| People v Lazzaro |
| 2009 NY Slip Op 03636 [62 AD3d 1035] |
| May 7, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Paul D.Lazzaro, Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of Chenango County (Sullivan, J.),rendered November 5, 2007, upon a verdict convicting defendant of the crime of driving whileintoxicated.
After a roadside traffic stop, a police officer arrested defendant for driving while intoxicated(see Vehicle and Traffic Law § 1192 [3]). Defendant moved to preclude hisstatements, which the People failed to specify in CPL 710.30 notices, and to suppress all of hisstatements. County Court held a suppression hearing and denied the motions. Following trial, thejury convicted defendant of the sole count. Defendant appeals.
County Court did not err in refusing to preclude defendant's statements. "CPL 710.30 is anotice statute intended to facilitate a defendant's opportunity to challenge before trial thevoluntariness of statements made by him" (People v Lopez, 84 NY2d 425, 428 [1994]).The People's CPL 710.30 notice failed to specify the sum and substance of any statements theyintended to use against defendant (see CPL 710.30 [1]; cf. People v Lopez, 84NY2d at 428). Despite the inadequate notice, most of the statements were admissible againstdefendant because he moved to suppress his statements, those statements were identified at ahearing addressing their voluntariness and the court denied the motion after that hearing(see CPL 710.30 [3]; People v Merrill, 87 NY2d 948, 949 [1996], revg ondissenting mem at 212 AD2d 987, 988 [1995, [*2]Denman,P.J., and Balio, J., dissenting]; People vMartinez, 9 AD3d 679, 680 [2004], lv denied 3 NY3d 709 [2004]; People vBrown, 281 AD2d 700, 701 [2001], lv denied 96 NY2d 826 [2001]). The onlystatement that was not addressed at the suppression hearing—that defendant asked to betaken to the hospital for a blood test—was raised in defense counsel's opening statement,which opened the door for use of defendant's statement during the People's case-in-chief (see People v Vasquez, 33 AD3d636, 637 [2006], lv denied 8 NY3d 850 [2007]).[FN*]
The prosecutor's summation did not deprive defendant of a fair trial. Defendant did notobject to most of the comments he now attacks, thereby failing to preserve his argument (see People v Lee, 16 AD3d 704,705 [2005], lv denied 4 NY3d 887 [2005]). In any event, the prosecutor did not vouchfor his witnesses, he merely provided fair comment on their credibility in response to the defensesummation (see People v Hopkins,56 AD3d 820, 820-821 [2008]; People v Lee, 16 AD3d at 705). The prosecutor'sdemonstration of blowing through a straw, even if inappropriate, was not pervasive so as todeprive defendant of a fair trial (seePeople v Grady, 40 AD3d 1368, 1374-1375 [2007], lv denied 9 NY3d 923[2007]).
Cardona, P.J., Peters, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: We disagree with defendant'sargument that the prosecutor first raised defendant's statement. The oblique reference to ahospital in the People's opening statement did not imply that defendant had made any relatedstatements.