| People v Kulk |
| 2013 NY Slip Op 01299 [103 AD3d 1038] |
| February 28, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v PeterF. Kulk, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Franklin County (Main Jr.,J.), rendered September 26, 2011, upon a verdict convicting defendant of the crimes ofdriving while intoxicated and aggravated unlicensed operation of a motor vehicle in thefirst degree.
In August 2010, police officer Leigh Wenske, who knew that defendant had asuspended or revoked driver's license, saw him driving a car in the Village of SaranacLake, Franklin County. After stopping defendant's vehicle, the officer noticed and tolddefendant that he had an odor of alcohol on his person. Defendant made severalincriminating statements and refused to submit to field sobriety tests. He was arrested andtransported to the police station, where he agreed to submit to three field sobriety tests,two of which he passed, and to a breathalyzer test, which indicated that his blood alcoholcount (hereinafter BAC) was .10. Defendant was indicted for aggravated unlicensedoperation of a motor vehicle (hereinafter AUO) in the first degree and two counts ofdriving while intoxicated (hereinafter DWI). Following a jury trial, he was acquitted ofone of the DWI charges and convicted of the remaining charges. County Court denieddefendant's motion to set aside the verdict, and sentenced him to concurrent prison termsof 2 to 6 years for the DWI conviction and 1
Defendant contends that County Court erred in denying his motion to suppress the[*2]statements he made during the traffic stop. At thesuppression hearing, Wenske testified that he had learned during a previous encounterwith defendant that his license was suspended or revoked, and advised defendant that hehad stopped him for this reason. Defendant acknowledged his driving status andprovided nondriver identification. Wenske then told defendant that he noticed an odor ofalcohol on his person, and inquired how much he had had to drink that day. According toWenske and police officer Jason Swain, who had been summoned to the scene asbackup, defendant stated, among other things, that he had consumed two alcoholicbeverages, "had been drinking pretty hard" the night before, knew that he was over thelimit and expected to go to prison as a result. Defendant also told the officers to "placehandcuffs on him and take him in."
The record supports County Court's conclusion that Miranda warnings werenot required before defendant made these statements, as he was not then "subject tocustodial interrogation" (Peoplev Baggett, 57 AD3d 1093, 1094 [2008]). "[I]ndividuals who are temporarilydetained pursuant to a routine traffic stop are not considered to be in custody for thepurposes of Miranda" (People v Dougal, 266 AD2d 574, 576 [1999],lv denied 94 NY2d 879 [2000]; see Pennsylvania v Bruder, 488 US 9, 11[1988]; People v Hasenflue, 252 AD2d 829, 830 [1998], lv denied 92NY2d 982 [1998]). Wenske's statement that he smelled alcohol and inquiry regardingalcohol consumption would not have caused a reasonable person innocent of anywrongdoing to believe that he or she was in custody (see generally People vYukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]; People v Nehma, 101 AD3d1170, 1173 [2012]).
Defendant next contends that the People failed to turn over Brady material.In response to defendant's pretrial discovery demand for police video recordings, thePeople acknowledged the existence of a single video taken "during the defendant'sarrest" and agreed to provide it. The People contend that this video—which is notpart of the record—was provided as agreed and is, in any event, not exculpatory.However, the People also now acknowledge the existence of another police video, takenby a dashboard camera in the second officer's vehicle; this video was not turned over todefendant, allegedly because it was not discovered until after this appeal was filed. Thissecond video, which the People claim is not exculpatory, has now been delivered todefendant's appellate counsel and to this Court; however, as it is not part of the record,we cannot address its substance on this appeal. Defendant's claims in this respect wouldmore appropriately be raised in a motion pursuant to CPL article 440 (see CPL440.10; People v Bianca, 91AD3d 1127, 1130 [2012], lv denied 19 NY3d 862 [2012]). As to the policelist of drivers with suspended or revoked licenses, defendant failed to preserve any issueby demanding the list before trial, objecting when the list was referenced in testimony, orotherwise. In any event, as the list is not in the record, defendant's claim that it shouldhave been disclosed cannot be addressed upon this appeal (see People v Bianca,91 AD3d at 1130).[FN*][*3]
We reject defendant's claim that County Courtshould have admitted into evidence the results of an alco-sensor preliminary breath testthat allegedly measured his BAC at only .06. Although the alco-sensor test may be usedto establish probable cause for an arrest, it is not admissible to establish intoxication, asits reliability for this purpose is not generally accepted in the scientific community(see People v Thomas, 121 AD2d 73, 76-77 [1986], affd 70 NY2d 823[1987]; see also Boyd v City of Montgomery, 472 So 2d 694, 697 [Ct Crim AppAla 1985]; State v Smith, 218 Neb 201, 206, 352 NW2d 620, 624 [1984]). Weare not persuaded that a test that is not deemed sufficiently reliable to measure and thusestablish a level of intoxication should be admissible to establish the lack of such level ofintoxication. Defendant failed to preserve his related claim that the alco-sensor resultsshould have been admitted for the limited purpose of showing that the breathalyzermachine—which obtained a higher BAC reading—may not have beenfunctioning correctly. In any event, in the absence of any showing that the test isscientifically accepted as reliable for this purpose, no modification in the interest ofjustice is warranted (see generally People v Hughes, 59 NY2d 523, 537 [1983]).
County Court did not commit reversible error by denying defendant's request tocharge the jury with AUO in the second degree as a lesser included offense of the chargeof AUO in the first degree. Defendant stipulated outside the jury's presence that he knewat the time of the incident that his license had been revoked pursuant to Vehicle andTraffic Law § 511 (2) (a) (ii) as a result of prior DWI convictions, for the purposeof allowing the People to charge AUO in the first degree without prejudicing defendantby revealing to the jury the reason for the revocation of his license (see Vehicleand Traffic Law § 511 [3] [a] [i]; see generally People v Boyles, 210AD2d 732, 732-734 [1994]). In accord with this agreement, the jury was told thatdefendant had stipulated that he did not have a driver's license, but was not told thereason. Defendant's counsel asked the court to charge AUO in the second degree "solong as the lesser included charge did not note to the jury the reason for the suspension"of defendant's license. However, the jury could not have decided whether defendantcommitted AUO in the second degree without knowing the circumstances under whichhis license was revoked (see Vehicle and Traffic Law § 511 [2] [a]).Therefore, as defendant's stipulation prevented the jury from obtaining this information,he was not entitled to the requested instruction.
Finally, we reject defendant's contention that an insufficient foundation was laid forthe admission of the breathalyzer test results. During direct examination of Swain, whoadministered the test, the People established "evidence from which the trier of fact couldreasonably conclude that the test results were derived from a properly functioningmachine using properly constituted chemicals" (People v Freeland, 68 NY2d699, 701 [1986]). The leading questions to which defendant now objects were askedduring cross-examination and upon redirect questioning, after the foundation had beenlaid. Further, County Court properly prevented defendant from cross-examining Swainregarding the effect of time on BAC results, as he did not testify as an expert on suchmatters (compare People v Mertz, 68 NY2d 136, 140-141 [1986]); Swain wasfully cross-examined as to his qualifications and the procedures he followed (see People v Robinson, 53AD3d 63, 70 [2008], lv denied 11 NY3d 857 [2008]). Similarly, the courtproperly precluded defense counsel from cross-examining Wenske about "chemicaltesting" as he had testified on direct examination that he conducted field sobriety testingbut did not administer the breathalyzer test.
Defendant's remaining contentions have been examined and found to be withoutmerit.
Peters, P.J., Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed
Footnote *: Defendant arguesbriefly on appeal that his trial counsel was ineffective in failing to preserve issues forappeal, without specifying issues. To the extent that this argument may referencecounsel's alleged failure to object to the nondisclosure of the list, it relies on evidenceoutside the record—specifically, the list itself—and thus would also best beaddressed in a motion pursuant to CPL article 440 (see People v McCray, 96 AD3d 1160, 1161 [2012], lvdenied 19 NY3d 1104 [2012]).