| People v Baker |
| 2008 NY Slip Op 03998 [51 AD3d 1047] |
| May 1, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent-Appellant, vSteven R. Baker, Appellant-Respondent. |
—[*1] Julie A. Garcia, District Attorney, Elizabethtown, for respondent-appellant.
Lahtinen, J. Appeals (1) from an order of the County Court of Essex County (Meyer, J.),entered October 10, 2006, which partially granted defendant's motion pursuant to CPL 330.30and set aside the verdict convicting him of the crimes of vehicular manslaughter in the seconddegree and driving while intoxicated under counts two and four of the indictment, and (2) from ajudgment of said court, rendered October 20, 2006, upon a verdict convicting defendant of thecrimes of manslaughter in the second degree, driving while intoxicated and aggravatedunlicensed operation of a motor vehicle in the third degree.
Defendant's conviction arises from an incident where the car he was driving struck and killeda jogger on Route 373 in the Town of Chesterfield, Essex County. On January 16, 2006, at about4:00 p.m. to 4:15 p.m., a 1996 Chevrolet Beretta operated by defendant in a westerly direction onRoute 373 approached the victim, a college student who was jogging in an easterly direction onthe north side of that road. The speed limit was 55 miles per hour. Defendant's vehicle struck thevictim while traveling at a speed estimated by an expert at 69 to 74 miles per hour causing hisimmediate death. Although it is undisputed that defendant had consumed alcoholic beveragesearlier in the day, the amount consumed was contested at trial. Testing on blood taken by a nursewith defendant's consent at about 6:45 p.m. revealed a blood alcohol content of .10%.[*2]
Defendant was indicted for the crimes of manslaughter inthe second degree, two counts of vehicular manslaughter in the second degree (based on statutorydriving while intoxicated and common-law driving while intoxicated), two counts of drivingwhile intoxicated (statutory and common law), and aggravated unlicensed operation of a motorvehicle in the third degree. The count of vehicular manslaughter in the second degree based oncommon-law driving while intoxicated (count three) was dismissed with the consent of thePeople prior to trial. Defendant was convicted of the remaining five counts following a jury trial.
Prior to sentencing, defendant made a CPL 330.30 motion to set aside the verdict arguing,among other things, that the evidence of his blood alcohol content had been improperly admittedwithout a proper foundation. Finding merit in that argument because the People had not elicitedproof of calibration of the device used when analyzing defendant's blood, County Court set asidethe verdict and directed a new trial with respect to vehicular manslaughter in the second degree(count two) and driving while intoxicated per se (count four). On the remaining three counts,defendant was sentenced to 4 to 12 years in prison for manslaughter in the second degree, oneyear for common-law driving while intoxicated and 30 days for aggravated unlicensed operationof a motor vehicle, all to run concurrently. Defendant appeals from the judgment of convictionand the People appeal from the partial granting of defendant's CPL 330.30 motion.
We turn first to the People's argument that they presented a sufficient foundation fordefendant's blood alcohol and, thus, County Court erred in partially granting defendant's CPL330.30 motion. It is well settled that a foundation establishing the reliability and accuracy of amachine used to measure blood alcohol content is a prerequisite to admitting the results of ablood alcohol test into evidence (see People v Campbell, 73 NY2d 481, 485 [1989]; People v Grune, 12 AD3d 944,945 [2004], lv denied 4 NY3d 831 [2005]). The People failed to set forth proof at trialthat the gas chromatograph had been properly calibrated before it was used to test defendant'sblood. While the expert who appeared for the People was sufficiently qualified to have renderedan opinion based upon his firsthand testing of the blood (see People v Abel, 166 AD2d841, 842 [1990], lv denied 76 NY2d 983 [1990]), the People did not elicit testimonyfrom him regarding the specific steps he took to ensure the reliability and accuracy of the test thathe conducted on defendant's blood sample. General statements about what he typically does witha blood sample are insufficient in the absence of testimony that he actually took such measureswith regard to this blood sample. Here, as in Grune, "the People failed to elicit testimonyfrom the witness who conducted the test as to whether the testing equipment was properlycalibrated and whether the test was properly performed on the particular blood sample taken fromdefendant" (People v Grune, 12 AD3d at 945). Defendant preserved the issue by a timelyobjection in which he asserted the lack of a proper foundation. Accordingly, we conclude thatCounty Court properly reversed these convictions and directed a new trial as to counts two andfour.
Under the facts and circumstances of this case, the improper admission into evidence of theblood alcohol test result constrains us to conclude that reversal and a new trial are necessary onthe manslaughter in the second degree (count one) and common-law driving while intoxicated(count five) convictions. Nonconstitutional evidentiary errors do not require reversal when,excising the improper evidence from consideration, the remaining proof of a defendant's guilt isoverwhelming and the error is not otherwise prejudicial (see People v Crimmins, 36NY2d 230, 241-242 [1975]; People v Richards, 228 AD2d 792, 793 [1996], lvdenied 88 NY2d 1024 [1996]; see also People v Ayala, 75 NY2d 422, 431 [1990]).Witnesses detected the odor of alcohol on defendant's breath and there were open containers inthe car. However, defendant acknowledged at trial that he had been drinking, but contended thathe had not consumed an [*3]excessive amount and that hisimbibing occurred a considerable period of time before the accident.
The testimony of a witness—who defendant passed as she drove in the same directionin which defendant was traveling and who could see the jogger in thedistance—characterizing visibility as good and defendant as going "very fast," whilecertainly strong evidence of culpability, does not overwhelmingly establish defendant's guilt.Notably, the jury was instructed that it could consider the result of the blood alcohol test withrespect to the common-law driving while intoxicated count and that it could consider defendant'sintoxication in evaluating defendant's recklessness for the manslaughter in the second degreecount. In light of such charge permitting consideration of the improperly admitted evidence andthe potential significance of that evidence, together with the fact that we cannot conclude fromthis record that the remaining evidence overwhelmingly established defendant's guilt (cf. People v Donaldson, 46 AD3d1109, 1110 [2007]; People v Swanston, 277 AD2d 600, 602 [2000], lvdenied 96 NY2d 739 [2001]; People v White, 185 AD2d 460, 461 [1992], lvdenied 80 NY2d 935 [1992]), a new trial is warranted on counts one and five (see People v Griesbeck, 17 AD3d717, 717-718 [2005]).
We need comment only briefly upon some of the many other arguments advanced on appeal.Defendant's contention that the verdict was against the weight of the evidence—whichwould result in dismissal rather than remittal for a new trial (see CPL 470.20[5])—has been considered and found unavailing (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Similarly,we find unpersuasive his argument urging error in the grand jury proceeding (see CPL190.50 [5] [a]; People v Gibbs, 12AD3d 710, 710 [2004]). Defendant's alternative argument regarding the convictions that hesuccessfully had reversed in his CPL article 330 motion are not properly before us at this time(see People v LaFontaine, 92 NY2d 470, 474 [1998]; People v Goodfriend, 64NY2d 695, 698 [1984]). The remaining issues are academic or without merit.
Cardona, P.J., Mercure, Spain and Kavanagh, JJ., concur. Ordered that the order andjudgment are modified, on the law, by reversing defendant's convictions for manslaughter in thesecond degree and common-law driving while intoxicated under counts one and five of theindictment; matter remitted to the County Court of Essex County for a new trial on said counts(together with counts two and four); and, as so modified, affirmed.