| People v Murphy |
| 2012 NY Slip Op 08363 [101 AD3d 1177] |
| December 6, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Megen A.Murphy, Appellant. |
—[*1] Kristy L. Sprague, District Attorney, Elizabethtown (Brian W. Felton of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.),rendered August 4, 2011, upon a verdict convicting defendant of the crime of driving whileintoxicated and the traffic infractions of consumption or possession of alcohol in a motor vehicleon a highway and following too closely.
Defendant allegedly followed very closely behind and then passed in a no-passing zone anunmarked police vehicle operated by State Police Investigator Daniel Howard. Howard pulledher over and, when speaking to her, he detected an odor he suspected was alcohol. He was soonjoined by State Trooper Todd Goff, who smelled alcohol and observed open alcoholic beveragecontainers in defendant's vehicle. Goff administered field sobriety tests, which defendant failed.She was taken into custody and a chemical breath test, which was conducted about an hour afterthe initial stop, revealed a blood alcohol level of .10%. Defendant, who had a previous drivingwhile intoxicated (hereinafter DWI) conviction within 10 years, was indicted for felony countsalleging per se and common-law DWI (see Vehicle and Traffic Law §§ 1192[2], [3]; 1193 [1] [c] [i]), as well as three traffic infractions. A jury acquitted on the per se DWIcharge, but found her guilty of common-law DWI and two traffic infractions. Her sentenceincluded a prison term of 1 to 3 years on the felony DWI count. Defendant now appealscontending that the People did not comply with CPL 710.30, County Court erred in admitting herbreath test results into [*2]evidence, and her common-law DWIconviction was against the weight of the evidence.
We affirm. "[T]he purpose of CPL 710.30 is to inform a defendant that the People intend tooffer evidence of a statement to a public officer at trial so that a timely motion to suppress theevidence may be made" (People v Rodney, 85 NY2d 289, 291-292 [1995]; see People v Wilhelm, 34 AD3d40, 44 [2006]). Here, the People provided CPL 710.30 notice regarding statements made bydefendant to police. At the Huntley hearing, Goff testified that when he was doing apat-down of defendant, she made a statement to him to the effect that he was inappropriatelytouching her. This particular statement had not been included in the CPL 710.30 notice. Afterdefendant objected, County Court permitted proof regarding the statement and ruled that it was aspontaneous statement. The statement was addressed at the Huntley hearing, defendanthad an opportunity to challenge it, and the record supports County Court's ruling that it wasspontaneous (see People v Richard, 229 AD2d 787, 789 [1996], lv denied 89NY2d 928 [1996]). Further, it appears from the record that defendant's objection to this evidencewas based on relevancy and not a failure to provide notice.
There was a proper foundation to admit the blood alcohol level results from the breath testadministered to defendant. Breath test results are admissible where the People "establish that themachine is accurate, that it was working properly when the test was performed and that the testwas properly administered" (People v Campbell, 73 NY2d 481, 484 [1989]; see People v Boscic, 15 NY3d494, 497 [2010]; People v Mertz, 68 NY2d 136, 148 [1986]; cf. People v Baker, 51 AD3d1047, 1049 [2008]; People vGrune, 12 AD3d 944, 945 [2004], lv denied 4 NY3d 831 [2005]). The Peoplepresented proof establishing that the machine used for the test on defendant had been recentlycalibrated and was accurate, it was working correctly at the time of the test, and the test wasproperly administered.
Defendant's conviction of common-law DWI was not against the weight of the evidence.When addressing a weight of the evidence argument, we view the evidence in a neutral light,accord deference to the jury's assessment of credibility and "weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony" (People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marksand citation omitted]; accord People vRomero, 7 NY3d 633, 643 [2006]). There were open alcoholic beverage containers indefendant's car and evidence that she had been drinking from one of the containers. The officerstestified regarding the smell of alcohol on defendant. When she exited her vehicle she walked ina manner described by Goff as awkward. She reportedly responded belligerently to Goff at onepoint. Goff testified that he administered four field sobriety tests—a horizontal gazenystagmus test, a walk and turn test, a one-leg stand test and a Romberg balance test.Significantly, defendant failed each of those tests. Although cross-examination revealed somediscrepancies in the testimony of the police, the testimony was not incredible, and this createdcredibility issues for the jury (see Peoplev Shaffer, 95 AD3d 1365, 1366 [2012]; People v D'Angelo, 244 AD2d 788, 789[1997], lv denied 91 NY2d 890 [1998]). The fact that the jury acquitted defendant of theper se DWI count does not require the same result for the common-law DWI. Even disregardingthe result of the breath test, there was ample evidence of her intoxication provided by thetestimony of the police who dealt with her at the scene (see People v Carvalho, 174AD2d 687, 688 [1991], lv denied 78 NY2d 1010 [1991]). Upon weighing andconsidering the evidence, we find that the jury's verdict finding defendant guilty of common-lawDWI was not against the weight of the evidence.
Mercure, J.P., Rose, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.