PEOPLE v. GAFFNEY

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Thomas J. GAFFNEY, Defendant-Appellant.

Decided: November 15, 2002

Present:  HAYES, J.P., HURLBUTT, KEHOE, BURNS, and LAWTON, JJ. D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Defendant-Appellant. Cindy F. Intschert, District Attorney, Watertown (Ana J. Pẽna-Wallace of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him after a jury trial of vehicular manslaughter in the second degree (Penal Law § 125.12[1], [2] ), driving while intoxicated as a misdemeanor (two counts) (Vehicle and Traffic Law § 1192[2], [3] ), and failure to keep right (§ 1120[a] ).   Contrary to the contention of defendant, County Court's determination that his statements to the police were knowing and voluntary is supported by the record and should not be disturbed (see People v. Williams, 202 A.D.2d 976, 612 N.Y.S.2d 985, lv. denied 83 N.Y.2d 916, 614 N.Y.S.2d 398, 637 N.E.2d 289).   Similarly, we conclude that the record supports the court's determination that defendant voluntarily consented to submit to a blood test (see People v. Craig, 262 A.D.2d 1074, 692 N.Y.S.2d 257, lv. denied 93 N.Y.2d 1016, 697 N.Y.S.2d 575, 719 N.E.2d 936;  People v. Osburn, 155 A.D.2d 926, 926-927, 547 N.Y.S.2d 749, lv. denied 75 N.Y.2d 816, 552 N.Y.S.2d 566, 551 N.E.2d 1244).   Contrary to defendant's further contention, the court's determination that defendant was not in custody when he made his statements to the police is supported by the record (see People v. Nieves [appeal No. 1], 258 A.D.2d 928, 685 N.Y.S.2d 552, lv. denied 93 N.Y.2d 1023, 697 N.Y.S.2d 582, 719 N.E.2d 943;  People v. Smith, 193 A.D.2d 1054, 598 N.Y.S.2d 620, lv. denied 82 N.Y.2d 853, 606 N.Y.S.2d 605, 627 N.E.2d 527).

The general motion to dismiss the indictment made by defendant at trial was insufficient to preserve for our review his present contentions concerning the alleged legal insufficiency of the evidence (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). Defendant also failed to preserve for our review his contention that the court's comments following a recharge to the jury on the definition of reasonable doubt coerced the jurors into believing that the court expected them to return a unanimous verdict in a short period of time (see 470.05[2];  see also People v. James, 156 A.D.2d 125, 548 N.Y.S.2d 27, lv. denied 75 N.Y.2d 869, 553 N.Y.S.2d 300, 552 N.E.2d 879).   We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see 470.15[6][a] ).   Upon our review of the record, we conclude that defendant received meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Finally, we have reviewed defendant's remaining contention and conclude that it lacks merit.

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

MEMORANDUM: