People v Coveney
Annotate this CaseDecided on May 9, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MARANO and GARGUILO, JJ.
2012-448 S CR
The People of the State of New York, Respondent,
against
Patricia Coveney, Appellant.
Appeal from judgments of the District Court of Suffolk County, First District (William G. Ford, J.), rendered January 5, 2012. The judgments convicted defendant, after a nonjury trial, of driving while intoxicated (common law) and failing to maintain a lane, respectively.
ORDERED that the judgment convicting defendant of driving while intoxicated is affirmed; and it is further,
ORDERED that the appeal from the judgment convicting defendant of failing to maintain a lane is dismissed as abandoned.
On July 14, 2008, a motorist called 911 to report that an automobile, which he described by make, model and license plate number, was being operated on the Long Island Expressway in a manner suggesting that the driver was intoxicated. The motorist provided his name, address, and telephone number, and the make and model of his own vehicle, and volunteered to follow the other vehicle with his flashing lights on, to help the police identify the other vehicle. Shortly thereafter, a police officer on motor patrol received a police radio dispatch based on the 911 call, and, within minutes, he located the vehicle which, he later determined, was operated by defendant. After following defendant for a brief period, in the course of which defendant's vehicle drifted from lane to lane, the officer stopped defendant and, following an investigation, he arrested her and charged her with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and failing to maintain a lane (Vehicle and Traffic Law § 1128 [a]).
At a nonjury trial, the 911 operator testified to the authenticity and accuracy of the recording of his conversation with the motorist, who did not testify, and the recording of the 911 call was admitted into evidence over defendant's objections made on hearsay and Confrontation Clause grounds. The arresting officer, a 20-year veteran of the Suffolk County Police Department, who had made approximately 850 arrests for driving while intoxicated and related offenses, testified as to the content of the radio dispatch and of his ensuing pursuit and stop of defendant's vehicle. The officer's observations of defendant at the arrest scene included that she had bloodshot eyes, a strong odor of an alcoholic beverage on her breath, and slurred speech, that she made confused and contradictory statements as to her destination, that she was unsteady on her feet, using her hands and her left arm to maintain her balance as she walked to the rear of her vehicle, and that she failed to perform two field sobriety tests. On the basis of the foregoing, and in light of his training and experience, the officer concluded that defendant was intoxicated. The trial evidence also established that defendant had admitted that she had consumed alcoholic [*2]beverages ("a Corona and a few beers") and that she had refused to submit to a chemical test of her blood alcohol content.
On appeal, defendant argues that the 911 recording represented inadmissible hearsay; that its admission also violated his confrontation rights; and that the evidence was legally insufficient to support the conviction of driving while intoxicated, which was, in any event, against the weight of the evidence. For the reasons that follow, we affirm the judgment convicting defendant of driving while intoxicated, and, as defendant does not challenge the propriety of the remaining judgment of conviction, dismiss the appeal from the remaining judgment of conviction as abandoned.
Recordings of 911 calls may be admitted into evidence pursuant to the present sense impression and excited utterance exceptions to the hearsay rule (People v Buie, 86 NY2d 501, 508, 511 [2012]; People v Clarke, 101 AD3d 897, 898 [2012]), and Confrontation Clause challenges to 911 recordings fail when the statements therein are deemed nontestimonial in nature (see Davis v Washington, 547 US 813 [2006]; People v Clay, 88 AD3d 14, 18 [2011]; People v Marino, 21 AD3d 430 [2005]; People v Coleman, 16 AD3d 254 [2005]; People v Turner, 34 Misc 3d 159[A], 2012 NY Slip Op 50443[U], *2 [App Term, 9th & 10th Jud Dists 2012]). For a recording of a 911 call to be admitted pursuant to the present sense impression exception, the circumstances must demonstrate that the statements represented "spontaneous descriptions of events made substantially contemporaneously with the observations" (People v Brown, 80 NY2d 729, 734 [1993]), and that "some evidence exists, independent of the statement itself, tending to corroborate that the statement was made spontaneous[ly]; and . . . contemporaneously with the events described' " (People v Buie, 86 NY2d at 508, quoting People v Brown, 80 NY2d at 737). Upon a review of the 911 recording and the testimony in relation thereto, we are satisfied that the caller's statements were, in fact, spontaneous and substantially contemporaneous with the events described, and that there was sufficient evidence independent of the statements to corroborate the circumstances of their making. Were the evidence insufficient to support this exception, we would find that, in any event, the recording was admissible under the excited utterance exception because clearly, "the caller was under the influence of the excitement of the incident and lacked the reflective capacity essential for fabrication" (People v Dockery, 107 AD3d 913, 914 [2013]; see e.g. People v Mack, 89 AD3d 864, 866 [2011]; People v Dominick, 53 AD3d 505, 506 [2008]). The fact that a statement was preceded by a question does not preclude a finding that the statement was spontaneous; rather, such "is merely one of the factors to be weighed in determining whether the surrounding circumstances demonstrate that the utterance was instinctive" (People v Edwards, 47 NY2d 493, 499 [1979]). Here, there is no basis for an inference that the motorist's statements represented "an evolving fabrication prompted by the operator's questioning" (People v Cantave, 21 NY3d 374, 382 [2013]). This analysis also supports the admissibility of the recording of the police radio dispatch to the arresting officer (see e.g. People v Mack, 89 AD3d at 866 [the recording of a police radio transmission "was properly admitted to establish circumstances relevant to the defendant's arrest"]; People v Severino, 44 AD3d 1077, 1078 [2007]; [same]).
Defendant's Confrontation Clause claim is also without merit. Although the boundaries of "testimonial" evidence are widely debated, the "lodestar" of the inquiry focuses on the purpose the question that elicits the statement is intended to serve (People v Rawlins, 10 NY3d 136, 148 [2008]). Statements made in the course of a 911 call from a witness with respect to a crime in progress are nontestimonial, notwithstanding that 911 operators "may . . . be agents of law enforcement when they conduct interrogations of 911 callers" (Davis v Washington, 547 US at 823 n 2), where, as here, the questioning occurs "under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency" (id. at 822; see also Michigan v Bryant, US , 131 S Ct 1143, 1156 [2011]; People v Dockery, 107 AD3d at 914; People v Clay, 88 AD3d at 18; People v Phillips, 68 AD3d 1137, 1139 [2009]; People v Marino, 21 AD3d at 431) and not a form of "structured police questioning" (Crawford v Washington, 541 US 36, 53 n 4 [2004]) "designed solely to elicit [*3]testimonial evidence" (New York v Quarles, 467 US 649, 658-659 [1984]; see also Davis v Washington, 547 US at 829). Addressing a set of facts and circumstances similar to those in this case, this court observed in People v Long (34 Misc 3d 151[A], 2012 NY Slip Op 50300[U], *2 [App Term, 9th & 10th Jud Dists 2012]),
"As the caller's objective purpose was to alert the police to a dangerous situation—an out-of-control, and possibly intoxicated driver—and to provide enough identifying information to allow the police to locate the vehicle, the 911 tape was admissible, including the characterizing of the driver as drunk,' which was a part of the explanation of the nature of the public emergency. There is no indication that the statement was evoked by the attempt of the 911 operator to gather information in relation to a future prosecution. Thus, there was no error."
In the absence of a timely motion to dismiss asserting evidentiary deficiencies with the requisite specificity, defendant failed to preserved for appellate review any claim that the evidence was legally insufficient to support the conviction (CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]). Asserting such deficiencies in summation does not cure the omission (see e.g. People v Kostrubal, 37 Misc 3d 142[A], 2012 NY Slip Op 52280[U]; [App Term, 9th & 10th Jud Dists 2012]). In any event, viewed in the light most favorable to the People (People v Contes, 60 NY2d 620, 621 [1983]), the evidence, as summarized above, was legally sufficient to support the conviction of driving while intoxicated.
Finally, in conducting our independent review of the weight of the evidence (see CPL 470.15 [5]), assessed in light of the elements of the offense (see People v Danielson, 9 NY3d 348-349 [2007]), and according great deference to the District Court's opportunity to view the witnesses, hear their testimony, and observe their demeanor (People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]), we are satisfied that the verdict was not against the weight of the evidence.
Accordingly, the judgment convicting defendant of driving while intoxicated is affirmed, and the appeal from the judgment convicting defendant of failing to maintain a lane is dismissed as abandoned.
Nicolai, P.J., Marano and Garguilo, JJ., concur.
Decision Date: May 09, 2014
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