Opinion
No. 2022-866 W CR
06-20-2024
The People of the State of New York, Respondent, v. Donald Brown, Appellant.
Thomas T. Keating, for appellant. Westchester County District Attorney (Jill Oziemblewski and Steven A. Bender of counsel), for respondent.
Unpublished Opinion
Thomas T. Keating, for appellant.
Westchester County District Attorney (Jill Oziemblewski and Steven A. Bender of counsel), for respondent.
PRESENT:: JAMES P. McCORMACK, J.P., GRETCHEN WALSH, ELENA GOLDBERG-VELAZQUEZ, JJ
Appeal from judgments of the Justice Court of the Village of Croton-On-Hudson, Westchester County (Sam R. Watkins, J.), rendered September 7, 2022. The judgments, upon jury verdicts, convicted defendant of driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs, making an unsafe lane change, and failing to signal, respectively, and imposed sentences.
ORDERED that the judgment convicting defendant of making an unsafe lane change is reversed, on the facts, the accusatory instrument charging that offense is dismissed, and the fine and surcharge, if paid, are remitted; and it is further, ORDERED that the judgments convicting defendant of driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs, and failing to signal are affirmed.
Insofar as is relevant to this appeal, defendant was charged in separate accusatory instruments with, among other things, driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs (Vehicle and Traffic Law § 1192 [4-a]), making an unsafe lane change (Vehicle and Traffic Law § 1128 [a]), and failing to signal (Vehicle and Traffic Law § 1163 [a]). Following a jury trial, he was convicted of these three charges, and sentences were imposed.
At the trial, the court admitted into evidence a recording of a 911 emergency telephone call by a nontestifying witness, who reported that a vehicle, which he described by make, color, and license plate number, was being operated on Route 9A in a manner suggesting that the driver was intoxicated. The arresting officer testified that he was dispatched to the location identified by the 911 caller. Upon his arrival, he observed the vehicle described by the 911 caller, which, the officer later determined, was operated by defendant, moving between two lanes without signaling. After initiating a traffic stop, the officer detected odors of an alcoholic beverage and marihuana emanating from defendant and his vehicle. Defendant exhibited glassy, bloodshot eyes and slurred speech and admitted to the officer that he had smoked marihuana and drunk a beer before the traffic stop. The officer's search of defendant's vehicle produced a burned marihuana cigarette and a glass jar containing a substance the officer identified as marihuana. The officer further testified that he had completed standardized field sobriety test (SFST) training at the police academy, including training on the horizontal gaze nystagmus (HGN), nine-step walk and turn, and one-leg stand tests. In his career, he had observed people impaired by drugs "dozens" of times, people impaired by alcohol "close to a hundred" times, and people impaired by a combination of drugs and alcohol "a couple dozen" times. He had made arrests for driving while impaired by drugs "[a] couple; a few" times, for driving while impaired by alcohol "[m]ore than 50" times, and for driving while impaired by a combination of drugs and alcohol "a couple" of times. The officer testified that defendant performed the HGN, nine-step walk and turn, and one-leg stand tests and failed all three. A toxicologist testified that defendant's blood tested positive for alcohol as well as tetrahydrocannabinol (THC) and its metabolites.
During deliberations, the jury submitted a note requesting "the legal number to be considered under the influenced [sic] by drugs [and by] alcohal [sic]." The court informed counsel of the contents of the note and discussed potential responses with counsel. The court did not respond to the note before accepting the jury's verdicts.
On appeal, defendant argues that the arresting officer lacked the requisite training and experience to lay a proper foundation for his testimony regarding the SFSTs that he administered to defendant; that the court erred in failing to give a meaningful response to the jury note; that the court improperly admitted the recording of the 911 call; and that his convictions were against the weight of the evidence.
Contrary to defendant's contention, the People laid a proper foundation for the arresting officer's testimony regarding the SFSTs that he administered to defendant (see People v Echevarria-Acevedo, 76 Misc.3d 128 [A], 2022 NY Slip Op 50787[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; cf. People v Fleck, 167 A.D.3d 771, 772 [2018]).
"[W]here[, as here,] counsel has meaningful notice of the content of a jury note and of the trial court's response, or lack thereof, to that note, the court's alleged violation of the meaningful response requirement does not constitute a mode of proceedings error, and counsel is required to preserve any claim of error for appellate review" (People v Mack, 27 N.Y.3d 534, 537 [2016]; see People v Wiggs, 28 N.Y.3d 987, 989 [2016]). Because defendant's trial counsel did not object to the court's decision to accept the verdicts without responding to the note, this alleged error is unpreserved for appellate review, and we decline to reach it in the interest of justice (see People v Price, 197 A.D.3d 1182, 1184 [2021]; People v Sylvestre, 178 A.D.3d 863, 863-864 [2019]; People v Gibson, 147 A.D.3d 779, 780 [2017]; People v McClean, 137 A.D.3d 940, 942 [2016]).
The recording of the entire 911 call was properly admitted into evidence under the present sense impression exception to the hearsay rule, and the probative value of this evidence outweighed any prejudicial effect (see People v Deverow, 38 N.Y.3d 157, 165-166 [2022]; People v Porter, 210 A.D.3d 1012, 1014 [2022]; People v Chin, 148 A.D.3d 925, 925 [2017]; People v Gil, 64 Misc.3d 135 [A], 2019 NY Slip Op 51113[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; People v Coveney, 43 Misc.3d 140 [A], 2014 NY Slip Op 50810[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; People v Long, 34 Misc.3d 151 [A], 2012 NY Slip Op 50300[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Moreover, the admission of the recording of the 911 call did not violate defendant's right of confrontation because the declarant's statements were not testimonial (see Davis v Washington, 547 U.S. 813, 822 [2006]; People v Rawlins, 10 N.Y.3d 136, 149 n 7 [2008]; People v Clay, 88 A.D.3d 14, 18 [2011]). "The information conveyed by the declarant during the 911 call was for the purpose of seeking police intervention and did not result from structured questioning" (People v Long, 222 A.D.3d 881, 882 [2023]; see People v Gittens, 214 A.D.3d 670, 671 [2023]; People v Thomas, 187 A.D.3d 949, 950 [2020]).
Upon a defendant's request, this court must conduct a weight of the evidence review (see CPL 470.15 [5]; People v Danielson, 9 N.Y.3d 342, 348-349 [2007]). If a finding in favor of the defendant "would not have been unreasonable" (People v Curry, 112 A.D.3d 843, 844 [2013]), this court "must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions" (Danielson, 9 N.Y.3d at 348). In conducting this review, great deference is accorded to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Lane, 7 N.Y.3d 888, 890 [2006]; People v Bleakley, 69 N.Y.2d 490, 495 [1987]).
Application of these principles here warrants the conclusion that the verdicts convicting defendant of driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs, and failing to signal were not against the weight of the evidence (see People v Wahl, 75 Misc.3d 40, 43 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; People v Isler, 67 Misc.3d 143 [A], 2020 NY Slip Op 50746[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; People v Flores, 62 Misc.3d 46, 57 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; cf. Echevarria-Acevedo, 2022 NY Slip Op 50787[U]; People v DeVito, 75 Misc.3d 131 [A], 2022 NY Slip Op 50438[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; People v Guglielmo, 13 Misc.3d 138 [A], 2006 NY Slip Op 52224[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006]). However, we find that the verdict convicting defendant of making an unsafe lane change was against the weight of the evidence, as there was no testimony regarding how defendant's lane changes were unsafe (see People v Legnetti, 73 Misc.3d 36, 39 [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; People v Krasniqi, 58 Misc.3d 158[A], 2018 NY Slip Op 50245[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v Krantz, 6 Misc.3d 129 [A], 2005 NY Slip Op 50058[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2005]).
Accordingly, the judgment convicting defendant of making an unsafe lane change is reversed and the accusatory instrument charging that offense is dismissed. The judgments convicting defendant of driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs, and failing to signal are affirmed.
McCORMACK, J.P., WALSH and GOLDBERG-VELAZQUEZ, JJ., concur.