People v. Erickson

• Decision Date: 14 December 1989
• Parties: The PEOPLE of the State of New York, Respondent, v. Andrew P. ERICKSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 182

549 N.Y.S.2d 182

156 A.D.2d 760

The PEOPLE of the State of New York, Respondent, v. Andrew P. ERICKSON, Appellant.

Supreme Court, Appellate Division Third Department.

Dec. 14, 1989.

Peter W. Hill, Oneonta, for appellant.

Robert P. Nydam, Dist. Atty., Cooperstown, for respondent.

Before KANE, J.P., and MIKOLL, YESAWICH, MERCURE and HARVEY, JJ.

HARVEY, Justice.

Appeal from a judgment of the County Court of Otsego County (Mogavero, Jr., J.), rendered August 17, 1987, upon a verdict convicting defendant of the crime of operating a motor vehicle while under the influence of alcohol, as a felony, and of the violation of operating a motor vehicle while ability impaired.

On the morning of April 12, 1987, at approximately 3:50 A.M., State Troopers Joyce Kucich and Thomas Hurbanek stopped defendant for having a broken taillight on his vehicle as he was driving east on State Route 7 approaching the Town of Worcester, Otsego County. Upon stopping the vehicle, the Troopers noticed that the two passengers in the car possessed open containers of alcohol. Defendant allegedly exhibited signs of being intoxicated when he exited the car. Following the administration of a series of field sobriety tests, defendant was arrested for driving while intoxicated. A breathalyzer test later administered at the police station by Hurbanek indicated defendant's blood alcohol content to be .16%. Defendant was subsequently convicted after a jury trial of the crime of operating a motor vehicle while under the influence of alcohol, as a felony, and of the violation of operating a motor vehicle while his ability was impaired. Defendant was given an unconditional discharge on the violation but was sentenced on the felony count to a term of 1 to 3 years' imprisonment. This appeal followed.

Initially, we reject defendant's contention that defense counsel did not have a fair opportunity to question prospective jurors in light of County Court's imposition, over defense counsel's objection, of a 10-minute limitation for each attorney's voir dire. It is well settled that the Trial Judge "has broad discretion to control and restrict the scope of the voir dire examination" (People v. Garrow, 151 A.D.2d 877, 542 N.Y.S.2d 849, 850-851 [1989]; see, People v. Boulware, 29 N.Y.2d 135, 140, 324 N.Y.S.2d 30, 272 N.E.2d 538, cert. denied 405 U.S. 995, 92 S.Ct. 1269, 31 L.Ed.2d 463). From the limited record available on appeal, there is no indication that defense counsel was not afforded a fair opportunity to question the prospective jurors or that the jurors chosen were other than impartial (see, People v. Moore, 547 N.Y.S.2d 685, 686-687 [App.Div.1989]; People v. Jean, 146 A.D.2d 803, 537 N.Y.S.2d 282, lv. granted 73 N.Y.2d 978, 540 N.Y.S.2d 1012, 538 N.E.2d 364). Notably, defendant makes no claim that County Court's preliminary examination regarding general matters was insufficient or that defense counsel requested and was denied the recordation of the voir dire for purposes of review (see, People v. Moore, supra ). Accordingly, in the absence of information showing prejudice or impropriety, we must assume that the time limitation imposed was reasonable and not an abuse of discretion.

Next, we find that County Court did not err in admitting into evidence certain documents requested by defendant relating to the breathalyzer machine despite the fact that two of the items were not produced until the first day of trial. It is beyond dispute that foundation evidence produced by the People relating to the reliability of these machines is crucial to a defense attack alleging that the proper operating techniques were not followed in a certain instance or that a particular machine was malfunctioning (see, People v. Gower, 42 N.Y.2d 117, 121, 397 N.Y.S.2d 368, 366 N.E.2d 69; People v. English, 103 A.D.2d 979, 480 N.Y.S.2d 56). While it is true that a tardy production by the People of the appropriate information can so prejudice a defendant's case that a new trial is warranted (see, People v. Corley, 124 A.D.2d 390, 507 N.Y.S.2d 491), such a situation has not been presented here. The record shows that the majority of the items requested by defense counsel were delivered two days prior to trial and defense counsel stated that he had "plenty of time" to review them. Although the breathalyzer operator's permit and the weekly test record were not shown to defense counsel until shortly before the commencement of trial, defense counsel stated that he had a chance to review these documents before the trial. Therefore, because the appropriate documentation was reviewed by defense counsel and the record indicates that defendant was not prejudiced by the delay in its production, we find that the documents were properly...