PEOPLE v. STEEL

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

The PEOPLE, etc., respondent, v. Eugene STEEL, appellant.

Decided: October 25, 1999

SONDRA MILLER, J.P., DAVID S. RITTER, ANITA R. FLORIO and HOWARD MILLER, JJ. Susan B. Marhoffer, Mt. Kisco, N.Y., for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (Andrew R. Kass and Paul Harnisch of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (Pano Z. Patsalos, J.), rendered May 16, 1997, convicting him of manslaughter in the second degree and driving while intoxicated (two counts), upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress the results of a blood alcohol test.

ORDERED that the judgment is affirmed.

 The County Court correctly denied that branch of the defendant's omnibus motion which was to suppress the results of a blood alcohol test.   The police found the defendant unconscious in his automobile following an automobile accident.   The County Court properly held that the defendant impliedly consented to have his blood withdrawn, as the People established probable cause to arrest the defendant for driving while intoxicated.   The determination by the police to refrain from arresting the defendant does not compel a different result, because arresting him would have been an “empty gesture” due to the defendant's physical condition (People v. Goodell, 79 N.Y.2d 869, 871, 581 N.Y.S.2d 157, 589 N.E.2d 380).   Furthermore, the court properly admitted the expert testimony of a toxicologist to establish that an anticoagulant and preservatives had been added to the defendant's blood sample (see, People v. Jones, 73 N.Y.2d 427, 430, 541 N.Y.S.2d 340, 539 N.E.2d 96).   The defendant's objections went to the weight, rather than the admissibility, of the evidence (see, People v. Scalzi, 102 A.D.2d 952, 953, 477 N.Y.S.2d 808).

MEMORANDUM BY THE COURT.

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