The People, etc., respondent, v. Kim Gore, appellant. (2014)

Submitted—March 25, 2014

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Freehill, J.), rendered July 16, 2010, convicting her of aggravated vehicular homicide and manslaughter in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress the results of a blood test and her statements to law enforcement officials.

ORDERED that the judgment is affirmed.

After a hearing, the County Court properly found that the defendant was not in custody before being advised of her Miranda rights (see Miranda v. Arizona, 384 U.S. 436), and properly denied that branch of her omnibus motion which was to suppress her statements made to police officers at a hospital following a car accident (see People v. Huntley, 15 N.Y.2d 72;  People v. Ripic, 182 A.D.2d 226, 230–231).   The initial questions were investigatory in nature and, even though the defendant was not in custody, all subsequent questions were preceded by proper Miranda warnings (see Miranda v. Arizona, 384 U.S. 436;  People v. Bowen, 229 A.D.2d 954, 955;  People v. Baker, 188 A.D.2d 1012).

Moreover, the County Court properly denied that branch of the defendant's omnibus motion which was to suppress the results of a blood test.   The record reflected that the defendant consented to the blood test while at the hospital.   A police officer at the hospital testified that, although the defendant was in some pain, she was not so incoherent that she was incapable of giving consent (see People v. Bowen, 229 A.D.2d at 955;  People v. Delosh, 195 A.D.2d 769, 770;  People v. Osburn, 155 A.D.2d 926, 927).

At trial, the defendant requested an adverse inference charge, alleging that the evidence of the blood test was not preserved.   The County Court properly denied the request since there was no evidence that the defendant sought to perform independent testing on that blood-test evidence or that the People failed to preserve the blood-test evidence (cf.  People v. Scalzo, 176 A.D.2d 363;  People v. Wagstaff, 107 A.D.2d 877).

The defendant failed to preserve for appellate review her challenge to the County Court's charge with respect to aggravated vehicular homicide (see CPL 470.05[2];  Penal Law § 125.14[3] ).   In any event, the “court's charge, taken as a whole, conveyed to the jury the correct standard” (People v. Drake, 7 NY3d 28, 32;  see People v. Fields, 87 N.Y.2d 821, 823).

The defendant failed to preserve for appellate review her contention that the convictions of aggravated vehicular homicide (Penal Law § 125.14[3] ) and manslaughter in the second degree (Penal Law § 125.15[1] ) were not supported by legally sufficient evidence (see People v. Hawkins, 11 NY3d 484;  CPL 470.05[2] ).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to prove the defendant's guilt of those crimes 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 NY3d 342, 348), we accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, cert denied 542 U.S. 946;  People v. Bleakley, 69 N.Y.2d 490, 495).   Upon reviewing the record here, we find that the verdict of guilt as to those crimes was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

The sentence imposed was not excessive (see People v. Delgado, 80 N.Y.2d 780;  People v. Thompson, 60 N.Y.2d 513, 519;  People v. Suitte, 90 A.D.2d 80, 85–86).

ENG, P.J., MILLER, HINDS–RADIX and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court