| People v Gore |
| 2014 NY Slip Op 03531 [117 AD3d 845] |
| May 14, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kim Gore, Appellant. |
Salvatore C. Adamo, New York, N.Y., for appellant.
David M. Hoovler, District Attorney, Middletown, N.Y. (Lauren E. Grasso andAndrew R. Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County(Freehill, J.), rendered July 16, 2010, convicting her of aggravated vehicular homicideand manslaughter in the second degree, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing, of those branches of thedefendant's omnibus motion which were to suppress the results of a blood test and herstatements to law enforcement officials.
Ordered that the judgment is affirmed.
After a hearing, the County Court properly found that the defendant was not incustody before being advised of her Miranda rights (see Miranda vArizona, 384 US 436 [1966]), and properly denied that branch of her omnibusmotion which was to suppress her statements made to police officers at a hospitalfollowing a car accident (see People v Huntley, 15 NY2d 72 [1965]; People vRipic, 182 AD2d 226, 230-231 [1992]). The initial questions were investigatory innature and, even though the defendant was not in custody, all subsequent questions werepreceded by proper Miranda warnings (see Miranda v Arizona, 384 US436 [1966]; People v Bowen, 229 AD2d 954, 955 [1996]; People vBaker, 188 AD2d 1012 [1992]).
Moreover, the County Court properly denied that branch of the defendant's omnibusmotion which was to suppress the results of a blood test. The record reflected that thedefendant consented to the blood test while at the hospital. A police officer at thehospital testified that, although the defendant was in some pain, she was not soincoherent that she was incapable of giving consent (see People v Bowen, 229AD2d at 955; People v Delosh, 195 AD2d 769, 770 [1993]; People vOsburn, 155 AD2d 926, 927 [1989]).
At trial, the defendant requested an adverse inference charge, alleging that theevidence of the blood test was not preserved. The County Court properly denied therequest since there was no evidence that the defendant sought to perform independenttesting on that blood-test evidence or that the People failed to preserve the blood-testevidence (cf. People v Scalzo, 176 AD2d 363 [1991]; People v Wagstaff,107 AD2d 877 [1985]).
[*2] Thedefendant failed to preserve for appellate review her challenge to the County Court'scharge with respect to aggravated vehicular homicide (see CPL 470.05 [2]; PenalLaw § 125.14 [3]). In any event, the "court's charge, taken as a whole,conveyed to the jury the correct standard" (People v Drake, 7 NY3d 28, 32 [2006]; see People vFields, 87 NY2d 821, 823 [1995]).
The defendant failed to preserve for appellate review her contention that theconvictions of aggravated vehicular homicide (Penal Law § 125.14 [3]) andmanslaughter in the second degree (Penal Law § 125.15 [1]) were notsupported by legally sufficient evidence (see People v Hawkins, 11 NY3d 484 [2008]; CPL 470.05[2]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficientto prove the defendant's guilt of those crimes beyond a reasonable doubt. Moreover, infulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383 [2004], cert denied542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we find that the verdict of guilt as to those crimes was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The sentence imposed was not excessive (see People v Delgado, 80 NY2d780 [1992]; People v Thompson, 60 NY2d 513, 519 [1983]; People vSuitte, 90 AD2d 80, 85-86 [1982]). Eng, P.J., Miller, Hinds-Radix and Maltese, JJ.,concur.