People v. Richburg

• Decision Date: 18 October 2001
• Docket Number: 3,10487
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v DANIEL RICHBURG, Appellant. 10487 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT Calendar Date:
• Court: New York Supreme Court — Appellate Division

THE PEOPLE OF THE STATE OF NEW YORK, Respondent v DANIEL RICHBURG, Appellant

10487

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Calendar Date: September 12, 2001

Decided and Entered: October 18, 2001

Eugene P. Devine, Public Defender (Shannon K. Geraty of counsel), Albany, for appellant.

Paul A. Clyne, District Attorney (Kimberly A. Mariani of counsel), Albany, for respondent.

MEMORANDUM AND ORDER

Before: Crew III, J.P., Spain, Mugglin, Rose and Lahtinen, JJ.

Lahtinen, J.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered February 26, 1998 in Albany County, upon a verdict convicting defendant of the crimes of operating a motor vehicle while under the influence of alcohol and aggravated unlicensed operation of a motor vehicle in the first degree.

Defendant was indicted by an Albany County Grand Jury for the crimes of operating a motor vehicle while under the influence of alcohol and aggravated unlicensed operation of a motor vehicle in the first degree, stemming from a police investigation of a motor vehicle accident that occurred in the City of Albany in the early morning hours of December 12, 1996. Convicted on both counts of the indictment after a jury trial, defendant was sentenced to a term of imprisonment of 1 to 4 years and a fine of $1,000 on his conviction for operating a motor vehicle while under the influence of alcohol and a term of imprisonment of 1 to 4 years and a fine of $500 on his conviction for aggravated unlicensed operation of a motor vehicle in the first degree, the prison terms to run consecutively to one another. Defendant now appeals claiming that Supreme Court erred by allowing the People to introduce into evidence at trial his refusal to submit to a chemical test to determine his blood alcohol content and by imposing consecutive sentences, and that his consecutive sentences were harsh and excessive.

Under Vehicle and Traffic Law § 1194 (2) (f), a defendant's refusal to submit to a chemical test is admissible provided the People show that "the person was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the person persisted in the refusal" (see, e.g., People v Thomas, 46 N.Y.2d 100, appeal dismissed 444 US 891; People v D'Angelo, 244 A.D.2d 788, lv denied 91 N.Y.2d 890). Defendant argues that the People failed to demonstrate that he persisted in refusing to take a blood test when requested to do so and that proof of his refusal should not have been admitted into evidence at his trial. Although the People claim that defendant failed to preserve this issue for our review, on this record we shall nevertheless address the issue in the interest of justice (see, CPL 470.15 [3] [c]; [6] [a]).

Albany Police Officer William Wilson testified that he spoke to the conscious defendant in the hospital emergency room prior to defendant's surgery, but that defendant refused to tell him what had happened and spoke in incomplete sentences. Wilson also testified that he observed that defendant's eyes were glassy and that he detected the smell of alcohol from defendant despite defendant wearing an oxygen mask. Based on this 10 minute conversation and his observations, Wilson arrested defendant for driving while intoxicated and immediately read defendant the DWI warnings, which included the consequences of a refusal to consent to a chemical test. When asked to submit to a blood test, defendant responded, "No, you are not taking any of my blood." Wilson then again explained to defendant the consequences of a refusal of a chemical test and testified that defendant looked at him and turned away. Defendant was immediately thereafter taken from the emergency room to surgery.

A defendant's refusal to take a chemical test may be evidenced by words or conduct (see, e.g., People v D'Angelo, supra, at 789; Matter of Stegman v Jackson, 233 A.D.2d 597, 597; People v Massong, 105 A.D.2d 1154, 1155; People v Coludro, 166 Misc.2d 662, 666). Here, the People established that defendant received the required clear and unequivocal...