People v. Harris

• Decision Date: 26 December 1991
• Citation: 178 A.D.2d 919,579 N.Y.S.2d 263
• Parties: PEOPLE of the State of New York, Respondent, v. Kenneth R. HARRIS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 263

579 N.Y.S.2d 263

178 A.D.2d 919

PEOPLE of the State of New York, Respondent, v. Kenneth R. HARRIS, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Dec. 26, 1991.

Terrence Hoffmann, Syracuse, for appellant.

Theodore E. Wiggins, Jr. by Melvin Bressler, Geneseo, for respondent.

Before CALLAHAN, J.P., and GREEN, PINE, LAWTON and DAVIS, JJ.

MEMORANDUM:

On April 14, 1990, a passenger in defendant's vehicle drowned when defendant drove the vehicle into the Genesee River off Route 63 in the Town of York, Livingston County. Defendant's convictions of criminally negligent homicide and vehicular manslaughter in the second degree are supported by legally sufficient evidence. Defendant's "driving while intoxicated is sufficient evidence of a 'gross deviation' from the required standard of care to permit a jury to find [he] has acted with criminal negligence" (People v. Holt, 109 A.D.2d 174, 176, 491 N.Y.S.2d 526, lv. denied 66 N.Y.2d 615, 494 N.Y.S.2d 1038, 485 N.E.2d 242; see, Penal Law § 15.05[4]. The jury reasonably could have inferred from defendant's operation of his vehicle in an unlighted field, off the highway, in unfamiliar surroundings with the vehicle's headlights off, and his driving through foliage surrounding the field without perceiving that the Genesee River lay beyond the foliage that he was guilty of culpable criminal conduct which caused the accident and death of defendant's passenger (see People v. Osburn, 155 A.D.2d 926, 928, 547 N.Y.S.2d 749, lv. denied 75 N.Y.2d 816, 552 N.Y.S.2d 566, 551 N.E.2d 1244; see also, People v. Boutin, 75 N.Y.2d 692, 696, 556 N.Y.S.2d 1, 555 N.E.2d 253; People v. Bonner, 136 A.D.2d 714, 524 N.Y.S.2d 58, lv. denied 70 N.Y.2d 1004, 526 N.Y.S.2d 939, 521 N.E.2d 1082; cf., People v. Holt, supra).

Defendant argues that he cannot be convicted of driving while intoxicated and vehicular manslaughter in the second degree because the accident did not occur "upon public highways, private roads open to motor vehicle traffic [or] any other parking lot" (Vehicle and Traffic Law § 1192[5]. We disagree. The evidence shows that, shortly before the accident occurred, defendant, while under the influence of alcohol, drove his vehicle from a public highway onto private property adjacent to that highway. Defendant then drove about that property. Defendant then drove his vehicle onto the highway a second time. From the highway, defendant again drove onto and about the private property before his vehicle entered the river. Thus, because defendant operated his vehicle for a continuous period before the accident, both on and off the highway, there was sufficient evidence from which the jury reasonably could find that defendant operated his vehicle in violation of Vehicle and Traffic Law § 1192(2) and Penal Law § 125.12.

The suppression court did not err in refusing to suppress either defendant's statements made at the hospital or the results of two blood tests. The record supports the hearing court's findings that defendant was arrested in the hospital emergency room. He was given his Miranda and DWI warnings. Defendant freely consented to submit to a blood test and agreed to speak to the arresting officer. Additionally, the evidence supports the court's findings that the People reasonably believed that defendant was unwilling or unable to consent to the first blood test and that the People had been unable to obtain verification from the arresting officer whether defendant had consented to that first blood test at the hospital (see, Vehicle and Traffic Law § 1194[3]. Thus, in those circumstances, the People properly applied for a court-ordered blood test pursuant to Vehicle and Traffic Law § 1194(3). Moreover, there is no merit to defendant's contention that the blood test results should have been suppressed because the People initially misrepresented that the blood samples had been destroyed, thus preventing independent testing of those samples by defendant's expert. Thereafter, when the samples were located, the People immediately furnished them to defense counsel. We reject defendant's argument that the samples constituted Brady material (see, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215). In any event, defendant was not prejudiced by the delay in receiving them since he was "given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People's witnesses or as evidence during his case" (People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349, citing People v. Brown, 67 N.Y.2d 555, 559, 505 N.Y.S.2d 574, 496 N.E.2d 663, cert. denied 479 U.S. 1093, 107 S.Ct. 1307, 94 L.Ed.2d 161).

Defendant failed to preserve for our review his contention that the verdict was repugnant (see, People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280; People v. Conte, 159 A.D.2d 993, 994, 552 N.Y.S.2d 743, lv. denied 76 N.Y.2d 733, 558 N.Y.S.2d 894, 557 N.E.2d 1190; People v. Gilmore, 159 A.D.2d 947, 948, 552 N.Y.S.2d 792, lv. denied 76 N.Y.2d 788, 559 N.Y.S.2d 993, 559 N.E.2d 687). In any event, the verdict was not repugnant (cf., People v. Laughlin, 76 N.Y.2d 804, 559 N.Y.S.2d 962, 559 N.E.2d 656). The sentence imposed was not harsh...