| People v Green |
| 2016 NY Slip Op 05399 [141 AD3d 746] |
| July 7, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Myron Green, Appellant. |
Joseph R. Brennan, Queensbury, for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Devine, J. Appeal from a judgment of the County Court of Warren County(McKeighan, J.), rendered March 13, 2015, upon a verdict convicting defendant of thecrimes of manslaughter in the second degree and reckless endangerment in the seconddegree.
Defendant struck and killed a pedestrian while driving an automobile around noonon June 21, 2012 in the Town of Bolton, Warren County. Defendant disclosed to officersresponding to the scene that he had taken antianxiety medication prior to the crash.Defendant told one patrol officer for the Warren County Sheriff's Office in particular,Haley Grace, that he had taken two central nervous system depressants earlier in the day,including twice his prescribed dosage of Clonazepam and a dose of Paxil. He furtheradmitted that the Clonazepam made him "sleepy," and Grace subjected him to abreathalyzer test that was negative and field sobriety tests that revealed him to beimpaired. Defendant agreed to travel to the police station for further testing and wasadvised of his Miranda rights upon his arrival, after which he stated that hewanted to "talk to [his] attorney." The request was ignored and defendant was subjectedto a drug recognition evaluation (hereinafter DRE) that revealed him to be impaired, anadditional breathalyzer test that was negative and two blood tests, one of whichconducted pursuant to a warrant, that revealed the presence of depressants in hissystem.
Defendant was charged in an indictment with offenses stemming from the fatalaccident. His pretrial motion to suppress the statements that he made to investigatorsafter he purportedly [*2]invoked his right to counsel, aswell as the results from the various tests conducted after that time, was denied. Defendantwas thereafter convicted by a jury of manslaughter in the second degree and recklessendangerment in the second degree. County Court imposed an aggregate prison sentenceof 2 to 6 years. Defendant now appeals.[FN1]
Defendant asserts, and the People do not seriously dispute, that he was in custody bythe time he was administered Miranda warnings at the station (see People vHardy, 223 AD2d 839, 841 [1996]). The People further conceded at oral argumentthat defendant invoked his constitutional and limited statutory right to counsel inresponse to those warnings and that, under the circumstances of this case, valid groundsexisted to suppress his post-invocation statements and evidence related to the DRE,second breathalyzer and blood tests (see Vehicle and Traffic Law§ 1194 [2] [a] [1]; People v Higgins, 124 AD3d 929, 931-932 [2015]; People v Mora-Hernandez, 77AD3d 531, 531 [2010]).[FN2] The erroneous admission of thisevidence is reviewed under the harmless error doctrine, and such an error is consideredharmless "when, in light of the totality of the evidence, there is no reasonable possibilitythat the error affected the jury's verdict" (People v Lopez, 16 NY3d 375, 386-387 [2011] [internalquotation marks and citations omitted]; accord People v Dashnaw, 85 AD3d 1389, 1391 [2011],lv denied 17 NY3d 815 [2011]). The admissible evidence at trial established thatdefendant took twice his prescribed dosage of Clonazepam the morning of the accidentand that he failed field sobriety tests administered at the scene. Nevertheless, inasmuch asdefendant's inadmissible statements, the recording of the DRE test and the evidence ofthe inadmissible test results themselves may well have contributed to the conviction, itcannot be said that the erroneous admission of that evidence was harmless (seePeople v Dashnaw, 85 AD3d at 1391-1392; People v Van Patten, 48 AD3d 30, 35-36 [2007], lvdenied 10 NY3d 845 [2008]; People v Hilliard, 20 AD3d 674, 678-679 [2005], lvdenied 5 NY3d 853 [2005]). Thus, the conviction must be reversed and the matterremitted for a new trial.
Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ., concur. Ordered that the judgment isreversed, on the law, motion to suppress statements made and evidence related to testingconducted after defendant's right to counsel attached granted [*3]and matter remitted to the County Court of Warren Countyfor further proceedings not inconsistent with this Court's decision.
Footnote 1:Defendant's applicationfor bail pending appeal was granted by this Court, but that order was subsequentlyrevoked (2015 NY Slip Op 66036[U] [2015]).
Footnote 2:The second blood testwas obtained pursuant to a warrant and, while the applicant for that warrant cited hisbelief that defendant had committed an offense other than one found in Vehicle andTraffic Law § 1192, "a search warrant may validly be issued to obtain ablood sample" if probable cause exists to believe that "a[ny] violation of the Penal Law"has occurred (People v Casadei, 66 NY2d 846, 848 [1985]; see People vGoodell, 164 AD2d 321, 326 [1990], affd 79 NY2d 869 [1992]). That beingsaid, the application for that warrant relied in significant part upon the inadmissible DREresults, and "the derivative evidence seized under color of the subsequent search warrant"must also be suppressed (People v Burr, 70 NY2d 354, 362 [1987], certdenied 485 US 989 [1988]; see Murray v United States, 487 US 533, 542[1988]).