| People v Swan |
| 2011 NY Slip Op 08843 [90 AD3d 1146] |
| December 8, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Nicholas R.Swan, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Peter N. DeLucia of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered March 8, 2010, convicting defendant following a nonjury trial of the crimes of vehicularmanslaughter in the first degree, vehicular manslaughter in the second degree (two counts),assault in the third degree and driving while intoxicated.
In September 2007, defendant, along with three other teenagers, left a party to purchase morealcohol. While driving back to the party, defendant lost control of his vehicle, resulting in anaccident that killed two of his passengers and injured the third. Following a nonjury trial, CountyCourt found him guilty of vehicular manslaughter in the first degree, vehicular manslaughter inthe second degree (two counts), assault in the third degree and driving while intoxicated. Thecourt sentenced him to concurrent terms of 3 to 9 years in prison for vehicular manslaughter inthe first degree, 2 to 6 years in prison on each count of vehicular manslaughter in the seconddegree, one year for the assault count and a fine and license revocation for driving whileintoxicated. Defendant appeals.
The preindictment delay did not deprive defendant of his due process right to a speedy [*2]prosecution.[FN1]A good faith determination by the People to delay prosecution will not deprive a defendant ofdue process even if some prejudice to the defendant exists (see People v Decker, 13 NY3d 12, 14 [2009]; People vVernace, 96 NY2d 886, 888 [2001]). Courts must weigh several factors to determinewhether the delay was unreasonable and thereby deprived the defendant of due process: "(1) theextent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4)whether or not there has been an extended period of pretrial incarceration; and (5) whether or notthere is any indication that the defense has been impaired by reason of the delay" (People vTaranovich, 37 NY2d 442, 445 [1975]).
Here, the People waited eight months after the accident before securing an indictment. Partof this time was spent waiting for results from the blood alcohol test and for the completedaccident reconstruction report. Although State Troopers took measurements and photographs onthe night of the accident, they also returned to the scene later, which they testified wascustomary. The report then had to go through three levels of review before it was consideredfinal. Thus, the People reasonably delayed filing charges while the investigation was continuing(see United States v Lovasco, 431 US 783, 791 [1977]; People v Lesiuk, 81NY2d 485, 490 [1993]). The underlying charges, which addressed the deaths of two individualsand injuries to a third, were serious. Defendant was not incarcerated or formally charged duringthose eight months. Although defendant contends that he was prejudiced by the State PoliceCrime Lab's destruction of his blood sample, that sample was not destroyed until well after theindictment was secured. Additionally, County Court suppressed the test results of his bloodalcohol content (see CPL 240.70 [1]), leading to dismissal of one count of theindictment.[FN2]Considering all of the factors here, the People met their burden of establishing good cause for thedelay, and defendant's due process right to a speedy prosecution was not violated (see Peoplev Lesiuk, 81 NY2d at 490-491).
The convictions were not against the weight of the evidence. In this regard, defendantchallenges the proof of intoxication and County Court's admission of a State Trooper's accidentreconstruction report and testimony. Defendant admitted drinking six to eight beers at the partyprior to the accident. A paramedic testified that she noticed a strong odor of alcohol coming fromdefendant's breath. A Trooper testified that he similarly noticed a strong smell of an alcoholicbeverage from defendant's breath and that defendant "had droopy, watery bloodshot eyes and ared flushed face and seemed to have slow thick slurred speech." The court also heard [*3]a tape of defendant's 911 call, allowing the court to determine foritself the quality of defendant's speech immediately after the accident. While several witnessestestified that they did not notice any indicia of intoxication, we will not disturb the factfinder'scredibility determinations which led to a finding that defendant was intoxicated.
The Trooper who reconstructed the accident testified as to his training and experience inresponding to, investigating and reconstructing vehicular collisions. Based on his qualifications,County Court did not abuse its discretion in permitting this witness to render expert opinionsregarding the estimated speed of the vehicle as well as the manner in which the crash occurred(see People v Hicks, 2 NY3d750, 751 [2004]; People v Eckhardt, 305 AD2d 860, 864 [2003], lv denied100 NY2d 620 [2003]). Defendant's remaining arguments concerning the weight of the evidenceare merely attacks on witness credibility. Giving deference to the factfinder's determinations inthat regard, the weight of the evidence supports the convictions.
Peters, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: While defendant points out thathe was arrested within hours of the accident, statutory speedy trial rights only arise "[a]fter acriminal action is commenced" (CPL 30.20 [1]; see CPL 30.30 [1] [a]). The arrest did notconstitute commencement of a criminal action (see CPL 1.20 [17]). Although a felonycomplaint was drafted by police well before the indictment was obtained, the felony complaintwas never filed with the court; thus, the action commenced upon filing of the indictment(see CPL 1.20 [17]). Defendant does not complain about any postindictment delay.
Footnote 2: Without proof of the test resultof .12%, the People were unable to prove the count of per se driving while intoxicated(see Vehicle and Traffic Law § 1192 [2]).