| People v Wesley |
| 2017 NY Slip Op 04914 [151 AD3d 1270] |
| June 15, 2017 |
| Appellate Division, Third Department |
[*1](June 15, 2017)
| The People of the State of New York,Respondent, v Jaclyn S. Wesley, Also Known as Jaclyn Michalski,Appellant. |
Francisco P. Berry, Ithaca, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen Ferri of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Broome County (Cawley, Jr., J.), rendered January 22, 2014, convicting defendant following a nonjury trial of the crimes ofvehicular manslaughter in the first degree (three counts) and driving while intoxicated (twocounts).
In May 2011, defendant was driving on Route 88 in the Town of Fenton, Broome Countywhen she hit the middle highway barrier and swerved into the Chenango River. Defendant wasable to escape, but the three passengers in her vehicle drowned and died. In connection with thisincident, defendant was charged with vehicular manslaughter in the first degree (three counts),driving while intoxicated per se and driving while intoxicated. Prior to trial, defendant moved tosuppress a blood sample taken from her and the results of the chemical test revealing thatdefendant had a 0.09% blood alcohol content. After a suppression hearing, County Court denieddefendant's motion. Following a nonjury trial, defendant was convicted as charged and sentencedto an aggregate prison term of 3 to 9 years. Defendant appeals arguing that County Court erred inits suppression ruling.
A police officer may arrest a person without a warrant if a violation of Vehicle and TrafficLaw § 1192 is "coupled with an accident or collision in which such person isinvolved, which in fact has been committed, though not in the police officer's presence, when theofficer has reasonable cause to believe that the violation was committed by such person"(Vehicle and Traffic Law § 1194 [1] [a]). Under New York's implied consent law, aperson who operates a motor vehicle in this state is deemed to have consented to a chemical testof his or her blood [*2]provided that a police officer hasreasonable grounds to believe that such person was driving under the influence of drugs oralcohol and the chemical test is administered "within two hours after such person has been placedunder arrest" (Vehicle and Traffic Law § 1194 [2] [a] [1]; see People v Bohacek, 95 AD3d1592, 1593 [2012]). While a person may refuse the chemical test, in which case a court orderwould be required (see People vMorrisey, 21 AD3d 597, 598 [2005]), "the person's express consent is not required" (People v Centerbar, 80 AD3d1008, 1009 [2011]). Accordingly, "it is immaterial whether a defendant gives expressconsent so long as he or she does not refuse" (People v Morrisey, 21 AD3d at 598[internal quotation marks, brackets and citation omitted]).
At the suppression hearing, Daniel Thomas, a deputy with the Broome County Sheriff'sOffice, testified that, when he responded to the accident scene, defendant was wet and"screaming and yelling very hysterical[ly]." Defendant told Thomas that she had been driving andwas involved in an accident. Thomas, however, did not see any damage or any other vehicles inthe area. Defendant pointed to the river and Thomas saw that the guardrail "was bent a little bit."Thomas went to the guardrail, looked over and saw headlights under the water. During hisconversation with defendant, Thomas noticed a "strong odor of alcoholic beverage coming fromher breath." Defendant told Thomas that she had a half glass of wine at dinner. Even though afield sobriety test was not performed, other law enforcement officials who responded to theaccident scene similarly testified that they detected an odor of alcohol on defendant's breath.Defendant was subsequently taken to the hospital.
Thomas testified that, when he arrived at the hospital, defendant was lying on a bed and wasconnected to an IV. Thomas performed a horizontal gaze nystagmus test and, based on such test,he concluded that defendant was intoxicated. At 1:47 a.m., Thomas advised defendant that shewas under arrest and read her the chemical consent warnings. Thomas explained that thesewarnings advise a person that he or she is being placed under arrest and ask whether he or shewill consent to a chemical test of his or her blood. Even though defendant appeared to be "a littlesleepy" and her eyelids were "droopy" and "half shut," she responded to Thomas' questions withlogical answers and Thomas described her as "cooperative." When Thomas asked her to sign aconsent refusal form, defendant merely answered that she did not want to sign it because of painin her wrist. Thomas testified that, at 2:15 a.m., a nurse drew blood from defendant in hispresence.
Defendant asserts that her arrest was invalid because reasonable cause to believe that she wasdriving in violation of Vehicle and Traffic Law § 1192 was lacking. We disagree.Given her admissions that she had consumed wine with her dinner and was involved in a motorvehicle accident, the testimony from several officers detecting the odor of alcohol on defendant'sbreath and Thomas' opinion that defendant was intoxicated after administering the horizontalgaze nystagmus test, we conclude that reasonable cause existed to believe that defendant wasdriving in violation of Vehicle and Traffic Law § 1192 and, therefore, defendant'sarrest was valid (see Vehicle and Traffic Law § 1194 [1] [a]; People vKowalski, 291 AD2d 669, 670 [2002]; People v Grow, 249 AD2d 686, 687 [1998];People v Bagley, 211 AD2d 882, 883 [1995], lv denied 86 NY2d 779 [1995];People v Rollins, 118 AD2d 949, 950 [1986]). Furthermore, inasmuch as the recordevidence demonstrates that defendant did not refuse the chemical test and that such test wasadministered approximately 30 minutes after Thomas arrested defendant, we conclude that thelaw enforcement officials appropriately relied upon the implied consent provisions of Vehicleand Traffic Law § 1194 to have defendant's blood withdrawn and tested (seePeople v Morrisey, 21 AD3d at 598-599). Accordingly, we find no error in County Court'ssuppression ruling.
[*3] Finally, defendant failed topreserve her contention that the implied consent provisions of Vehicle and Traffic Law§ 1194 are unconstitutional (see People v Lancaster, 143 AD3d 1046, 1052 [2016], lvdenied 28 NY3d 1147 [2017]). We further note that the record does not indicate thatdefendant advised the Attorney General that she was challenging the constitutionality of a NewYork statute (see Executive Law § 71 [1], [3]; People v Alsaifullah, 130 AD3d1321, 1322 [2015]).
Peters, P.J., Garry, Lynch and Clark, JJ., concur. Ordered that the judgment is affirmed.