Opinion
2016-2010 N CR
07-12-2018
The PEOPLE of the State of New York, Respondent, v. Abigail BROSNAN, Appellant.
Alexis Pimentel, for appellant. Nassau County District Attorney (Andrea M. DiGregorio and Hilda Mortensen of counsel), for respondent.
Alexis Pimentel, for appellant.
Nassau County District Attorney (Andrea M. DiGregorio and Hilda Mortensen of counsel), for respondent.
PRESENT: ANTHONY MARANO, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ
Appeal from judgments of the District Court of Nassau County, First District ( Andrew M. Engel, J.), rendered July 15, 2016. The judgments convicted defendant, upon jury verdicts, of aggravated driving while intoxicated (per se) and common-law driving while intoxicated, respectively, and imposed sentences.
ORDERED that the judgments of conviction are affirmed.
Insofar as is relevant to this appeal, defendant was charged in separate accusatory instruments with aggravated driving while intoxicated (per se) ( Vehicle and Traffic Law § 1192 [2—a ] [a] ) and common-law driving while intoxicated ( Vehicle and Traffic Law § 1192 [3 ] ).
At a jury trial, two witnesses testified that they had observed defendant driving in an erratic and hazardous manner prior to her arrest. A police officer testified that, upon arriving at the scene, he had observed that defendant's eyes were glassy and bloodshot, her speech was slurred, she was unsteady on her feet, and the odor of alcohol was emanating from her breath. He further testified that defendant had admitted to having consumed alcoholic beverages before she had driven her vehicle. Defendant could not perform field sobriety tests that the witness had administered to her. He concluded that defendant was intoxicated. A second police officer testified that defendant's postarrest test of her blood alcohol content had produced a reading of .25 of one per centum by weight of alcohol. He also administered field sobriety tests, which defendant failed. Based on his observation of defendant, including the fact that the odor of an alcoholic beverage had emanated from her breath and that she had glassy and bloodshot eyes, he was of the opinion that defendant was under the influence of alcohol.
Defendant testified that she had been having lunch at a restaurant and that she had consumed four champagne cocktails and a shot of whiskey prior to driving her vehicle, but she did not feel intoxicated when she left the restaurant. During the trial, over defense counsel's objection, the court precluded counsel from presenting a defense that someone at the restaurant must have put a drug in her drink without her knowledge, on the ground that such testimony would be purely speculative. The jury found defendant guilty of aggravated driving while intoxicated (per se) and common-law driving while intoxicated.
Defendant's sole issue on appeal is that the judgments of conviction should be reversed because she was denied the right to present her defense that she had not been intoxicated but, rather, that she had been drugged.
"Although a trial court has broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters, the trial court's discretion in this area is circumscribed by the defendant's constitutional rights to present a defense and confront [her] accusers" ( People v. Thompson , 111 A.D.3d 56, 64, 970 N.Y.S.2d 620 [2013] [internal quotation marks and citations omitted] ). "A defendant's right to present a defense is not absolute, and the trial court has wide latitude to exclude evidence that is repetitive, is only marginally relevant, or poses an undue risk of confusion of the issues" ( People v. Jack , 149 A.D.3d 779, 780, 51 N.Y.S.3d 173 [2017] ), or consists of evidence that "lacks a good faith basis, is solely based on hearsay or is too remote or speculative" (see People v. Taylor , 40 A.D.3d 782, 784, 835 N.Y.S.2d 442 [2007] ). Even assuming that a court has deprived a defendant of her constitutional right to present a defense, such "a constitutional error can be harmless [but] only if the evidence of guilt, without reference to the error, is overwhelming, and there is no reasonable possibility that the error might have contributed to the defendant's conviction, such that it is harmless beyond a reasonable doubt" ( People v. Thompson , 111 A.D.3d at 67, 970 N.Y.S.2d 620 ).
Here, the court did not improvidently exercise its discretion in precluding defendant's proffered testimony that she felt that she had been drugged, and the testimony of another witness who also was claiming that she too had the feeling that she had been drugged at the restaurant at which they had both been dining prior to defendant's operation of her vehicle, as such testimony lacked a good faith basis and would have been too speculative (see People v. Taylor , 40 A.D.3d at 784, 835 N.Y.S.2d 442 ). Defendant made no offer of proof that someone at the restaurant had been observed putting a drug in any of the drinks served to defendant's table, and, in any event, defendant failed to demonstrate that the chemical breath test of defendant's blood alcohol content reading of .25 of one per centum by weight would have been affected by her having been drugged. Defendant's blood alcohol content established defendant's violation of Vehicle and Traffic Law § 1192 (2-a) (a) beyond a reasonable doubt.
With respect to the proof of defendant's guilt of common-law driving while intoxicated ( Vehicle and Traffic Law § 1192 [3 ] ), we note that while a high blood alcohol content test result is "some evidence of intoxication" with regard to that charge, it does not, standing alone, provide a sufficient basis to infer a state of intoxication absent additional proof of intoxication ( Johnson v. Plotkin , 172 A.D.2d 88, 91, 577 N.Y.S.2d 329 [1991] ; see People v. Morren, 52 Misc.3d 132[A], 2016 N.Y. Slip Op. 51005[U], 2016 WL 3658875 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2016] ; People v. Grennon , 36 Misc.3d 33, 36, 949 N.Y.S.2d 566 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2011] ; see also Vehicle and Traffic Law § 1195 [1 ] ). Here, there are several indicia of the physical effects of alcoholic beverage consumption that were apparent to two trained and experienced police officers, which, when combined with the testimony regarding defendant's erratic and hazardous operation of her vehicle, her failure to adequately perform field sobriety tests administered by police at the scene, defendant's testimony that she had been drinking prior to driving her vehicle, and a blood alcohol content test result that was more than triple the threshold for driving while intoxicated per se (see Vehicle and Traffic Law § 1192 [2 ] ), established that defendant was intoxicated, in that she was "incapable of employing the physical and mental abilities which [she] is expected to possess in order to operate a vehicle as a reasonable and prudent driver" ( People v. Cruz , 48 N.Y.2d 419, 428, 423 N.Y.S.2d 625, 399 N.E.2d 513 [1979] ; see Vehicle and Traffic Law § 1192 [3 ]; People v. McNamara , 269 A.D.2d 544, 545, 704 N.Y.S.2d 100 [2000] ).
Thus, even assuming arguendo, that the court erred in precluding the proffered testimony, such error was harmless beyond a reasonable doubt, as there was overwhelming evidence of defendant's guilt of both offenses without a reasonable possibility that such error might have contributed to defendant's convictions (see People v. Hardy , 4 N.Y.3d 192, 198, 791 N.Y.S.2d 513, 824 N.E.2d 953 [2005] ; People v. Crimmins , 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ; People v. Thompson , 111 A.D.3d at 67, 970 N.Y.S.2d 620 ).
Accordingly, the judgments of conviction are affirmed.
MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.