PEOPLE v. BUTCHER (2004)

 Defendant appeals from a judgment convicting him following a jury trial of criminally negligent homicide (Penal Law § 125.10) and criminal injection of a narcotic drug (§ 220.46).   We reject the contention of defendant that County Court erred in refusing to suppress statements that he made in his home to the police before receiving his Miranda warnings.   The court was entitled to credit the testimony of the police officers with respect to the circumstances under which those statements were made (see generally People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380), and thus the court properly determined that the statements were not the product of custodial interrogation (see People v. Schultz, 176 A.D.2d 1239, 1240, 576 N.Y.S.2d 735, lv. denied 79 N.Y.2d 832, 580 N.Y.S.2d 212, 588 N.E.2d 110).   We therefore reject the further contention of defendant that his subsequent statements, made after he received his Miranda warnings, were tainted by the earlier statements.   In any event, those subsequent statements “followed a pronounced break in the interrogation [that] attenuated any taint from the earlier questioning” (People v. James, 253 A.D.2d 438, 440, 676 N.Y.S.2d 628, lv. denied 92 N.Y.2d 926, 680 N.Y.S.2d 468, 703 N.E.2d 280).

 Defendant further contends that the court erred in charging criminally negligent homicide as a lesser included offense of manslaughter in the second degree (Penal Law § 125.15[1] ).   We reject that contention.   Defendant concedes that the first prong of the test set forth in People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376 is met, i.e., it is impossible to commit the greater crime without by the same conduct committing the lesser crime (see People v. Heide, 84 N.Y.2d 943, 620 N.Y.S.2d 814, 644 N.E.2d 1370).   Contrary to defendant's contention, however, the second prong of the Glover test is also met, i.e., there is a reasonable view of the evidence to support a finding that defendant “fail[ed] to perceive the risk of death inherent in his act [ions]” and thus that he committed the lesser offense but not the greater (People v. Murphy, 88 A.D.2d 1000, 1000, 451 N.Y.S.2d 838;  see generally Heide, 84 N.Y.2d at 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370;   Glover, 57 N.Y.2d at 63, 453 N.Y.S.2d 660, 439 N.E.2d 376).

 Defendant further contends that the court erred in denying his pretrial motion to dismiss the indictment, which was based in relevant part on his contention that the integrity of the grand jury proceeding was impaired by the use of hearsay testimony and that he was prejudiced thereby (see CPL 210.35 [5] ).   We reject that contention.   As the Court of Appeals wrote in People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362, “not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective.   Typically, the submission of some inadmissible evidence will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment.”   Here, there was ample evidence apart from the hearsay testimony to support the indictment (see People v. Carey, 241 A.D.2d 748, 750-751, 660 N.Y.S.2d 886, lv. denied 90 N.Y.2d 1010, 666 N.Y.S.2d 105, 688 N.E.2d 1388).

 Also contrary to defendant's contention, the court properly admitted the testimony of three nurses concerning the procedures followed at their respective hospitals upon receiving a telephone call in the emergency room regarding a potential overdose victim.   We conclude that the testimony was properly admitted as evidence of habit, which “is generally admissible to demonstrate specific conduct on a particular occasion” (People v. Boomer, 230 A.D.2d 941, 942, 646 N.Y.S.2d 725, lv. denied 89 N.Y.2d 919, 654 N.Y.S.2d 721, 677 N.E.2d 293;  see People v. Lo Piccolo, 288 A.D.2d 913, 733 N.Y.S.2d 560, lv. denied 97 N.Y.2d 730, 740 N.Y.S.2d 703, 767 N.E.2d 160).   Also contrary to defendant's contention, the court properly admitted the testimony of one of the nurses concerning her telephone conversation with an unidentified male during the time period at issue regarding his friend, who was unconscious as a result of an overdose (see generally People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728).   Finally, the court properly ordered defendant to pay restitution (see People v. Knowles, 293 A.D.2d 770, 771, 740 N.Y.S.2d 151).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: