PEOPLE v. LAZZARO (2009)

Appeal from a judgment of the County Court of Chenango County (Sullivan, J.), rendered November 5, 2007, upon a verdict convicting defendant of the crime of driving while intoxicated.

After a roadside traffic stop, a police officer arrested defendant for driving while intoxicated (see Vehicle and Traffic Law § 1192[3] ).   Defendant moved to preclude his statements, which the People failed to specify in CPL 710.30 notices, and to suppress all of his statements.   County Court held a suppression hearing and denied the motions.   Following trial, the jury convicted defendant of the sole count.   Defendant appeals.

 County Court did not err in refusing to preclude defendant's statements.  “CPL 710.30 is a notice statute intended to facilitate a defendant's opportunity to challenge before trial the voluntariness of statements made by him” (People v. Lopez, 84 N.Y.2d 425, 428, 618 N.Y.S.2d 879, 643 N.E.2d 501 [1994] ).   The People's CPL 710.30 notice failed to specify the sum and substance of any statements they intended to use against defendant (see CPL 710.30[1];  cf. People v. Lopez, 84 N.Y.2d at 428, 618 N.Y.S.2d 879, 643 N.E.2d 501).   Despite the inadequate notice, most of the statements were admissible against defendant because he moved to suppress his statements, those statements were identified at a hearing addressing their voluntariness and the court denied the motion after that hearing (see CPL 710.30[3];  People v. Merrill, 87 N.Y.2d 948, 949, 641 N.Y.S.2d 587, 664 N.E.2d 498 [1996], revg. on dissenting mem. below 212 A.D.2d 987, 988, 624 N.Y.S.2d 702 [1995] [Denman, P.J. and Balio, J., dissenting];  People v. Martinez, 9 A.D.3d 679, 680, 779 N.Y.S.2d 821 [2004], lv. denied 3 N.Y.3d 709, 785 N.Y.S.2d 37, 818 N.E.2d 679 [2004];  People v. Brown, 281 A.D.2d 700, 701, 728 N.Y.S.2d 100 [2001], lv. denied 96 N.Y.2d 826, 729 N.Y.S.2d 446, 754 N.E.2d 206 [2001] ).   The only statement that was not addressed at the suppression hearing-that defendant asked to be taken to the hospital for a blood test-was raised in defense counsel's opening statement, which opened the door for use of defendant's statement during the People's case-in-chief (see People v. Vasquez, 33 A.D.3d 636, 637, 822 N.Y.S.2d 124 [2006], lv. denied 8 N.Y.3d 850, 830 N.Y.S.2d 709, 862 N.E.2d 801 [2007] ).¹

 The prosecutor's summation did not deprive defendant of a fair trial.   Defendant did not object to most of the comments he now attacks, thereby failing to preserve his argument (see People v. Lee, 16 A.D.3d 704, 705, 790 N.Y.S.2d 307 [2005], lv. denied 4 N.Y.3d 887, 798 N.Y.S.2d 733, 831 N.E.2d 978 [2005] ).   In any event, the prosecutor did not vouch for his witnesses, he merely provided fair comment on their credibility in response to the defense summation (see People v. Hopkins, 56 A.D.3d 820, 820-821, 866 N.Y.S.2d 819 [2008];  People v. Lee, 16 A.D.3d at 705, 790 N.Y.S.2d 307).   The prosecutor's demonstration of blowing through a straw, even if inappropriate, was not pervasive so as to deprive defendant of a fair trial (see People v. Grady, 40 A.D.3d 1368, 1374-1375, 838 N.Y.S.2d 207 [2007], lv. denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897 [2007] ).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   We disagree with defendant's argument that the prosecutor first raised defendant's statement.   The oblique reference to a hospital in the People's opening statement did not imply that defendant had made any related statements.

KANE, J.

CARDONA, P.J., PETERS, LAHTINEN and McCARTHY, JJ., concur.