Opinion
2018–03304 Ind. No. 1782/15
07-22-2020
The PEOPLE, etc., respondent, v. Oniel SHARPE, Jr., appellant.
Laurette D. Mulry, Riverhead, N.Y. (Felice B. Milani of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Caren C. Manzello and Marion Tang of counsel), for respondent.
Laurette D. Mulry, Riverhead, N.Y. (Felice B. Milani of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Caren C. Manzello and Marion Tang of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Fernando Camacho, J.), rendered April 18, 2017, convicting him of aggravated vehicular homicide (two counts), manslaughter in the second degree (three counts), leaving the scene of an accident without reporting, and tampering with physical evidence, upon a jury verdict, and criminal possession of a forged instrument in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
We agree with the Supreme Court's denial of the defendant's request for a hearing pursuant to Frye v. United States, 293 F. 1013 [D.C. Cir.] to determine the admissibility of testimony concerning the defendant's blood alcohol content at the time of the accident based upon retrograde extrapolation. In light of the acceptance of such evidence by the courts of the State of New York (see People v. Menegan, 107 A.D.3d 1166, 1169, 967 N.Y.S.2d 461 ; People v. Dombrowski–Bove, 300 A.D.2d 1122, 1123, 753 N.Y.S.2d 259 ; People v. O'Connor, 290 A.D.2d 519, 520, 738 N.Y.S.2d 55 ; People v. Cross, 273 A.D.2d 702, 703, 711 N.Y.S.2d 533 ; People v. Hagin, 238 A.D.2d 714, 716, 657 N.Y.S.2d 105 ; People v. Stiffler, 237 A.D.2d 753, 754, 655 N.Y.S.2d 139 ; People v. MacDonald, 227 A.D.2d 672, 674–675, 641 N.Y.S.2d 749, affd 89 N.Y.2d 908, 653 N.Y.S.2d 267, 675 N.E.2d 1219 ), a Frye hearing was not necessary (see People v. LeGrand, 8 N.Y.3d 449, 458, 835 N.Y.S.2d 523, 867 N.E.2d 374 ; People v. Gibson, 163 A.D.3d 586, 80 N.Y.S.3d 392 ; People v. Foster–Bey, 158 A.D.3d 641, 641, 67 N.Y.S.3d 846, affd 35 N.Y.3d 959, 124 N.Y.S.3d 591, 147 N.E.3d 1129 ). Contrary to the defendant's contention, the People established that their expert toxicologist was sufficiently qualified to render an opinion as to the defendant's blood alcohol content (see People v. Dombrowski–Bove, 300 A.D.2d at 1123, 753 N.Y.S.2d 259 ; People v. O'Connor, 290 A.D.2d at 520, 738 N.Y.S.2d 55 ; People v. Stiffler, 237 A.D.2d at 754, 655 N.Y.S.2d 139 ; People v. MacDonald, 227 A.D.2d at 674–675, 641 N.Y.S.2d 749 ). Further, the defendant's contention that an insufficient factual foundation was laid for the toxicologist's opinion is unpreserved for appellate review (see CPL 470.05[2] ), and, in any event, without merit (see People v. Dombrowski–Bove, 300 A.D.2d at 1123, 753 N.Y.S.2d 259 ; People v. O'Connor, 290 A.D.2d at 520, 738 N.Y.S.2d 55 ; People v. Cross, 273 A.D.2d at 703, 711 N.Y.S.2d 533 ; People v. MacDonald, 227 A.D.2d at 674–675, 641 N.Y.S.2d 749 ).
We agree with the Supreme Court's determination to decline to provide instructions to the jury concerning the effect of evidence of blood alcohol content as determined by chemical testing contained in Vehicle and Traffic Law § 1195. Since the People relied upon an expert opinion, not a chemical test to establish the defendant's blood alcohol content at the time of the accident, the expert's opinion "did not have the ‘prima facie’ effect specified by the statute and [the] defendant was not entitled to the charge [ ]he sought" ( People v. Fratangelo, 23 N.Y.3d 506, 510, 992 N.Y.S.2d 169, 15 N.E.3d 1178 ).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish that the defendant operated a motor vehicle in a reckless manner and was impaired by alcohol when he struck and fatally injured the three victims with his vehicle so as to support the convictions of aggravated vehicular homicide and manslaughter in the second degree ( Penal Law §§ 125.14[4] ; 125.15[1] ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the jury's verdict of guilt on those charges was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that testimony, photographs, and videos concerning the accident scene and details of the victims' deaths were improperly admitted is unpreserved for appellate review (see CPL 470.05[2] ). In any event, because this evidence was not introduced for the sole purpose of arousing the jurors' passions and prejudicing the defendant, but for the purpose of establishing material elements of the crimes charged by demonstrating the manner in which the victims died and by helping illustrate the manner in which the accident occurred, the Supreme Court providently exercised its discretion in permitting this evidence (see People v. Anglin, 178 A.D.3d 839, 115 N.Y.S.3d 377 ; People v. Barnett, 163 A.D.3d 700, 702, 80 N.Y.S.3d 461 ; People v. Lippe, 145 A.D.3d 1035, 1037, 44 N.Y.S.3d 199 ; People v. Jones, 142 A.D.3d 678, 678–679, 37 N.Y.S.3d 278 ). Moreover, notwithstanding that the defendant did not contest the cause of death or the identities of the victims, "the People were ... still required to prove their case beyond a reasonable doubt and present relevant material evidence as to [each] element" of the charged crimes ( People v. White, 79 A.D.3d 1460, 1463, 913 N.Y.S.2d 818 [internal quotation marks omitted]; see People v. McClinton, 180 A.D.3d 712, 119 N.Y.S.3d 132 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., CHAMBERS, IANNACCI and CHRISTOPHER, JJ., concur.