| People v Bohacek |
| 2012 NY Slip Op 04241 [95 AD3d 1592] |
| May 31, 2012 |
| Appellate Division, Third Department |
| 2—The People of the State of New York, Respondent, vBonnie A. Bohacek, Appellant. |
—[*1] James E. Conboy, District Attorney, Fonda (Kelli P. McCoski of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Montgomery County (Catena, J.),rendered September 6, 2011, upon a verdict convicting defendant of the crime of recklessdriving.
Defendant was driving on a two-lane highway in the Town of Florida, Montgomery Countyin the early morning hours of October 2010 when her vehicle crossed the center line of theroadway and collided head-on with a vehicle traveling in the opposite direction. The driver of theother vehicle was killed instantly and defendant was rendered unconscious. Montgomery CountyUndersheriff Jeffrey Smith responded to the accident scene and, after a preliminary investigation,ordered a blood draw from the still unconscious defendant. The results of the chemical test of theblood indicated the presence of various narcotics proscribed by Public Health Law § 3306.A grand jury handed down a seven-count indictment, County Court denied defendant's motion tosuppress the results of the blood test and, following a jury trial, she was acquitted of the first sixcounts of the indictment but convicted of reckless driving. County Court sentenced defendant to30 days in jail and one year of probation.
County Court properly denied the motion to suppress the results of the blood test. NewYork's implied consent law provides that a police officer having reasonable grounds to believethat a person has been operating a vehicle while under the influence of alcohol or drugs may,within two hours of the arrest of such person, direct a chemical blood test (see Vehicleand [*2]Traffic Law § 1194 [2] [a] [1], [2]; People vGoodell, 79 NY2d 869, 870 [1992]; People v Centerbar, 80 AD3d 1008, 1009 [2011]; People v Morrisey, 21 AD3d 597,598 [2005]). If there is probable cause to arrest, a formal arrest of an unconscious driver is notrequired (see People v Goodell, 79 NY2d at 870; People v LeRow, 70 AD3d 66, 70 [2009]; People vCarkner, 213 AD2d 735, 739 [1995], lv denied 86 NY2d 733 [1995]). Probablecause is determined based on the totality of circumstances and requires " 'information sufficientto support a reasonable belief that an offense has been or is being committed or that evidence of acrime may be found in a certain place' " (People v Fenger, 68 AD3d 1441, 1442 [2009], quoting People vBigelow, 66 NY2d 417, 423 [1985]). It does not require proof beyond a reasonable doubtthat a crime was committed and may be supported by reliable hearsay information (see Peoplev Bigelow, 66 NY2d at 423; Peoplev Jacob, 81 AD3d 977, 978 [2011], lv denied 16 NY3d 859 [2011]).
The evidence at the suppression hearing established that Smith, the highest ranking officer atthe scene, ordered the chemical blood test after making a preliminary determination thatdefendant was at fault for the accident by crossing the center line of the roadway and collidingwith the other vehicle near the fog line. There was also testimony that two bottles of prescriptionpills were found in defendant's glove box. A member of the ambulance crew on the scene told adeputy, in Smith's presence, that one of the bottles contained benzodiazepine. Smith testified thathe was aware of the existence of the pills in defendant's vehicle, heard comments about the pillsand based his decision to order the blood test, in part, on their presence in the vehicle.
We agree with County Court's conclusion that the preliminary determination of defendant'sfault in causing the accident and the presence of pills in defendant's vehicle that fall within theVehicle and Traffic Law definition of drugs (see Vehicle and Traffic Law §§114-a, 1192 [3], [4]; Public Health Law § 3306 [Schedule IV]) provided probable causefor Smith to order the blood test. Although defendant argues that County Court improperly reliedon Doe v Axelrod (136 AD2d 410, 416 [1988], mod 73 NY2d 748 [1988]) forthe conclusion that benzodiazepine is listed in Public Health Law § 3306, she does notcontest the accuracy of the information in that decision, which explains that benzodiazepines areclassified in Schedule IV of Public Health Law § 3306. Although defendant claims that thepills played no role in the determination to order the blood test, we will defer to County Court'sdetermination to credit Smith's testimony that he considered the pills in ordering the test (seePeople v Prochilo, 41 NY2d 759, 761 [1977]; People v Story, 81 AD3d 1168, 1168 [2011]).
Defendant also contends that the evidence at trial was legally insufficient to support theconviction for reckless driving. We are not persuaded. Vehicle and Traffic Law § 1212defines reckless driving as "driving or using any motor vehicle . . . in a mannerwhich unreasonably interferes with the free and proper use of the public highway, orunreasonably endangers users of the public highway." More than mere negligence is required,and the term has been held to mean "the running or operation of an automobile under suchcircumstances as to show a reckless disregard of the consequences" (People v Grogan,260 NY 138, 143-144 [1932]).
Here, the People established that the accident was caused by defendant's failure to keep rightand that there was no evidence that the weather conditions, hydroplaning or any mechanicalfailure played any role in the accident. A blood test performed on decedent was negative for thepresence of drugs and alcohol, while the blood test performed on defendant revealed the presenceof three drugs that are listed in Public Health Law § 3306 and were not administered byemergency personnel after the accident. Specifically, the chemical test performed on defendant'sblood revealed the presence of, among other things, [*3]hydrocodone, an opiate, morphine, a strong opiate, andmeprobamate, a muscle relaxant and central nervous system depressant. Viewing the evidence ina light most favorable to the People, the jury could reasonably infer that defendant, in recklessdisregard of the consequences, ingested these drugs, drove her car across the center line of thehighway and collided with decedent's vehicle (see People v McGrantham, 12 NY3d 892, 894 [2009]; People vDevoe, 246 NY 636 [1927]; 8A NY Jur 2d, Automobiles and Other Vehicles § 946;see also People v Ladd, 89 NY2d 893, 895 [1996]).
Finally, defendant argues that probation is not an authorized sentence because thepunishment for reckless driving is governed by Vehicle and Traffic Law § 1801 (1), which,as relevant here, provides for punishment of a fine and/or imprisonment of up to 30 days. Wecannot agree. Penal Law § 65.00 (1), which provides the criteria for a sentence ofprobation, applies "upon conviction of any crime." Reckless driving, an unclassifiedmisdemeanor (see Vehicle and Traffic Law § 1212; Penal Law § 55.10 [2][c]), is a crime and, accordingly, the imposition of a one-year period of probation was authorizedand will not be set aside (see Penal Law § 65.00 [3] [d]; People v Phillips,53 AD2d 798 [1976]).
Mercure, J.P., Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed,and matter remitted to the County Court of Montgomery County for further proceedings pursuantto CPL 460.50 (5).