| People v Briskin |
| 2015 NY Slip Op 01493 [125 AD3d 1113] |
| February 19, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vTraci L. Briskin, Appellant. |
Paul J. Connolly, Delmar, for appellant.
G. Scott Walling, Special Prosecutor, Schenectady, for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Saratoga County(Scarano, J.), rendered December 2, 2013, upon a verdict convicting defendant of thecrime of manslaughter in the second degree and the traffic infraction of driving whileability impaired.
Defendant was charged in a five-count indictment with manslaughter in the seconddegree, vehicular manslaughter in the second degree (two counts) and driving whileintoxicated (two counts). The charges stemmed from a collision that occurred betweentwo motor vehicles—one operated by defendant and one operated by thevictim—at approximately 7:30 p.m. on November 30, 2012 at the intersection ofJockey Street and State Route 67 in the Town of Charlton, Saratoga County. Althoughdefendant provided more than one version of the events leading up to the collision, shetestified at trial that, at approximately 6:15 p.m. on the evening in question, she pouredherself a "regular" glass of wine—defined by defendant as containing four to sixounces of wine—and began making herself some macaroni and cheese. Whendefendant sat down to eat, she poured herself a second glass of wine, which she finishedat approximately 7:00 p.m.[FN1] Within 10 minutes of finishing hersecond glass of wine, defendant got into her white sport utility vehicle (hereinafterSUV)—intending to drive to a friend's house. According to defendant, her pursewas on the front passenger seat, her global positioning system (hereinafter GPS) wasplugged into the SUV's cigarette lighter and was resting in one of the vehicle's cupholders and a quantity of beer was lodged under the front passenger seat.
At some point after defendant turned onto Jockey Street, which ran in a generallynorth/south direction, defendant extinguished the cigarette she was smoking and reachedinto her purse to retrieve a bottle of body spray. In so doing, defendant knocked the GPSunit out of the cup holder and onto the floor at her feet. Although the GPS unit remainedon and continued to give audible directions, defendant deemed it advisable to try andretrieve the unit, which she initially attempted to do by pulling on the attached cord.When the cord became dislodged, defendant tried to maneuver the unit with her feet tothe point where she would be able to reach down with her hand and pick it up. By herown admission, this process entailed defendant looking down at the floor of her vehiclewhich, in turn, resulted in only "[s]poradically" keeping her eyes on the road ahead ofher. While searching for the errant GPS unit, defendant missed a traffic sign warning ofan impending stop sign,[FN2] failed—despite an unobstructedview of traffic on State Route 67, which ran in a generally east/west direction—tosee the victim's vehicle approaching the intersection, passed through the stop sign facingher (and controlling the intersection) and struck the driver's side of the victim'svehicle.[FN3]According to various members of the Saratoga County Sheriff's Department,defendant—who was observed to have "glassy" eyes, a bit of "trouble" inwalking/negotiating the steps into the ambulance and a detectable odor of alcohol on herbreath—failed the field sobriety tests administered at the scene, and her bloodalcohol content as of 9:28 p.m. measured .11%.[FN4]
The accident was witnessed by two motorists—Glen Tevendale Jr. and DeniseFeulner. Tevendale testified that shortly after turning north onto Jockey Street on theevening in question, he observed a white SUV—later determined to be operatedby defendant—approximately 100 feet in front of him. As he continued alongJockey Street, Tevendale saw defendant's SUV cross [*2]over the double yellow line dividing the northbound andsouthbound lanes; defendant's vehicle then swerved to the right—crossing overthe white fog line on the eastern shoulder of the road—before swerving back tothe left and again crossing over the double yellow line.[FN5] At this point, Tevendale saw the brakelights flash, and the SUV thereafter returned to its lane of travel. Tevendale continuedbehind defendant's SUV as the vehicles crested and started to descend a small hill, atwhich point Tevendale could see the headlights of two vehicles—one (it would bedetermined) operated by the victim and the other operated by Feulner—travelingwest on State Route 67 as they approached the intersection with Jockey Street.[FN6] As Tevendale continuednorth on Jockey Street, he saw defendant's SUV first pass the warning sign advisingmotorists of the stop sign ahead and then pass the stop sign itself—entering theintersection and broadsiding the victim's sedan. Tevendale testified that he never sawdefendant hit her brakes before passing through the intersection.
Feulner testified that she was approximately 10 car lengths behind what would proveto be the victim's vehicle—proceeding westbound on State Route67—when she observed two sets of headlights on Jockey Street approaching theintersection with State Route 67. As she watched these vehicles, it appeared to Feulnerthat the first vehicle—defendant's SUV—was "traveling too quickly" andwas not "slowing down at all or going to stop for the stop sign" at the intersection. Infact, Feulner was so concerned that she pulled her vehicle to the side of the road andstopped. As she did so, defendant's SUV "came right through the intersection" and struckthe victim's vehicle. Feulner testified that defendant's vehicle neither slowed nor stoppedas it approached the intersection. By all accounts, although it was very cold with slightsnow flurries on the night of the collision, the roads were clear, dry and free of ice.
The victim ultimately died from the traumatic injuries sustained in the crash.Following a jury trial, defendant was convicted of manslaughter in the second degree,acquitted of vehicular manslaughter (two counts) and driving while intoxicated (twocounts) and convicted of the lesser included offense of driving while ability impaired.Defendant thereafter was sentenced to, among other things, a prison term of2
[*3] Defendant initially contends that County Court erredin denying—without a hearing—her motion to suppress the results of herbreath test. We disagree. "A motion seeking suppression of evidence 'must state theground or grounds of the motion and must contain sworn allegations of fact. . . supporting such grounds' " (People v Desmond, 118 AD3d 1131, 1133 [2014], lvdenied 24 NY3d 1002 [2014], quoting CPL 710.60 [1]). A hearing in this regard isneither "automatic [n]or generally available [simply] for the asking" (People vDesmond, 118 AD3d at 1133 [internal quotation marks and citations omitted]) and,except in circumstances not present here (see CPL 710.60 [3] [b]; 710.20 [3],[6]), the trial court "may summarily deny the motion if the papers do not allege a legalbasis for suppression or if the factual allegations do not as a matter of law support anyalleged ground" (People vVanness, 106 AD3d 1265, 1266 [2013], lv denied 22 NY3d 1044[2013]; see CPL 710.60 [3] [a], [b]). Here, in support of her suppression motion,defendant tendered the affidavit of her attorney, who merely asserted—uponinformation and belief—that the deputies in question lacked probable cause toarrest defendant. This "bare allegation of a lack of probable cause, without any factualsupport, was insufficient to require a hearing" (People v Vanness, 106 AD3d at1266; see People vArmstrong, 94 AD3d 1552, 1553 [2012], lv denied 19 NY3d 957[2012]).
Nor are we persuaded that County Court erred in granting the People's challenge forcause as to prospective juror No. 9. Pursuant to CPL 270.20 (1) (b), a party maychallenge a prospective juror for cause if such juror "has a state of mind that is likely topreclude him [or her] from rendering an impartial verdict based upon the evidenceadduced at the trial" (accordPeople v Harris, 19 NY3d 679, 685 [2012]; People v Arnold, 96 NY2d358, 362 [2001]). "When a [prospective] juror's impartiality is in doubt, it is the court'sobligation to make further inquiries and to excuse the juror if the doubt is not fullydispelled" (People vRussell, 116 AD3d 1090, 1093 [2014]; see People v Harris, 19 NY3d at685; People v Young, 119AD3d 970, 971 [2014]). Notably, "[i]f there is any doubt about a prospective juror'simpartiality, [the] trial court[ ] should err on the side of excusing the juror, since at worstthe court will have replaced one impartial juror with another" (People v Arnold,96 NY2d at 362 [internal quotation marks and citation omitted]; see People vRussell, 116 AD3d at 1093; People v Izzo, 104 AD3d 964, 966 [2013], lvdenied 21 NY3d 1005 [2013]; People v McGuire, 101 AD3d 1386, 1389 [2012]).
During the course of voir dire, the prosecutor inquired as to whether any of theprospective jurors would require the People to prove that defendant had a quantifiablepercentage of alcohol in her blood; specifically, the prosecutor asked if any of theprospective jurors would "absolutely need a [blood alcohol content] number in order tobe convinced beyond a reasonable doubt that [defendant was] intoxicated by alcohol." Inresponse, prospective juror No. 9 raised his hand and said, "yeah," he would need"[s]omething more" than the relevant deputy's "investigation" in order to find defendantguilty of driving while intoxicated. Additional colloquy between this juror and theprosecutor ensued, during the course of which the discussion turned to the topic of fieldsobriety tests. Although the juror acknowledged that testimony regarding the deputy's"specialized training" and/or any admissions made by defendant would "help" inresolving the intoxication issue, he also unequivocally stated that he was adhering to his"original answer," i.e., he would be unwilling to convict defendant of driving whileintoxicated based "solely on the field sobriety tests." The prosecutor thereafter challengedthis juror for cause, noting that the juror "basically doesn't believe in field sobrietytesting."
Although defendant argues that County Court abused its discretion in granting thePeople's challenge for cause as to this juror, we disagree. Regardless of whether the jurorwas correct as to whether an individual could in fact be convicted of driving whileintoxicated based solely upon proof that he or she failed certain field sobriety tests, thejuror's comments—viewed "in context and as a whole" (People v Lee, 66 AD3d1116, 1119 [2009] [internal quotation marks [*4]andcitation omitted])—evidence, at the very least, an opinion regarding the People'sburden of proof and a corresponding reluctance, if not potential unwillingness, to abideby the court's instructions as to the proper legal standards. Further, despite this juror'soften uncertain and/or ambiguous responses (see People v Izzo, 104 AD3d at965-966; People v McGuire, 101 AD3d at 1388-1389), no unequivocal assuranceof impartiality was sought—much less obtained—from him. Under thesecircumstances, County Court properly exercised its discretion in granting the People'schallenge for cause (cf. People vOtero, 56 AD3d 350, 351 [2008], lv denied 14 NY3d 804 [2010]; People v Kenner, 8 AD3d296, 297 [2004]; seegenerally People v Hinds, 93 AD3d 536, 537 [2012], lv denied 19 NY3d974 [2012]).
Defendant next contends that she lacked the culpable mental state required formanslaughter in the second degree and, therefore, the verdict convicting her of that crimeis not supported by legally sufficient evidence and is against the weight of the evidence.Insofar as is relevant here, "[a] person is guilty of manslaughter in the second degreewhen . . . [h]e [or she] recklessly causes the death of another person" (PenalLaw § 125.15 [1]). For purposes of this statute, a person acts "recklessly"when, among other things, he or she "is aware of and consciously disregards a substantialand unjustifiable risk" that death or injury will occur (Penal Law § 15.05[3]; see People v Asaro, 21NY3d 677, 684 [2013]).[FN8] That risk, in turn, "must be of suchnature and degree that disregard thereof constitutes a gross deviation from the standardof conduct that a reasonable person would observe in the situation" (Penal Law§ 15.05 [3]), i.e., the risk must reflect "the kind of seriously blameworthycarelessness whose seriousness would be apparent to anyone who shares the community'sgeneral sense of right and wrong" (People v Asaro, 21 NY3d at 685 [internalquotation marks and citations omitted]). Although the awareness and correspondingdisregard of such a risk indeed is measured from the defendant's perspective, "objectiveevidence of the surrounding circumstances may be weighed in making [that] factualdetermination" (People v Licitra, 47 NY2d 554, 559 [1979]).
As a starting point, the fact that defendant was acquitted of driving while intoxicateddoes not preclude a finding that her conduct on the night in question was reckless, nordoes her acquittal in this regard undermine her conviction of manslaughter in the seconddegree (see People vReichel, 110 AD3d 1356, 1363-1364 n 12, 13 [2013], lv denied 22NY3d 1090 [2014]). Intoxication is not an element of manslaughter in the second degree(see Penal Law § 125.15 [1]). Moreover, there was ample evidencebefore the jury that defendant was impaired by the consumption of alcohol on the nightin question—indeed, the jury convicted defendant of driving while abilityimpaired—and such impairment, coupled with defendant's admitted conduct inattempting to retrieve her GPS unit and the overall manner in which she operated hermotor vehicle on the night in question, established the recklessness necessary to sustainher conviction of manslaughter in the second degree.
Defendant, by her own admission, consumed two "regular" glasses of wine in aroughly 45-minute period and thereafter failed three field sobriety tests administered atthe scene of the [*5]accident.[FN9] Within minutes of finishing her secondglass of wine, defendant operated her vehicle—at night and on an unfamiliarroad—while "fiddling on the floor" of her vehicle in an attempt to retrieve herGPS unit, even though she could still hear the directions being conveyed to her. Again,by her own admission, defendant's attempts to retrieve the GPS unit caused her to only"[s]poradically" watch where she was going, as a result of which defendant never saw (1)the warning sign, (2) the stop sign, (3) the intersection in question, or (4) the victim'svehicle prior to the collision. Notably, defendant acknowledged that she was not awareof the stop sign because she was not looking at the road ahead of her, that she did nothave her eyes on the road as she entered the intersection, that there was a risk associatedwith attempting to retrieve her GPS unit while driving and that she ultimatelydisregarded that risk. Although it is unclear whether defendant exceeded the postedspeed limit as she traveled north on Jockey Street,[FN10] the accident reconstructionisttestified that the minimum speed of defendant's vehicle prior to impact was at least 46miles per hour and that there was no evidence that defendant braked prior to impact.Such proof, combined with the testimony offered by Tevendale and Feulner as to themanner in which defendant operated her vehicle in the moments leading up to theaccident, is more than sufficient to establish that defendant acted with the requireddegree of recklessness. Accordingly, we are satisfied that the verdict is supported bylegally sufficient evidence and is in accord with the weight of the evidence.
As for County Court's charge to the jury, to the extent that defendant contends thatthe court erred in failing to define the term "intoxication" in the context of its charge asto manslaughter in the second degree,[FN11] this issue is unpreserved for ourreview (see People v Green,119 AD3d 23, 30 [2014], lv denied 23 NY3d 1062 [2014]). Further,inasmuch as County Court's charge with respect to manslaughter in the second degreemirrored that set forth in the pattern jury instructions for that crime (seeCJI2d[NY] Penal Law § 125.15) and, therefore, "correctly convey[ed] theproper standards for the jury to apply" (People v Rebollo, 107 AD3d 1059, 1061 [2013] [internalquotation marks and citation omitted]; accord People v Rolfe, 83 AD3d 1217, 1218-1219 [2011],lv denied 17 NY3d 809 [2011]), we discern no basis upon which to takecorrective action in the interest of justice (see People v Green, 119 AD3d at30).
Defendant also ascribes error to the manner in which County Court responded to anote from the jury asking if the term "intoxication" had a particular meaning in thecontext of the count charging manslaughter in the second degree. Where a jury requestsclarification or further instruction, "the court must direct that the jury be returned to thecourtroom and, after notice to both the [P]eople and counsel for the defendant, and in thepresence of the defendant, must give such requested information or instruction as thecourt deems proper" (CPL 310.30). "[W]hile [the] trial court is without discretion indeciding whether to respond, the court does have [*6]discretion as to the substance of the response" (People v Santi, 3 NY3d234, 248 [2004])—the only caveat being that the court's response must be"meaningful" (People vClark, 108 AD3d 797, 799 [2013] [internal quotation marks and citationomitted]; see People vAcevedo, 118 AD3d 1103, 1107 [2014]; People v Arce, 70 AD3d 1196, 1197-1198 [2010]; People v Carpenter, 52 AD3d1050, 1051 [2008], lv denied 11 NY3d 735 [2008], cert denied 556US 1131 [2009]).
Here, on the third day of deliberations, the jury tendered a note (court exhibit No. 9)inquiring, "Is there a definition of 'intoxication' as described in [c]harge [1], definition ofreckless." A lengthy discussion among the prosecutor, defense counsel, County Courtand, ultimately, the jury's foreperson ensued in an effort to both decipher the precisenature of the jury's inquiry and formulate an appropriate response thereto. Upon seekingfurther clarification from the foreperson, and after consultation with the prosecutor anddefense counsel, County Court indicated that its proposed response to the jury would be,"No, reckless is determined by the definition given." Defense counsel agreed withCounty Court's proposed answer, stating, "I believe that should be the only instructiongiven to the jury. Intoxication isn't an element of recklessness, and it's defined prettyclearly." To the extent that defendant can now be heard to complain, we aresatisfied—upon our review of the extended discussion had in thisregard—that County Court provided a meaningful response to the jury'sinquiry.
As a final matter, we find no merit to defendant's claim that she was denied theeffective assistance of counsel based upon defense counsel's failure to object to aparticular question posed to defendant by the prosecutor—inquiring as to whetherdefendant had "met with" her attorney prior to testifying—and, further, to requestthat the jury be charged as to the lesser included offense of criminally negligenthomicide. "To establish an ineffective assistance of counsel claim, defendant wasrequired to show that counsel failed to provide meaningful representation and an absenceof strategic or other legitimate explanations for counsel's allegedly deficient conduct" (People v Lapi, 105 AD3d1084, 1086 [2013], lv denied 21 NY3d 1043 [2013] [internal quotationmarks and citations omitted]). As a general proposition, defense counsel's failure toobject to or request that the jury be charged as to a lesser included offense "is not the typeof clear-cut and completely dispositive error that rises to the level of ineffectiveassistance of counsel" (People vHarris, 97 AD3d 1111, 1112 [2012], lv denied 19 NY3d 1026 [2012][internal quotation marks and citation omitted]). Rather, "whether to object to [orrequest] the submission of a lesser included offense is often a strategic decision thatcould reasonably be made either way. A defendant who thinks his [or her] chances ofacquittal are small may welcome giving the jury an opportunity for a compromiseverdict" (People v Turner, 5NY3d 476, 483 [2005]); alternatively, a defendant may elect "not to request a lesserincluded offense in hopes of securing a complete acquittal" (People v Wicks, 73 AD3d1233, 1236 [2010], lv denied 15 NY3d 857 [2010]). Here, based upondefendant's theory of the case—namely, that she lacked the culpable mental staterequired to sustain a conviction of manslaughter in the second degree—counsel'sdecision not to request the lesser included offense of criminally negligent homicidearguably represented a legitimate trial strategy, and "[t]he fact that this reasonablestrategy proved unsuccessful does not equate with ineffective assistance of counsel" (People v Casseus, 120 AD3d828, 830 [2014]).
We reach a similar conclusion with regard to counsel's failure to object when theprosecutor asked defendant if she had "met with" her attorney prior to trial. As a startingpoint, we reject defendant's assertion that the prosecutor's inquiry in this regard was thefunctional equivalent of impermissibly questioning defendant as to her invocation of theright to counsel (comparePeople v Morrice, 61 AD3d 1390, 1391 [2009]). That said, even assuming thatthe question was improper, we do not find it to be "so egregious as to deny defendant afair trial" (People vRawleigh, 89 AD3d 1483, 1484 [2011], lv denied 18 NY3d 961 [2012]).Further, [*7]defense counsel's decision not to object tothis singular question may well have been "a reasonable and legitimate strategy under thecircumstances" (People vTaylor, 1 NY3d 174, 177 [2003] [internal quotation marks and citationsomitted]; see People vSabines, 121 AD3d 1409, 1412 [2014])—particularly given the mannerin which defense counsel questioned certain of the People's witnesses as to their contactwith the prosecutor prior to trial. Defendant's remaining contentions, including herassertion that the sentence imposed was harsh and excessive, have been examined andfound to be lacking in merit.
Garry, J.P., Lynch and Clark, JJ., concur. Ordered that the judgment is affirmed, andmatter remitted to the County Court of Saratoga County for further proceedings pursuantto CPL 460.50 (5).
Footnote 1:Defendant told membersof the Saratoga County Sheriff's Department on the night of the collision that sheconsumed two glasses of wine at a restaurant in the Town of Clifton Park, SaratogaCounty and had not eaten all day.
Footnote 2:The accidentreconstructionist appearing on behalf of the People testified that this warning sign waslocated "several hundred feet" in advance of the intersection.
Footnote 3:When emergencypersonnel responded to the scene, defendant attempted to blame the victim for theaccident, stating, "That son of a bitch hit me." The accident reconstructionist testified thatdefendant's initial account, wherein she purportedly stopped at the intersectionbut—due to the victim's excessive speed—was unable to clear theintersection before his vehicle struck her SUV, was "physically impossible," anddefendant acknowledged at trial that it was her SUV that struck the sedan operated by thevictim.
Footnote 4:At trial, the People's anddefendant's respective experts offered competing views of defendant's blood alcoholcontent at the time of the crash; defendant's expert estimated defendant's blood alcoholcontent to be between .04% and .06% at 7:30 p.m., and the People's expert estimateddefendant's blood alcohol content to be .14% at that point in time.
Footnote 5:According to Tevendale,defendant's SUV began swerving approximately 1
Footnote 6:Tevendale testified thatthere were "plowed down" farm fields on either side of Jockey Street; hence, there werenot any crops to obstruct a motorist's view of westbound traffic on State Route 67.Feulner offered similar testimony, stating that the surrounding land was "pretty flat" inthe vicinity of the intersection and that there was nothing to obstruct her view of thevehicles proceeding northbound on Jockey Street.
Footnote 7:This Court granteddefendant's motion to stay execution of the judgment of conviction pending appeal andset bail at $75,000 (see CPL 460.50 [1]).
Footnote 8:Although "[a] personwho creates such a risk but is unaware thereof solely by reason of voluntary intoxicationalso acts recklessly with respect thereto" (Penal Law § 15.05 [3]), we arenot evaluating defendant's conduct with respect to this particular aspect of recklessness.
Footnote 9:Although defendantsuggested that she failed the horizontal gaze nystagmus test due to a muscular disorder inher eyes, she acknowledged that she "did terrible" on the heel-to-toe test and "was allover the place" when the deputy asked her to stand on one leg.
Footnote 10:The posted speedlimit was 55 miles per hour. Tevendale testified that he was traveling between 55 and 58miles per hour, and that defendant's vehicle was traveling faster than that.
Footnote 11:County Court diddefine intoxication during its charge to the jury as to the two counts of driving whileintoxicated.