People v. Elwell

202 A.D.3d 817

158 N.Y.S.3d 859 (Mem)

The PEOPLE, etc., respondent,

v.Jonathan ELWELL, appellant.

2018–05144

Ind. No. 122/16

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

Submitted—November 22, 2021

February 9, 2022

Alan McGeorge, Nanuet, NY, for appellant.

Thomas E. Walsh II, District Attorney, New City, NY (Jacob B. Sher and Renada N. Lewis of counsel), for respondent.

BETSY BARROS, J.P., ANGELA G. IANNACCI, CHERYL E. CHAMBERS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Rockland County (David Zuckerman, J.), rendered February 21, 2018, convicting him of assault in the second degree, vehicular assault in the second degree, leaving the scene of an incident without reporting, and driving while intoxicated (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress the results of a blood alcohol test.

ORDERED that the judgment is affirmed.

In the early morning hours of October 14, 2015, as the defendant was driving southwest on Route 202, his vehicle crossed the double yellow line and collided with a vehicle traveling in the opposite direction. Following a jury trial, the defendant was convicted of assault in the second degree, vehicular assault in the second degree, leaving the scene of an incident without reporting, and driving while intoxicated (two counts).

Contrary to the defendant's contention, the County Court properly denied that branch of his omnibus motion which was to suppress the blood alcohol test results. The defendant consented to the blood test while at a hospital (see People v. Gore, 117 A.D.3d 845, 986 N.Y.S.2d 170 ), and the record reflects that the defendant, who was aware at the time that an attorney had been retained to represent him, did not ask to consult with counsel prior to giving his consent (see People v. Washington, 23 N.Y.3d 228, 232, 989 N.Y.S.2d 670, 12 N.E.3d 1099 ). The defendant's further contention that his consent was involuntary because he was not under arrest at the time he was given refusal warnings (see Vehicle and Traffic Law § 1194[2][b][1][A] ; People v. Ellis, 190 Misc.2d 98, 105–106, 737 N.Y.S.2d 232 [County Ct., Cattaraugus County], affd 309 A.D.2d 1314, 765 N.Y.S.2d 313 ) is unpreserved for appellate review, and we decline to reach it in the exercise of our interest of justice jurisdiction.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of assault in the second degree ( Penal Law § 120.05[4] ), vehicular assault in the second degree ( Penal Law § 120.03[1] ), driving while intoxicated per se in violation of Vehicle and Traffic Law § 1192(2), and driving while intoxicated (common law) in violation of Vehicle and Traffic Law § 1192(3), beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), 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 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to these crimes was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The defendant's contention that the County Court erred in failing to provide a circumstantial evidence charge to the jury is unpreserved for appellate review (see CPL 470.05[2] ; ...