People v Peck (Dylan)

[*1] People v Peck (Dylan) 2007 NY Slip Op 51213(U) [16 Misc 3d 126(A)] Decided on June 11, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., LaCAVA and EMERSON, JJ
2006-739 OR CR.

The People of the State of New York, Respondent,

against

Dylan Peck, Appellant.

Appeal from judgments of the Justice Court of the Town of Newburgh, Orange County (Richard Clarino, J.), rendered April 18, 2006. The judgments convicted defendant, after a nonjury trial, of driving while intoxicated per se, driving while ability impaired and leaving the scene of an incident.

Judgment convicting defendant of driving while ability impaired affirmed.

Judgments convicting defendant of driving while intoxicated per se and leaving the scene of an incident reversed on the law, simplified informations dismissed and fines, if paid, remitted.

After trial, defendant was convicted of driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), and leaving the scene of an incident (Vehicle and Traffic Law § 600 [2] [a]).

Viewing the evidence in the light most favorable to the People (People v Contes, 60 NY2d 620 [1983]), we find it legally insufficient to establish defendant's guilt of leaving the scene of an incident beyond a reasonable doubt. A few minutes after the accident occurred, the Trooper arrived at the scene of an overturned vehicle and observed defendant walking towards him from a short distance away. Defendant immediately identified himself as the driver of the vehicle involved in the one-car accident. The evidence established that defendant reported the accident as soon as he was physically able to do so (Vehicle and Traffic Law § 600 [2] [a]) and there was no proof that defendant was attempting to leave the scene without reporting the [*2]accident (see e.g. People v Dougal, 266 AD2d 574 [1999]).

We further find that the results of the blood test, indicating that defendant's blood alcohol level was .16 percent, was improperly admitted at trial. The regulations of the New York Health Department require that the blood be drawn into, or subsequently deposited into, a container which contains a solid anticoagulant (New York State Department of Health Regulations [10 NYCRR] § 59.2). The testimony adduced at trial failed to establish that the chemicals contained in the vials into which defendant's blood
was drawn were of the proper kind and amount and did not disturb the integrity of the blood sample (see People v Barker, 5 Misc 3d 137[A], 2004 NY Slip Op 51560[U] [App Term, 9th & 10th Jud Dists]; People v McDonagh, NYLJ, Apr. 3, 1992 [App Term, 9th & 10th Jud Dists]). Without the blood test results, the evidence was legally insufficient to sustain defendant's conviction of driving while intoxicated per se beyond a reasonable doubt (see People v Campbell, 73 NY2d 481, 484 [1989]; People v Freeland, 68 NY2d 699, 701 [1986]; People v Sperber, 177 AD2d 725, 727 [1991]). Accordingly, the judgment convicting defendant of said charge is reversed, and the accusatory instrument dismissed.

Defendant's contention that the judgment convicting him of driving while impaired should be reversed because the court below considered the blood test evidence which compromised the court's verdict, was not preserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). In any event, the evidence adduced at trial established that defendant was the driver of the automobile involved in the one-car accident, there was the odor of alcoholic beverage emanating from defendant's breath, he had glassy eyes and slurred speech. Said evidence was legally sufficient to establish defendant's guilt of driving while ability impaired beyond a reasonable doubt,
and the results of the blood test were not necessary to sustain said judgment of conviction (see People v Gertz, 189 Misc 2d 315 [App Term, 9th & 10th Jud Dists 2001]).

Rudolph, P.J., LaCava and Emerson, JJ., concur.
Decision Date: June 11, 2007