People v. Zowaski
| Decision Date | 24 January 2011 |
| Citation | 31 Misc.3d 242,916 N.Y.S.2d 909 |
| Parties | The PEOPLE of the State of New York, v. Thomas E. ZOWASKI, Defendant. |
| Court | New York Supreme Court — Appellate Division |
Neal E. Eriksen, Orange County District Attorney's Office, Michael Sussman, Esq., Attorney for the Defendant.
This case presents the question of whether a sentencing court may consider evidence related to a charge of which the defendant was acquitted, where that evidence was not presented to the jury at trial. I considered such evidence in sentencing the defendant. This decision explains my reasoning.
On January 4, 2010, the defendant was arrested and charged with the felony of driving while intoxicated (Vehicle and Traffic Law § 1192[3] ), the misdemeanor of resisting arrest (Penal Law § 205.30), and the traffic infractions of failing to signal (Vehicle and Traffic Law § 1163[d] ) and failing to signal for at least 100 feet before turning (Vehicle and Traffic Law § 1163[b] ) (two counts). At arraignment, the defendant's drivers license was suspended for his alleged refusal to submit to a chemical test. The felony charge was subsequently reduced to misdemeanor driving while intoxicated. Following a hearing and the denial of the defendant's motion to suppress evidence, a jury trial was held.
At the trial, the prosecution contended that the defendant's vehicle was stopped after an officer observed traffic infractions. The arresting officer testified that the defendant had an odor of alcohol on his breath, along with glassy eyes and impaired speech and motor coordination. The officer testified that the defendant refused to perform field sobriety tests and struggled with the officer in an attempt to resist his lawful arrest for suspicion of driving under the influence of alcohol. Additional police officers testified regarding the defendant's physical condition shortly after the arrest. At the defendant's request, he was taken from the scene of the arrest to a hospital for treatment of a claimed back injury. The police testified that the defendant continued to be combative at the hospital and that he refused to submit to a chemical test of his blood for the presence of alcohol.
The defendant testified that he had consumed two beers several hours before being arrested. While acknowledging he was an alcoholic, the defendant denied being intoxicated or impaired when driving. The defendant denied committing any traffic infractions and testified that a pre-existing back injury prevented him from performing the requested field tests. The defendant denied resisting arrest and claimed that he was injured by the police during the arrest.
In addition to the testimony of the police officers, the prosecution introduced into evidence a certified copy of the defendant's medical records from his treatment at the hospital. A copy of these records had been voluntarily provided to the prosecution by defense counsel and a certified copy had been obtained by the prosecution via subpoena duces tecum. The certified records were received in evidence without objection from the defendant. Contained within the 40 pages of medical recordswere two test results that purported to show that blood drawn from the defendant approximately 75 minutes after his arrest had an alcohol level of .209 percent.
Prior to the contents of the medical records being disclosed to the jury, the defendant reversed his position and argued that the alcohol results contained in the records were inadmissible. The defendant argued that because the blood sample was taken without his consent and without statutory authorization, the alcohol results were inadmissible and should be redacted from the medical records. See generally Vehicle and Traffic Law § 1194. Based on the failure of the police to testify regarding the blood sample, and the complete absence of any proof from medical personnel, I ruled there was no proper evidentiary foundation for admission of the results and redacted the blood alcohol readings from the medical records.1
Following deliberations, the jury acquitted the defendant of driving while intoxicated and the traffic infractions, but convicted him of resisting arrest. A pre-sentence investigation was ordered. On the sentencing date, the issue arose as to what consideration should be given to the defendant's blood alcohol readings in light of the defendant's prior criminal history of four alcohol-related driving convictions and his acquittal on the DWI charge. The defendant objected to the consideration of this evidence, primarily arguing that the blood results were not reliable. The sentencing was adjourned and a hearing was later held to permit the defendant to challenge the reliability of this evidence. At the hearing, the defendant testified to having takenprescription pain medication on the day of his arrest and argued that the absence of this medication in the test results showed that the sample tested was not his. The defense did not otherwise challenge the reliability of the results, but argued that the prosecution had failed to establish a chain of custody for the sample and that the acquittal on the DWI charge precluded consideration of the alcohol results. Following the hearing, I held that the reliability of the alcohol test results had been established by a preponderance of the evidence. See CPLR § 4518(c) (); People v. Ortega 15 N.Y.3d 610, 621-622, 917 N.Y.S.2d 1, 942 N.E.2d 210 (2010) (). The defendant was sentenced to an enhanced period of incarceration based on my consideration of the alcohol test results.
The broad purposes underlying New York's sentencing laws are set forth in Penal Law § 1.05(4)-(6). The purposes include punishment, deterrence, the rehabilitation and reintegration of offenders into society, and the protection of the community. Id. See People v. Selikoff, 35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 318 N.E.2d 784 (1974). To achieve these purposes, judges have generally been afforded wide latitude regarding the information they may consider when imposing sentence. See United States v. Watts, 519 U.S. 148, 151, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997); People v. Naranjo, 89 N.Y.2d 1047, 1049, 659 N.Y.S.2d 826, 681 N.E.2d 1272 (1997) citing People v. Day, 73 N.Y.2d 208, 212, 538 N.Y.S.2d 785, 535 N.E.2d 1325 (1989). "Highly relevant—if not essential—to the [sentencing court's] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics." Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). See also CPL § 380.50 (). A sentencing court is uniquely familiar with the defendant and the facts and circumstances surrounding the crime of conviction. This places the sentencing court "in a superior position to dispense proportionate and fair punishment." Day, supra at 212, 538 N.Y.S.2d 785, 535 N.E.2d 1325. A sentencing court's discretion, however, is not without limit. Constitutional due process protections require that a court "assure itself that the information upon which it bases the sentence is reliable and accurate." People v. Outley, 80 N.Y.2d 702, 712, 594 N.Y.S.2d 683, 610 N.E.2d 356 (1993). But, provided it isreliable and accurate, a broad spectrum of information is available for consideration by the sentencing court.
Evidence that has previously been suppressed may properly be considered in sentencing a defendant. People v. Brown, 281 A.D.2d 700, 728 N.Y.S.2d 100 (3d Dept. 2001); People v. Mancini, 239 A.D.2d 436, 658 N.Y.S.2d 37 (2d Dept. 1997); People v. Estenson, 101 A.D.2d 687, 476 N.Y.S.2d 39 (4th Dept. 1984); People v. Wright, 104 Misc.2d 911, 429 N.Y.S.2d 993 (Sup. Ct., N.Y. County 1980). See also, Kamins, New York Search & Seizure § 1.01[7][k] (2010). Conduct of a defendant may be considered even if that conduct has not resulted in a criminal conviction. People v. Felix, 58 N.Y.2d 156, 164, 460 N.Y.S.2d 1, 446 N.E.2d 757 (1983) (); Billiteri v. United States Bd. of Parole, 541 F.2d, 938, 944 (2d Cir.1976) (same); United States v. Needles, 472 F.2d 652 (2d Cir.1973) (same); People v. Marshall, 68 A.D.3d 1014, 889 N.Y.S.2d 862 (2d Dept. 2009) (youthful offender adjudication); People v. Gonzalez, 242 A.D.2d 306, 307, 661 N.Y.S.2d 50 (2d Dept. 1997) (prior arrest); People v. Khan, 146 A.D.2d 806, 537 N.Y.S.2d 284 (2d Dept. 1989) (). A defendant's sentence may be lawfully enhanced based on the mere fact of his arrest between the time of the guilty plea and sentencing, provided the defendant was warned of this possibility and provided the court finds that there was a legitimate basis for the arrest. Outley, 80 N.Y.2d at 713, 594 N.Y.S.2d 683, 610 N.E.2d 356. Under federal constitutional law, a sentencing court may even consider facts relating to an offense of which the defendant has been acquitted at trial. See infra.
In 1997, the United States Supreme Court decided United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554. In Watts, the defendant was charged with possessing cocaine and two loaded firearms. Following a jury trial, the defendant was convicted of possessing the cocaine but acquitted of weapons possession. "Despite Watts' acquittal on the firearms count, the District Court found by a preponderanceof the evidence that Watts had possessed the guns in connection with the drug offense" and enhanced the defendant's sentence based on that finding. Id. at 149-50, 117 S.Ct. 633. The Ninth Circuit Court of Appeals reversed,...
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