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

27
KA 12-01343
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBIN DROUIN, DEFENDANT-APPELLANT.


JOSEPH P. MILLER, CUBA, FOR DEFENDANT-APPELLANT.

KEITH A. SLEP, DISTRICT ATTORNEY, BELMONT (MICHAEL B. FINN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Allegany County Court (Thomas P.
Brown, J.), rendered May 17, 2012. The judgment convicted defendant,
upon a jury verdict, of vehicular manslaughter in the second degree
and criminally negligent homicide.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting her,
upon a jury verdict, of vehicular manslaughter in the second degree
(Penal Law § 125.12 [1]) and criminally negligent homicide (§ 125.10).
Contrary to the contention of defendant, we conclude that the evidence
is legally sufficient to support the conviction. With respect to the
vehicular manslaughter conviction, defendant contends that the People
failed to establish that she ingested a drug set forth in Public
Health Law § 3306 or that her ability to operate the motor vehicle was
impaired by such drug (see Penal Law § 125.12 [1]; Vehicle and Traffic
Law §§ 114-a, 1192 [4], [4-a]). We reject that contention. Defendant
admitted to the arresting officer that, prior to the accident, she
ingested oxycodone and alprazolam, both of which are listed in Public
Health Law § 3306 (Schedule II [b] [1] [14]; Schedule IV [c] [1]).
Several witnesses, including law enforcement officers and a registered
nurse who examined defendant at the hospital, testified that defendant
exhibited classic signs of drug impairment, including glassy,
bloodshot eyes; dilated pupils; slurred speech; and poor motor
coordination and balance (see People v Gonzalez, 90 AD3d 1668, 1668-
1669; People v Curkendall, 12 AD3d 710, 713, lv denied 4 NY3d 743;
People v Kraft, 278 AD2d 591, 591, lv denied 96 NY2d 864). Defendant
also failed four out of the six standard field sobriety tests
administered at the hospital. Further, a certified drug recognition
expert concluded based upon his evaluation of defendant that she was
under the influence of a central nervous system depressant and a
narcotic analgesic, and that she “was impaired and unable to operate a
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                                                        KA 12-01343

motor vehicle safely down the road” (see People v Clark, 309 AD2d
1076, 1077; People v Crandall, 255 AD2d 617, 618-619). With respect
to causation, once “it is established that the defendant was
unlawfully . . . impaired while operating the vehicle, ‘there [is] a
rebuttable presumption that, as a result of such [impairment] . . . ,
[the defendant] operated the motor vehicle . . . in a manner that
caused such death’ ” (People v Stickler, 97 AD3d 854, 855, lv denied
20 NY3d 989, quoting Penal Law § 125.12 [emphasis added]; see People v
Mojica, 62 AD3d 100, 108-109, lv denied 12 NY3d 856). Here, although
defendant claimed that the accident occurred because she was
distracted by the presence of an “unusually large number of
waterfowl,” and not because she was impaired, we conclude that the
above evidence, coupled with the circumstances of the accident,
provided the jury with a rational basis to reject that explanation
(see Curkendall, 12 AD3d at 713). We thus conclude that the evidence
is legally sufficient to establish defendant’s guilt of vehicular
manslaughter in the second degree beyond a reasonable doubt (see
People v Bain, 85 AD3d 1193, 1194, lv denied 17 NY3d 902; see
generally People v Bleakley, 69 NY2d 490, 495).

     With respect to the conviction of criminally negligent homicide,
Penal Law § 125.10 provides that “[a] person is guilty of criminally
negligent homicide when, with criminal negligence, he [or she] causes
the death of another person.” Criminal negligence “requires a
defendant to have ‘engaged in some blameworthy conduct creating or
contributing to a substantial and unjustifiable risk of’ a proscribed
result,” such as death (People v Conway, 6 NY3d 869, 872, quoting
People v Boutin, 75 NY2d 692, 696; see § 15.05 [4]). Here, we
conclude that the evidence that defendant took an oxycodone tablet
that was not prescribed to her, in combination with other prescription
medications that had been prescribed to her, and then operated a motor
vehicle “demonstrated that [she] engaged in conduct exhibiting ‘the
kind of seriously blameworthy carelessness whose seriousness would be
apparent to anyone who shares the community’s general sense of right
and wrong’ ” (People v Asaro, 21 NY3d 677, 685, quoting People v
Cabrera, 10 NY3d 370, 377; see Conway, 6 NY3d at 871-872; Kraft, 278
AD2d at 592).

     Defendant’s contention that the verdict is against the weight of
the evidence “is raised for the first time in [her] reply brief and
therefore is not properly before us” (People v Sponburgh, 61 AD3d
1415, 1416, lv denied 12 NY3d 929). Contrary to the further
contention of defendant, we conclude that County Court did not err in
refusing to suppress her statements to the police. Defendant was not
in police custody when the police initially questioned her at the
hospital and, in any event, we conclude that the questions were
investigatory rather than accusatory in nature (see People v Prue, 8
AD3d 894, 897, lv denied 3 NY3d 680; People v O’Hanlon, 5 AD3d 1012,
1012, lv denied 3 NY3d 645; People v Bongiorno, 243 AD2d 719, 720, lv
denied 91 NY2d 889; People v Bowen, 229 AD2d 954, 955, lv denied 88
NY2d 1019). We further conclude that “the record of the suppression
hearing establishes that [defendant] was not [impaired by drugs] to
such a degree that [s]he was incapable of voluntarily, knowingly, and
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                                                         KA 12-01343

intelligently waiving [her] Miranda rights” (People v Cimino, 49 AD3d
1155, 1157, lv denied 10 NY3d 861 [internal quotation marks omitted];
see People v Downey, 254 AD2d 795, lv denied 92 NY2d 1031). Contrary
to defendant’s contention, the People met their burden of proof at the
suppression hearing through the testimony of the two investigating
officers who elicited the challenged statements, and the People were
not required to produce a third officer who had minimal contact with
defendant upon her initial arrival at the hospital (see People v
Witherspoon, 66 NY2d 973, 974; People v Caballero, 23 AD3d 1031, 1032,
lv denied 6 NY3d 846; People v Holloway, 16 AD3d 1062, 1063, lv denied
5 NY3d 763).

     Although we agree with defendant that the court improperly
admitted in evidence a photograph of the victim taken when she was
alive because such evidence was not relevant to any material fact to
be proven at trial (see People v Stevens, 76 NY2d 833, 835-836; People
v Colon, 102 AD3d 705, 705, lv denied 21 NY3d 942; People v Dove, 233
AD2d 751, 754, lv denied 89 NY2d 1011), we conclude that the error is
harmless inasmuch as there was “overwhelming evidence of the
defendant’s guilt, and no significant probability that the error
contributed to [her] conviction[]” (Colon, 102 AD3d at 705; see People
v Jackson, 41 AD3d 1268, 1269; see generally People v Crimmins, 36
NY2d 230, 241-242).

     Contrary to the contention of defendant, we conclude that the
sentence is not unduly harsh and severe. Finally, we have reviewed
defendant’s remaining contentions and conclude that they are without
merit.




Entered:   March 21, 2014                       Frances E. Cafarell
                                                Clerk of the Court
