                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 7, 2016                      107343
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

MYRON GREEN,
                    Appellant.
________________________________


Calendar Date:   May 25, 2016

Before:   Peters, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.

                             __________


     Joseph R. Brennan, Queensbury, for appellant.

      Kathleen B. Hogan, District Attorney, Lake George (Emilee
B. Davenport of counsel), for respondent.

                             __________


Devine, J.

      Appeal from a judgment of the County Court of Warren County
(McKeighan, J.), rendered March 13, 2015, upon a verdict
convicting defendant of the crimes of manslaughter in the second
degree and reckless endangerment in the second degree.

      Defendant struck and killed a pedestrian while driving an
automobile around noon on June 21, 2012 in the Town of Bolton,
Warren County. Defendant disclosed to officers responding to the
scene that he had taken antianxiety medication prior to the
crash. Defendant told one patrol officer for the Warren County
Sheriff's Office in particular, Haley Grace, that he had taken
two central nervous system depressants earlier in the day,
including twice his prescribed dosage of Clonazepam and a dose of
Paxil. He further admitted that the Clonazepam made him
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"sleepy," and Grace subjected him to a breathalyzer test that was
negative and field sobriety tests that revealed him to be
impaired. Defendant agreed to travel to the police station for
further testing and was advised of his Miranda rights upon his
arrival, after which he stated that he wanted to "talk to [his]
attorney." The request was ignored and defendant was subjected
to a drug recognition evaluation (hereinafter DRE) that revealed
him to be impaired, an additional breathalyzer test that was
negative and two blood tests, one of which conducted pursuant to
a warrant, that revealed the presence of depressants in his
system.

      Defendant was charged in an indictment with offenses
stemming from the fatal accident. His pretrial motion to
suppress the statements that he made to investigators after he
purportedly invoked his right to counsel, as well as the results
from the various tests conducted after that time, was denied.
Defendant was thereafter convicted by a jury of manslaughter in
the second degree and reckless endangerment in the second degree.
County Court imposed an aggregate prison sentence of 2 to 6
years. Defendant now appeals.1

      Defendant asserts, and the People do not seriously dispute,
that he was in custody by the time he was administered Miranda
warnings at the station (see People v Hardy, 223 AD2d 839, 841
[1996]). The People further conceded at oral argument that
defendant invoked his constitutional and limited statutory right
to counsel in response to those warnings and that, under the
circumstances of this case, valid grounds existed to suppress his
post-invocation statements and evidence related to the DRE,
second breathalyzer and blood tests (see Vehicle and Traffic Law
§ 1194 [2] [a] [1]; People v Higgins, 124 AD3d 929, 931-932
[2015]; People v Mora-Hernandez, 77 AD3d 531, 531 [2010]).2 The


     1
        Defendant's application for bail pending appeal was
granted by this Court, but that order was subsequently revoked
(2015 NY Slip Op 66036[U] [2015]).
     2
        The second blood test was obtained pursuant to a warrant
and, while the applicant for that warrant cited his belief that
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erroneous admission of this evidence is reviewed under the
harmless error doctrine, and such an error is considered harmless
"when, in light of the totality of the evidence, there is no
reasonable possibility that the error affected the jury’s
verdict" (People v Lopez, 16 NY3d 375, 386-387 [2011] [internal
quotation marks and citations omitted]; accord People v Dashnaw,
85 AD3d 1389, 1391 [2011], lv denied 17 NY3d 815 [2011]). The
admissible evidence at trial established that defendant took
twice his prescribed dosage of Clonazepam the morning of the
accident and that he failed field sobriety tests administered at
the scene. Nevertheless, inasmuch as defendant's inadmissible
statements, the recording of the DRE test and the evidence of the
inadmissible test results themselves may well have contributed to
the conviction, it cannot be said that the erroneous admission of
that evidence was harmless (see People v Dashnaw, 85 AD3d at
1391-1392; People v Van Patten, 48 AD3d 30, 35-36 [2007], lv
denied 10 NY3d 845 [2008]; People v Hilliard, 20 AD3d 674,
678-679 [2005], lv denied 5 NY3d 853 [2005]). Thus, the
conviction must be reversed and the matter remitted for a new
trial.

     Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ., concur.




defendant had committed an offense other than one found in
Vehicle and Traffic Law § 1192, "a search warrant may validly be
issued to obtain a blood sample" if probable cause exists to
believe that "a[ny] violation of the Penal Law" has occurred
(People v Casadei, 66 NY2d 846, 848 [1985]; see People v Goodell,
164 AD2d 321, 326 [1990], affd 79 NY2d 869 [1992]). That being
said, the application for that warrant relied in significant part
upon the inadmissible DRE results, and "the derivative evidence
seized under color of the subsequent search warrant" must also be
suppressed (People v Burr, 70 NY2d 354, 362 [1987], cert denied
485 US 989 [1988]; see Murray v United States, 487 US 533, 542
[1988]).
                              -4-                  107343

      ORDERED that the judgment is reversed, on the law, motion
to suppress statements made and evidence related to testing
conducted after defendant's right to counsel attached granted and
matter remitted to the County Court of Warren County for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
