| People v Sierra |
| 2011 NY Slip Op 05302 [85 AD3d 1659] |
| June 17, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Samuel Sierra,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered November 5, 2007. The judgment convicted defendant, upon a jury verdict, ofmanslaughter in the second degree, vehicular manslaughter in the second degree, aggravatedunlicensed operation of a motor vehicle in the first degree, driving while intoxicated (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, manslaughter in the second degree (Penal Law § 125.15 [1]). Defendant initiallypleaded guilty to the indictment with a sentencing commitment of a term of imprisonment of4½ to 9 years. After County Court (Connell, J.) accepted the plea, the People expressedtheir disagreement with that sentence. Judge Connell determined that he would not abide by thesentencing commitment and recused himself. The case was then assigned to a different CountyCourt Judge (Egan, J.), and defendant withdrew the plea. We reject defendant's contention thatJudge Connell abused his discretion in refusing to abide by the sentencing commitment of theplea agreement. "The court . . . retains discretion in fixing an appropriate sentenceup until the time of sentencing" (People v Schultz, 73 NY2d 757, 758 [1988]) and, inview of Judge Connell's explanation for his determination not to abide by the sentencingcommitment, we cannot conclude that he abused his discretion (see generally id.).Contrary to the further contention of defendant, he is not entitled to specific performance of theplea agreement. "The remedy of specific performance in the context of plea agreements applieswhere a defendant has been placed in a no-return position in reliance on the plea agreement. . . , such that specific performance is warranted as a matter of essential fairness"(People v Herber, 24 AD3d1317, 1318 [2005], lv denied 6 NY3d 814 [2006] [internal quotation marksomitted]). Upon our review of the record, we conclude that specific performance of the pleaagreement is not warranted, and we reject defendant's further contention that media coverage ofthe plea withdrawal tainted the jury pool.
We further conclude that the contention of defendant that his statements to the police wereobtained in violation of his right to counsel and were thus involuntary is without merit. Althoughdefendant abandoned that contention by failing to seek a ruling on that part of his [*2]omnibus motion and failing to object to the admission in evidenceof the statements at trial (see People vAnderson, 52 AD3d 1320 [2008], lv denied 11 NY3d 733 [2008]), it may beraised for the first time on appeal (seegenerally People v McLean, 15 NY3d 117, 119 [2010]; People v Whetstone,281 AD2d 904 [2001], lv denied 96 NY2d 909 [2001]). Inasmuch as the recordestablishes that defendant made an unequivocal request for counsel (see generally People v Porter, 9 NY3d966, 967 [2007]), we address that contention here (see McLean, 15 NY3d at 119,121). Even assuming, arguendo, that defendant's indelible right to counsel had attached when hemade the disputed statements (see generally People v Ramos, 99 NY2d 27, 32-33 [2002];People v Casey, 37 AD3d1113, 1115 [2007], lv denied 8 NY3d 983 [2007]), we conclude that the statementswere spontaneous inasmuch as "they were in no way the product of an interrogation environment[or] the result of express questioning or its functional equivalent" (People v Harris, 57NY2d 335, 342 [1982], cert denied 460 US 1047 [1983] [internal quotation marksomitted]; see People v Rivers, 56 NY2d 476, 480 [1982], rearg denied 57 NY2d775 [1982]; People v Stoesser, 53 NY2d 648, 650 [1981]).
We reject the contention of defendant that the order permitting the chemical test of his bloodwas not obtained in compliance with Vehicle and Traffic Law § 1194 (3). Even assuming,arguendo, that the Assistant District Attorney and County Court (Bellini, J.) failed to complywith the requirements of Vehicle and Traffic Law § 1194 (3) (d) (2), we conclude that suchnoncompliance "was of no moment because there was the requisite substantial compliance withthe requirements of the statute" (People v Dombrowski-Bove, 300 AD2d 1122, 1123[2002]). Defendant further contends that the application for the chemical test of his blood wasinsufficient because the witnesses who offered statements in support thereof were not placedunder oath. We reject that contention. "[A]n application for a court-ordered blood test maycontain hearsay and double hearsay statements that satisfy the Aguilar-Spinelli test [if]the application . . . disclose[s] that it is supported by hearsay and identif[ies] thesource or sources of the hearsay" (People v Freeman, 46 AD3d 1375, 1377 [2007], lv denied10 NY3d 840 [2008]). "[T]he two-part Aguilar-Spinelli test requir[es] a showing that theinformant is reliable and has a basis of knowledge for the information imparted" (People v Monroe, 82 AD3d 1674,1675 [2011] [internal quotation marks omitted]; see People v Ketcham, 93 NY2d 416,420 [1999]) and, upon our review of the record, we conclude that the Aguilar-Spinellirequirements were satisfied here. Inasmuch as the application at issue was written rather thanoral, defendant's contention that the application did not comply with the requirements of Vehicleand Traffic Law § 1194 (3) (d) (3) is of no moment.
Contrary to defendant's further contention, Supreme Court (Egan, J.) properly admittedin evidence at trial the results of the chemical test of his blood. "It is well settled that afoundation establishing the reliability and accuracy of a machine used to measure blood alcoholcontent is a prerequisite to admitting the results of a blood alcohol test into evidence" (People v Baker, 51 AD3d 1047,1048 [2008]; see People v Campbell, 73 NY2d 481, 485 [1989]). We conclude that thePeople established the requisite foundation for the admission of those results (see generallyCampbell, 73 NY2d at 485; Baker, 51 AD3d at 1048-1049). We reject defendant'scontention that the witness who testified regarding the test of defendant's blood was not qualifiedto testify with respect to the accuracy of the machine used to conduct that test (cf.Campbell, 73 NY2d at 484-486).Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Fahey,Lindley, Green and Gorski, JJ.