PEOPLE v. TOMION (2019)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting her, after a nonjury trial, of felony driving while ability impaired by drugs ( [DWAI] Vehicle and Traffic Law §§ 1192[4];  1193[1][c][i] ) and two counts of felony aggravated driving while intoxicated ( [DWI] §§ 1192[2–a][b];  1193[1][c][i] ).  Contrary to defendant's contention, we conclude that County Court properly denied defendant's motion to suppress the statement she made immediately following her arrest.  The record supports the court's determination that defendant's statement was genuinely spontaneous and was not the product of interrogation or its functional equivalent (see generally People v. Rivers, 56 N.Y.2d 476, 479, 453 N.Y.S.2d 156, 438 N.E.2d 862 [1982], rearg denied 57 N.Y.2d 775, 454 N.Y.S.2d 1033, 440 N.E.2d 1343 [1982];  People v. Ibarrondo, 150 A.D.3d 1644, 1645, 54 N.Y.S.3d 245 [4th Dept. 2017]).  Although defendant made the inculpatory statement immediately after police told her that she was under arrest for DWAI, merely informing a defendant that he or she is under arrest does not undermine the spontaneity of a statement (see People v. Cosgrove, 102 A.D.2d 947, 947–948, 477 N.Y.S.2d 801 [3d Dept. 1984]).  In essence, defendant's statement was “a blurted out admission, ․ which [wa]s in effect forced upon the officer” (People v. Grimaldi, 52 N.Y.2d 611, 617, 439 N.Y.S.2d 833, 422 N.E.2d 493 [1981]).

Defendant's contention that her conviction of aggravated DWI is not supported by legally sufficient evidence because there was no competent proof of the ages of the children in her vehicle is not preserved for our review inasmuch as defendant's motion to dismiss was not specifically directed at the ground advanced on appeal (see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995]).

Although defendant preserved her contention that her DWAI conviction is not supported by legally sufficient evidence because the People did not establish that she was impaired by a “drug” within the meaning of the Public Health Law (see Vehicle and Traffic Law § 114–a), we reject that contention.  Viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983]), we conclude that the evidence was sufficient to establish that defendant was impaired by Clonazepam, a “drug” listed in Public Health Law § 3306 (Schedule IV[c][9] ).  The arresting officer testified that defendant's appearance after the motor vehicle accident and her performance on several field sobriety tests led her to conclude that defendant was impaired by a drug.  There was also evidence of Clonazepam in defendant's blood, and a toxicologist testified that even therapeutic amounts of the drug could cause her to exhibit signs of impairment.  Taken collectively, this evidence was legally sufficient to support the DWAI conviction (see e.g. People v. Drouin, 115 A.D.3d 1153, 1154, 982 N.Y.S.2d 226 [4th Dept. 2014], lv denied 23 N.Y.3d 1019, 992 N.Y.S.2d 802, 16 N.E.3d 1282 [2014];  People v. Gonzalez, 90 A.D.3d 1668, 1669, 935 N.Y.S.2d 826 [4th Dept. 2011]).

Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).