People v. Licausi

• Decision Date: 12 November 2014
• Docket Number: 2010-11430
• Parties: The PEOPLE, etc., respondent, v. John LICAUSI, appellant.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 771

996 N.Y.S.2d 188

2014 N.Y. Slip Op. 07687

The PEOPLE, etc., respondent

v.John LICAUSI, appellant.

2010-11430

Supreme Court, Appellate Division, Second Department, New York.

Nov. 12, 2014.

Richard L. Herzfeld, New York, N.Y., for appellant, and appellant pro se.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel), for respondent.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

Opinion

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.), rendered October 21, 2010, convicting him of aggravated vehicular homicide, manslaughter in the second degree, unlawful fleeing a police officer in a motor vehicle in the first degree, driving while ability impaired by drugs, reckless driving, failing to stop at a stop sign (three counts), failing to stay in a designated lane, failing to stop at a steady red light (two counts), and speeding, upon a jury verdict, and sentencing him, as a persistent felony offender, to terms of imprisonment of 25 years to life upon each of his convictions of aggravated vehicular homicide, manslaughter in the second degree, and unlawful fleeing a police officer in a motor vehicle in the first degree, a term of imprisonment of 1 ? to 4 years upon his conviction of driving while ability impaired by drugs, a term of incarceration of 30 days upon his conviction of reckless driving, and terms of incarceration of 15 days upon each of his convictions of failing to stop at a stop sign, failing to stay in a designated lane, failing to stop at a steady red light, and speeding, all sentences to run concurrently with each other. The appeal brings up for review the denial, without a hearing, of that branch of the defendant's omnibus motion which was to suppress the results of a blood test.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentences imposed upon the convictions of aggravated vehicular homicide, manslaughter in the second degree, and unlawful fleeing a police officer in a motor vehicle in the first degree from terms of imprisonment of 25 years to life to terms of imprisonment of 18 years to life; as so modified, the judgment is affirmed.

The County Court properly denied that branch of the defendant's omnibus motion which was to suppress the results of a blood test on the ground that his blood was not obtained in compliance with Vehicle and Traffic Law § 1194(3). Under the circumstances here, although the police did not strictly comply with the procedures for obtaining a court order to compel the defendant to submit to a chemical blood test under Vehicle and Traffic Law § 1194(3), there was substantial compliance with the requirements of the statute (see People v. Sierra, 85 A.D.3d 1659, 1660, 925 N.Y.S.2d 749 ; People v. Dombrowski–Bove, 300 A.D.2d 1122, 1123, 753 N.Y.S.2d 259 ; People v. Whelan, 165 A.D.2d 313, 322–323, 567 N.Y.S.2d 817 ; People v. Rollins, 118 A.D.2d 949, 950, 499 N.Y.S.2d 817 ; see also People v. Goodell, 79 N.Y.2d 869, 870–871, 581 N.Y.S.2d 157, 589 N.E.2d 380 ).

The County Court providently exercised its discretion in precluding the defendant from presenting the testimony of a Suffolk County Police Department Internal Affairs inspector who reviewed an investigation of the arresting officer's conduct during the pursuit of the defendant, which testimony was offered to show that the officer had a motive to fabricate his testimony. While extrinsic proof tending to establish a motive to fabricate is never collateral and may not be excluded on that ground, a trial court may, as here, in the exercise of its discretion, properly exclude such proof where it is too remote or speculative (see People v. Thomas, 46 N.Y.2d 100, 105–106, 412 N.Y.S.2d 845, 385 N.E.2d 584 ; People v. Hines, 102 A.D.3d 889, 889, 958 N.Y.S.2d 724 ; People v. Garcia, 47 A.D.3d 830, 831, 849 N.Y.S.2d 637 ; People v. Mestres, 41 A.D.3d 618, 618, 838 N.Y.S.2d 164 ; People v. Monroe, 30 A.D.3d 616, 617, 817 N.Y.S.2d 150 ).

Contrary to the People's contention, the defendant preserved for appellate review his claim that the County Court improperly denied his motion for a mistrial based on certain testimony of the arresting officer (see CPL 470.05[2] ). However, the court providently exercised its discretion in denying the defendant's motion for a mistrial (see People v. Reaves, 112 A.D.3d 746, 747–748, 976 N.Y.S.2d 228 ; People v. Brown, 76 A.D.3d 532, 533, 904 N.Y.S.2d 911 ; People v. Arena, 70 A.D.3d 1044, 1046–1047, 895 N.Y.S.2d 514 ).

At a hearing pursuant to CPL 400.20 to determine whether the defendant should be sentenced as a persistent felony offender, the defendant challenged the use of his 2002 convictions for that purpose on the ground that they were unconstitutionally obtained because his plea of guilty entered in connection therewith was...