| People v Freeman |
| 2007 NY Slip Op 10233 [46 AD3d 1375] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jack Freeman,Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Kathleen H. Valone of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), renderedOctober 12, 2005. The judgment convicted defendant, upon a jury verdict, of vehicular assault inthe second degree, assault in the second degree, driving while intoxicated (two counts) andleaving the scene of a personal injury incident without reporting and, upon a bench decision, ofunlawful possession of marihuana.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously modified on the law by reversing that part convicting defendant of driving whileintoxicated under count four of the indictment, granting the motion to suppress the results of theblood test and dismissing that count of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofvehicular assault in the second degree (Penal Law former § 120.03 [1], [2]), assault in thesecond degree (§ 120.05 [4]), leaving the scene of a personal injury incident withoutreporting (Vehicle and Traffic Law § 600 [2]) and two counts of driving while intoxicatedas a misdemeanor (§ 1192 [2], [3]). By the same judgment, he also was convicted upon abench decision of unlawful possession of marihuana (Penal Law § 221.05). Defendantfailed to preserve for our review his contention that he was deprived of a fair trial based onmisconduct of the prosecutor during his opening statement (see CPL 470.05 [2]; People v Dillon, 34 AD3d 1230[2006], lv denied 8 NY3d 879 [2007]), and we decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).Contrary to defendant's further contentions, County Court did not err in failing sua sponte tointervene in the prosecution's opening statement, nor was defendant denied his right to effectiveassistance of counsel by the absence of an objection by defense counsel to the opening statement.Defendant has failed to establish that there was no strategic or other legitimate reason for theabsence of an objection by defense counsel (see People v Vassar, 30 AD3d 1051 [2006], lv denied 7NY3d 796 [2006]). We further conclude that the court properly denied defendant's request tocharge assault in the third degree as a lesser included offense of both vehicular assault in thesecond degree and assault in the second degree because there was no reasonable view of theevidence that would support a finding that defendant committed the lesser offense but not thegreater offenses (see generally CPL 300.50 [1]; People v Glover, 57 NY2d 61, 63[1982]; People v DeBeer, 35 AD3d1275, 1276 [2006], lv [*2]denied 8 NY3d 921[2007]). Also contrary to defendant's contention, the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
We agree with defendant, however, that the court erred in denying his motion to suppress theresults of a compulsory blood test performed on him, and we therefore modify the judgmentaccordingly. We note at the outset that our review of the suppression ruling is of course "limitedto the evidence presented at the suppression hearing" (People v Jennings, 295 AD2d1000, 1000 [2002], lv denied 99 NY2d 536 [2002]). That evidence established that theTrooper who applied for a court-ordered blood test relied upon double hearsay, i.e., statementsmade by civilian witnesses to a fellow Trooper, to support his belief that the accident in questionoccurred "in the course of" defendant's operation of a motor vehicle (Vehicle and Traffic Law§ 1194 [3] [b] [1]). Although an application for a court-ordered blood test may containhearsay and double hearsay statements that satisfy the Aguilar-Spinelli test, theapplication must disclose that it is supported by hearsay and identify the source or sources of thehearsay (see People v Whelan, 165 AD2d 313, 321-322 [1991], lv denied 78NY2d 927 [1991]; see also People v Isaac, 224 AD2d 993, 994 [1996], lv denied88 NY2d 937 [1996]). Here, the application did not disclose that any of its information wasbased upon statements from civilian witnesses, nor did the application set forth that the Trooperhad an independent basis for a finding of reasonable cause to believe that the accident occurred inthe course of the operation by defendant of his vehicle (see Whelan, 165 AD2d at 322).We thus conclude that the application and the ensuing order for a compulsory blood test weredefective and that the evidence obtained therefrom should have been suppressed (seeWhelan, 165 AD2d at 322). Because a conviction of driving while intoxicated per se must beproved by chemical analysis (see Vehicle and Traffic Law § 1192 [2]), we furthermodify the judgment by reversing that part convicting defendant of driving while intoxicatedunder count four of the indictment and dismissing that count of the indictment. With respect tothe remaining counts, however, the error in the court's refusal to suppress the results of the bloodtest is harmless beyond a reasonable doubt inasmuch as there is "no reasonable possibility thatthe error might have contributed to defendant's conviction" (People v Crimmins, 36NY2d 230, 237 [1975]; see Whelan, 165 AD2d at 325).
Finally, we note that the certificate of conviction incorrectly reflects that defendant wasconvicted of vehicular assault in the second degree under Penal Law former § 120.03 (2)and was convicted upon a jury verdict of unlawful possession of marihuana, and it must thereforebe amended to reflect that he was convicted under Penal Law former § 120.03 (1) and (2)and upon a bench decision of unlawful possession of marihuana (see generally People v Saxton, 32AD3d 1286 [2006]). Present—Scudder, P.J., Hurlbutt, Gorski, Centra and Pine, JJ.