People v MacKenzie (Darlene)

[*1] People v MacKenzie (Darlene) 2005 NY Slip Op 51535(U) [9 Misc 3d 129(A)] Decided on July 13, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 13, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ.
2002-55 OR CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

DARLENE MACKENZIE, Appellant.

Appeal by defendant from a judgment of the Justice Court of the Town of Montgomery, Orange County (H. Mills, J.), rendered December 5, 2001, after a jury trial, convicting her of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and imposing sentence.

Judgment of conviction unanimously affirmed.

Defendant's Confrontation Clause challenge to the arresting officer's testimony as to the content of a police radio report and statements made by a witness to the accident in the early stages of the investigation is not preserved for appellate review. An objection on such a ground must be interposed with specific reference to the constitutional protection or it is waived (CPL 470.05 [2]; People v Kello, 96 NY2d 740, 743 [2001] [as "statutory or common-law hearsay rule exceptions may not necessarily satisfy the mandate of the Confrontation Clause regarding admissibility of out-of-court statements," the objection must specifically invoke constitutional error]; see also People v Johnson, 1 NY3d 302, 308 n [2003]; People v Blackman, 13 AD3d 640 [2004]; People v Sanchez, 302 AD2d 282, 283 [2003]). Defendant interposed no objection whatsoever to the officer's testimony as to the content of the police radio dispatch and she objected to the arresting officer's testimony as to the non-testifying witness's statements regarding defendant's operation of a vehicle involved in the accident explicitly and solely on state-law hearsay grounds, an issue of non-constitutional dimensions. Thus, defendant failed to preserve a Confrontation Clause challenge to that testimony as a matter of law (People v Garcia, 2 AD3d 321, 322 [2003] [objection on state evidentiary law preserves no Confrontation Clause claim]).

Further, the Confrontation Clause does not prohibit the introduction of testimonial statements by persons not subject to cross-examination for purposes other than establishing the truth of the matter asserted (Crawford v Washington, 541 US 36, 59 n 9 [2004]), as where such evidence supplies "background evidence to complete the narrative of events" and to explain the officer's presence at the accident and arrest scene (People v Newland, 6 AD3d 330 [2004]; see also People v Tosca, 98 NY2d 660, 661 [2002]; People v Nunez, 7 AD3d 298, 299-300 [2004]). [*2]In any event, even were the error of constitutional dimensions, it was harmless (see People v Eastman, 85 NY2d 265, 276 [1995]), there being "no reasonable possibility that the error affected the jury's verdict" (People v Douglas, 4 NY3d 777 [2005]; see also People v Hardy, 4 NY3d 192, 198 [2005]).

The court below properly denied suppression of defendant's statements. A temporary roadside detention for the investigation of traffic-related matters, including suspected driving while intoxicated offenses, are generally non-custodial in nature and encompass limited questioning appropriate to such investigations and the administration of performance tests without the necessity of the rendering and waiver of the Miranda warnings (Berkemer v McCarty, 468 US 420, 436-437 [1984]; People v Bennett, 70 NY2d 891, 893-894 [1987]; People v Hager, 69 NY2d 141, 142 [1987]; People v Myers, 1 AD3d 382, 383 [2003]; People v Hasenflue, 252 AD2d 829, 830-831 [1998]). Here, the incriminating colloquy occurred at the outset of the officer's initial approach to defendant and in the course of what was then a "routine inquiry" following a traffic accident, including those related to operation and alcohol consumption (People v McGreal, 190 AD2d 869 [1993]; People v Mason, 157 AD2d 859, 860 [1990]; People v Fiorello, 140 AD2d 708, 709 [1988]; People v Mathis, 136 AD2d 746, 747 [1988]).

We have considered defendant's remaining contentions and find them without merit (People v Ardila, 202 AD2d 514, affd 85 NY2d 846 [1995]; People v Williams, 63 NY2d 882, 885 [1984]; People v Johnson, 285 AD2d 517 [2001]; People v Pender, 221 AD2d 573 [1995]; People v McAleavey, 159 AD2d 646 [1990]).
Decision Date: July 13, 2005