.Y.S.2d 233

30 A.D.2d 731

The PEOPLE of the State of New York, Respondent, v. Jeffrey E. O'DONNELL, Appellant.

Supreme Court, Appellate Division, Third Department.

June 27, 1968.

Thomas M. Persico, Fulton County Dist. Atty., Gloversville, for respondent.

Ernest Abdella, Gloversville, for appellant.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, STALEY, and GABRIELLI, JJ.

MEMORANDUM BY THE COURT.

Appeal from a judgment of the County Court of Fulton County rendered upon a verdict convicting the defendant of the crimes of criminal negligence in the operation of a motor vehicle (Penal Law § 1053--a) and driving while intoxicated (Vehicle & Traffic Law § 1192, subd. 2).

In the early evening of July 22, 1967, a Saturday, cars being operated by the defendant and Burdette Bowman collided while negotiating a curve on route 29A, resulting in injuries to Mr. and Mrs. Bowman and death to Mrs. Agnes Nankivel, a passenger in the Bowman vehicle. The accident occurred on a dry two-lane highway which runs generally north and south and the defendant's car was southbound while the Bowman car was northbound, the evidence revealing that the Bowman car was struck on its right side. At the place of the collision, the road curved to the right for northbound traffic.

The defendant and his passenger were seen immediately after the accident, disappeared and apprehended by the police in some nearby woods about an hour and one half later at which time the defendant admitted driving the car. It further appears that the Sheriff had given the Miranda warnings and, observing the defendant's condition and odor of alcohol, placed him under arrest.

There was ample evidence to clearly show that the defendant was operating his car from one side of the road to the other at the time of and immediately prior to the collision, the testimony thereto being supplied by the Bowmans, the operator of and a passenger in a car to the rear of Bowman, as well as the operator of and passenger in a car some distance ahead of the Bowman vehicle. As the result of a blood-alcohol test administered to the defendant, the evidence showed .22% Alcohol by weight in the blood, well over the .15% Recognized to be prima facie evidence of driving while intoxicated (Vehicle & Traffic Law § 1192). Additionally, five police officers testified that in their opinion the defendant appeared to be intoxicated following the accident.

Upon the entire record, the guilt of the defendant was established well beyond a reasonable doubt.

The defendant erroneously asserts that the result of the blood-alcohol test, which was...