| People v Hopkins |
| 2007 NY Slip Op 10339 [46 AD3d 1449] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Danny G.Hopkins, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Margaret A. Jones of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedNovember 12, 2004. The judgment convicted defendant, upon a jury verdict, of manslaughter inthe second degree and three violations of the Vehicle and Traffic Law.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of, inter alia,manslaughter in the second degree (Penal Law § 125.15 [1]) and speeding (Vehicle andTraffic Law § 1180 [d]), defendant contends that County Court erred in refusing tosuppress the evidence seized from his home because his wife suffered from a disability thatrendered her incapable of giving consent to enter the home and the court failed to conduct aninquiry with respect to his wife's disability. We reject that contention. Defense counsel'sconclusory assertion concerning the alleged disability of defendant's wife was insufficient towarrant a hearing on that issue (see CPL 710.60 [3]; People v O'Connor, 242AD2d 908, 910 [1997], lv denied 91 NY2d 895 [1998]). Contrary to defendant's furthercontention, the court did not abuse its discretion in denying defendant's motion for a Fryehearing with respect to the admissibility of the data contained in the sensing diagnosticmodule (SDM) in defendant's automobile, which provided information concerning the speed atwhich defendant was traveling. "A court need not hold a Frye hearing where it can relyupon previous rulings in other court proceedings . . . 'Once a scientific procedurehas been proved reliable, a Frye inquiry need not be conducted each time such evidenceis offered[, and courts] may take judicial notice of [its] reliability' " (People v LeGrand, 8 NY3d 449,458 [2007]). "The admissibility of evidence of the data recorded on a[n] SDM has been receivedinto evidence as 'generally accepted as reliable and accurate by the automobile industry and the[National Highway and Traffic Safety Administration]' " (People v Christmann, 3 Misc 3d 309, 315 [2004], citingBachman v General Motors Corp., 332 Ill App 3d 760, 768 [4th Dist2002]). In any event, even assuming, arguendo, that the court erred in determining that the data inquestion was admissible, we conclude that the error is harmless. The People otherwise presentedthe testimony of eyewitnesses and accident reconstruction specialists, as well as defendant's ownstatement, all of which was consistent with the data in question, and there is no significantprobability that defendant would have been acquitted if not for the [*2]admission of the data in evidence (see generally People vCrimmins, 36 NY2d 230, 241-242 [1975]). Finally, the sentence is not unduly harsh orsevere. Present—Hurlbutt, J.P., Martoche, Fahey, Peradotto and Green, JJ.