HOGUE, JANELLE Y., PEOPLE v ( 2016 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1399
    KA 11-00448
    PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    JANELLE Y. HOGUE, DEFENDANT-APPELLANT.
    TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARTIN P. MCCARTHY,
    II, OF COUNSEL), FOR DEFENDANT-APPELLANT.
    SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Supreme Court, Monroe County
    (Joseph D. Valentino, J.), rendered January 14, 2011. The judgment
    convicted defendant, upon a jury verdict, of vehicular assault in the
    second degree, driving while ability impaired by drugs (two counts)
    and driving while ability impaired by the combined influence of drugs
    or of alcohol and any drug or drugs.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: Defendant appeals from a judgment convicting her,
    upon a jury verdict, of vehicular assault in the second degree (Penal
    Law § 120.03 [1]), two counts of driving while ability impaired by
    drugs (Vehicle and Traffic Law § 1192 [4]), and driving while ability
    impaired by the combined influence of drugs or of alcohol and any drug
    or drugs (§ 1192 [4-a]). The charges arose from a single-vehicle
    accident that occurred when a vehicle operated by defendant and
    carrying two passengers left the roadway and rolled over multiple
    times, coming to rest in a nearby field. By making only a general
    motion for a trial order of dismissal, defendant failed to preserve
    for our review her contention that the conviction is not supported by
    legally sufficient evidence (see People v Gray, 86 NY2d 10, 19). In
    any event, that contention lacks merit and, contrary to defendant’s
    further contention, viewing the evidence in light of the elements of
    the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
    349), we conclude that the verdict is not against the weight of the
    evidence (see generally People v Bleakley, 69 NY2d 490, 495).
    Defendant contends that the warrant application for a court-
    ordered blood test was insufficient because it failed to identify the
    source of its information. We reject that contention. “[A]n
    application for a court-ordered blood test may contain hearsay and
    -2-                          1399
    KA 11-00448
    double hearsay” as long as the application “disclose[s] that it is
    supported by hearsay and identif[ies] the source or sources of the
    hearsay” (People v Freeman, 46 AD3d 1375, 1377, lv denied 10 NY3d
    840). Here, the warrant application and supporting affidavit both
    stated that they were based on the observations of the police officer
    who responded to the scene of the accident. We reject defendant’s
    further contention that the warrant application was insufficient
    because it failed to provide sufficient facts to support the
    conclusion that a passenger in defendant’s vehicle “suffered serious
    physical injury” as required by Vehicle and Traffic Law § 1194 (3) (b)
    (1). The warrant application stated that a passenger in the vehicle
    had been “seriously injured” inasmuch as he had sustained lacerations
    to the head, was trapped inside the vehicle, and needed to be “[m]ercy
    [f]lighted” to a hospital. We conclude that those statements are
    sufficient to meet the requirements of section 1194 (3) (b) (1).
    Defendant contends that the court erred in admitting testimony
    that she refused to submit to a chemical test and in instructing the
    jury regarding that refusal. Those contentions are not preserved for
    our review (see CPL 470.05 [2]). In any event, those contentions lack
    merit. Defendant’s refusal to take the test was admissible to show
    her consciousness of guilt (see People v Demetsenare, 243 AD2d 777,
    780, lv denied 91 NY2d 833).
    We reject defendant’s further contention that the police lacked
    probable cause to arrest her. To arrest defendant under Vehicle and
    Traffic Law § 1192, it was necessary for the arresting officer to have
    evidence that it was “more probable than not that defendant [was]
    actually impaired” (People v Vandover, 20 NY3d 235, 239). Here, the
    arresting officer had such evidence. He was informed by witnesses
    that defendant’s vehicle was traveling at a high rate of speed before
    leaving the roadway and rolling over multiple times. In addition,
    defendant provided the officer with inconsistent explanations
    regarding how the accident occurred, and the officer observed that
    defendant was unsteady on her feet. Finally, defendant admitted to
    the officer that she had consumed alcohol approximately three hours
    prior to the accident, and an Alco-Sensor test at the scene returned a
    positive result (see People v Kulk, 103 AD3d 1038, 1040, lv denied 22
    NY3d 956).
    Entered:   February 5, 2016                     Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 11-00448

Filed Date: 2/5/2016

Precedential Status: Precedential

Modified Date: 10/7/2016