People v. O'Brien

186 A.D.3d 1406

130 N.Y.S.3d 494

The PEOPLE, etc., respondent,

v.Christopher G. O'BRIEN, appellant.

2018–00987

Ind. No. 468/16

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 13, 2020

September 16, 2020

Laurette D. Mulry, Riverhead, N.Y. (Lisa Marcoccia of counsel), for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Timothy P. Finnerty of counsel), for respondent.

REINALDO E. RIVERA, J.P. CHERYL E. CHAMBERS ANGELA G. IANNACCI PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Fernando Camacho, J.), rendered December 13, 2017, convicting him of manslaughter in the second degree, vehicular manslaughter in the second degree (four counts), driving while intoxicated in violation of Vehicle and Traffic Law § 1192(2), driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3), driving while ability impaired by drugs in violation of Vehicle and Traffic Law § 1192(4), driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs in violation of Vehicle and Traffic Law § 1192(4–a), and reckless driving, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress his statements to law enforcement officials 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 interest of justice, by vacating the defendant's convictions of vehicular manslaughter in the second degree under counts 5, 6, and 7 of the indictment, driving while intoxicated in violation of Vehicle and Traffic Law § 1192(2), driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3), driving while ability impaired by a drug in violation of 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 in violation of Vehicle and Traffic Law § 1192(4–a), vacating the sentences imposed thereon, and dismissing those 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's omnibus motion which was to suppress statements he made to law enforcement officials, as the evidence established that the statements were voluntarily made after the defendant knowingly, intelligently, and voluntarily waived his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ; People v. Sicilianonunez, 172 A.D.3d 912, 913–914, 100 N.Y.S.3d 309 ). Although the defendant maintained that, at the time he waived his Miranda rights, his decision-making ability was impaired by a sedative medication that had been administered to him by hospital staff, the totality of the circumstances established that the defendant understood both the nature of the rights he was waiving and the consequences of his decision to abandon those rights (see People v. Schompert, 19 N.Y.2d 300, 305, 279 N.Y.S.2d 515, 226 N.E.2d 305 ; People v. Van Guilder, 29 A.D.3d 1226, 1227–1228, 815 N.Y.S.2d 337 ; People v. Bell, 131 A.D.2d 859, 860–861, 517 N.Y.S.2d 219 ). The court's determination to credit the testimony of the police witnesses who had observed the defendant's demeanor firsthand, notwithstanding the testimony of the defendant's forensic toxicology expert, was supported by the record and will not be disturbed on appeal (see People v. Osbourne, 178 A.D.3d 956, 957, 112 N.Y.S.3d 573 ).

Moreover, we agree with the County Court's determination denying that branch of the defendant's omnibus motion which was to suppress evidence of the defendant's refusal to submit to a test to determine his blood alcohol content, since the hearing evidence was sufficient to support the conclusion that the defendant was at least twice given clear and unequivocal warnings of the effect of his refusal to submit to the test and that he persisted in his refusal to take it (see Vehicle and Traffic Law § 1194[2][f] ; People v. McMahon, 149 A.D.3d 1102, 1102, 53 N.Y.S.3d 655 ; People v. Cousar, 226 A.D.2d 740, 740–741, 641 N.Y.S.2d 695 ).

The defendant's contention that the counts of vehicular manslaughter in the second degree under 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 A.D.3d 827, 827, 991 N.Y.S.2d 341 ). Nevertheless, under the circumstances presented here, we review this contention in the interest of justice (see CPL 470.15[a] ; People v. Senisi, 196 A.D.2d 376, 381–382, 610 N.Y.S.2d 542 ).

"An indictment is multiplicitous when two separate counts charge the same crime" ( People v. Saunders, 290 A.D.2d 461, 463, 736 N.Y.S.2d 90 ; see People v. Senisi, 196 A.D.2d at 382, 610 N.Y.S.2d 542 ). "Multiplicity does not exist where each count requires proof of an additional fact that the other does not," or where "a conviction on one count would not be inconsistent with acquittal on the other" ( People v. Saunders, 290 A.D.2d at 463, 736 N.Y.S.2d 90 [internal quotation marks omitted] ). "If an indictment is multiplicitous it creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than he actually committed" ( People v. Alonzo, 16 N.Y.3d 267, 269, 920 N.Y.S.2d 302, 945 N.E.2d 495 ).

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 or she causes the death of another person, and ... operates a motor vehicle in violation of subdivision two, three, four or four-a of section eleven hundred ninety-two of the vehicle and traffic law, ... and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such motor vehicle ... in a manner that causes the death of such other person" ( Penal Law § 125.12[1] ). Counts 4 through 7 of the indictment were predicated on the defendant'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 prove additional facts that the others did not, in fact, the People were only required to prove that the defendant violated one subdivision of Vehicle and Traffic Law § 1192 in order to prove his guilt under Penal Law § 125.12(1). The People's election to proceed on a theory that the defendant had violated more than one such subdivision by presenting evidence of his multiple, distinct manners of intoxication was not necessary to establish his guilt (see People v. Charles, 61 N.Y.2d 321, 327–328, 473 N.Y.S.2d 941, 462 N.E.2d 118 ; People v. Hoffman, 130 A.D.3d 1152, ...