People v. Reynolds

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MAHONEY
• Citation: People v. Reynolds, 519 N.Y.S.2d 425, 133 A.D.2d 499 (N.Y. App. Div. 1987)
• Decision Date: 17 September 1987
• Parties: The PEOPLE of the State of New York, Respondent, v. David REYNOLDS, Appellant.

Page 425

519 N.Y.S.2d 425

133 A.D.2d 499

The PEOPLE of the State of New York, Respondent, v. David REYNOLDS, Appellant.

Supreme Court, Appellate Division Third Department.

Sept. 17, 1987.

Edward J. Carroll, Kingston, for appellant.

Michael Kavanagh, Dist. Atty. (Joan Lamb, of counsel), Kingston, for respondent.

Before MAHONEY, P.J., and KANE, YESAWICH, LEVINE and HARVEY, JJ.

MAHONEY, Presiding Justice.

Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered April 3, 1986, upon a verdict convicting defendant of the crimes of vehicular assault, assault in the second degree and operating a motor vehicle while under the influence of alcohol.

On March 14, 1985, at about 11:45 P.M., Frank Burk, a United States Army recruiter, was driving to his home in the Town of Saugerties, Ulster County. As he was driving along Old King's Highway, he observed defendant's car, which was directly in front of him, cross over the double center lines and head south in the northbound lane. Just before encountering oncoming traffic, Burk observed defendant's car turn and swerve back into the southbound lane. After the northbound traffic had passed, Burk observed defendant's car again cross over the double lines and go into the northbound lane where it continued in a southerly direction until it collided head on with a vehicle operated by a Mr. Gunderson.

When Burk approached the site where defendant's vehicle had come to a stop, he observed that defendant was disheveled, verbally abusive, and that his speech was slurred and his eyes bloodshot. Burk concluded that defendant was intoxicated. When Officer Donald Tucker arrived on the scene he made similar observations and also stated that there was a strong odor of alcohol on defendant's breath. Gary O'Leary, an emergency medical technician who attended to defendant at the scene, noticed that defendant's vomit had a strong odor of alcohol. He also concluded that defendant was intoxicated.

After defendant was placed in an ambulance, Tucker advised him that he was under arrest for driving while intoxicated and read defendant his Miranda and DWI rights. Further, Tucker specifically advised defendant that his refusal to submit to a chemical test would result in the immediate suspension and future revocation of his driver's license and could be used against him at a future trial. Defendant refused to submit to a chemical test. As the ambulance neared the hospital, Tucker again read defendant his rights. Defendant again refused to take a test. O'Leary, who was present in the ambulance, testified that he heard defendant refuse to submit to a test after each occasion that Tucker advised defendant of his rights.

Defendant was subsequently indicted, tried and convicted of the crimes of vehicular assault, assault in the second degree and driving while intoxicated. This appeal by defendant ensued.

When the trial evidence is viewed in the light most favorable to the People (see, People v. Kennedy, 47 N.Y.2d 196, 203, 417 N.Y.S.2d 452, 391 N.E.2d 288), it overwhelmingly establishes the requisite elements of the crimes charged. The prosecution established through the testimony of Burk that prior to the accident defendant's car was being driven in an erratic manner, swerving from lane to lane. Burk observed defendant's car strike the Gunderson vehicle head on while defendant was operating his vehicle in the wrong lane. Burk, Tucker and O'Leary all testified as to their observations of defendant following the accident and each concluded that defendant was intoxicated. In our view, there is no question that, cumulatively, this evidence was more than sufficient to establish the element of intoxication (see, People v. Ottomanelli, 107 A.D.2d 212, 486 N.Y.S.2d 748, lv. denied 66 N.Y.2d 617, 494 N.Y.S.2d 1040, 485 N.E.2d 244). Defendant's attempt at trial to show innocent explanations for his slurred speech, bloodshot eyes and alcoholic odor merely created factual issues which the jury, as the final arbiter of credibility, resolved against him (see, People v. Kennedy, supra ). Moreover, Dr. Alfred Frontera unequivocally testified that injuries sustained by defendant could not have produced an odor of alcohol on his breath, bloodshot eyes or slurred speech. Accordingly, we conclude that the jury verdict was supported by credible evidence which established defendant's guilt beyond a reasonable doubt.

We turn now to defendant's objections to rulings of County Court made during pretrial proceedings and at the trial itself to determine if any reversible error was committed. Initially, we hold that defendant's motion to dismiss the indictment on jurisdictional grounds, made after the jury had been selected and after opening statements were given, was untimely (see, CPL 210.20[2]; 255.20[1] ). It was also without merit and was properly denied.

Next, the record reveals that after the jury had been selected, defendant...