        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1352
KA 15-00249
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TAYLOR D. CARBONARO, DEFENDANT-APPELLANT.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Victoria M.
Argento, J.), rendered January 27, 2015. The judgment convicted
defendant, upon a jury verdict, of manslaughter in the second degree,
vehicular manslaughter in the second degree, driving while
intoxicated, a misdemeanor (two counts) and reckless driving.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed and the matter is remitted to Monroe County Court
for proceedings pursuant to CPL 460.50 (5).

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of manslaughter in the second degree (Penal Law
§ 125.15 [1]), vehicular manslaughter in the second degree (§ 125.12
[1]), reckless driving (Vehicle and Traffic Law § 1212), and two
counts of driving while intoxicated (§ 1192 [2], [3]). The charges
arose from an automobile accident that resulted in the death of
defendant’s girlfriend (decedent). The accident occurred when a
vehicle occupied by defendant and decedent veered off the road at a
high speed and struck a utility pole and then a tree. The primary
issue at trial was whether defendant was operating the vehicle at the
time of the accident. The jury rendered a guilty verdict on all
counts of the indictment, evidently resolving that factual issue
against defendant.

     Defendant failed to preserve for our review his contention that
the trial evidence is legally insufficient to establish that he was
operating the vehicle at the time of the accident. Although defendant
moved at the close of the People’s case for a trial order of dismissal
on the ground that the People failed to prove that element of the
crimes charged, he did not renew the motion after the defense rested
(see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678; People
v Nichols, 89 AD3d 1503, 1504). In any event, we conclude that the
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contention is without merit. The evidence established that defendant
admitted three separate times to the police that he was driving the
vehicle and that, during the ambulance ride to the hospital, he told a
paramedic that he “screwed up,” he was sorry, and he had never done
“this before.” Defendant also admitted that he was driving to an ex-
girlfriend who visited him in the hospital while he was recovering
from the injuries he sustained in the accident. The ex-girlfriend
testified, “He told me that he went to the bar with [decedent] and
before leaving the bar they got in an argument and he told me he
remembers driving like speeding because he was angry.” She further
testified that, several months later, defendant called her and said
that he had good news, i.e., that his statements to the police were
“getting tossed out,” and that, if the charges were dismissed, he
would use “this as a second chance to start school.”

     Further, the evidence established that the vehicle was registered
to defendant, and that decedent did not even have a driver’s license.
According to decedent’s father, with whom she and defendant lived,
decedent to his knowledge never had driven the vehicle. In addition,
an acquaintance of the couple who was at the bar drinking with them
before the accident testified that he saw defendant leave the bar with
keys in his hand and say, “I’m going home.” That witness also
testified that decedent followed defendant down the street, presumably
to the vehicle. Yet another witness testified that, when he saw the
vehicle in question speeding down the road moments before the
accident, the driver was “slouching” down in the driver’s seat and
leaning on the center console. Decedent was only four feet, nine
inches tall, seven inches shorter than defendant, making it unlikely
that she could have been so positioned while operating the vehicle.

     We also note that defendant’s expert witness agreed with the
People’s expert that the driver was ejected almost immediately after
the vehicle struck the tree, and that the passenger was in the vehicle
for a longer period of time after the collision, thus subjecting the
passenger to more injuries. Defendant sustained only a fractured leg
and a cut to his head, while decedent suffered many more injuries of
greater severity. It is undisputed that decedent’s blood was found on
the front passenger’s seat, and none of defendant’s blood was found
anywhere in the vehicle. Decedent’s body was found lying next to the
stopped vehicle, directly outside the driver’s door, as if she had
fallen out, while defendant was found some 20 to 30 feet away from the
vehicle, trapped under a trailer. Finally, defendant had a
compression injury to his left leg that appeared to have been caused
by his leg striking the window crank on the driver’s door, and the
Medical Examiner testified to a reasonable degree of medical certainty
that such injury was caused by the window crank.

     To be sure, defendant attempted at trial to explain or controvert
the above evidence, and there is other evidence suggesting that
decedent may have been operating the vehicle. In determining whether
the evidence is legally sufficient, however, we must view the evidence
in the light most favorable to the People (see People v Cabey, 85 NY2d
417, 420; People v Contes, 60 NY2d 620, 621), and afford them the
benefit of every favorable inference (see People v Bleakley, 69 NY2d
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490, 495). Applying that standard of review, we conclude that the
evidence is more than sufficient to establish that defendant was
operating the vehicle at the time of the accident.

     Moreover, viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we reject defendant’s further contention that the verdict is
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495). Defendant’s contention is based largely on his assertion that
the medical evidence conclusively establishes that decedent was
operating the vehicle. According to defendant, the injuries sustained
by decedent could have come only from her head striking the steering
wheel, which was bent toward the front windshield. We reject that
assertion. Although that medical evidence is probative, it is not
conclusive. As the People’s expert testified, decedent’s injuries
could have occurred by her head striking the center console or some
other part of the vehicle’s interior other than the steering wheel.

     Moreover, defendant’s expert agreed that decedent emerged from
the vehicle through the driver’s door, which opened upon impact, and
it is therefore possible that her head or face came into contact with
the steering wheel after the vehicle’s initial impact with the utility
pole. As noted above, both experts agreed that the driver was ejected
from the vehicle almost immediately upon impact with the tree.
Because the air bag in the steering wheel deployed immediately, then
quickly deflated, and the driver’s body was pushed sharply to the
left, and not forward, it is entirely possible, as the People’s expert
opined, that the driver’s head never struck the steering wheel. In
sum, we conclude that, although a different verdict would not have
been unreasonable, it cannot be said that the jury failed to give the
evidence the weight it should be accorded (see People v Kalinowski,
118 AD3d 1434, 1436, lv denied 23 NY3d 1064; People v Hennings, 55
AD3d 1393, 1393, lv denied 12 NY3d 758).

     Defendant next contends that his Miranda rights were violated and
that County Court therefore erred in refusing to suppress statements
he made to a sheriff’s deputy at the accident scene and at the
hospital, subsequent statements he made to an investigator, as well as
the results of a blood test conducted at the hospital showing that he
was intoxicated. We conclude that the court properly refused to
suppress that evidence. The first statement defendant sought to
suppress was his admission to the deputy at the accident scene that he
had “too much to drink” and that he had been driving the vehicle. The
deputy’s questioning of defendant at that time, however, was “merely
investigatory and did not constitute custodial interrogation to which
Miranda is applicable” (People v Saunders, 174 AD2d 700, 701; see
People v Williams, 81 AD3d 993, 993, lv denied 16 NY3d 901; People v
Palmiere, 124 AD2d 1016, 1016).

     We further conclude that defendant was not in custody when he was
questioned by the same deputy in the hospital trauma bay, where
defendant again admitted that he was driving, and that such admission
therefore was not obtained in violation of defendant’s Miranda rights
(see People v Rounds, 124 AD3d 1351, 1352, lv denied 25 NY3d 1077;
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People v Gore, 117 AD3d 845, 846, lv denied 24 NY3d 1084). “In
determining whether a defendant was in custody for Miranda purposes,
‘[t]he test is not what the defendant thought, but rather what a
reasonable [person], innocent of any crime, would have thought had he
been in the defendant’s position’ ” (People v Kelley, 91 AD3d 1318,
1318, lv denied 19 NY3d 963, quoting People v Yukl, 25 NY2d 585, 589,
cert denied 400 US 851). Here, defendant was not restrained in any
way by the police while at the hospital, and the questioning by the
deputy was investigatory and not accusatory in nature (see People v
Drouin, 115 AD3d 1153, 1155-1156, lv denied 23 NY3d 1019; People v
O’Hanlon, 5 AD3d 1012, 1012, lv denied 3 NY3d 645; People v Ripic, 182
AD2d 226, 231-232, appeal dismissed 81 NY2d 776).

      Inasmuch as it is common knowledge that the police prepare
reports with respect to motor vehicle accidents even where no criminal
conduct is suspected, we conclude that a reasonable, innocent person
in defendant’s position at the hospital would not have felt that he or
she was in custody when asked questions about the accident by the
deputy (see generally People v Borukhova, 89 AD3d 194, 212-213, lv
denied 18 NY3d 881, reconsideration denied 18 NY3d 955). Instead, a
reasonable, innocent person would have thought that the deputy was
“still in the process of gathering information about the [accident]
prior to taking any action” (People v Dillhunt, 41 AD3d 216, 217, lv
denied 10 NY3d 764; see People v Taylor, 57 AD3d 327, 328, lv denied
12 NY3d 860). Although defendant was in custody when he was
subsequently interviewed by the investigator, he knowingly and
voluntarily waived his Miranda rights before speaking to the
investigator (see People v Allen, 104 AD3d 1170, 1171, lv denied 21
NY3d 1001; People v Hernandez, 67 AD3d 820, 820-821, lv denied 13 NY3d
939).

     Defendant nevertheless contends that all of his statements to the
police should have been suppressed because, owing to his injuries and
the pain medication he was given at the hospital, he was incapable of
making voluntary statements. Similarly, defendant contends that he
was unable to voluntarily waive his Miranda rights and consent to the
blood test at the hospital. We reject those contentions. Even
assuming, arguendo, that defendant’s thought process was affected by
his head injury and the pain he experienced from his fractured leg, we
conclude that the record does not support a finding that he was
“unable to understand the meaning of his statements” (People v
Schompert, 19 NY2d 300, 305). Defendant responded appropriately to
questions asked of him by the deputy and the medical personnel who
treated him. For instance, when questioned by a nurse at the
hospital, defendant was able to state his name, his date of birth, and
the reason he was at the hospital. According to the nurse, who
testified at the Huntley hearing, defendant was aware of his
surroundings and did not appear to have difficulty understanding
anything that she said. Furthermore, when speaking to the deputy at
the hospital, defendant recalled the name of the bar he was at earlier
that evening, and accurately stated the name of the road on which the
accident occurred. As the court noted in its suppression decision, at
no time did defendant “give nonsensical or otherwise inappropriate
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answers to questions, nor did he ramble or rant on unrelated topics.”
Under the circumstances, we conclude that defendant’s cognitive
ability was not so impaired as to render him unable to make voluntary
and trustworthy statements (see generally People v Meissler, 305 AD2d
724, 725-726, lv denied 100 NY2d 644; People v Mercado, 198 AD2d 380,
381, lv denied 82 NY2d 927; People v Pearson, 106 AD2d 588, 588-589),
or to waive his Miranda rights knowingly and voluntarily (see People v
Torres, 220 AD2d 785, 786, lv denied 87 NY2d 908; People v Butler, 175
AD2d 252, 253, lv denied 79 NY2d 854).

     We have reviewed defendant’s remaining contentions and conclude
that they lack merit.




Entered:   December 31, 2015                    Frances E. Cafarell
                                                Clerk of the Court
