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

641
KA 08-00027
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SAMUEL SIERRA, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (David
D. Egan, J.), rendered November 5, 2007. The judgment convicted
defendant, upon a jury verdict, of manslaughter in the second degree,
vehicular manslaughter in the second degree, aggravated unlicensed
operation of a motor vehicle in the first degree, driving while
intoxicated (two counts), and a traffic infraction.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, manslaughter in the second degree
(Penal Law § 125.15 [1]). Defendant initially pleaded guilty to the
indictment with a sentencing commitment of a term of imprisonment of
4½ to 9 years. After County Court (Connell, J.) accepted the plea,
the People expressed their disagreement with that sentence. Judge
Connell determined that he would not abide by the sentencing
commitment and recused himself. The case was then assigned to a
different County Court Judge (Egan, J.), and defendant withdrew the
plea. We reject defendant’s contention that Judge Connell abused his
discretion in refusing to abide by the sentencing commitment of the
plea agreement. “The court . . . retains discretion in fixing an
appropriate sentence up until the time of sentencing” (People v
Schultz, 73 NY2d 757, 758) and, in view of Judge Connell’s explanation
for his determination not to abide by the sentencing commitment, we
cannot conclude that he abused his discretion (see generally id.).
Contrary to the further contention of defendant, he is not entitled to
specific performance of the plea agreement. “The remedy of specific
performance in the context of plea agreements applies where a
defendant has been placed in a no-return position in reliance on the
plea agreement . . ., such that specific performance is warranted as a
matter of essential fairness” (People v Herber, 24 AD3d 1317, 1318, lv
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                                                         KA 08-00027

denied 6 NY3d 814 [internal quotation marks omitted]). Upon our
review of the record, we conclude that specific performance of the
plea agreement is not warranted, and we reject defendant’s further
contention that media coverage of the plea withdrawal tainted the jury
pool.

     We further conclude that the contention of defendant that his
statements to the police were obtained in violation of his right to
counsel and were thus involuntary is without merit. Although
defendant abandoned that contention by failing to seek a ruling on
that part of his omnibus motion and failing to object to the admission
in evidence of the statements at trial (see People v Anderson, 52 AD3d
1320, lv denied 11 NY3d 733), it may be raised for the first time on
appeal (see generally People v McLean, 15 NY3d 117, 119; People v
Whetstone, 281 AD2d 904, lv denied 96 NY2d 909). Inasmuch as the
record establishes that defendant made an unequivocal request for
counsel (see generally People v Porter, 9 NY3d 966, 967), we address
that contention here (see McLean, 15 NY3d at 119, 121). Even
assuming, arguendo, that defendant’s indelible right to counsel had
attached when he made the disputed statements (see generally People v
Ramos, 99 NY2d 27, 32-33; People v Casey, 37 AD3d 1113, 1115, lv
denied 8 NY3d 983), we conclude that the statements were spontaneous
inasmuch as “they were in no way the product of an interrogation
environment [or] the result of express questioning or its functional
equivalent” (People v Harris, 57 NY2d 335, 342, cert denied 460 US
1047 [internal quotation marks omitted]; see People v Rivers, 56 NY2d
476, 480, rearg denied 57 NY2d 775; People v Stoesser, 53 NY2d 648,
650).

     We reject the contention of defendant that the order permitting
the chemical test of his blood was not obtained in compliance with
Vehicle and Traffic Law § 1194 (3). Even assuming, arguendo, that the
Assistant District Attorney and County Court (Bellini, J.) failed to
comply with the requirements of Vehicle and Traffic Law § 1194 (3) (d)
(2), we conclude that such noncompliance “was of no moment because
there was the requisite substantial compliance with the requirements
of the statute” (People v Dombrowski-Bove, 300 AD2d 1122, 1123).
Defendant further contends that the application for the chemical test
of his blood was insufficient because the witnesses who offered
statements in support thereof were not placed under oath. We reject
that contention. “[A]n application for a court-ordered blood test may
contain hearsay and double hearsay statements that satisfy the
Aguilar-Spinelli test[ if] the application . . . disclose[s] that it
is supported by hearsay and identif[ies] the source or sources of the
hearsay” (People v Freeman, 46 AD3d 1375, 1377, lv denied 10 NY3d
840). “[T]he two-part Aguilar-Spinelli test requir[es] a showing that
the informant is reliable and has a basis of knowledge for the
information imparted” (People v Monroe, 82 AD3d 1674, 1675 [internal
quotation marks omitted]; see People v Ketcham, 93 NY2d 416, 420) and,
upon our review of the record, we conclude that the Aguilar-Spinelli
requirements were satisfied here. Inasmuch as the application at
issue was written rather than oral, defendant’s contention that the
application did not comply with the requirements of Vehicle and
                                 -3-                              641
                                                            KA 08-00027

Traffic Law § 1194 (3) (d) (3) is of no moment.

     Contrary to defendant’s further contention, Supreme Court (Egan,
J.) properly admitted in evidence at trial the results of the chemical
test of his blood. “It is well settled that a foundation establishing
the reliability and accuracy of a machine used to measure blood
alcohol content is a prerequisite to admitting the results of a blood
alcohol test into evidence” (People v Baker, 51 AD3d 1047, 1048; see
People v Campbell, 73 NY2d 481, 485). We conclude that the People
established the requisite foundation for the admission of those
results (see generally Campbell, 73 NY2d at 485; Baker, 51 AD3d at
1048-1049). We reject defendant’s contention that the witness who
testified regarding the test of defendant’s blood was not qualified to
testify with respect to the accuracy of the machine used to conduct
that test (cf. Campbell, 73 NY2d at 484-486).

     Finally, the sentence is not unduly harsh or severe.




Entered:   June 17, 2011                          Patricia L. Morgan
                                                  Clerk of the Court
