Opinion
2523-11
01-07-2013
The People of the State of New York, v. Stan Hryckowian, Defendant.
Donna Maria Lasher, Esq. Attorney for Defendant-Appellant Hon. James R. Farrell Sullivan County District Attorney By: Katy M. Schlichtman, ADA of counsel Attorney for the People
Donna Maria Lasher, Esq.
Attorney for Defendant-Appellant
Hon. James R. Farrell
Sullivan County District Attorney
By: Katy M. Schlichtman, ADA of counsel
Attorney for the People
, J.
Defendant-Appellant (hereinafter, "Defendant") appeals his June 7, 2011, conviction after jury trial of Aggravated Driving While Intoxicated (VTL §1192) and Driving While Intoxicated (VTL §1193). On August 11, 2011, Town of Bethel Justice Court (Hon. Howard Block) sentenced Defendant to a conditional discharge of one year, a fine, surcharge, victim's impact panel, revocation of his driver's license, imposition of an interlock device, and drug and alcohol conditions. As of the date of this appeal, Defendant has completed the sentence.
Defendant has submitted a notice of argument, appellate brief and appendix. The People have submitted a Respondent's brief and appendix. This appeal is on submission. There was no oral argument.
FACTUAL & PROCEDURAL BACKGROUND
At approximately 2:30 am on September 1, 2008, New York State Troopers Opala and Colon observed Defendant and his vehicle in the parking lot of the Village of Bloomingburg fire station. The troopers had been en route to the fire station to meet the victim of a domestic call to which they responded earlier that evening. Upon seeing Defendant, the troopers stopped to question him to find out if there had been an emergency. Defendant approached the troopers, indicating he was lost and asked for directions. Upon inquiry, Defendant indicated he was coming from his mother's house in Ellenville (Ulster County) and traveling to his home in Masbeth (Queens County), which is about 90 miles from Ellenville. Defendant testified at trial that told the troopers he had been asleep in the parking lot since approximately 11:00 pm.
Both troopers testified at trial that during the initial contact with Defendant they smelled alcohol on his breath, that his speech was slurred and that his eyes were glassy and droopy; he appeared to be intoxicated. According to the trial testimony by the troopers, Defendant drank six Heineken beers earlier in the evening and his last drink was at approximately 11:00 pm, three and a half hours before the troopers found him in the Bloomingburg fire station parking lot. During a search of the car incident to Defendant's arrest, troopers found open containers of beer in the back seat of the passenger compartment and in the trunk.
A third trooper, Trooper Terry, testified at trial that he had driven past the Bloomingburg fire station at approximately 2:15 am on September 1, 2008, that same morning, and that he did not observe any vehicles in the parking lot. This testimony was in contradiction to Defendant's claim that he had been asleep in that parking lot since approximately 11:00 pm.
Defendant failed the standard field sobriety tests administered by Trooper Opala. Defendant's breath alcohol test, admitted at trial, yielded a 0.19% BAC.
The trial court denied the following motions, discussed in more detail, infra: motions to dismiss on speedy trial grounds dated February 18, 2010 and November 24, 2010; motion to dismiss the accusatory instrument as facially insufficient, for lack of probable cause, and for preclusion of his statement regarding his last drink at 11:00 pm; motion to dismiss in the interest of justice. Although the trial court initially granted Defendant's CPL §710.30 motion to preclude his statement to the troopers regarding the time of his last drink, the court reversed itself, holding Defendant waived his CPL §710.30 challenge because he requested and had a Huntley hearing.
On August 2, 2011, Defendant filed a CPL §330.30 motion to set aside the jury verdict. The trial court denied Defendant's motion. On August 24, 2011, Defendant timely filed a notice of appeal. Due to ongoing problems concerning extraction of data and testimony from the digital recording of the pre-trial and trial appearances, this Court, over objection by the People, granted to the Defendant numerous extensions of time to perfect the appeal. The matter was eventually placed on the December 17, 2012, Special Term Calendar.
DEFENDANT'S ARGUMENTS ON APPEAL
Defendant raises five arguments on appeal: (1) the verdict was based on insufficient evidence and was against the weight of the evidence; (2) the trial court erred in failing to grant
Defendant's motions to dismiss pursuant to CPL §§30.30 and 30.20; (3) failure to provide timely notice of the statement pursuant to CPL §710.30 required suppression or preclusion; (4) failure by the People to provide demanded discovery and/or Rosario material requires reversal; and (5) the cumulative effect of the errors requires reversal.
DISCUSSION
Sufficiency of Evidence and Weight of the Evidence
1. Sufficiency of Evidence
Appellate review of the legal sufficiency of the evidence requires a court to consider whether, "after viewing the evidence in the light most favorable to the prosecution," People v. Khan, 18 NY3d 535, 541 [2012], and "indulging in all reasonable inferences in the People's favor," People v. Bueno, 18 NY3d 160, 169 [2011], "any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt." People v. Khan , 18 NY3d at 541 .
Section 1192(3) of the Vehicle and Traffic Law states: "Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition." There are four elements the People must prove to sustain a conviction under this statute. First, the accused must have been operating a motor vehicle. Second, the People must show the place of operation. Third, the accused must have been in an intoxicated condition while operating the vehicle. Fourth, the intoxication was a result of alcohol. VTL §1192. Carrieri, Joseph, R., Practice Commentary, Elements of Driving While Intoxicated and Driving While Impaired (2012).
The definition of "operation" under VTL §1192 is broader than the ordinary definition of driving.'" People v. O'Connor, 159 Misc 2d 1072, 1075 [Dist. Ct. Nassau County 1994], citations omitted . "The definition of operation [, however,] cannot so alter its ordinary meaning as to create a new crime not intended by the legislature." Id . Case law in this state makes it very clear that when an intoxicated individual is sitting behind the wheel of a vehicle and manipulating the mechanisms of the vehicle so as to make it possible to move the vehicle, he or she is said to be operating the vehicle. See, Matter of Prudhomme v. Hults, 27 AD2d 234 [3rd Dept. 1967]; People v. Marriott, 37 AD2d 868 [3rd Dept. 1971].
The People may also prove operation simultaneous with intoxication by circumstantial evidence. A driver found slumped behind the steering wheel in a remote location, with an odor of alcohol on himself and in the vehicle, and with a BAC of over .08, is sufficient to establish the requirement that the driver operated the motor vehicle while intoxicated, even though the vehicle was stopped (the theory being that the driver had to have driven the vehicle to the location). People v. Collins, 70 AD2d 986 [3rd Dept. 1979]. Likewise, testimony by police officers that a motorcyclist who was sitting beside his motorcycle (which was facing the wrong way on a public one-way street), with the keys in the ignition, and wearing his helmet, coupled with his physical appearance and positive breath screen at that time, was sufficient circumstantial evidence that he was operating the motorcycle while intoxicated. People v. Shaffer, 943 NYS2d 672 [3rd Dept. 2012]. Similarly, testimony from four witnesses, who could positively identify the defendant, and stated that he was staggering, was unbalanced, had slurred speech and an alcoholic odor immediately prior to his operating the vehicle circumstantially proved beyond reasonable doubt that the driver operated his vehicle while intoxicated. People v. Ritgers, 158 AD2d 628 [2nd Dept. 1990]. Circumstantial evidence, however, must prove contemporaneous operation of a vehicle and intoxication. People v. Strauss, 260 AD 880 [2nd Dept. 1940].
In the case at bar, assuming arguendo the Court accepts as true, the Defendant's assertion that his vehicle was not running, the keys were not in the ignition, and he was standing outside the car when he and the troopers initially made contact, there was sufficient credible evidence to permit the jury to find the elements of Aggravated DWI and DWI beyond a reasonable doubt. People v. Khan, 18 NY3d at 541 . Defendant failed all of the field sobriety tests, had a BAC of 0.19%, and admitted he had been drinking alcohol. Considering those factors along with the testimony of Trooper Terry that the parking lot of the fire station was empty just 15 minutes prior to Troopers Opala and Colon arriving there to find Defendant, the People established the four elements of DWI and those of Aggravated DWI beyond a reasonable doubt. People v. Shaffer , supra . Although there was no testimony or other direct evidence that Defendant was inside his car when Troopers Opala and Colon initially saw him, it was well within the jury's discretion to infer that Defendant operated the motor vehicle while in an intoxicated state: he said he was traveling from Ellenville to Masbeth, he had nothing to drink after 11:00 pm when he fell asleep in the parking lot, yet his vehicle was not seen in the parking lot at 2:15 am, he was found at 2:30 am, and he failed all sobriety and breath tests very shortly thereafter. He provided no plausible explanation as to why his vehicle was not seen at 2:15 am or how his BAC was 0.19% approximately four hours after he said he last drank a beer, leaving it up to the jury to decide whether he operated the vehicle in an intoxicated condition. People v. Saplin, 122 AD2d 498 [3rd Dept. 1986].
2. Weight of the Evidence
Regarding the weight of the evidence: in New York, an intermediate appellate court has the unique authority to review lower court decision on both the law and the facts. People v. Bleakley , 69 NY2d 490 [1987].
Even if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further. If based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony." [Citations omitted]
People v. Bleakley, 69 NY2d 490, 495 . In reviewing a weight of the evidence claim, an appellate court exercises its "special power" to "affirmatively review the record; independently assess all of the proof; substitute its own credibility determinations for those made by the jury...; determine whether the verdict was factually correct; and acquit a defendant if the court is not convinced that the jury was justified in finding that guilt was proven beyond a reasonable doubt." People v. Delamota, 18 NY3d 107, 117 [2011]. Appellate courts, however, should afford jury verdicts great deference. People v. Romero, 7 NY3d 633 [2006].
Weight of the evidence review "requires a court first to determine whether an acquittal would not have been unreasonable." People v. Bailey, 94 AD3d 904, 905 [2nd Dept. 2012]. If a court makes such a determination, then, and only then, does it embark on weighing conflicting testimony, review any rational inferences that may be drawn from the evidence, and evaluate the strength of conclusions. Id . Based on the weight of the evidence, the reviewing court then decides if the jury was justified in finding the defendant guilty. Id., see also, People v. Danielson, 9 NY3d 342 [2007].
In the case at bar, Defendant claims the People failed to prove he operated his vehicle and therefore the verdict was against the weight of the evidence, because Defendant was not "pulled over" by the police or found inside his vehicle. While the Court finds it would not have been unreasonable for a jury to acquit Defendant, the Court nevertheless finds the guilty verdict in this case was supported by the weight of the evidence, and clearly within the jury's province to find Defendant guilty.
At the outset, upon detecting the scent of alcohol while initially speaking with Defendant, the troopers were within their discretion to investigate whether a crime had been committed. People v. Shaffer , 943 NYS2d 672, 673. The testimony of the arresting troopers, the circumstantial evidence consisting of the failed sobriety test and BAC of .19%, Defendant's admission, and Trooper terry's testimony that he did not observe any vehicles in the Bloomingburg fire department parking lot support the jury's finding beyond a reasonable doubt that Defendant operated his motor vehicle while intoxicated. Id., at 674. The jury heard the testimony, evaluated the veracity and credibility of each witness, reviewed the evidence, and determined beyond a reasonable doubt that Defendant was guilty. Therefore, the Court concludes the verdict was not against the weight of the evidence.
Speedy Trial
After the commencement of a criminal action, a defendant is entitled to a speedy trial. CPL §30.20(1). Upon motion by a defendant, a local court may dismiss an information, simplified information, prosecutor's information or misdemeanor complaint upon the ground that the defendant was denied a speedy trial. CPL §170.30(e). A court must grant a speedy trial motion if the People do not indicate their readiness for trial within specified periods of time. CPL §30.30. For criminal actions involving misdemeanors punishable by a jail sentence of more than three months that do not include felony charges, the specified period for speedy trial, i.e., the time within which the People must announce readiness for trial, is 90 days. CPL §30.30(1)(b).
In cases involving an appearance or traffic ticket, the time period begins to run on the date a defendant first appears in court to answer the ticket. CPL §30.30(5)(b). Excluded from the speedy trial time calculation are periods of delay due to a continuance at the request of a defendant or with his or her consent, the time during which pre-trial motions, discovery and production demands are pending, time for plea negotiations, time to prepare for trial after unsuccessful plea bargaining, delays due to legitimate court scheduling beyond the control of either party, delays due to the unavailability of transcribed minutes furnished by a court reporter. See, CPL §§30.30(4)(a), (b); People v. Stiles, 70 NY2d 765 [1987]; People v. Delvalle, 265 AD2d 174 [1st Dept. 1999]; People v. Holden, 260 AD2d 233 [1st Dept. 1999].
A court must consider five factors in determining a constitutional speedy trial motion: (1) extent of the delay; (2) reasons for delay; (3) nature of underlying charge; (4) period of pre-trial incarceration; and (5) impairment of defense due to delay. People v. Taranovich, 37 NY2d 442 [1975]. One factor, alone, will not determine a speedy trial violation; a court must examine all of the factors. See, People v. Turner, 286 AD2d 514 [2nd Dept. 2001], lv denied, 97 NY2d 658.
A review of the timetable in the instant matter does not support Defendant's claim of a statutory or constitutional speedy trial violation. In fact, the trial court denied both of Defendant's motions on this issue. While at first blush the several years between Defendant's arraignment and trial looks suspect, the delays in this case appear to have been due to ongoing discovery, plea negotiations, adjournments on consent, interim hearings, discovery, demands to produce, a delay in receiving hearing transcripts, and legitimate court scheduling. CPL §§30.30(4)(a), (b); People v. Turner, supra . Therefore, the substantial delay in this case, i.e., first criteria specified in Taranovich , did not, in and of itself, cause the case to run afoul of speedy trial requirements.
The specific delays in this case were as follows: Defendant first appeared in Village of Bloomingburg Justice Court on October 14, 2008. The case was adjourned on consent to December 9, 2008. In the interim, Defendant served the People with demands to produce on September 29, 2008, and October 13, 2008. On December 9, 2008, the matter was again adjourned on consent for further discovery to January 13, 2009. On January 13, 2009, Defendant appeared without his attorney and the court adjourned the matter to February 10, 2009. These periods of time are chargeable to Defendant as they were on consent or caused by Defendant. People v. Taranovich , supra .
The parties appeared on February 10, 2009, at which time the People made a plea offer. The court adjourned the matter, on consent to March 10, 2009, and then to April 14, 2009, on consent for further plea negotiations. On April 14, 2009, the case was adjourned to May 12, 2009, so Defendant could file an Omnibus Motion and for further plea negotiations. Neither the People nor Defendant and his attorney appeared in May, so the court adjourned the matter to June 9, 2009. These periods of time are either excusable or not chargeable to the People.
On June 9, 2009, the parties appeared and on consent, the court scheduled a Huntley hearing for July 21, 2009. Thereafter, the case was adjourned on consent to September 1, 2009, for Defendant to obtain a copy of the Huntley hearing transcript and to file additional motions. The hearing transcript was not available until November 3, 2009; the People did not receive a copy until November 19, 2009. In the interim, on September 1, Defendant filed a memorandum of law and omnibus motion. Defendant then filed a second copy of the memorandum and omnibus motion on November 17, 2009. These periods of time are not chargeable to the People.
The People filed an affirmation in opposition to the omnibus motion on February 9, 2010. Defendant then filed a motion to dismiss on speedy trial violations on February 18, 2010. The trial court rendered a decision on some of the outstanding motions on March 3, 2010. The People submitted an affirmation to the motion to dismiss on speedy trial grounds on or about April 5, 2010. These periods of time are not chargeable to the People.
On June 24, 2010, the People submitted an application for change of venue from Village of Bloomingburg due to Judge Glenn Kroll recusing himself. By letter dated October 18, 2010, Judge Block informed the parties that he had not yet received the justice court file for this case or the venue order from County Court. On November 15, 2010, Defendant notified Town of Bethel Court that he changed attorneys. On November 24, 2010, Defendant filed another motion to dismiss on speedy trial grounds. These periods of time are not chargeable to the People.
For the time between February 18, 2010, and July 12, 2010, the trial court issued a decision on March 3 denying Defendant's motion to dismiss and finding probable cause in the arrest of Defendant. Then, on March 31, 2010, the case was transferred from Judge Block to Judge Kroll (still within the Village of Bloomingburg Justice Court) and was scheduled for a pre-trial conference on April 13, 2010. On July 12, 2010, Sullivan County Court transferred the matter back to Judge Block because Judge Kroll recused himself.
The trial court denied Defendant's second motion to dismiss (November 24, 2010) on speedy trial grounds and the matter went to trial in Town of Bethel justice Court for July, 2011.
After a close review of the record, this Court has determined that the delays in this case were excusable or not chargeable to the People. People v. Taranovich , supra; People v. Holden, supra . The length of the delay, although substantial, is not, by itself, cause to find a speedy trial violation. People v. Decker, 13 NY3d 12 [2009]. Defendant's and the People's submissions, as well as the trial court record, establish there were legitimate reasons, some beyond control of the parties and the court itself, explaining the numerous adjournment and delays. People v. Taranovich , supra . There is no indication in the record that the People abused their discretion or intentionally caused any of the adjournments in this case. People v. Decker , 13 NY3d at 15 .
The nature of the underlying charge, the third criterion to be considered under Taranovich , is very serious. Defendant has a criminal history of alcohol-related offenses—four convictions prior to the instant offense. He has a history and pattern of drinking and driving, and therefore poses a threat to the public's safety and welfare. The fact that the instant offense did not involve an accident in which he either injured himself or an innocent third party is irrelevant. Defendant apparently has an inability to keep himself from driving after he has been drinking. His conviction on this charge resulted in revocation of his commercial driver's license. Furthermore, despite his record and BAC, at no time was Defendant incarcerated for any length of time. Therefore the fourth criterion from Taranovich is irrelevant.
Lastly, Defendant's argument that he was somehow prejudiced by the delay in his case coming to trial is unpersuasive (the fifth criterion in Taranovich ). Contrary to Defendant's argument, any prejudice in this case was borne by the People—their witnesses, the officers involved in Defendant's arrest and processing, had to rely on memories and notes of an incident that occurred two and a half years prior to trial. The People correctly point out that Defendant's lack of notes regarding the events of September 1, 2008, were no fault of the arresting officers. The People's witnesses were subject to cross examination by defense counsel; any discrepancies in their testimony were subject to scrutiny by Defendant's attorney. People v. Decker , 13 NY3d at 16 .
Balancing all of the factors, this Court finds Defendant was not deprived of his constitutional right to a speedy trial.
CPL §710.30 Violation
CPL §710.30 is a notice statute "intended to facilitate a defendant's opportunity to challenge before trial the voluntariness of statements made by him." People v. Lopez, 84 NY2d 425, 428 [1994]. The People must serve notice on a defendant of their intent to use evidence of defendant's statements within 15 days of arraignment. There are two exceptions to the notice requirement: waiver for good cause, and when a defendant has moved for a suppression/Huntley hearing. Id . The statute is intended to provide criminal defendants with an opportunity to challenge the voluntariness of a statement. People v. Carter, 31 AD3d 1056 [3rd Dept. 2006]. When a defendant provides information in a "noncoercive, noncustodial" setting, courts have held " there is no question of voluntariness.'" Id., at 1057, citations omitted .
In the instant matter, Defendant moved for and received a Huntley hearing regarding his statement that he had his last drink at 11:00 pm, thereby excusing the notice requirement. People v. Lopez , supra . In addition, the transcript of the Huntley hearing indicates Defendant conceded he made that statement during the investigative phase of his interaction with the troopers; there are no allegations by Defendant, nor is there anything in the record to suggest Defendant made this statement while in custody, that is was involuntarily made, or that anyone coerced him into stating at what time he had his last drink. People v. Carter , supra . Therefore, the statement was "not subject to the notice requirements of CPL 710.30." Id., at 1057. The trial court properly denied suppression.
Discovery/Rosario Violation
CPL §240.45(1)(a) codifies the requirement that the People provide the defense with Rosario material prior to trial, i.e., that the People provide a witness' prior statement(s) that relate to the subject matter of the witness' testimony. People v. Rosario, 9 NY2d 286 [1961]. The failure of the People to comply with discovery demands and provide Rosario material is reversible error.
New York courts have recognized three types of Rosario violations. People v. Martinez, 71 NY2d 937 [1988]. The first occurs when the People fail to disclose such material in a timely manner. In such cases, reversal is required if the defense was prejudiced. Id., at 940. The second involves a total failure of the People to produce the material even though they have possession. Such a failure is per se reversible error. Id . Last, are cases that involve lost or destroyed evidence. Id .
Defendant, herein, argues that the People failed to turn over recorded police transmissions as requested in Defendant's Demand for Discovery. Defendant further contends the People failed to turn over the "log book" containing a memorialization of the transmission in question. The transmission in question involved communication between troopers regarding Trooper terry's observation there was no vehicle in the Bloomingburg Fire Station parking lot 15 minutes prior to Trooper's Colon and Opala coming upon Defendant.
Contrary to Defendant's assertions, there was no recording of the car-to-car communications between the troopers involved in this case on September 1, 2008; in fact, car-to-car communications are not recorded. Therefore, there was no Rosario material to disclose. Trooper Terry did not communicate with the Middletown New York State Police barracks, out of which he dispatched. Therefore, there was no log to provide. The People cannot provide something they do not possess. People v. Martinez , supra .
Because there was no recording and no log, the People did not violate Rosario by failing to provide them. CPL §240.45.
Cumulative Effect of Errors Requires Reversal
The Defendant's last argument on appeal is that the cumulative effect of the errors in this case requires reversal. Having found no errors, this Court disagrees and therefore denies reversal on this ground.
CONCLUSION
Overall, while this matter took some time to actually go to trial (Date of Arrest: 9/1/2008; Date of Trial: 7/19/2011), each adjournment was within acceptable criminal practice. The delays due to the court's schedule were partly due to the initial court in this matter meeting once a month. The recusal of one judge, transfer of the case between judges, and eventual change of venue, while time consuming, were beyond the control of the trial court and the parties. There is no evidence in the record that the People or the trial court engaged in any tactics to delay this matter. To the contrary, the record indicates the Defendant consented to or requested the adjournments for the purpose of engaging in discovery, plea negotiations, and motion practice.
The evidence was legally sufficient and of sufficient weight to support the jury's guilty verdict. The People complied with discovery and there was no violation of the notice requirement under CPL §710.30, as the statements in question to the police were voluntarily given, not coerced, and provided in a noncustodial setting. The People did not violate Rosario.
Based on the foregoing, it is therefore
ORDERED that Defendant's appeal is denied in its entirety and dismissed.
This shall constitute the Decision and Order of this Court.
DATED: January 7, 2013
Monticello, New York
____________________________________
Hon. Frank J. LaBuda
Sullivan County Court Judge and Surrogate
Acting Supreme Court Justice