| |
|
 |
 |
 |
 |
[1996 NY Int. 262]
Decided December 20, 1996
Lawrence H. Weintraub, for appellant.
John E. Maney, for respondent.
MEMORANDUM:
The order of the Appellate Division should
be affirmed. Following a motorcycle accident which resulted in the death
of his wife, defendant was indicted for vehicular manslaughter in
the second degree, criminally negligent homicide and two counts of
operating a motor vehicle while under the influence of alcohol (Vehicle
and Traffic Law 1192[2], [3]). A jury acquitted defendant of the
counts of vehicular manslaughter and drunken driving, but convicted him
of criminally negligent homicide and driving while ability impaired (Vehicle
and Traffic Law 1192[1]). Defendant was sentenced to an indeterminate
term of one year to three years. The Appellate Division affirmed
defendant's conviction and sentence.
Defendant failed to make a timely specific
objection at trial to the sufficiency of the evidence to support the conviction
of criminally negligent homicide, and to the
admissibility of relation back testimony regarding defendant's blood
alcohol level at the time of the accident. Therefore, these points
were not preserved for this Court's review (People v. Gray, 86 NY2d 10,
19-21; People v Gonzalez, 55 NY2d 720, 722, cert denied 465 US 1010).
We find no merit to defendant's contention that he was denied a fair trial
because of certain evidentiary rulings (see, People v Ladd, __NY2d__[decided
today]). Moreover, testimony regarding defendant's attempts to avoid
giving an adequate breath sample for alco-sensor testing was properly admitted
as evidence of consciousness of guilt, particularly in light of the trial
court's limiting instructions to the jury on this point. Furthermore, error,
if any, in permitting the People's forensic scientist to report defendant's
blood alcohol level beyond the second decimal point at .089 and .091 percent
was harmless, in view of defendant's conviction for driving while ability
impaired (see, Vehicle and Traffic Law 1195[2][c]). We similarly reject
defendant's claim that he was not given an individualized sentence.
* * * * * * * * * * * * * * * * *
Order affirmed, in a memorandum. Chief Judge Kaye and Judges Simons,
Titone, Bellacosa22, Smith, Levine and Ciparick concur.
Decided December 20, 1996