| People v Steinhilber |
| 2008 NY Slip Op 01649 [48 AD3d 958] |
| February 28, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v LeroySteinhilber, Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Anna E. Remet of counsel), forrespondent.
Carpinello, J. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.),rendered January 13, 2006 (1) upon a verdict convicting defendant of the crime of driving whileintoxicated (two counts) and (2) convicting defendant following a nonjury trial of the crime ofaggravated unlicensed operation of a motor vehicle in the first degree.
Defendant was involved in a one-car accident in the Town of Shawangunk, Ulster County,on the evening of June 24, 2004. A state trooper responded to the scene and asked defendant,who was injured but still conscious, a few questions. After confirming his identity, defendantinformed the trooper that he was on route home from a bar. The trooper then asked him howmuch alcohol he drank at the bar and defendant indicated that he had consumed 10 beers. Afterdefendant was transported to the hospital and at the request of another state trooper, a surgicalresident on duty in the emergency room drew blood from him revealing a blood alcohol contentof 0.13%. Based on this evidence, a jury found defendant guilty of two counts of driving whileintoxicated. Following a subsequent nonjury trial, he was also found guilty of aggravatedunlicensed operation of a motor vehicle in the first degree. Sentenced to concurrent prison terms of1
Defendant claims that the jury verdict finding him guilty of driving while intoxicated wasagainst the weight of the evidence. This argument is premised on the contention that his [*2]blood test results and his statement to the trooper at the scene of theaccident were improperly admitted into evidence. Since neither of these contentions has merit,his attack on the verdict as being against the weight of the evidence likewise fails.
Contrary to defendant's contention, the surgical resident who drew his blood was qualified todo so since he had received a medical degree in 2003, had passed all of his board examinationsand was practicing medicine under the umbrella of an attending physician. He was therefore a"physician" generally (see Indemini vBeth Israel Med. Ctr., 4 NY3d 63, 67 [2005] ["(a) medical resident is undoubtedly aphysician"]; compare Education Law § 6522 with Education Law§§ 6525, 6526 [1]) and one qualified to draw blood under Vehicle and Traffic Law§ 1194 (4) (a) (1) (see People v Stanton, 33 Misc 2d 921 [1962]). Although thisresident was not yet licensed at the time, the Legislature has long since dispensed with therequirement that a physician be licensed to qualify as a person authorized to draw blood underthis statute (Vehicle and Traffic Law former § 71-a, as amended by L 1954, ch 320).Accordingly, we find no error in County Court's denial of defendant's motions to suppress theblood test results (see People vMiller, 21 AD3d 1146 [2005], lv denied 5 NY3d 854 [2005]; comparePeople v Reynolds, 307 AD2d 391 [2003], lv denied 1 NY3d 578 [2003]).
Next, defendant was neither in custody nor being interrogated when the trooper responded tothe accident and briefly spoke with him at the scene to ascertain his identity and investigate thecircumstances surrounding the accident (see People v Miller, supra; People vNoonan, 220 AD2d 811 [1995]; People v Hanna, 185 AD2d 482 [1992], lvdenied 80 NY2d 930 [1992]; People v Palmiere, 124 AD2d 1016 [1986]; Peoplev DeBlase, 142 AD2d 926 [1988]; People v Hennigan, 135 AD2d 1082 [1987];People v Aia, 105 AD2d 592 [1984]; People v Brown, 104 AD2d 696 [1984],lv denied 64 NY2d 778 [1985]; see also People v Tankleff, 84 NY2d 992, 994[1994]; People v Huffman, 41 NY2d 29, 32-34 [1976]; People v Yukl, 25 NY2d585, 589-591 [1969]). Thus, defendant was not entitled to suppression of the statements he madeat the scene based on the absence of Miranda warnings. Finally, given his extensive,persistent and varied criminal history dating back to 1975, which includes a term in prison andnumerous alcohol-related offenses, we are unpersuaded that his sentence was harsh or excessiveand find no extraordinary circumstances warranting a reduction in the interest of justice (see e.g. People v Hammond, 35 AD3d905 [2006], lv denied 8 NY3d 946 [2007]; People v Beyer, 21 AD3d 592, 595 [2005], lv denied 6NY3d 752 [2005]; People v Redeye,8 AD3d 829 [2004]; People vKirkland, 2 AD3d 1063, 1063-1064 [2003]; People v Arnold, 2 AD3d 975, 975-976 [2003], lv denied 1NY3d 594 [2004]).
Peters, J.P., Rose, Kane and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.