People v. Verdile

• Decision Date: 17 April 1986
• Citation: 119 A.D.2d 891,500 N.Y.S.2d 846
• Parties: The PEOPLE of the State of New York, Respondent, v. Louis J. VERDILE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 846

500 N.Y.S.2d 846

119 A.D.2d 891

The PEOPLE of the State of New York, Respondent, v. Louis J. VERDILE, Appellant.

Supreme Court, Appellate Division,

Third Department.

April 17, 1986.

E. Stewart Jones, Jr., Troy, for appellant, (Robert M. Cohen, on brief, Ballston Lake).

James P. Canfield, Rensselaer Co. Dist. Atty. (Richard L. Nabozny, of counsel), Troy, for respondent.

Before KANE, J.P., and CASEY, WEISS, MIKOLL and LEVINE, JJ.

WEISS, Justice.

Appeal from a judgment of the County Court of Rensselaer County (Dwyer, Jr., J.), rendered September 4, 1984, upon a verdict convicting defendant of the crimes of manslaughter in the second degree, assault in the second degree and operating a motor vehicle while under the influence of alcohol.

On May 21, 1983 at approximately 12:00 A.M., an automobile driven by defendant collided head-on with an automobile driven by Herbert P. Backus at the intersection of Routes 7 and 278 in the Town of Brunswick, Rensselaer County. Both drivers were seriously injured and Backus' wife was killed. Defendant was indicted, tried and convicted of the crimes of manslaughter in the second degree, assault in the second degree and operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192[2] ). This appeal ensued.

Defendant initially contends that County Court erred in refusing to suppress the results of a blood alcohol test taken at the hospital emergency room shortly after the accident occurred, which indicated a blood alcohol content of .26%. We disagree. To be admissible, the People were required to demonstrate that defendant consented to the taking of the blood sample utilized for the test (People v. Moselle, 57 N.Y.2d 97, 101, 454 N.Y.S.2d 292, 439 N.E.2d 1235). Defendant maintains that the injuries he sustained in the accident rendered him incapable of manifesting the necessary consent. The record does indicate that defendant suffered head trauma in the accident and was at times confused and nonresponsive. However, several prosecution witnesses testified that defendant was conscious at the accident scene and able to respond coherently. Sergeant John Griffin, who placed defendant under arrest at the emergency room, testified that he asked defendant whether he would consent to a blood test. When defendant simply nodded his head affirmatively, Griffin told him that a verbal response was necessary and defendant said "yes". The nurse who actually took the blood sample confirmed this interchange. She further testified that while defendant was unable to recall being in an accident, he was able to identify himself and his father and indicate whether he had any allergies. Based on the foregoing, we find ample support for County Court's factual assessment that a knowing and voluntary consent was given (see, People v. Cole, 112 A.D.2d 623, 492 N.Y.S.2d 486). We note that the court's charge, that the People were required to prove beyond a reasonable doubt that defendant had a blood alcohol level of .26% and consented to the blood test, was acceptable.

Viewing the evidence in a light most favorable to the People (see, People v. Schaffer, 80 A.D.2d 865, 866, 436 N.Y.S.2d 749), we further find sufficient evidence of reckless conduct to support the manslaughter and assault convictions. At the time of the accident, defendant was proceeding west and Backus east on Route 7. Backus testified that as he proceeded around a curve toward the intersection, he immediately noticed bright lights coming towards him in the eastbound lane and that the collision occurred seconds later. The People's expert estimated defendant's speed at 85 to 90 miles per hour and placed defendant's car three feet into the eastbound, oncoming lane at the point of impact. Defendant's own expert calculated the speed of defendant's vehicle at 65 to 75 miles per hour, and indicated that defendant had crossed over into the eastbound lane. The witness explained, however, that while the collision occurred in the middle of both lanes, the actual point of impact was in the westbound lane, implying that the Backus vehicle had encroached upon defendant's lane. Extensive damage to the passenger side of the Backus vehicle supports this analysis. Another prosecution witness, Craig Belanger, testified that he was driving west on Route 7 prior to the time of the accident when defendant virtually ran him off the road while passing at an excessive speed. Belanger described defendant's vehicle as "all over the road" and testified that other cars were pulling off the road to avoid a collision only minutes before the accident occurred. Finally, while intoxication is not a prerequisite for a manslaughter conviction (People v. Donnelly, 103 A.D.2d 941, 942, 479 N.Y.S.2d 786), the record contains overwhelming proof that defendant was intoxicated at the time of the accident. In addition to the high blood test results and the erratic driving described by Belanger, there was testimony that defendant had been drinking beer throughout the day at a motorcycle "swap meet". Significantly, some nine witnesses at the accident scene, including medical personnel and police, detected the strong odor of alcohol on defendant's person. Cumulatively, this evidence adequately supports the verdict (see, id. at 942, 479 N.Y.S.2d 786; ...