| People v O'Brien |
| 2020 NY Slip Op 04971 [186 AD3d 1406] |
| September 16, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christopher G. O'Brien, Appellant. |
Laurette D. Mulry, Riverhead, NY (Lisa Marcoccia of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Timothy P. Finnerty of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (FernandoCamacho, J.), rendered December 13, 2017, convicting him of manslaughter in the seconddegree, vehicular manslaughter in the second degree (four counts), driving while intoxicated inviolation of Vehicle and Traffic Law § 1192 (2), driving while intoxicated inviolation of Vehicle and Traffic Law § 1192 (3), driving while ability impaired bydrugs in violation of Vehicle and Traffic Law § 1192 (4), driving while abilityimpaired by the combined influence of drugs or of alcohol and any drug or drugs in violation ofVehicle and Traffic Law § 1192 (4-a), and reckless driving, after a nonjury trial, andimposing sentence. The appeal brings up for review the denial, after a hearing, of those branchesof the defendant's omnibus motion which were to suppress his statements to law enforcementofficials and evidence of his refusal to submit to a chemical blood test.
Ordered that the judgment is modified, on the law and as a matter of discretion in the interestof justice, by vacating the defendant's convictions of vehicular manslaughter in the second degreeunder counts 5, 6, and 7 of the indictment, driving while intoxicated in violation of Vehicle andTraffic Law § 1192 (2), driving while intoxicated in violation of Vehicle andTraffic Law § 1192 (3), driving while ability impaired by a drug in violation ofVehicle and Traffic Law § 1192 (4), and driving while ability impaired by thecombined influence of drugs or of alcohol and any drug or drugs in violation of Vehicle andTraffic Law § 1192 (4-a), vacating the sentences imposed thereon, and dismissingthose counts of the indictment; as so modified, the judgment is affirmed.
We agree with the County Court's denial, after a hearing, of that branch of the defendant'somnibus motion which was to suppress statements he made to law enforcement officials, as theevidence established that the statements were voluntarily made after the defendant knowingly,intelligently, and voluntarily waived his Miranda rights (see Miranda v Arizona,384 US 436 [1966]; People vSicilianonunez, 172 AD3d 912, 913-914 [2019]). Although the defendant maintainedthat, at the time he waived his Miranda rights, his decision-making ability was impairedby a sedative medication that had been administered to him by hospital staff, the totality of thecircumstances established that the defendant understood both the nature of the rights he waswaiving and the consequences of his decision to abandon those rights (see People vSchompert, 19 NY2d 300, 305 [1967]; People v Van Guilder, 29 AD3d 1226, 1227-1228 [2006];People v Bell, 131 AD2d 859, 860-861 [1987]). The court's determination to credit thetestimony of the police witnesses who had observed the defendant's demeanor firsthand,notwithstanding the testimony of the defendant's forensic toxicology expert, was supported bythe record and will not be disturbed on appeal (see People v Osbourne, 178 AD3d 956, 957 [2019]).
Moreover, we agree with the County Court's determination denying that branch of thedefendant's omnibus motion which was to suppress evidence of the defendant's refusal to submitto a test to determine his blood alcohol content, since the hearing evidence was sufficient tosupport the conclusion that the defendant was at least twice given clear and unequivocalwarnings of the effect of his refusal to submit to the test and that he persisted in his refusal totake it (see Vehicle and Traffic Law § 1194 [2] [f]; People v McMahon, 149 AD3d1102, 1102 [2017]; People v Cousar, 226 AD2d 740, 740-741 [1996]).
The defendant's contention that the counts of vehicular manslaughter in the second degreeunder counts 4 through 7 of the indictment (see Penal Law § 125.12 [1])were multiplicitous is unpreserved for appellate review (see CPL 470.05 [2]; People v Campbell, 120 AD3d827, 827 [2014]). Nevertheless, under the circumstances presented here, we review thiscontention in the interest of justice (see CPL 470.15 [a]; People v Senisi, 196AD2d 376, 381-382 [1994]).
"An indictment is multiplicitous when two separate counts charge the same crime"(People v Saunders, 290 AD2d 461, 463 [2002]; see People v Senisi, 196 AD2dat 382). "Multiplicity does not exist where each count requires proof of an additional fact that theother does not," or where "a conviction on one count would not be inconsistent with acquittal onthe other" (People v Saunders, 290 AD2d at 463 [internal quotation marks omitted]). "Ifan indictment is multiplicitous it creates the risk that a defendant will be punished for, orstigmatized with a conviction of, more crimes than he actually committed" (People v Alonzo, 16 NY3d 267,269 [2011]).
The defendant was charged with four counts of vehicular manslaughter in the second degree.As relevant here, "[a] person is guilty of vehicular manslaughter in the second degree when he orshe causes the death of another person, and . . . operates a motor vehicle in violationof subdivision two, three, four or four-a of section eleven hundred ninety-two of the vehicle andtraffic law, . . . and as a result of such intoxication or impairment by the use of adrug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates suchmotor vehicle . . . in a manner that causes the death of such other person" (PenalLaw § 125.12 [1]). Counts 4 through 7 of the indictment were predicated on thedefendant's alleged violation of four distinct subdivisions of Vehicle and Traffic Law§ 1192.
While the People contend that each count of vehicular manslaughter required them to proveadditional facts that the others did not, in fact, the People were only required to prove that thedefendant violated one subdivision of Vehicle and Traffic Law § 1192 in order toprove his guilt under Penal Law § 125.12 (1). The People's election to proceed on atheory that the defendant had violated more than one such subdivision by presenting evidence ofhis multiple, distinct manners of intoxication was not necessary to establish his guilt (seePeople v Charles, 61 NY2d 321, 327-328 [1984]; People v Hoffman, 130 AD3d 1152 [2015]; cf. People v Nunez-Garcia, 178 AD3d1087, 1088 [2019]). Thus, a conviction on one count of vehicular manslaughter in thesecond degree would have been inconsistent with an acquittal on any other count charging thesame offense predicated upon a different manner of intoxication (cf. People v Barber, 133 AD3d868, 869 [2015]). Accordingly, we agree with the defendant that counts 5, 6, and 7 of theindictment were multiplicitous of count 4 (see People v Hoffman, 130 AD3d at 1154;see also People v Demetsenare, 243 AD2d 777, 779-780 [1997]). Although the dismissalof the multiplicitous counts will not affect the duration of the defendant's sentence ofimprisonment, it is nevertheless appropriate to dismiss these counts in consideration of thestigma attached to the redundant convictions (see People v Alonzo, 16 NY3d 267, 269 [2011]; People v Campbell, 120 AD3d827, 827-828 [2014]).
As the People concede, the defendant's convictions of driving while intoxicated in violationof subdivisions (2) and (3) of Vehicle and Traffic Law § 1192 and driving whileability impaired under subdivisions (4) and (4-a) of Vehicle and Traffic Law § 1192are inclusory concurrent counts of vehicular manslaughter in the second degree (Penal Law§ 125.12 [1]; see Vehicle and Traffic Law § 1192 [2], [3], [4],[4-a]; People v Davis, 112 AD3d959, 961 [2013]; People v Bain,85 AD3d 1193, 1194 [2011]). Accordingly, those convictions must also be reversed(see CPL 300.40 [3] [b]).
The sentences imposed on the convictions of manslaughter in the second degree, vehicularmanslaughter in the second degree under count 4 of the indictment, and reckless driving were notexcessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's contention that the County Court's failure to announce a verdict as to count 7of the indictment requires reversal of his conviction has been rendered academic by ourdetermination that count 7 must be dismissed as multiplicitous of count 4.
The defendant's remaining contentions are without merit. Rivera, J.P., Chambers, Iannacciand Wooten, JJ., concur.