People v. Hart
| Decision Date | 18 November 1999 |
| Citation | 698 N.Y.S.2d 357,266 A.D.2d 698 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>JERRY L. HART, Appellant. |
| Court | New York Supreme Court — Appellate Division |
The criminal charges filed against defendant emanated from a November 21, 1995 incident in which defendant's five-year-old son was killed when defendant's all-terrain vehicle (hereinafter ATV), upon which the son was a passenger, collided with an automobile on State Route 9 in the Town of Chesterfield, Essex County.
A 14-count indictment charged defendant with manslaughter in the second degree, vehicular manslaughter in the first degree, vehicular manslaughter in the second degree, criminally negligent homicide, driving while intoxicated (hereinafter DWI) and reckless driving, as well as numerous Vehicle and Traffic Law offenses. Following a jury trial, defendant was convicted of manslaughter in the second degree, vehicular manslaughter in the first degree, reckless driving and various offenses relating to the operation of his ATV. County Court denied defendant's CPL 330.30 (1) motion to set aside the verdict for legally insufficient evidence and defendant was sentenced as a persistent felony offender to concurrent prison terms of 15 years to life for each of the manslaughter and vehicular manslaughter counts, 30 days for reckless driving and 15 days each for the remaining four convictions. Defendant now appeals.
Defendant initially contends that insufficient evidence existed to establish that he was driving while intoxicated in violation of Vehicle and Traffic Law § 1192 and that the blood alcohol test results were improperly admitted into evidence. These results, which revealed defendant's blood alcohol content to be 0.17% approximately three hours after the accident, were admitted pursuant to the implied consent provisions of Vehicle and Traffic Law § 1194 (2) (a) (1).[*] A motorist is deemed to have consented to the administration of a blood alcohol test provided that there were reasonable grounds to believe that such individual was driving while intoxicated and the test was administered "within two hours after such person has been placed under arrest for any such violation" (Vehicle and Traffic Law § 1194 [2] [a] [1]; see, People v Goodell, 79 NY2d 869).
Although not alleging that the police lacked probable cause for his arrest, defendant asserts that the prosecution failed to prove that the blood test was conducted in a manner consistent with statutory requirements. We disagree. The record reveals that the accident occurred shortly after 5:00 P.M. and that when the State Police arrived at the hospital, defendant was unconscious. Nevertheless, at approximately 7:00 P.M., a State Trooper explained to defendant that he was a police officer and placed defendant under arrest. A blood sample was thereafter extracted from defendant at 8:28 P.M., which was within two hours of defendant's arrest (see, People v Turner, 234 AD2d 704). To the extent that defendant argues that he was not technically arrested, a formal arrest was unnecessary because it would have been meaningless due to his unconscious state (see, People v Bagley, 211 AD2d 882, lv denied 86 NY2d 779; see also, People v Goodell, supra; People v Stuart, 216 AD2d 682, 683, lv denied 86 NY2d 803; People v Carkner, 213 AD2d 735, 736, lv denied 85 NY2d 970, 86 NY2d 733). We therefore conclude that, upon these facts, the requirements of Vehicle and Traffic Law § 1194 (2) (a) (1) were satisfied (see, People v Goodell, supra) and the test results of defendant's blood showing an ethyl alcohol concentration of 0.17% were properly admitted with regard to the issue of defendant's intoxication and his per se violation of Vehicle and Traffic Law § 1192 (2).
Defendant next contends that the manslaughter and vehicular manslaughter convictions are contrary to the weight and sufficiency of the evidence. In order to sustain a conviction of vehicular manslaughter in the first degree (see, Penal Law § 125.13) the People must demonstrate that defendant, with criminal negligence (see, Penal Law § 125.10), caused the death of another by operating a vehicle while intoxicated (see, Penal Law § 125.12 [2]; People v Grant, 192 AD2d 798, lv denied 81 NY2d 1073) and with a suspended or revoked license due to a prior alcohol-related vehicular offense (see, Penal Law § 125.13 [2] [b]). The crime of manslaughter in the second degree requires the People to establish that defendant recklessly caused the death of another (see, Penal Law § 125.15 [1]) by creating and consciously disregarding a substantial and unjustifiable risk of death (see, Penal Law § 15.05 [3]; People v Crandall, 255 AD2d 617; People v Phippen, 232 AD2d 790).
During the trial, the People elicited testimony that defendant began drinking at a friend's home during the early afternoon on the date of the accident and by 4:00 P.M. had consumed approximately one-half liter of liquor and was walking with an unsteady gait. Defendant was also observed later that afternoon holding a can of beer while operating his ATV which had no headlights and faulty brakes. Thereafter, defendant returned to his residence where he placed his five-year-old son on the ATV seat in front of him without providing him with a helmet. Several witnesses testified that defendant drove on Route 9 in an erratic manner immediately prior to the collision. At approximately 5:15 P.M., defendant was traveling at about 35 miles per hour in the southbound lane of Route 9 when he struck another vehicle as it was turning across the southbound lane to enter a driveway.
At the accident scene, the police discovered a broken brandy bottle and noticed the odor of alcohol in the air. An emergency medical technician who treated defendant testified that he detected the odor of alcohol on defendant's breath, which was also noted by police officers at about 7:00 P.M. after defendant had been taken to the hospital. Blood tests performed at approximately 8:28...
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