People v. Merrick

• Decision Date: 10 December 1992
• Citation: 188 A.D.2d 764,591 N.Y.S.2d 564
• Parties: The PEOPLE of the State of New York, Respondent, v. Brian R. MERRICK, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 564

591 N.Y.S.2d 564

188 A.D.2d 764

The PEOPLE of the State of New York, Respondent, v. Brian R. MERRICK, Appellant.

Supreme Court, Appellate Division,

Third Department.

Dec. 10, 1992.

L. John Van Norden, Schenectady, for appellant.

Michael V. Coccoma, Dist. Atty., Cooperstown, for respondent.

Before MIKOLL, J.P., and YESAWICH, MERCURE, CREW and CASEY, JJ.

YESAWICH, Justice.

Appeal from a judgment of the County Court of Otsego County (Mogavero, Jr., J.), rendered October 7, 1991, upon a verdict convicting defendant of the crimes of driving while intoxicated (two counts) and aggravated unlicensed operation of a motor vehicle in the first degree.

At approximately 12:25 A.M. on May 30, 1989, State Troopers David Segit and Kenneth Sosnowski arrived at Roberta Hymas' residence after being called to assist in resolving a dispute between Hymas and defendant. Upon arrival, the Troopers observed that defendant slurred his speech, had bloodshot, watery eyes, was swaying and smelled of alcohol. On Hymas' complaint, defendant was arrested for harassment and trespass. While en route to the State Police station, without inquiry from the Troopers, defendant stated that he had been drinking at a bowling alley, had gotten into a fight and had then driven to Hymas' house. He also said that he had not ingested any alcohol since arriving at Hymas' residence, and that he should not have been driving as he did not have a valid license; he requested a breathalyzer test to prove that he was not intoxicated.

Before the breathalyzer test was administered, defendant was arrested for driving while intoxicated. The test, performed at approximately 1:30 A.M., revealed a .15% blood alcohol content. Defendant spent eight days in custody prior to being arraigned and released without bail. An indictment charging defendant with two counts of driving while intoxicated as a felony and one count of aggravated unlicensed operation of a motor vehicle in the first degree was filed September 12, 1990. The People filed their statement of readiness on October 1, 1990. Tried and convicted on all counts, defendant appeals.

We reject defendant's contention that the statements he made while he was in the police car should have been suppressed. The evidence fully supports County Court's determination that those statements were freely volunteered and were not made in response to any questioning or coercion. The mere fact that he was in custody, without more, does not render them inadmissible (see, People v. Smith, 173 A.D.2d 959, 959-960, 570 N.Y.S.2d 1019). Furthermore, for a statement to be suppressed because the defendant was intoxicated when it was made, the degree of inebriation must have risen to the level of mania (People v. Schompert, 19 N.Y.2d 300, 305, 279 N.Y.S.2d 515, 226 N.E.2d 305, cert. denied, 389 U.S. 874, 88 S.Ct. 164, 19 L.Ed.2d 157). There is no evidence that defendant's intoxication reached that stage.

Nor is there merit to the argument that the judgment must be overturned because the evidence does not exclude to a moral certainty the possibility that defendant did not drive Hymas' car home on the night in question. This argument presupposes that the verdict is based solely on circumstantial evidence. It is clear, however, that the People's case also rested on defendant's spontaneous statements that he drove the car and that he had nothing to drink after arriving at Hymas' house, which are direct evidence (see, People v Abel, 166 A.D.2d 841, 842, 563 N.Y.S.2d 531, lv. denied, 76 N.Y.2d 983, 563 N.Y.S.2d 772, 565 N.E.2d 521). Both direct and circumstantial evidence being present, the moral certainty standard is inapplicable (see, People v. Barnes, 50 N.Y.2d 375, 380, 429 N.Y.S.2d 178, 406 N.E.2d 1071). And when viewed in the light most favorable to the People, the circumstantial evidence, taken together with defendant's incriminating statement that he should not have been driving because he lacked a valid license, justifies the finding that defendant drove Hymas' car to her residence, and that he was legally intoxicated and did not possess a valid driver's license when he did so.

As for defendant's statutory and constitutional speedy trial challenges, only the former merits comment. The pertinent facts bearing on the statutory speedy trial claim are that although the People's statement of readiness was filed less than one month after the indictment was handed up in September 1990, it appears that when defendant was originally arrested he was given an appearance ticket charging him with operating a motor vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192. While the ticket itself does not appear in the record, the "Supplemental Deposition and DWI Bill of Particulars", dated May 30,...