| People v Drayton |
| 2008 NY Slip Op 09221 [56 AD3d 1278] |
| November 21, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Gregory M.Drayton, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Patrick H. Fierro of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered June2, 2005. The judgment convicted defendant, upon a jury verdict, of vehicular assault in thesecond degree, driving while ability impaired by drugs, endangering the welfare of a child (twocounts) and a traffic infraction.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, two counts of endangering the welfare of a child (Penal Law § 260.10 [1]) andone count of driving while ability impaired by drugs (Vehicle and Traffic Law § 1192 [4]).Defendant contends that County Court erred in refusing to suppress his blood sample, which wascollected by hospital staff and then obtained by the police in violation of the physician-patientprivilege pursuant to CPLR 4504 (a). We reject that contention. The blood sample was obtainedpursuant to a search warrant that was supported by probable cause (see People v Casadei,66 NY2d 846, 848 [1985]; see generally Matter of Abe A., 56 NY2d 288, 291 [1982])and, unlike hospital records and diagnostic test results concerning a defendant's blood content, ablood sample does not constitute information communicated to a physician from a patient toinvoke the physician-patient privilege (see generally People v Elysee, 49 AD3d 33, 38[2007], lv granted 10 NY3d 840 [2008]; Dillenbeck v Hess, 73 NY2d 278, 289[1989]). Even assuming, arguendo, that the seizure of the blood sample by the police constituteda violation of the physician-patient privilege under CPLR 4504 (a), we conclude that the courtproperly refused to suppress the evidence results from the blood sample inasmuch as "a violationof a statute does not, without more, justify suppressing the evidence to which that violationleads" (People v Greene, 9 NY3d 277, 280 [2007]).
Defendant failed to preserve for our review his contention that the court erred in permittingthe People to present testimony concerning the contents of toxicology reports in order to establishdefendant's propensity for drug use (see People v Varsos, 182 AD2d 508, 509 [1992],lv denied 80 NY2d 911 [1992]) and, in any event, that contention lacks merit. Finally, wereject defendant's contention that the verdict is against the weight of the evidence (seegenerally People v Danielson, 9 NY3d 342, 348 [2007]; People v Bleakley, 69 NY2d490, 495 [1987]). Present—Scudder, P.J., Martoche, Smith, Peradotto and Pine, JJ.