People v. Fitzgerald

• Decision Date: 07 January 1999
• Citation: 683 N.Y.S.2d 629
• Parties: 1999 N.Y. Slip Op. 63 The PEOPLE of the State of New York, Respondent, v. Thomas M. FITZGERALD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 629

683 N.Y.S.2d 629

1999 N.Y. Slip Op. 63

The PEOPLE of the State of New York, Respondent, v. Thomas M. FITZGERALD, Appellant.

Supreme Court, Appellate Division,

Third Department.

Jan. 7, 1999.

Elbert H. Watrous, Public Defender, Schenectady, for appellant.

Robert M. Carney, District Attorney (Alfred D. Chapleau of counsel), Schenectady, for respondent.

Before: CARDONA, P.J., CREW III, YESAWICH Jr., PETERS and CARPINELLO, JJ.

CARPINELLO, J.

Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered July 24, 1997, upon a verdict convicting defendant of the crime of driving while intoxicated.

Defendant was observed by a neighbor as he pulled into the driveway between their houses and ran over her son's bike. She also observed him "swaying", "stumbling" and "very intoxicated" as he exited the vehicle. After they had words over the incident, she summoned the police. Police Officers Patrick Leguire and John Frasier went to defendant's home to investigate and, according to Leguire, defendant's mother confirmed that her son had just been driving his truck and led them to a bedroom where he was asleep, fully clothed, on top of a bed.

Defendant was awakened by Leguire, who called his name and shook him "a little bit", and asked about the incident in the driveway. Defendant admitted that he had just driven his truck but denied hitting the bicycle or having consumed any alcohol. Leguire detected the odor of alcohol on his breath and observed defendant's slurred speech and glassy, bloodshot eyes. After failing a field sobriety test at the police station, defendant was arrested for driving while intoxicated and Miranda warnings were administered, which he waived. Defendant consented to a chemical test which was performed approximately two hours after he was observed hitting the bike revealing a blood alcohol concentration of 0.22%. Defendant's conviction for driving while intoxicated following a jury trial has prompted this appeal.

First, defendant argues that his speedy trial motion was improperly denied by County Court. While a "[d]elay in providing Grand Jury minutes may be properly charged to the People if it can be shown that their action or inaction actually caused the delay" (People v. Dearstyne, 215 A.D.2d 864, 866, 626 N.Y.S.2d 879; see, People v. McKenna, 76 N.Y.2d 59, 63-64, 556 N.Y.S.2d 514, 555 N.E.2d 911), no such showing has been made in this case. Here, the 45-day delay in turning over the Grand Jury minutes to defendant was not attributable to any action or inaction on the People's part but rather was due to the incapacity of the court stenographer. Indeed, the court stenographer submitted an affidavit to County Court averring that she "underwent major emergency medical surgery" resulting in a physician-ordered medical leave. Notably, the Grand Jury minutes were turned over to defendant the same day that the stenographer completed them. Under these circumstances, it was a proper exercise of discretion for County Court to decline to charge the People with the delay occasioned by her absence (see, People v. Hall, 61 A.D.2d 1050, 1051, 403 N.Y.S.2d 112).

Defendant also contends that County Court erred in failing to suppress the statements he gave to the two police officers at his home, which he alleges were the product of a custodial interrogation for which no Miranda warnings were given. The issue of whether a suspect is in custody so as to trigger the requirement that Miranda warnings be provided is generally a question of fact (see, People v. Centano, 76 N.Y.2d 837, 560 N.Y.S.2d 121, 559 N.E.2d 1280) and warrants an assessment of whether a reasonable person, innocent of any crime, would have thought that he or she was in custody (see, People v. Hicks, 68 N.Y.2d 234, 240, 508 N.Y.S.2d 163, 500 N.E.2d 861; People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89). Upon our review of the suppression hearing, we are satisfied that the questioning of defendant did not take place in a police-dominated atmosphere. Rather, the questioning--which was brief and merely investigatory--took place in defendant's home after his mother consented to the police officers being there (see, e.g., People v....