| People v Licausi |
| 2014 NY Slip Op 07687 [122 AD3d 771] |
| November 12, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v John Licausi, Appellant. |
Richard L. Herzfeld, New York, N.Y., for appellant, and appellant pro se.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Hudson, J.), rendered October 21, 2010, convicting him of aggravated vehicularhomicide, manslaughter in the second degree, unlawful fleeing a police officer in a motorvehicle in the first degree, driving while ability impaired by drugs, reckless driving,failing to stop at a stop sign (three counts), failing to stay in a designated lane, failing tostop at a steady red light (two counts), and speeding, upon a jury verdict, and sentencinghim, as a persistent felony offender, to terms of imprisonment of 25 years to life uponeach of his convictions of aggravated vehicular homicide, manslaughter in the seconddegree, and unlawful fleeing a police officer in a motor vehicle in the first degree, a termof imprisonment of 1
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the sentences imposed upon the convictions of aggravated vehicularhomicide, manslaughter in the second degree, and unlawful fleeing a police officer in amotor vehicle in the first degree from terms of imprisonment of 25 years to life to termsof imprisonment of 18 years to life; as so modified, the judgment is affirmed.
The County Court properly denied that branch of the defendant's omnibus motionwhich was to suppress the results of a blood test on the ground that his blood was notobtained in compliance with Vehicle and Traffic Law § 1194 (3). Under thecircumstances here, although the police did not strictly comply with the procedures forobtaining a court order to compel the defendant to submit to a chemical blood test underVehicle and Traffic Law § 1194 (3), there was substantial compliance withthe requirements of the statute (see People v Sierra, 85 AD3d 1659, 1660 [2011];People v Dombrowski-Bove, 300 AD2d 1122, 1123 [2002]; People vWhelan, 165 AD2d 313, 322-323 [1991]; People v Rollins, 118 AD2d 949,950 [1986]; see also People v Goodell, 79 NY2d 869, 870-871 [1992]).
The County Court providently exercised its discretion in precluding the defendant[*2]from presenting the testimony of a Suffolk CountyPolice Department Internal Affairs inspector who reviewed an investigation of thearresting officer's conduct during the pursuit of the defendant, which testimony wasoffered to show that the officer had a motive to fabricate his testimony. While extrinsicproof tending to establish a motive to fabricate is never collateral and may not beexcluded on that ground, a trial court may, as here, in the exercise of its discretion,properly exclude such proof where it is too remote or speculative (see People vThomas, 46 NY2d 100, 105-106 [1978]; People v Hines, 102 AD3d 889, 889 [2013]; People v Garcia, 47 AD3d830, 831 [2008]; People vMestres, 41 AD3d 618, 618 [2007]; People v Monroe, 30 AD3d 616, 617 [2006]).
Contrary to the People's contention, the defendant preserved for appellate review hisclaim that the County Court improperly denied his motion for a mistrial based on certaintestimony of the arresting officer (see CPL 470.05 [2]). However, the courtprovidently exercised its discretion in denying the defendant's motion for a mistrial (see People v Reaves, 112AD3d 746, 747-748 [2013]; People v Brown, 76 AD3d 532, 533 [2010]; People v Arena, 70 AD3d1044, 1046-1047 [2010]).
At a hearing pursuant to CPL 400.20 to determine whether the defendant should besentenced as a persistent felony offender, the defendant challenged the use of his 2002convictions for that purpose on the ground that they were unconstitutionally obtainedbecause his plea of guilty entered in connection therewith was coerced by the CountyCourt and therefore involuntary (see CPL 400.20 [6]). Contrary to the defendant'scontention, the court's remarks during the 2002 plea proceeding were not impermissiblycoercive, since the court did not explicitly threaten to sentence the defendant to themaximum term upon a conviction after trial, but only informed him of his possiblesentence exposure were he to proceed to trial (see People v Tavares, 103 AD3d 820, 820 [2013]; People v Foster, 99 AD3d812, 812-813 [2012]; People v Bravo, 72 AD3d 697, 698 [2010]; cf. People v Rogers, 114 AD3d707, 707 [2014]; People vFisher, 70 AD3d 114, 117-118 [2009]; People v Flinn, 60 AD3d 1304, 1305 [2009]). Thus, theCounty Court properly determined that the 2002 convictions were not unconstitutionallyobtained and found that the defendant was a persistent felony offender based on his 1996and 2002 convictions (see Penal Law § 70.10 [1]; CPL 400.20[5]).
Thereafter, the County Court providently exercised its discretion in sentencing thedefendant as a persistent felony offender (see Penal Law § 70.10[2]; People v Dixon, 107AD3d 735, 736 [2013]; People v Bazemore, 100 AD3d 915, 915 [2012]). Further,the court did not sentence the defendant on the basis of "materially untrue assumptions ormisinformation" (People v Naranjo, 89 NY2d 1047, 1049 [1997] [internalquotation marks omitted]). However, the sentence was excessive to the extent indicatedherein (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions, including those raised in his pro sesupplemental brief, are unpreserved for appellate review and, in any event, without merit.Rivera, J.P., Hall, Austin and Cohen, JJ., concur.