PEOPLE v. DELCID (2019)

DECISION & ORDER

ORDERED that the judgment is modified, on the law, by vacating the convictions of driving while intoxicated as a felony in violation of Vehicle and Traffic Law § 1192(3), and aggravated unlicensed operation of a motor vehicle in the second degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment;  as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in granting the People's for-cause challenge to a prospective juror.  CPL 270.20(1)(b) provides that a prospective juror may be challenged for cause if he or she “has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial.”  Where an issue is raised concerning the ability of a prospective juror to be fair and impartial, the prospective juror must state unequivocally that his or her prior state of mind will not influence his or her verdict, and that he or she will render an impartial verdict based solely on the evidence (see People v. Johnson, 94 N.Y.2d 600, 614, 709 N.Y.S.2d 134, 730 N.E.2d 932;  People v. Alvarez, 130 A.D.3d 1054, 14 N.Y.S.3d 157;  People v. MacFarlane, 87 A.D.3d 700, 701, 928 N.Y.S.2d 755).  A prospective juror's responses, construed as a whole, must demonstrate an “ ‘absolute belief’ ” that his or her opinion will not influence his or her verdict (People v. Goodwin, 64 A.D.3d 790, 792, 882 N.Y.S.2d 707, quoting People v. Culhane, 33 N.Y.2d 90, 107, 350 N.Y.S.2d 381, 305 N.E.2d 469).  Here, the prospective juror's responses to questioning during voir dire, construed as a whole, failed to demonstrate an absolute belief that his prior state of mind would not have an influence on his verdict and that he would render an impartial verdict based on the evidence (see People v. Culhane, 33 N.Y.2d at 107, 350 N.Y.S.2d 381, 305 N.E.2d 469;  People v. Hoke, 111 A.D.3d 959, 976 N.Y.S.2d 137;  People v. Goodwin, 64 A.D.3d at 792, 882 N.Y.S.2d 707).

The Supreme Court properly admitted into evidence at trial the opinion testimony of a forensic toxicologist.  “[E]xpert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” (People v. Taylor, 75 N.Y.2d 277, 288, 552 N.Y.S.2d 883, 552 N.E.2d 131 [internal quotation marks omitted] ).  Contrary to the defendant's contention, the forensic toxicologist's testimony regarding her qualifications and experience provided a sufficient foundation for her subsequent opinion testimony (see People v. Prowse, 60 A.D.3d 703, 704, 875 N.Y.S.2d 121;  People v. Van Sickle, 120 A.D.2d 897, 899, 502 N.Y.S.2d 817).

However, as the People correctly concede, as charged, the counts alleging driving while intoxicated as a felony in violation of Vehicle and Traffic Law § 1192(3) and aggravated unlicensed operation of a motor vehicle in the second degree were inclusory concurrent counts of the count alleging aggravated unlicensed operation of a motor vehicle in the first degree (see CPL 300.30[4];  300.40[3][b];  Vehicle and Traffic Law §§ 511[2][a][ii];  [3][a][i];  1192).  Accordingly, the defendant's convictions of driving while intoxicated as a felony in violation of Vehicle and Traffic Law § 1192(3), and aggravated unlicensed operation of a motor vehicle in the second degree and the sentences imposed thereon must be vacated, and those counts of the indictment dismissed.  Under the circumstances of this case, the defendant's contention that the mandatory surcharge and crime victim assistance fee must be reduced is more appropriately raised before the Supreme Court and, accordingly, we remit the matter to the Supreme Court, Nassau County, to consider this issue (see Penal Law § 60.35;  Vehicle and Traffic Law §§ 1809[1][c];  1809–e[1][a] ).

The defendant's remaining contentions either are without merit or need not be reached in light of our determination.

RIVERA, J.P., ROMAN, HINDS–RADIX and DUFFY, JJ., concur.