| People v Hale |
| 2017 NY Slip Op 01229 [147 AD3d 975] |
| February 15, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dustin H. Hale, Appellant. |
Gail B. Rubenfeld, Monticello, NY (David Clifford Holland of counsel), for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea and BridgetRahilly Steller of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.),rendered October 10, 2014, convicting him of aggravated vehicular homicide and manslaughterin the second degree (two counts), upon a jury verdict, and imposing sentence. The appeal bringsup for review the denial, after a hearing, of that branch of the defendant's omnibus motion whichwas to suppress the results of a blood test.
Ordered that the judgment is affirmed.
The defendant was convicted of aggravated vehicular homicide and two counts ofmanslaughter in the second degree following an automobile crash that resulted in the deaths oftwo of his passengers. The County Court properly denied suppression of evidence relating to themarijuana content in the defendant's blood. The police obtained and tested the defendant's bloodin accordance with Vehicle and Traffic Law § 1194 (2) (a) (1) (see People vGoodell, 79 NY2d 869, 870-871 [1992]). Contrary to the defendant's contention, the policedid not violate his constitutional rights by obtaining his blood without a warrant while he wasunconscious in the hospital because the hours-long delay between the crash and the time whenthe police were first able to obtain the defendant's blood constituted exigent circumstances(see id. at 870-871; People v Kates, 53 NY2d 591, 594-595 [1981]; People v LeRow, 70 AD3d 66, 74[2009]; People v Dombrowski-Bove, 300 AD2d 1122, 1123-1124 [2002]; People vHall, 91 AD2d 1002, 1003 [1983], affd 61 NY2d 834 [1984]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of aggravated vehicular homicide (Penal Law § 125.14 [4]) andtwo counts of manslaughter in the second degree (Penal Law § 125.15 [1]) beyond areasonable doubt (see People vGallo, 133 AD3d 1088, 1089-1090 [2015]). Additionally, in fulfilling our responsibilityto conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633, 643-644 [2006]).
[*2] The defendant'scontention that he was deprived of a fair trial because of alleged prosecutional misconduct duringvoir dire, direct examination of witnesses, and summation is unpreserved for appellate review(see CPL 470.05 [2]). In any event, the prosecutor's statement during voir dire was notimproper, as the jury could not have interpreted it as an instruction on the law because of thestatement's content and the County Court repeatedly advised the jury that it would instruct themon the law (see People v Din, 62AD3d 1023, 1024 [2009]). The prosecutor's elicitation of testimony from a detective as tothe statements of a witness who testified earlier in the trial was not improper bolstering and didnot call for hearsay because the testimony was offered for nonhearsay purposes (see People v Arroyo, 128 AD3d843, 844-845 [2015]). The prosecutor's statement during summation referencing a witness'credibility was responsive to the defense counsel's summation (see People v Rodriguez,207 AD2d 917 [1994]; People v Torres, 121 AD2d 663, 664 [1986]). To the extent thatthe prosecutor's other questions during the examination of the People's witnesses and statementsduring summation were improper (seePeople v Pearson, 29 AD3d 711, 711-712 [2006]), the questions and statements werenot so pervasive or flagrant as to deprive the defendant of a fair trial (see People v Creekmur, 137 AD3d1052, 1053 [2016]; People vWallace, 123 AD3d 1151, 1152 [2014]).
There is no merit to the defendant's contention that he was deprived of the effectiveassistance of counsel. Defense counsel's failure to raise objections with little or no chance ofsuccess does not constitute ineffective assistance of counsel (see People v Stultz, 2 NY3d 277, 287 [2004]; People v Friel, 53 AD3d 667, 668[2008]). The defendant failed to carry his burden of demonstrating that defense counsel's failureto object to other alleged prosecutorial misconduct had no strategic purpose or other legitimateexplanation (see People v Taylor, 1NY3d 174, 177 [2003]; People v Benevento, 91 NY2d 708, 712 [1998]; People vRivera, 71 NY2d 705, 709 [1988]). Finally, although the defendant identifies severalinstances where defense counsel failed to address objectionable statements, evidence, andtestimony, viewing defense counsel's performance as a whole, the defendant was provided withmeaningful representation (see People vWalker, 141 AD3d 678 [2016]; People v Pringle, 136 AD3d 1061, 1063 [2016]; People v Myers, 117 AD3d 755,756 [2014]).
The County Court providently exercised its discretion in denying the defendant's applicationfor youthful offender status given the manner in which the crime was committed, therecommendation in the presentence report, and the defendant's reckless conduct, which causedthe death of two people (see People vDriggs, 24 AD3d 888, 889 [2005]). Moreover, the sentence imposed was not excessive(see People v Suitte, 90 AD2d 80 [1982]). Balkin, J.P., Leventhal, Roman and LaSalle,JJ., concur.