People v. Raco
| Decision Date | 20 December 1990 |
| Citation | 168 A.D.2d 806,564 N.Y.S.2d 508 |
| Parties | The PEOPLE of the State of New York, Respondent, v. William A. RACO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Carol M. Dillon, Amsterdam, for appellant.
Guy P. Tomlinson, Dist. Atty. (James E. Conboy, of counsel), Fonda, for respondent.
Before MAHONEY, P.J., and CASEY, WEISS, MERCURE and HARVEY, JJ.
Appeal from a judgment of the County Court of Montgomery County (Aison, J.), rendered November 8, 1989, upon a verdict convicting defendant of the crimes of operating a motor vehicle while under the influence of alcohol (two counts) and aggravated unlicensed operation of a motor vehicle in the first degree.
On August 25, 1988, defendant was stopped by police in the City of Amsterdam, Montgomery County, for following another vehicle too closely. Defendant was then arrested for driving while intoxicated and taken to Amsterdam Police Headquarters where his booking was taped and his intoxilyzer test indicated a blood alcohol content of .18%. The jury found defendant guilty of operating a motor vehicle with a blood alcohol content of .10% or more as a felony (Vehicle and Traffic Law § 1192[2], [5], driving while intoxicated as a felony (Vehicle and Traffic Law § 1192[3], [5] and aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511[3][a][ii]. Defendant was acquitted of the only additional charge of following too closely (Vehicle and Traffic Law § 1129[a]. Due to defendant's prior conviction of driving while intoxicated and aggravated unlicensed operation of a motor vehicle as a misdemeanor, along with other charges which showed his complete disregard of the licensing and other requirements relative to the operation of a motor vehicle, defendant was sentenced to an indeterminate term of imprisonment of 1 1/3 to 4 years and fined $500.
On this appeal, defendant claims error in admitting and displaying to the jury the video tape of defendant's booking. We disagree and find no error in the admission of the tape. Contrary to defendant's contention, the tape is not inaudible. Only brief portions were inaudible and the tape was not displayed for its conversational value, but to show defendant's condition and appearance at the time. The brief inaudible portions do not make the "conversation unintelligible or encourage speculation about [the tape's] contents" (People v. Maderic, 142 A.D.2d 892, 894, 531 N.Y.S.2d 394). Furthermore, County Court gave appropriate instructions limiting the jury's consideration of the tape to defendant's condition of intoxication. In the circumstances we find it unnecessary to decide whether the People failed to comply with the notice provisions of CPL 240.20, as defendant claims, since other evidence amply portrayed defendant's degree of intoxication. Therefore, even if full compliance with CPL 240.20 would have been helpful to defendant, it "most likely would not have changed the verdict" (People v. Corley, 124 A.D.2d 390, 391, 507 N.Y.S.2d 491). In the absence of prejudice (see, People v. Erickson, 156 A.D.2d 760, 762, 549 N.Y.S.2d 182, lv. denied 75 N.Y.2d 966, 556 N.Y.S.2d 251, 555 N.E.2d 623) any error in this regard must be considered harmless (see, People v. Herrera, 136 A.D.2d 567, 568, 523 N.Y.S.2d 562, lv. denied 70 N.Y.2d 1007, 526 N.Y.S.2d 941, 521 N.E.2d 1084). Furthermore, contrary to defendant's claim, we find that his right to counsel had not attached as a result of defendant's statement on the tape that his wife was retaining an attorney on his behalf. Defendant did not "unequivocally" invoke his right to counsel and most of his statements on the tape were spontaneous declarations or concerned information usually obtained in booking defendants (see, People v. Brown, 160 A.D.2d 1037, 553 N.Y.S.2d 875, lv. denied 76 N.Y.2d 785, 559 N.Y.S.2d 990, 559 N.E.2d 684). Nor was defendant's right to remain silent abridged by the prosecutor's reference in summation to defendant's silence on the tape when he was informed that the alcoholic content of his blood was .18%. The other evidence of defendant's...
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...uh uh, no way, I was parked in the parking ...4 The closest analogous case pointed to by the People is that of People v. Raco, 168 A.D.2d 806, 564 N.Y.S.2d 508 (3rd Dep't 1990), appeal denied, 77 N.Y.2d 910, 569 N.Y.S.2d 942, 572 N.E.2d 625 (1991). In Raco, the defendant was arrested for dr......
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