PEOPLE v. VINES (2008)

Appeal by the defendant from a judgment of the County Court, Nassau County (Calabrese, J.), rendered November 1, 2006, convicting him of manslaughter in the second degree, reckless endangerment in the second degree, reckless driving, driving while ability impaired by alcohol, and leaving the scene of an incident without reporting, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 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 manslaughter in the second degree beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Hart, 8 A.D.3d 402, 404, 778 N.Y.S.2d 94).

The introduction of testimony regarding the results of a portable breathalyzer test performed on the defendant did not constitute reversible error, because this testimony was elicited after defense counsel opened the door to the matter on cross-examination (see People v. Melendez, 55 N.Y.2d 445, 451-453, 449 N.Y.S.2d 946, 434 N.E.2d 1324;  People v. Joyner, 295 A.D.2d 625, 744 N.Y.S.2d 877;  People v. Peoples, 143 A.D.2d 780, 533 N.Y.S.2d 311).   Moreover, any potential prejudice to the defendant was alleviated by the trial court's curative instructions to the jury (see People v. Hernandez, 11 A.D.3d 479, 782 N.Y.S.2d 776;  People v. Joyner, 295 A.D.2d at 625, 744 N.Y.S.2d 877).

The defendant received the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).

The sentence imposed was not excessive (see People v. Pena, 50 N.Y.2d 400, 412, 429 N.Y.S.2d 410, 406 N.E.2d 1347, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814;  People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).

The defendant's remaining contentions are without merit.